Restoring the Republic Means Reimposing ‘Regular Order’

By | 2017-06-02T18:30:05+00:00 July 23, 2017|
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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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About the Author:

Angelo Codevilla
Angelo M. Codevilla is a senior fellow of the Claremont Institute, professor emeritus of international relations at Boston University and the author of To Make And Keep Peace, Hoover Institution Press, 2014
  • Sean

    So the thinking is, “The Dems did without the pain of regular order when they held the keys, so why should we put ourselves through it now that we have them?” Good luck ever getting out of that dynamic.

  • Peter63

    The “Elites” are supposed, by definition, to be smart and competent. They are the reverse. But currently they are, and hitherto for a long time they have been, a monolithic power-bloc consisting of nearly all members of the two parties, the mainstream media, academe – owned and funded by Big Money (the Billionaires, Wall St, the Chamber of Commerce). With their monopoly on education, public information and elected officialdom, they have pursued their own agenda, highly remunerative for themselves and ruinous for the country as a whole.

    This is true throughout the world today, actually; not only in the United States. The other democracies, and also lands such as China, have the same conspiracy of rulers versus the ruled. Russia is a more complicated case: a crime-family in which the members have long since come to perceive that they actually need strongman rule not to split up into a thousand warring factions like a very large-scale Libya.

    What is required in the democracies is a rebellion by The People. They need to stop being inert/apathetic – i.e. politically lazy – and primary all elected representatives who are self-serving and unpatriotic. That has been true for a very long time.
    The election of President Trump is the first stirring of this new long-overdue activity. That is why the aforementioned special interests, one and all (including ‘Conservatism’ Inc.’s Never-Trumpers) have been so hysterically anti-Trump all along and why they are now using any and every means they can think of to drive him from office or hobble his administration while it lasts.

    People should see the Russia-Story and the rest of it for what those lies are: a deliberate attempt to take away from the American citizenry its right to choose its own president and government in favor of continuance of rule by a large ruthlessly selfish, greedy, short-sighted oligarchy.

    • Mwekaman

      The greatest asset one can possess is an EDUCATION, an advantage not attributed to the “Elites” in your diatribe. Ungrounded and avaricious elites can and do direct their energies promoting their own interests to the detriment of others. However, most elites are good, caring people who use their education to the benefit of others. Dumbing down the masses works to the benefit of users/abusers. Being educated, knowledgeable, aware- is the only defense the “others” have against abuse. Support schooling, continue learning, be curious, ask questions, insist on honesty.

      • ADM64

        This view is contradicted by a staggering amount of public choice theory.

        Having an education in the sense that you mean it can mean nothing more than a law or political science degree from an Ivy League university. The person possessing such a degree may lack judgement and more importantly, experience with any aspect of what he or she is seeking to administer. This problem is exacerbated by the limitations of current liberal arts education, and the tendency of people with this type of an education to move directly into politics in some form or another. Moreover, it completely ignores the fact that lots and lots of well-educated intelligent people opt for fields other than politics and administration, and may in fact possess a level of expertise in those areas that far surpasses anything the so-called “elites” actually possess. Take my own field of engineering.

        I have two university-level degrees, am a shareholder in a successful privately owned engineering partnership and daily come up against not only the legislative and regulatory and tax implications of “elites” but frequently their spectacular ignorance of the fields they seek to regulate and interfere with.

        You also overlook the fact that “good, caring” people is a highly subjective and unsubstantiated description. Some of the worst tyrants in history have actually been ideologues who wanted to make society “better.” They decided that their intentions and means justified overriding everyone else, something that is neither good nor caring.

        Finally you err in arguing that the alternative is between so-called educated elites and dumbing things down. In my experience, plenty of people who run small businesses, work in the trades and such know their businesses and their work far, far better than lawyers and political science types, certainly more so than some arrogant kid with a newly minted degree, whatever their innate intelligence. The true mark of an educated man is knowledge of his own limitations. That, our political leaders and bureaucrats do not have at all. Hence, the jack-assery of asserting that people who create businesses “didn’t really build” them but career politicians who can’t even administer public money are to credit for jobs.

        I suggest you apply your own advice to yourself and check a few of your premises.

