War, Elections, and a Megabill: When Legislators Become Judges in Their Own Case

A quarrel inside a governing faction can tell more about the state of a commonwealth than a clash with its open enemies. Here I see a proposal in your House to pass a $95 billion reconciliation package, chiefly $73 billion to help pay for war with Iran and $10 billion for changes in election law, driven forward by one part of the legislature and met with a “buzzsaw” in the other. Senate leaders call the plan “risky,” ask whether “the juice is worth the squeeze,” warn of poison-pill amendments, and judge that it has little chance of passing. The measure is ambitious; the hesitation, more interesting still.

When I wrote in my Second Treatise that political power is a right to make laws with penalties only for the public good, I meant to set a strict measure. Power is held on trust, and that trust is given by free and equal persons for one end: the preservation of their lives, liberties, and estates. That end must govern not only the substance of laws but the manner of making them. A bill that mixes the funding of war with the altering of election rules touches at once the power over men’s lives and over their political voice. Such a measure must be such as all could consent to in reason, not such as one side presses through because it can.

Consider first the money for war. I am told that the president has escalated military activities against Iran, and that this package would send $73 billion to help pay for that war, with some senators fearing that these funds may be spent with little oversight. War is the highest exercise of prerogative, for in it the executive disposes of the lives of subjects and of strangers. It may sometimes be necessary; it is never safe. For that very reason, the purse for war ought to be opened by the legislative only upon clear information, open debate, and strict conditions. To pour vast sums into a conflict while doubts persist that they will be spent beyond the steady view of the people’s representatives is to place subjects nearer to arbitrary power than to known, standing law.

Next, consider the proposed “election reforms.” I read that leaders have warned their fellows of a political “wipeout” on the next election day if states are not required to tighten voting rules nationwide, and that folding elements of this scheme into a budget bill is called by some a charade and distraction. Here the danger is of another kind, and in some degree greater; for when those who now hold power alter the rules by which that power is conferred, with an eye confessedly fixed upon preserving themselves from defeat, they make themselves judges in their own case. Even where some ordering of elections is needful for preventing fraud or confusion, the design must plainly be the equal liberty of all qualified citizens, not the advantage of the present majority.

The manner of proceeding increases these suspicions. The plan is to use a party-line reconciliation process shortly before an election, though the Senate leader notes there is no “buy-in” from the opposing party and warns that the floor will be littered with hard votes and divisive amendments, including attempts to reverse earlier cuts to aid for the poor. Factions within the governing party itself are divided: some demand more for defense, others insist that all be paid for without enlarging the public debt. This is not, on its face, a calm search for the common good under known rules, but a hurried bundling of war, welfare, and the very rules of voting into one vast contrivance. A legislature that governs by such megabills tempts itself to hide what many would never plainly consent to inside what some dare not oppose.

Does all this amount yet to usurpation, such as dissolves the government’s claim on obedience? In the Second Treatise I argued that when legislators endeavour to destroy the people’s property or enslave them to arbitrary power, they put themselves in a state of war with the people, who may then appeal beyond them. But I also wrote that not every grievance warrants such an appeal; there must be a long train of abuses pointing the same way. Here, the very resistance within the legislature shows that the constitutional frame still works to some degree. The Senate leadership’s readiness to stop or slow the bill, the open talk of its “little chance” of passage, and the fear of electoral punishment for rash acts, all suggest a power not yet absolute, but contested and therefore corrigible.

Yet a people should not wait for chains to be fully riveted before they look to the smith. To bind together funding for war and changes to suffrage in a single, high-pressure measure, advanced near an election and defended in part on grounds of partisan survival, is already a grave breach in the manners of a free commonwealth. Citizens do wisely to insist that questions of war, of public relief, and of who may vote be considered distinctly, in open daylight, and justified as measures which any rational person might have agreed to, not knowing beforehand on which side of the contest he would stand. The dissolution of a particular bill is not the dissolution of society; legislators can correct course, or be replaced, without chaos. But they should remember that trust, once squandered in such contrivances, does not return at the next reconciliation vote; it departs, and with it the very title by which they govern.