Post 6: AHCA and the Tyranny of the Minority

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House Speaker Paul Ryan announcing that AHCA would not pass the House of Representatives. (PBS News Hour, 2017).

“Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.”

–       Winston Churchill

In the months leading up to the 1787 Constitutional Convention, James Madison pondered the survival of constitutional democracies. In his studies, Madison found that republics often fell to factional influence that disregarded public utility in favor of their own interests.

As the Convention concluded in September 1787, Madison, Alexander Hamilton and John Jay wrote 85 essays in favor of ratification titled the Federalist Papers. In Federalist # 10, Madison warned of the dangers that political factions posed to republics. Madison described a faction as “a number of citizens, whether amounting to a majority or minority of the whole, who are united … by some common impulse of passion” that is “adverse to the rights of other citizens.” [1] With this in mind, Madison sought to placate dangerous factions by controlling their influence while preserving the character of a free republic.

Madison’s plan focused on two kinds of factions. Majority factions have the electoral ability to advance their own interests at the expense of public utility. [2] Madison’s solution to majority influence was geographical. In a large republic, majority opinion would be confined to small areas and spread among far-reaching places. As a result, a faction might dominate in a state, but would “be unable to spread a general conflagration through the other States.” [3] 

Although with less concern, Madison also attended to the threat of minority factions. Madison wrote that the “sinister views” of minority factions could be put down with a simple majority vote. [4] Though minority passions could still “convulse the society”, popular opinion would inhibit these factions from executing “its violence” under our constitutional principles. [5]

The longevity of the United States republic has largely corroborated Madison’s lessons on factions. Undoubtedly, the US has experienced no shortage of factional politics. However, the geographical quality of the United States has helped placate majority factions by relegating them to disparate areas across the country. Further, minority voting blocs tend to be powerless in the face of democratic rule.

However, this week’s deliberation of the American Health Care Act (AHCA) challenged Madison’s review of minority faction influence. In early March, House Republicans acted on their promise to repeal the Affordable Care Act (ACA) by presenting AHCA as a replacement bill. Comparatively, the two bills share few similarities. For example, ACA promotes coverage by requiring everyone to have insurance or pay a penalty. Further, the law provides subsidies based on income and area of residence and expands Medicaid to adults at lower income levels. [6]

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James Madison warned of the dangers of political factionalism in Federalist # 10. (www.gilbert-stuart.org).

On the other hand, AHCA does not mandate coverage and promotes market participation through tax credits. [7] The credits are based on age, not income level, and max out at $4000.00. [8] Once the tax credit is exhausted, additional expenses must be paid out of pocket. [9] Lastly, AHCA would phase out ACA Medicaid expansions to the states. [10]

During the week of March 20, 2017, the House planned to vote on AHCA. In the current Congress, Republicans hold a House majority with 241 members compared to 194 Democrats. [11] To pass AHCA, House Republicans needed votes from 218 party members. With their comfortable majority, this seemed to be an attainable goal.

However, a small group of House Republicans called “The Freedom Caucus” derailed the vote and left Republican leadership with no bill for the Senate to consider. The Freedom Caucus is an invitation-only group of about forty right-wing conservatives that formed at the beginning of 2017. [12]

As the House prepared to vote on AHCA, Freedom Caucus members met with President Donald Trump and House Speaker Paul Ryan to discuss bill alterations. Seeking to lower premium cost, the Freedom Caucus requested removal of “essential health benefits” from the bill, a collection of services that insurance plans were required to cover under ACA. [13] These services included emergency-room visits, hospital stays, mental health and maternity services, and prescription drug coverage. [14] President Trump and Speaker Ryan objected not to the elimination of the benefits, but because removing them would preclude passing the bill through the Reconciliation process. [15] As a result, passage would require more than a simple majority and expose the bill to Senate filibuster. [16]

When time came for the House to vote on AHCA, several Freedom Caucus demands had already been included in the bill. However, President Trump and Speaker Ryan denied the group’s additional requests that were not palatable to moderate House Republicans. [17]As a result, Freedom Caucus members announced they would not vote for AHCA, eliminating Speaker Ryan’s ability to secure a majority vote for the bill. [18] Thus, with just three-dozen members, the Freedom Caucus foreclosed House ratification of AHCA.

The Freedom Caucus’ defeat of AHCA undermined Madison’s teachings on controlling political will within a republic. In this case, a small faction with divergent policy goals subverted the political will of a majority of fellow House Republicans. Even more so, Freedom Caucus policy felled President Trump’s signature campaign promise: repeal and replacement of ACA. Thus, AHCA deliberation teaches that the will of a few can preclude passage of consequential legislation supported by a majority of their party’s members.

The AHCA debate also raises new questions about Federalist # 10’s cursory review of minority politics. Thus far, history has supported Madison’s claim that far-reaching geopolitical boundaries can cure majority faction tyranny.

However, perhaps the following amendment should be made to Madison’s teachings on minority factionalism: When Congressional minority groups disrupt the legislative process to advance their own interests, neither geographical distance nor voting majorities may be able to stop them. As Congressional members, their will is not dispersed across various states. Rather, they need only convene in their Capitol Hill offices to coordinate policy. Even more so, the AHCA vote demonstrated that a minority faction can challenge the will of the majority party and win. Going forward, developing strategy to control minority passions will require the same amount of reflection on majority factions espoused by Madison in Federalist # 10.

[1] Kesler, C.R., Rossiter, C. Eds. (2003). The Federalist Papers: Hamilton, Madison, Jay. Penguin Books. New York.

[2] Newell, T. (2013). Tyranny of the Minority. The Huffington Post. Retrieved from http://www.huffingtonpost.com/terry-newell/tyranny-of-the-minority_b_4503341.html.

[3] Id.

[4] Kesler, C.R., Rossiter, C. (2003).

[5] Id.

[6] Sarlin, B. (2017). Republican Healthcare Vote: Everything You Need to Know. NBC News. Retrieved from http://www.nbcnews.com/politics/congress/republican-health-care-vote-everything-you-need-know-n737336.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] US House of Representatives. (2017). Party Divisions of the House of Representatives. History, Art and Archives. Retrieved from http://history.house.gov/Institution/Party-Divisions/Party-Divisions/.

[12] Lizza, R. (2017). A House Divided: How a Group of Radical Republicans Pushed Congress to the Right. The New Yorker. Retrieved from http://www.newyorker.com/magazine/2015/12/14/a-house-divided.

[13] DeBonis, M. (2017). What The Freedom Caucus Wants in the GOP Health-Care Bill and Why it’s not Getting It. The Washington Post. Retrieved from https://www.washingtonpost.com/news/powerpost/wp/2017/03/22/what-the-freedom-caucus-wants-in-the-gop-health-bill-and-why-they-arent-getting-it/?utm_term=.621ec1904d17.

[14] Id.

[15] Id.

[16] See Committee for a Responsible Federal Budget. (2016). Reconciliation 101. Retrieved from http://www.crfb.org/papers/reconciliation-101. Reconciliation is a special legislative process created as part of the Budget Act of 1974. It is intended to help lawmakers make the tax and mandatory spending changes necessary to meet the levels proposed in the congressional budget resolution.

Reconciliation bills are privileged in a number of ways, including with a 20-hour limit on debate in the Senate, a non-debatable motion to proceed to the bill, and a strict germaneness test for amendments. In the Senate, the limit on debate time and non-debatable motion to proceed means a reconciliation bill cannot be filibustered – allowing the Senate to pass a reconciliation bill by a simple majority rather than needing 60 votes to end debate.

[17] DeBonis, M. (2017).

[18] Id.

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