        • Stanley1

          Hear, hear, ADM64! (No snark …)

          And even if legislators were well-rounded, selfless people, their responsibilities and tasks are daunting because they have such a staggering range. That’s in large part because government is doing — or trying to do — waaaaay too much. (But also, government is bound to grow significantly as a country becomes larger and more populous, as people just going about their own business unwittingly interfere more with each other — seems to me that’s the reason for zoning laws.)

        • Mwekaman

          You fit my sense of what the broadly inclusive “Elite” is in today’s context- successful, articulate, focused, analytical, and EDUCATED. You understand what’s going on, and aren’t easily bamboozled (abused) by the power structure. You make my point. Thank you.

    • TheftByMillionaires

      Trump is not a majority President he is the minorities President.

  • bflat879

    As we’ve been saying, the Republicans could have dealt with Obama’s EO’s and other ways to subvert the Constitution, by merely passing a budget. They refused and now we know why.

  • 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. . .

    Lofty sentiments, nicely expressed. But how can we effect this ‘re-involvment’? Civics is not taught in the schools any more. Few people participate in local elections and government. Congress is full of long-time incumbents, who treat their positions as sinecures and entitlements. The cities and suburbs are increasingly anonymous; no one knows his neighbor, and everyone retreats every evening to his personal TV theater, and what flickers from every home window is not news, but entertainment. Even the daily newspaper, which once served as a sort of community glue, is fast disappearing.

    The emergence of the ‘populist’ Donald Trump is a symptom of the faltering Republic. He draws huge crowds of fans, but will the fans become citizens and work to transform and elevate the Congress? Or are they happy being entertained with rallies, red caps, and fightin’ words from their ebullient Leader? Have we just traded a dour, misguided Emperor for a cheerleading one?

    /L. E. Joiner (Walking Creek World)

  • ss396

    How can this work? The only possible way is to make it very painful for Congress, and the rest of the Nation, if Congress fails to fulfill their most fundamental responsibility. Explicit deadlines with penalties for non-achievement are very common in business: we could do the same with Congress.

    We could set deadlines for Congressional appropriations action, and penalize Congress for failing to achieve those deadlines by compelling things such as 24-hour non-adjournable sessions with secondary deadlines. And if Congress still doesn’t achieve passage of the appropriations by, say, September 20, and sent it to the President, then the current year’s appropriations are made effective with an absolute zero dollar increase.

    • TheftByMillionaires

      “then the current year’s appropriations are made effective with an absolute zero dollar increase.” You just gave the definition of a CR.

      • ss396

        The CR’s allow for inflation and ‘normal’ growth. We’ve been going on CRs, and the dollars keep growing. Keeping in mind that in DC a “cut” is a slowdown in the rate of growth. They complain about being “cut” to 3% increase instead of the 5% that they wanted, and yell about how the whole government and the nation’s economy is going to collapse if they don’t get their 5%. They ought to really scream about a 0%. Nah, this isn’t a CR.

  • Michael Hiteshew

    I agree that the federal government operates farther from the original constitutional design with each passing year. And they benefit from that, there are incentives to ignore the problems instead of dealing with them. It’s going to be our downfall. It is well underway.

  • crushlimbraw

    The fatal flaw here is – “will require re-involving the American people in their own business.”
    There are two ways to do that – my plan is here – http://www.crushlimbraw.com – but it will take 100 years – just like the way we lost it.
    The other plan is like training a mule – a two by four between the eyes – it is on the way!

  • jack dobson

    Congress has ceded authority to the Administrative State across the board. Periodically some of the more outrageous aspects ping on our radar: the FBI refusing to reveal who paid for the Fusion GPS dossier, millions spent by the CIA on a few dozen Syrian rebels, outrageous rules promulgated without input, and so forth. The old cliché “Congress has the power of the purse,” while theoretically still true, no longer is factually true. Woodrow Wilson surely smiles.

    The ongoing Russia hysteria could be seen as having a silver lining if a side effect of the madness was to restore the primacy of the legislature. As it is, the entire grubby coup attempt is to force the executive branch to relinquish power back to the unelected Top Men so our Potemkin democracy can continue unabated. Either this stops or we will become slaves. It doesn’t look good at all but there was and is the alternative of storming the cockpit.

    • Stanley1

      Yep, storming the cockpit. The theme of the seminal “Flight 93 Election.”

      • Kenny A

        Yes, and what Michael Anton meant was “Vote Trump”. Cockpit duly stormed, apparently. And Anton found his well-cushioned reward with a coms job at NSC and is keeping his head down and out of the line of fire these days.

