By James Sasso*
Even though the Dallas Mavericks are his namesake, Senator John McCain has embraced the philosophy of the Philadelphia 76ers basketball team: trust the process. For 76ers’ fans, this mantra played like a jukebox stuck on Sting’s Desert Rose; at first it’s tolerable, but quickly it’s maddening. Fans suffered years of horrendous teams while management stockpiled draft picks, sidelined promising young talent, and refused to spend money on free agency. But now, “the process” has blossomed into a young core of talent that could remake the Eastern Conference.
Senator McCain wants Americans to suffer the same pain. In July, he sunk liberal (and many moderate) hearts by casting the deciding vote on the motion to proceed to debate a repeal of Obamacare. He then delivered a powerful speech on how senators must trust the process by actually debating legislation (despite having just voted to proceed on a bill no one had read, let alone seen). And then, finally, he cast the deciding vote against a “skinny” repeal because it had not gone through the proper process. Process, it’s all about process, and McCain joined the steadfast opposition of Senators Lisa Murkowski (R-AK) and Susan Collins (R-ME) to defeat a bill these senators knew had not endured the open debate and evaluation that legislation should experience.
McCain decided that he needed to embody millions of Americans’ frustration with congressional acrimony, obstruction, and partisan wrangling. “Why don’t we try the old way of legislating in the Senate,” he asked, “the way our rules and customs encourage us to act?” According to him, the once-lauded Senate has devolved into a partisan arena bordering on the acerbity apparent in the House of Representatives. The Founders hoped that the Senate’s institutional structure—six year terms and a less-direct link to voters—would insulate it from ideological squabbles and allow it to deliberate and create superior legislation, freed from the need to pacify society’s loudest, most dogmatic desires. For years, McCain served in a body that functioned along those lines, but it, like so many other governmental institutions, has foundered against polarization.
And therein lies McCain’s argument’s power: trust the process. The best type of lawmaking results from a dialectic conversation. As there is no philosopher king among us, no one person, and no one party, has all the answers. While debate will not discover any final “truth” or perfect policy, the best kinds of legislation are those formed when proponents listen to opponents’ critiques and work to overcome them. Today’s politicians have lost faith in the process because they have lost faith in the value of the opposition. On most issues, each side preemptively believes that the other is intellectually bankrupt and that going through the process will only damage potential legislation. Moreover, they face incredible pressure from constituents to pursue a dogmatic course of policy along partisan lines. Trusting the process takes patience and courage. It’s messy and results in “impure” ideological compromises. But Congress should be brave enough to know that this process makes better legislation.
Those experienced in lawmaking, like McCain, or those who are lawyers, like many elected officials, should know this is true. The history of law, especially common law in America, instructs that the best policies are not born unilaterally. Ideally, creating law is a conversation that involves adversarial thinkers whose ideas are brought together into a workable solution. The process takes time, patience, and some misfires. People continue to debate the existence of these laws to improve them. Judges make decisions and the law evolves. The process continues.
It is heartening to see McCain vote against a bill that would accomplish what he has stated his desire to be—unraveling Obamacare—because of a principled call for elected officials to resume their faith in the process. It will be slower than using parliamentary maneuvers to steamroll the opposition, but it will create better law if our representatives deliberate with honesty. As McCain said, “Let’s trust each other. Let’s return to regular order.” Philadelphia 76er fans can attest that with time, the process works. The Founders, like the 76ers, created a system dependent on deliberation, patience, and faith that the process would create optimal results over the long term instead of responding to calls for immediate action. It is far past time that our elected officials again trust the process.
*James Sasso is a 2L at Harvard Law School