Tax Reform

Mitch McConnell Says Caring About Legislative Process is For Losers. He's Wrong.

Rushing a bill to a vote makes for messy legislation that comes apart over time.


Tom Williams/CQ Roll Call/Newscom

Early in the morning on Saturday, after Senate Republicans passed major tax legislation on a party-line vote, Senate Majority Leader Mitch McConnell took a question about the speed with which the bill had been passed.

The final text of the bill, which ran nearly 500 pages, had been released just a few hours before the vote, and included pages that were crammed with handwritten notes at the margins, and portions of legislative text crossed out in pen. Last-minute deals were struck with several GOP senators throughout the day, and those changes as well as others had been hastily added into the bill.

What did McConnell think of some of the process concerns that Democrats had raised in objection to the bill? McConnell's response was to dismiss the worriers as losers: "You complain about process when you're losing."

What McConnell was saying, essentially, was that process doesn't matter. It's a common idea in Washington, especially amongst those who hold power. It's also wrong.

In a narrow sense, McConnell's declaration is demonstrably true. Democrats griped about the messy process on the GOP tax bill as they were heading towards a loss. Similarly, under President Obama, Republicans complained bitterly about the process that Democrats used to pass the health care bill. On the night of a crucial vote for that bill, John Boehner delivered a fiery rant about the murky process by which the bill was drafted and passed: "Look at how this bill was written. Can you say it was done openly? With transparency and accountability? Without backroom deals struck behind closed doors hidden from the people? Hell no you can't!"

The Obamacare debate was an example of McConnell's principle at work: Republicans complained about process, and they lost.

At the same time, Democrats have spent the last seven and a half years fighting to uphold Obamacare in part because of the legislative process that was used to pass it: House Democrats had to accept a flawed Senate bill that was originally expected to be heavily revised before becoming law. But that text ended up having numerous errors, glitches, and unintended effects that have helped make implementation difficult and have contributed to the instability of the law.

The conventional political wisdom, meanwhile, is that voters don't care about process. Procedural issues are too arcane for most to follow, and largely irrelevant. What voters care about are policy results. To some extent, that's as it should be: Most voters don't need to keep up with the intricacies of the Byrd rule or the minutia of legislative markups and committee votes.

But elected officials in Congress aren't most voters. And it is their responsibility to ensure that the processes by which they craft and pass laws meet certain standards. Doing so protects the public from poorly written legislation, and, at least in theory, it protects the integrity of the legislative process.

Following the passage of Obamacare in 2010, that is what Republicans said they would do after winning back majority control of the House. Republicans called for a 72-hour rule that would make bills available to read for three days before a vote.

That was in the House, not the Senate, but the underlying idea Republicans were pushing was that majority parties should not rush hastily crafted legislation to a vote before giving both the public and elected officials time to read the final text, to examine it for unintended errors as well as unforeseen consequences. That is not what happened in the Senate last weekend.

Instead, Senate Republicans rushed a vote on a bill that even they had not read in full. And it is clear that, independent of the merits of the overall policy scheme, the actual legislation is a mess. "The more you read, the more you go, 'Holy crap, what's this?'" Greg Jenner, who served in the Treasury Department under President George W. Bush told Politico. "We will be dealing with unintended consequences for months to come because the bill is moving too fast."

In the same article, another tax expert warns that a provision meant to stop tax avoidance related to business losses would, in its current form, probably just end up creating a disincentive for individuals to start companies. On Twitter, NYU public policy professor Lily Batchelder noted ethat a provision dealing with the corporate alternative minimum tax appears to be written in a way that would tax corporations far more than estimates suggested.

Tax policy is complex, and writing legislation designed to rework the intricate and often confusingly messy structure of the tax code as it already exists is a challenge under the best circumstances. Understanding the full effects of even seemingly straightforward tax policy changes takes time, because of the variety of financial arrangements that are involved, and because of the multiple ways that tax provisions are linked. By rushing the bill to a late-night vote, Republicans effectively ensured that the legislative text would be riddled with errors, ambiguity, internal contradictions, and unintended consequences.

Republicans still have an opportunity to fix the most glaring and obvious glitches during the process of merging the House and Senate bills. But even that effort looks as if it may be put on an accelerated timeline as well. The risk of introducing new errors, or not finding glitches that already exist, remains heightened.

A slower and more deliberative process might have carried with it more short-term political risks for Republicans, since it would have provided more time for opponents to criticize the bill. But it likely would have avoided some of the most obvious flaws and missteps with the current legislation, and might have helped the bill more stable and successful in the long run. And that is why it's not just losers who should care about process: Better process makes for better laws—and can help political winners secure even bigger victories.