Frank DeFilippo: Build Back Better Now Means Better Build Back

When Maryland’s Constitutional Convention concluded its paperwork early in 1968, it had one remaining consideration — whether to put the proposed document on the ballot for a wholesale decision by the voters to either accept or reject the entire new constitution, or to separate it for piecemeal voting on each individual plank with the hope that every item would be approved.

It was the quintessential gestalt — the sum of the parts equals the whole. The newly rewritten document, conceived as a 100th anniversary celebration of the outdated 1867 constitution it would replace, was chock-full of reforms, changes, innovations, updates, eliminations, modernizations and single-member districts.

Frank A. DeFilippo

The convention’s president, H. Vernon Eney, a pillar of the Baltimore establishment and a highly regarded but strong-willed attorney who was used to getting his way, demanded that the entire document be placed on the ballot for a single up-or-down vote of the state’s first new writing of Maryland’s basic governing document in a century. Eney was fixated on the “perfect” constitution, untouched and unaltered from its chiseled text and bearing Eney’s singular imprimatur.

All delegates to the Constitutional Convention were elected by the voters and included many prominent citizen-activists of the era. At the time, many elected officials were reluctant to run for delegate to Con-Con for fear of defeat as retaliation for unrelated political transgressions. Rejection would be a smudge on them and their records.

But the experienced legislators who served as delegates to the convention, and others in backstage advisory roles, disagreed with Eney on the ballot issue. They favored an item-by-item vote. They argued that each plank by itself could have a constituency of opponents and adding all the opponents together would form one large constituency that would defeat the entire proposed document at the polls.

The single most controversial proposal in the new constitution was the elimination of the office of state comptroller, the elective office the beloved Louis L. Goldstein would occupy for 10 terms, as well as other offices such as register of wills and orphans’ courts.

For Goldstein, the seditious act was a call to arms. He organized all those disparate groups into a summary army of warriors against the new constitution. The outrage of Goldstein and his allegiants was enough to render the proposed new constitution, and a year’s work, DOA.

Yet over the next couple of years, following the document’s massive defeat at the polls on May 14, 1968, every relevant and acceptable plank in the new constitution was adopted piece-by-piece either by voter referendum, executive order or legislative action. The objectionable parts were shredded. Since then, the constitution has been amended many times by action of the voters.

If that plot line looks familiar, as it should, it is arriving like a thunderclap to congressional Democrats. The symmetry is instructive.

The point of the historical recall is not an exercise in trivial pursuit or political taxidermy, but an object lesson for today’s rambunctious Democrats in Congress and in particular the strategists and war-gamers in the Biden Administration. And nobody should know better than the president himself, Joe Biden, who has spent nearly half his life as a legislator — a hash mark that he believed was a passport to success as chief executive.

It is almost an iron-clad rule of legislative bodies: They often move slower than evolution and, by their diverse and demographic makeup and inherent nature, are more inclined to roll stones rather than move mountains.

Thus, we bear witness to the shambolic mess of Biden’s alliterative Build Back Better, one-size-fits-all social resuscitation package. “Transformative,” Biden called it. It was (is) an unnatural alliance of Democratic wish-list programs that crashed, in measured parts, because of its symbiotic weight, competing ideological factions in the House, the stubbornness of two Democratic senators and the spite and obstinacy of 50 Republicans, following their leader, Sen. Mitch McConnell (R-KY), in an evenly split Senate.

Simply put, Senate Republicans, with the unintended help of a handful of mismatched Democrats, were not about to give Biden a major victory and the accompanying bragging rights as a warm-up to the 2022 mid-term elections.

Old habits die hard. No disrespect intended, but Biden should start acting like a president instead of reliving his previous life as a reincarnated 101st member of the U.S. Senate, relying on old friendships and a bygone era of bonhomie and bipartisanship. As John F. Kennedy observed, “The only abuse of power is having power and not using it.”

Biden shares the fate as well. He wanted to go big but lacked the mojo. Franklin Delano Roosevelt’s New Deal was not a singular cure for the Great Depression. It was a series of individual efforts, much of it trial and error, that contributed to the sum total of the economic recovery.

Lyndon Baines Johnson had luck, pluck and moxie as well as willing partners in House Majority Leader Charles Halleck (R-Indiana) and Senate Minority Leader Everett Dirksen (R-Illinois) to ram through the Civil Rights Act and the Voting Rights Act as well as much of the Great Society programs and others such as Medicare and Medicaid — most all of them individual programs and not one massive gift-wrapped package.

By contrast, Build Back Better crammed into a single legislative shopping-bag $3 trillion, originally, and gradually whittled to $1.7 trillion, worth of programs in broad areas such as education, labor, child care, health care and the environment — programs as disparate as hearing aids under Medicare and green energy tax credits.

The omnibus bill passed the House with a couple of votes to spare, but tanked in the Senate when Sens. Joe Manchin (D-West Virginia) and Kyrsten Sinema (D-Arizona) bucked their own party over costs and who knows what else, and Republicans voted as a unified and stubborn bloc against Build Back Better. In the 50-50 Senate, Vice President Kamala Harris (D) would have cast the tie-breaking vote.

Assigning blame in today’s polarized world is the easy way out. But the rules of Congress are as much to blame as any individual(s), parties or programs. Yes, it is now argued, especially among Democrats who are partly at fault, that Biden might have had better luck if the separate programs — all desirable and beneficial to one constituency or another — had been submitted in pieces. That way an outlier Republican such as Sen. Mitt Romney (R-Utah) might have defected to Democrats on some or many parts of the program.

It’s comforting to know that the Maryland General Assembly’s rules of the road prevent such mischief, or nonsense, as overloading legislation and causing the defeat of worthwhile programs because of their composite heft. And if Congress had the same internal rules, Biden’s Build Back Better — along with its insistent add-ons by Congress — might have survived in its individual components.

For an extended moment, however, Biden can deflect attention from his losses. He can exult in the chance to appoint a Black woman to the Supreme Court, as promised, through the kindness of Justice Stephen G. Breyer, whose timely retirement opens a seat and tosses a lifeline to Biden.

Congress could benefit from taking a hard look at other rules of the Maryland General Assembly as well.

First off, the Maryland constitution requires a balanced budget, unlike the federal government which is built on deficit spending. The budget amendment was adopted on referendum in 1974, but until then the manner of doing business was honored by tacit agreement, mainly by repeated assertion and common belief.

To buttress the prohibition of deficit spending, every money bill that is introduced in the General Assembly must be accompanied by a revenue source. The requirement discourages the introduction of spending bills as there are only a couple of revenue sources — tax increase and general funds that are controlled by the governor.

Every bill that is introduced must have a fiscal note attached, i.e., how much the program will cost. Generally, the legislature can cut funds but cannot increase them, nor can it shift money within the budget, though this safeguard is gradually being chipped away to give lawmakers more say over spending.

And finally — and this is where Congress should take a hard look — any amendment to a bill must correspond to the subject of the legislation to which it is proposed. In other words, in the Maryland legislature an amendment proposing hearing aids could not be attached to a bill dealing with, say, state parks.

And the likes of that permissible shotgun marriage is where Build Back Better got into trouble, though Manchin seemed impossible to assuage no matter how many variations on the package’s cost and contents were presented.

As with Maryland’s proposed 1968 constitution, there was not a question of truth in packaging, but a problem of too much truth in the package. And that clumsy slogan, Build Back Better, would never have passed muster on Madison Avenue.

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