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May 27. 2014 10:50PM

Charles M. Arlinghaus: Trading horses behind closed doors


 

THE MOST annoying and disheartening time of the legislative year is upon us. It is the time when transparency and honest debate are sacrificed on the altar of hidden agendas in pursuit of that elusive legislative pot of gold, “a deal.” Committees of conference are legislative mini-summits where the romanticized version of a smoke-filled room creates comparisons to sausage making that do a distinct dishonor the noble smoked meats.

In a Legislature of two chambers, disagreements are common. This year, with opposite parties controlling each body, disagreements are plentiful.

When one body merely rejects the bill that passed the other, nothing happens. Yet, quite often, each body will pass a different version of the same bill. In such cases, negotiators are appointed and a committee of conference meets to find common ground.

Finding areas of agreement seems straightforward enough, but the all-too-human machinations in pursuit of “a deal” are what gave rise to the legislative sausage-making metaphor.

That metaphor’s history is a bit like the process itself. In 1869, John Godfrey Saxe found legislative machinations as convoluted then as now and wrote “Laws, like sausages, cease to inspire respect in proportion as we know how they are made.”

The quote was memorable, but Mr. Saxe was not, so one textbook writer in the 1930s started his description of legislative shenanigans with, “I think it was Bismarck who said….” For decades no one bothered to check the writer’s uncertainty and so we incorrectly attribute the thought to Germany’s Iron Chancellor Otto von Bismarck.

Much of the legislative process is transparent and merely involves two sides disagreeing. The slightly distasteful committee of conference process has rules, but so many of them aren’t what they seem. In theory, the two sides negotiate and all must agree. This helps prevent a small clique from seizing power from a majority. In practice, the Senate president or House speaker can and does remove and replace anyone not toeing the line.

In theory, everything agreed to should have been part of one bill or the other; after all we are supposedly just ironing out details of difference between similar bills. But the rules are slightly different. They allow anything in the final product that is simply the subject of either version. If the subject is interpreted broadly — and it is when that is useful — this allows pretty near anything to come back to life.

There are roughly 80 conference committees hashing out agreements. That doesn’t mean there are 80 disagreements. Sometimes, the building blocks of deals are tacked on to other bills at the end of the regular session to preserve negotiating power.

For example, an innocuous bill to create a voluntary fund for robotics education had a liquor sample bill tacked on the end of it. The message is “we don’t disagree, but if you want this passed, you have to give us something in return.”Small potatoes horse trading, to mix a few metaphors, isn’t of much concern to anyone. But on large, complex bills, new ideas can be introduced that no one has had a chance to consider and that have had no public hearing. And yet they need to be voted on almost immediately.

At the end of the Great War, Woodrow Wilson called for “Open covenants of peace, openly arrived at, after which there shall be no private understandings of any kind but diplomacy shall proceed always frankly and in the public view.” The same frustration might be expressed about legislators.

Too often, the open public meeting is a sham. Very brief, uninformative, and highly choreographed meetings are a theatrical production. The meetings are rare and short while the recesses are long and hidden. In fact, agreements are arrived at behind closed doors during what is ostensibly a recess. Diplomacy occurs out of the public view, and we’re never quite sure what happened.

In Wilson’s time, professional diplomats relished the intrigue and gamesmanship of old fashioned secret diplomacy. Today, a subset of legislators and staff romanticize the “sausage-making.” Playing the game and the art of the deal create a sense of separation from the rest of us who aren’t “in the know.”

Wilson may have been naïve about international diplomacy but we all have cause to be a little wary of backroom deals. I like knowing what’s in my sausage.

Charles M. Arlinghaus is president of the Josiah Bartlett Center for Public Policy, a free-market think tank in Concord.


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