Returning to normal after the Republican’s three-week strategy to defund or delay the Affordable Care Act in exchange for avoiding a government shutdown or a default on payments to holders of the public debt may not be the normal we might expect. At this point we might employ jazz musician Wes Montgomery’s song title “Real compared to what?”…return to normal compared to what?
There is such a thing as regular order on Capitol Hill and it is spelled out in the rules of the House and Senate. It provides a path from introduction of a bill to the floor. But the regular order can be, well, tweaked by other parliamentary rules that delay the regular order or even block it. Those rules are used frequently enough to make one think that they are the regular order even when they are doing the opposite. While the regular order is predictable and clear, the rules used to complicate that process are used more like tools. Tools can be applied akin to tripping someone on their way up the aisle.
Take the Senate, for example; a bill must go through three readings before a vote on passage, which is the regular order. But the rules allow for each reading to be objected to which delays the onset of a debate. Then we have the filibuster, a tool for the Minority if it wants to delay a vote on passage or draw attention to its position on the bill. So, if you view of regular order in the Senate is to bring a bill to the floor, debate it, and vote on it you will often be frustrated with delays.
The House, too, requires three readings, the regular order, but rules can have a significant impact on how well a bill gets unobstructed attention on the floor. Recently the House Leadership put out a dozen or so ‘mini’ continuing resolutions when the original CR to fund the government through December 15th was rejected by the Senate. In that case Leadership shot itself in the foot by bringing the first two resolutions to the floor under the rule that suspends the rules and requires two thirds support that the bills didn’t get. Leadership pulled the bills and returned them under a rule allowing passage with a simple majority.
Rules, like guns, are used with the intention of those who wield them. Some matters are of great significance to the Party presenting them as legislation so it shouldn’t surprise anyone that the ‘rule as a tool’ sleight of hand is used. We see among the tools brought to the job, attaching a bill with questionable support to a bill that Members would most certainly vote for. Such bills are called ‘riders’ because they are attached to a bill considered ‘a moving vehicle’ destined for the floor and passage. It is there that the rule becomes a different tool; a political one. The unspoken politics of attaching a rider is simple; if you don’t vote for the underlying bill because of the rider, the word gets out that you didn’t support the underlying bill. That strategy was most evident in the recent FY 2014 Continuing Resolution when Senate Democrats were faced with accusations of being willing to allow a government shutdown to protect the Affordable Care Act from defunding or suspension. Because such a strategy requires fear to succeed; fear of losing reelection votes. It may work. Senate Leadership rejecting the CR policy provisions could have been an act of courage but, in the end, turned out to be a counter-strategy that worked; Republicans took the brunt of the politics they tried to create.
The regular order rules and the other rules used as tool are intertwined in the legislative culture and are not going anywhere. While the rider tool and others might require courage to resist, the real courage must come from handling bills through the regular order where you must make your best case in the debate and see how the vote turned out.
How To Improve the Road Ahead
By Lee H. Hamilton
“Because in our system, power never evaporates, it just flows elsewhere. So when Congress doesn’t perform, it cedes power to others.”
Great democracies do not lurch from doomsday moment to doomsday moment. They plan ahead, they fulfill their responsibilities. Congress can do none of these things so long as its members insist on resolving one crisis by setting up another a few months down the road.
One of the more amazing spectacles in the days after the government shutdown ended was the obsession in Washington with who won and who lost in the showdown. Yes, the capital is focused on next year’s elections, but honestly! There was only one real loser, and that was the American people.
Why? Because nothing got resolved. The agreement leaves the government open only until mid-January, and gives the Treasury the ability to borrow through early February. All that effort secured us the barest minimum that we needed. Tax reform, spending, entitlements, jobs and economic growth: we’re no better off than we were before a small faction in Congress brought us to the brink of an unnecessary disaster. So the question is, can we avoid a similar crisis down the road?
The record of the recent past gives no ground for optimism, though members of Congress may now recognize the enormous economic costs to the nation of a shutdown and near-default. To avoid repeating their recent sorry spectacle, however, they will have to confront three challenges.
First, Congress has to break its habit of governing by crisis. Second, its members need to take a leaf from this most recent experience and remember that the essence of legislating is negotiation. Finally, they need to recognize that every time Congress fails to assert itself, other institutions gain more power at its expense.
Some people in Washington argue that this is because we live in trying times, faced with bewildering economic upheaval, social and demographic change, and a sorely divided body politic. That’s all true — but politics has always been about getting things done in difficult environments. Congress was designed to be the institution where the difficulties of the moment could be overcome by legislators with the skill and temperament to work together to overcome them. Instead, we face a host of challenges with a Congress unable to address them because it can only postpone a crisis from one date to another.
I find myself thinking often these days of the skillful legislators I’ve known over the years. Where are their counterparts today? The negotiations that produced the last-minute settlement may have taken a lot of effort, but they do not measure up to what’s required.
Congress only works well when its members understand some key things: that each party has to walk away with something; that it’s crucial to preserve flexibility and avoid pandering and scorched-earth rhetoric; that it needs to address the issues Americans care about most; that to avoid failure all the key players need to be at the table; and that they need the fortitude not to walk away from talks when things are going poorly.
Years ago, key players in serious negotiations went out to Andrews Air Force Base outside Washington, and were confined to the compound until they came to a resolution. We need legislators who are willing to roll up their sleeves and commit that fully to the process.
Because in our system, power never evaporates, it just flows elsewhere. So when Congress doesn’t perform, it cedes power to others.
By its inaction, Congress has given power to the President, who can use executive actions to enact policy. It has strengthened the federal bureaucracy by leaving regulatory decisions to federal agencies with very little direction or oversight. It has given massive economic power to the Federal Reserve, since someone has to promote economic growth in the face of congressional failure to deal with our fiscal issues. And it has allowed the Supreme Court to become the central policy-making body on controversial issues from campaign finance to affirmative action to environmental regulation.
“Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy,” Justice Anthony Kennedy said in a recent speech. I’m sorry to say that he’s talking about us.
Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.