Saturday, October 31, 2009

The End of Liberalism: Popular Anger Strikes at the Legislative Equivalent of Insider Trading--Again

"A crisis in public authority...the atrophy of institutions of popular control." Those words do not appear in a well-argued editorial "A 1,990-Page Medical Monstrosity," appearing in Thursday's Investor's Business Daily. But those particular words--"crisis...atrophy"--would have fit right in to that IBD piece; as we shall see, the trainwreck of this latest legislation was foreseen by one astute political scientist, Theodore Lowi, four decades ago; Lowi saw that the ballooning complexity of social-welfare legislation would enable special interests to honeycomb the arcane legislative and legal language with special favors and secret codicils--thereby undermining public confidence in any legislation and any vision of truly representative government.

But in the meantime, the IBD editorial zeroes in some typical sneakiness in the new bill:

As the Hudson Institute's Hanns Kuttner noted on the National Review Web site, you would have to devour 221 pages a day to have read this life-changing legislation in its entirety before it comes to a vote, promised for before Veterans Day, Nov. 11.

Weeks after its unveiling, new tricks are still being discovered within the Senate health bill. Kaiser Health News' Julie Appleby reported Thursday that, despite claims the bill will limit what those in the lower and middle income groups will pay for health insurance, "The fine print shows that, over time, the premium costs could rise well beyond those caps."

And many other critics have made many other good criticisms of the House bill: about its cost, its overreach, its new provision to protect trial lawyers, and its general byzantine-ness.

Speaker Nancy Pelosi and her House Democrats argue, of course, that such length and complexity is necessary, to meet the health-insurance needs of more than 300 million Americans.

Maybe, but maybe not. Here at at Serious Medicine Strategy, we are reminded that the Social Security Act of 1935 was less than 16,000 words, while the new House bill is about 400,000 words.

Something has obviously happened--something bad--to our capacity to write and speak and legislate clearly. Is Kafka-esque too strong a word? No! After all, the real Franz Kafka worked for a time, a century ago, as a workman's compensation clerk--he knew about the alienating effects of bureaucratizing misfortune and misery. Of course, this alienation factor doesn't invalidate the idea of workers' comp, or of health insurance. Instead, the potentially dread combination of bad news and bureaucracy serves to remind those who operate such programs that they have a special duty to reassure ordinary people about the way those programs are being run. To reassure people who might wonder if there are any, say, death panels lurking within the forbidding walls of our castles of insurance. Making sure that unjustified paranoia continues to be unjustified is a principal reason why transparency and accountability are so important to any healthcare reform effort.

By contrast, today, healthcare advocates seem to revel in a kind of bland Kafkaism. They have absorbed the worst of spin-doctoring and the worst of litigious pettifogging. So the new bill is soothingly named the Affordable Health Care for Americans Act--and then it clocks in at an intimidating law-library length.

Which nobody can deny--because nobody can understand. That point, about the overall incomprehensibility of these bills, was memorably made by Sen. Tom Carper: “I don’t expect to actually read the legislative language because reading the legislative language is among the more confusing things I’ve ever read in my life,” the Delaware Democrat told on October 2. (I wrote about Carper's startlingly candid admission here.)

In addition, it seems clear--clear as mud--that one of the reasons for such legislative complexity is that the real goal of the complexifiers is obfuscation: hide the nasty needles in the biggest possible haystack. And so only a close reading of the new bill reveals that "death panels"--oops, make that death counseling provisions--are making a furtive comeback, burrowed within that two-foot-high-stack of paper.

Of course, such hideous complexity is not at all popular. As Peggy Noonan observed last summer, if people don't understand a piece of legislation, and they doubt the motives of the legislators, their instinct is to assume that the politicians are trying to pull a fast one--and so regular folks say "no," even "hell no." Hence the town hall protestors, and the tea partiers. And the polls, which show that most people support healthcare reform in theory, but think that anything Congress passes will make healthcare worse.

This populist suspicion about self-dealing by the process-controlling elites--we might call it the political equivalent of insider trading--was acutely foreseen, and ably described, back in 1969, by the well-known political scientist Theodore Lowi of Cornell University, in his book, The End of Liberalism. Lowi precisely described the policy crisis of the welfare state, which has so discredited liberalism over the past four decades.

I wrote a column for the LA Times about Lowi's brilliant book during the last big national healthcare debate, back on September 21, 1993. Here are some excerpts, from my discussion of Clintoncare, 16 years ago:

The biggest challenge [Bill Clinton] faces is the deep public skepticism that the government really is here to help us.

Theodore Lowi saw it coming. In 1969, he wrote The End of Liberalism, a far-reaching critique of the post-New Deal welfare state. Lowi, a former president of the American Political Science Association now at Cornell, is no conservative. He would describe himself as committed to real democracy, which he sees as threatened by the delegation of legitimate authority to the Iron Triangle of bureaucrats, lobbyists, and special interests.

As government grows bigger and bigger, Lowi argued, representative government will inevitably give way to the undemocratic rule of insiders. Think about it: how many Members of Congress actually read the 1000-page legislative phone books they vote for? They can barely lift them, let alone comprehend them. So elected officials turn to un-elected officials to explain, interpret, and implement the law with thousands more pages of legalese. It's like the Marx Brothers movie, "A Day at the Races": you need a code book to interpret the code book.

Lowi coined the phrase "interest-group liberalism," to describe the bargaining and brokering among the Washington elites that has characterized American politics since the 30s. What we will get, Lowi prophesied, is "a crisis of public authority" leading to the "atrophy of institutions of popular control."

And I concluded that 1993 column with these words:

If popular sovereignty is to mean anything, then sovereign power has to be understandable to the populace. Lowi's book is a restatement of the truism: the devil is in the details. A quarter century ago, he warned us that the details were drowning us. Today, it looks as if democracy is about to take another dunking.

A sixth of a century after my column, and almost half a century after Lowi's book first appeared, nothing much has changed. The End of Liberalism is still in print, as it should be.

Reading, or re-reading, the book today is a sobering experience for anyone. But liberals, the people whom Lowi was mostly addressing back in 1969, ought to draw particular guidance. Lowi wasn't their enemy, back then; he was their constructive critic. But it would appear that today's liberals have chosen, yet again, not to heed Lowi's wise warning.

And now, at a time when 60s-style mistrust of authority seems to be afflicting just about every American institution, public and private, Pelosi and her liberal establishment have chosen to be part of the problem, not part of the solution.

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