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“This Is The Choice That Our Founders Made”

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In a superb essay for RealClearPolitics, “Mr. Madison Votes Nay,” Jay Cost reminds readers that the reason most bills die (and almost all sweeping ones do) is that the Constitution put in place a legislative process that would be exceedingly difficult to steam roll:

This is the choice that our founders made. They chose governmental “gridlock” and “failure” over programmatic efficiency and “success.” Why? They feared that programmatic efficiency would enable one faction to railroad another, thus endangering true republican government. If no faction has control over another, true republican government is possible. The price we must pay is programmatic efficiency.

Read the whole thing.  The expectations of the chattering class –for bipartisanship, “progressive” change, consensus– are without historical and philosophical basis.  Pundits (and disappointed special interests) denounce a system that empowers many people with many vetoes, but that blueprint is a very good thing thing.  The astonishing floor statement of Trent Lott yesterday —audio here— contained at least two good lines: “You can’t ram the Senate.  You can’t ram the minority around here.” (Here’s the transcript of Mark Steyn’s evisceration of Trent Lott’s speech.)  Unveiling a massive and far reaching bill and then suggesting it was a bill that could be disposed of in two weeks of debate was the warning flare.  John McCain’s opening declaration demanding acquiescence was another.  The slow pace of the amending process and the inability to get a coherent debate organized was a third.

The framers would have been aghast at such a play, and the Senate itself is not engineered for anything like the jam down that was attempted.  The problem of millions of illegal aliens in the country and of a porous border is in fact huge.  It took twenty years to develop, and it couldn’t be solved in ten days of debate.  Harry Reid’s decision to stalk off in anger because he didn’t get his jam down is a tired bit of theater, unpersuasive even to his own party faithful.

What should happen next?  The Bush Adminstration should have gotten a huge message that the credibility it needs to advance a regularization bill depends upon the successful implementation of the fence and a credible system for conducting background checks and employment verification.  If the president returns from Europe eager to try again –and I suspect he will– he ought to be calling Secretary Chertoff with a demand for a weekly update of the plans for the fence and a website where Americans can see the real progress that has been made and the concrete plans for the next phase.  Similar transparency on the background and employment check systems should be forthcoming as well.

On the Hill the Grand Bargainers should reconvene and ask themselves what, exactly, did they learn from the past three weeks.  If Ted Kennedy is the legislator that Trent Lott made him out to be, he’ll realize that he overreached and that the bill must be recut to address the GOP agenda of security and credible enforcement guarantees.  That is possible to do, and the fact that Democrats clearly don’t want to do that may become a crucial issue in 2008.  Republicans need to stand on the idea of regularization backed by common sense and clear security goals.  The party doesn’t have to embrace Tom Tancredo’s deportation agenda or his extreme rhetoric of ending legal immigration.Senator McConnell’s shut down of the jam down should earn him a lot of credibility with the party activists, and he needs only to keep John Kyl and John Cornyn in charge of any renewed negotiations armed with the new leverage they have gained via the demonstration of the GOP’s willingness to stand together on the side of security.  Add Jeff Sessions to the negotiating team and any bill agreed to will come back to the floor in much better shape than before.

So Round 1 to the realists, both as to the security issues and also to the broader point of how the Congress operates.  Now it is Mr. Reid’s choice: Does he want a bill?  If so he will give ground and time to the GOP, and if a new version appears shorn of its worst features and bulked up in crucial respects, he won’t try and con America on a process designed not to illuminate and persuade but to cajole and jam down.


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