The Republican congressional leadership’s failure to repeal Obamacare has led to suggestions that, perhaps, they should have approached their task through “regular order.” Since Congress has not operated under “regular order” at all since 2006, and with decreasing frequency in the decades before that, younger readers, especially, may be excused for not knowing what these procedures are. Far from being arcane ephemera, they are the indispensable catalyst that makes American government responsible to the people. Casting aside “regular order” was essential to the rise of the unaccountable administrative state and the near-sovereignty of party leaders, lobbyists, and bureaucrats.I can't speak to the details of the argument but it serves as an explanation of some aspects of Congress I was thinking about a few weeks ago.
Herewith, a summary of what “regular order” means, what purpose it once served, why and how it was shunned, and of what has ensued.
More than a half century ago, Daniel Berman’s college-level text, A Bill Becomes a Law, the template for K-12 civics courses, described more or less how Congress had operated since the 1790s. Bills introduced in House or Senate would be sent to the relevant committee, and thence to the proper sub-committee. The ones thought worthy—including those funding the federal government’s operations—would be the subject of public hearings.
The committees’ partisan majorities and minorities would try to stage manage the hearings to make the best case for the outcomes they desired on each point. In the process, public support would strengthen or wane for particular items and approaches. Then, each subcommittee’s public “mark up” of its portion of the bill would reflect the members’ votes and compromises on each item.
Once the several subcommittee products had made their way to the full committee, the same process would repeat. Votes on contested items, and on the whole bill, would end the full committee’s “mark up” and send the bill to be scheduled for action on the House or Senate floor.
Just to get to this point, every element of every bill had to be exposed to public scrutiny. Senators or congressmen on the committees offered amendments and had to vote on the record for each part of the bill. On the House floor, amendments would be limited. But in the Senate, there could be—and often were—“amendments by way of substitution.” By the time the “yeas and nays” were tallied on the final bill, just about all members had had as much of a crack at it as they wanted. The final product would be the result of countless compromises “on the record.”
In 2017, it is useful to recall that this process used to apply to each and every government activity that required a dollar from the U.S. treasury, each and every year. For the past 11 years, however, all the money drawn from the treasury have come from single “continuing resolutions” (CRs) or “omnibus” bills, drafted in secret by “leadership” staffers, executive branch officials, and lobbyists, on which there have been no hearings and which few members have ever read, and on which few if any amendments have been allowed. These “Cromnibuses,” served up as the government runs out of spending authority, end up being passed by the majority party’s near unanimity.
While this is consistent with the Constitution’s words, “no money shall be drawn from the treasury but in consequence of appropriations made by law,” it wholly reverses their intent. Individual congressmen and senators are cut out of the legislative process. The voters can no longer hold each accountable. When Republican leaders make common cause with the Democratic Party against Republicans who won’t go along, whom they accuse of “shutting down the government,” they create a bipartisan ruling party. That makes both parties equally responsible, and ensures that changing your vote from D to R or R to D won’t make a difference.
I was at university in Washington, D.C. 1978-1982 and therefore had a ringside view of the machinations and conduct of Congress. I was recently reflecting on the differences of what I saw then versus what I see now.
Congress and its actions easily received equal billing in the news then compared to the executive branch. You knew the names of some of the more powerful or consequential committee chairmen, House and Senate. Mondale and O'Neill of course, but also Robert Byrd, Howard Baker, Daniel Inouye, Ted Stevens, Bob Packwood, John Tower, Jim Wright, Dan Rostenkowski, Shirley Chisholm, Frank Church - those are top of mind. A dozen easily.
The mainstream media tracked the merry-go-round of shifting alliances and negotiations between members on the subcommittees and committee and the reconciliation process between House and Senate. It was the intellectual's equivalent of a soap opera with backstabbing, subterfuge and dramatic personal failures (Abscam, Fanne Foxe, Koreagate, etc.)
It was a three-ring circus, unsightly, sometimes unseemly, absurd, entertaining, sometimes amusing, occasionally tragic. But it was largely out in the open. You might bewail the conduct or the decisions or gargoyle compromises, or the sausage-making nature of the process - but you could see it and people were held accountable. Accountable not just in terms of the electoral process but in terms of being prosecuted for their conduct when it drifted beyond the boundaries of law and ethics.
Aside from their own state Congressmen, today I doubt many people could name anyone other than McConnell, Ryan, Schumer and Pelosi. None of the committee, whip or other leadership structure. Why?
And on the Executive side of things, there were similar tall players. Without too much thought it is easy to call up Alexander Haig, George Schulz, James Baker, Caspar Weinberger, Frank C. Carlucci, Edwin Meese, James Watt, David Stockman, Howard Baker, Jeanne Kirkpatrick.
I don't think this recall is a function of the freshness of youth versus the jadedness of age. Other than foreign affairs, I had only marginal interest in domestic politics. Sure, I read the papers pretty religiously, but those names do not come to mind because I was young or focused or interested in them. They come to mind because they were consequential individuals playing material roles in our governance.
Who could name any of the cabinet members of the most recent administration, only six months gone? Eric Holder, Robert Gates, Samantha Powers, Susan Rice, probably, but who else?. More importantly, who can attach a particular position, action or initiative to any of them? Holder, certainly, but beyond that it gets pretty thin. For all the romantic talk of a team of rivals, there simply was not much action going on outside the rule of three - Obama, Pelosi, Reid.
So what changed between then and now? I had always put it down to the fact that Obama seemed to always view governance through a parliamentarians mindframe. The view that the winning party should be able to rule via edict rather than political negotiation and compromise. Certainly there is plenty of evidence of that. I have also assumed that congressional leadership of both parties simply became institutionally lazy and risk averse.
My desire has been to see Congress reassert itself versus the Executive branch and for the political parties within Congress to start competing and collaborating with one another towards legislation on behalf of all citizens. As long as all that the parties are doing is the political theater of name-calling without any actual legislation, then we don't really have a democratic governance.
One further consequence of an inert and dysfunctional Congress has been the deferment of our Congressmen to the administrative state in which legislation is not passed but administrative laws formulated and imposed with no feedback mechanism from the citizens to the government. It is a travesty of a healthy democracy.
Codevilla's argument provides an explanation that fits the above observations equally well, probably better, than my explanation. Certainly it complements the parliamentarian/lazy Congress explanation. Whether Regular Order is the real root cause or not, I don't know, but it fits the known facts.
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