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.
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.
Senators and congressmen abandoned regular order because it hinders their craving for power and flight from responsibility. Voters elect them to vote accountably on important matters. But since such matters are almost inevitably divisive, they do their utmost to avoid voting on them.
Associating with the pleasant and avoiding the opposite, they prefer exercising influence and making compromises privately. Regular order had forced them to be small-r republicans—alone, responsible to the voters. They prefer to be safe, indistinguishable, comfortable among courtiers.
Regular order’s death came about in this way. For over a century, congressmen and senators’ procrastination had pressed legislative business into the last weeks before the end of congressional sessions. Members had noted that they could slip items into bills in frenzied times, which would not have survived regular order’s scrutiny. In the 1970s, some committees started to procrastinate on purpose, so that the end of the government’s fiscal year would come without an appropriation for one or more department of government. The Appropriations Committee would then prepare a “continuing resolution” to substitute for the uncompleted appropriations. These were supposed to just “keep thing going next year as in the previous year,” thus avoiding all issues. At the very least, they obviated whatever major changes anyone might want to make. But it was never that simple: from the beginning, these CRs always had riders. The more influence you had, the more you could slip into the CR.
This proved to be catnip for politicians. Party leaders grasped the more that legislation was done by continuing resolution, the more influence they would have on their members. Presidents—and above all their bureaucrats—saw that direct, private contact with the CR drafters was a far more effective means of getting their way than through “regular order.”
The Democrats’ control of the Senate and Harry Reid’s control of the Senate following the 2006 elections changed American government radically. In fiscal years 2007 and 2008, by preventing any committee from producing any appropriation bill for any government agency, Reid made sure that all of the U.S government’s business would be compressed into one CR, the contents of which would be negotiated strictly between himself and President George W. Bush, whom Reid had over the proverbial barrel. Between 2009 and 2015, the same tactic yielded a federal government that was the “cosa nostra” of Harry Reid, Barack Obama, and Nancy Pelosi.
The crumbs for which Republicans scrambled in those years were enough to addict their leaders to the new way of American government. Envying Reid and Pelosi, they yearned to imitate them. Hence, when John Boehner replaced Pelosi as Speaker of the House, his vow to enforce “regular order” amounted to nothing. Same for Paul Ryan. Senate Majority Leader Mitch McConnell since 2015 has been a Harry Reid wannabe—minus the competence, plus the pretense.
Understanding the Republican leadership’s addiction to government without regular order is all too easy. We have so much to do. We have tools to do it expeditiously. Why not use them? This, the standard procedural argument for Progressivism, is as valid today as it was when Woodrow Wilson made it in the 1880s.
In fact, Reid and Obama used these tools effectively. But neither Donald Trump nor Mitch McConnell possess the personal or ideological purposefulness to match their predecessors. Most important, while Reid and Obama enjoyed wholehearted support from the bureaucracy, the media, the corporations, and so forth, Republican congressional leaders get only opposition from the establishment.
Merely holding the line against the establishment’s continuously mounting claims on the rest of America—never mind reversing them—will require re-involving the American people in their own business. That means restoring Congress as the American people’s primary representative institution. Making Congress work according to regular order, and only through regular order, is a prerequisite.
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