The conservative case for Republicans to stop lawmaking in secret

When Congressional Republicans return from recess next week without anything to show for their party's unified control of Washington, it will be time for them to attempt something radical: a return to regular order in both houses of Congress.

Regular order refers to the normal legislative process in which bills are introduced in their relevant committees, subjected to public hearings, debated, amended, and approved, before moving to the floor toward a vote by the full House or Senate.

Though Congress has steadily drifted away from making bills into law through the traditional procedures, the deterioration of legislating standards reached farcical heights this summer. As Republicans raced to fulfill their seven-year promise to repeal and replace Obamacare before leaving Washington for August, they bypassed committees in favor of a leadership-directed process in which legislation was being written in secret by a small group of staffers. This produced a bizarre situation in which not only were key senators unaware of what was in a bill they were about to vote on, they were even unclear on who was writing it.

Senate Majority Leader Mitch McConnell's hope was that skipping the traditional steps of legislating would allow Republicans to send bills to President Trump's desk on priorities such as healthcare and tax reform in rapid succession. McConnell believed it to be necessary because of the narrow window a new president has to enact major agenda items between his inauguration and the first midterm election season. The justifications Republicans gave for abandoning regular order typically involved pointing out that both McConnell's predecessor, Harry Reid, eroded Senate traditions to empower the majority party and limit debate when Democrats controlled the Senate, and that current Sen. Minority Leader Chuck Schumer has been determined to deny Trump any legislative victories, making bipartisan deal-making a pipe dream.

But as tempting as it may be for Republicans to seek ways around the cumbersome process of passing legislation, returning to regular order would improve policy outcomes, make for better politics, and ultimately benefit the cause of conservatism.

The failed effort to pass healthcare legislation was a perfect demonstration of how a problematic process can lead to bad policy. In pushing a healthcare bill through the House, Republicans avoided full hearings and voted on a bill without a final score from the Congressional Budget Office (CBO). Healthcare policy involves many complex interactions and tradeoffs. In the mad dash to pass anything they possibly could, Republican leaders introduced a rough combination of policies without giving them adequate thought. For instance, creating an opening for insurers to get out of some, but not all, Obamacare regulations poses risks to the stability of insurance markets.

A more functional process, in which legislation was debated at the committee level, opened up to a wide range of ideas, and subjected to testimony and input from experts, could have allowed for more time to study some of the potential effects of various proposals, and led to a more refined and well-thought out piece of legislation. It could have improved the final product and helped build consensus among Republicans and built confidence in the process among the public. Politicians and voters are much more likely to support a bill if they have some input in the final product and if they feel the process that produced it was fair.

Short-circuiting this process leaves the majority party open to attacks about governance that are especially effective because they are non-ideological. Starting with their successful campaign in the 2010 midterms, Republicans made the process that was used to pass Obamacare politically toxic for Democrats. They assailed the lack of transparency, back room deal-making, and the general impression that the law was rammed down people's throats when they didn't understand it. This helped Republicans win Senate seats in states, such as Massachusetts, where voters may not have opposed Obamacare on limited government grounds.

Likewise, Republican secrecy surrounding the drafting of the healthcare bill allowed Democrats to effectively raise suspicions about the legislation, arguing that Republicans were trying to hide their agenda from the public because they couldn't defend it in the open. This helped drive support for the Republican Senate plan to as low as 12 percent.

Defenders of the current GOP approach have argued that it is unrealistic to expect any bipartisan cooperation from Democrats, especially on charged issues such as healthcare. This is why Republicans pursued the process of reconciliation, which would have enabled them to pass a bill with a narrow majority of 51 votes. But even if Republicans ultimately had to go this route, there's no reason why it would preclude them from holding hearings, working through the committees, waiting for CBO scoring, and having a more open debate.

Conservatives also have a long-term interest in returning to regular order. It is conservatives who should want to preserve traditions and make it more difficult for the majority party to sweep into power and rapidly institute transformational change. One of the main reasons that the United States has avoided becoming a full-fledged European-style welfare state is that its system of government, with multiple choke points, makes it difficult to enact major bills.

The biggest liberal achievements have always hinged on Democrats amassing overwhelming majorities (as they did during the New Deal era under Franklin Roosevelt, the Great Society under Lyndon Johnson, and the early period of Barack Obama's first term). A system resistant to sudden, sweeping change is a conservative's friend. If the majority can easily impose its will, a narrow Democratic majority might be able to pass single-payer healthcare, cap-and-trade, and massive tax increases into law in just one two-year congressional term.

For the first seven months of the year, Republicans tried to race through the legislative process. They took all the hits and mockery for pursuing an opaque process, hiding legislation from even their own members until just before votes, and that ultimately failed. As they look to the fall, whether they get back to healthcare, move on to tax reform, or deal with routine spending bills, Republicans should behave like true conservatives and make Washington more open and accountable to the people.