  • Bruiser in Houston

    We could always air Schoolhouse Rock for those idiots in Congress. “I’m Just a Bill” wasnt’ that hard to understand.

    If they don’t go back to this methodology, then maybe REVOLUTION by the Beatles will wake them up? Sometimes I wonder if that’s what we need, for our government to collapse completely, and rebuild from the bottom up.

  • itsy_bitsy

    Good god yes! Let’s return to sanity in Congress, with no more “special” handling that protects and enriches members of Congress at the expense of the public. No more hiding how much of everything they do is done for the benefit of lobbyists (usually by the lobbyists), and indirectly, themselves! Shine the light of truth on McConnell, Ryan and the democrat leaders so that they can no longer manipulate policy to their own benefit. Governing is supposed to be for the benefit of the citizens and now it has become for the benefit of the politicians and big money!

  • Michael Hiteshew

    Can I suggest Trump bring in Newt Gingrich as chief legislative assistant, someone charged with getting things organized between the WH and Congress and getting bills and budgets passed?

  • Brother John the Deplorable

    A couple pertinent Amendments, submitted for the consideration of the Article V Convention (there are more where these came from):

    • A well-understood and concise body of laws being vitally necessary to the governance of a free people, no bill shall be passed or considered by any house of Congress under any circumstances or for any reason that exceeds five-hundred (500) words in length; and any law passed after the ratification of this article that exceeds this limit shall be considered null and void.

    • On no account may any bill or act of Congress exempt members of Congress or governmental employees from its provisions.

    • No agency, bureaucracy, regulatory body, or any other organ of the Federal Government may levy any tax, fee, impost, fine, or cost of any kind, nor may it impose any penalties, civil or criminal, upon any citizen of the United States without the explicit direction and consent of Congress.

  • John Milton

    “[T]the comparative success of the American and European postwar systems appears to be due to their abandonment of democratic politics as a practical mechanism of government, in favor of a civil-service Beamtenstaat in which democratic politicians are increasingly symbolic.”

    – Mencius Moldbug

  • Leander13

    So, what you are saying is that we need to make the House and Senate follow the procedures set out in Constitution Rock? (I’m just a bill, on Capitol Hill…).

  • shatzy48

    Everything in Congress has broken down. For 1,000 points and a trip to the bonus round, when was the last time we had a real budget with the requisite appropriations bills? No, instead we continue with these omnibus continuing resolutions that simply allow federal spending to continue out of control.The budget is one of the most basic congressional responsibilities, and they can’t seem to get it right. One would have thought that as a businessman, the very least that Trump would have demanded would be to put some order back into the budget process. I can’t wait for the debt ceiling food fight.

    • TheftByMillionaires

      Its a false fight the Constitution explicitly says all appropriated by Congress shall be paid. If Im not mistaken the current Sec of Treas has said the bills will continue to be paid no matter what that there is a plan. To that I say good its time the debt limit be tossed out.

  • Andy_Texan

    A military coup de etat against the administrative state is required to turn the ship of state. Hopefully Trump and the generals will dissolve this corrupt congress and dismiss 90% of the bureaucrats. Then new elections can be held and the 2nd American republic can be launched. This first one has become a Picture of Dorian Gray in it’s grotesque corruption.

    • Mad Max

      It will either be the coup d’etat you describe or, if the Deep State manages to eliminate Trump, a revolution.

      If Trump’s supporters don’t get most of what they voted for and feel the Deep State cheated them again, they will rise up and destroy the Deep State.

      What remains to be seen is if the result will be more like the American or French Revolution.

  • Kenny A

    American conservatism often struggles to define itself but usually ends up aligning itself with devotion to the 1787 text. Codevilla presumably agrees that the Madisonian structure is the ideal and preferred system. But in a variety of ways – the imperial presidency, imbalance in state-federal relations, and as he points out here, the Congressional legislative process – the actual practice is far removed from the Madisonian blueprint.

    Any chance of restoring it? Codevilla apparently doesn’t think so, because he concludes this essay without offering any suggestions. And notable also by its absence is any suggestion that the result of the last election can make a difference to this particular problem. It’s the bind American conservatives often seem to find themselves in – bold defense of a constitution which no longer functions and which no one knows how to resurrect looks a great deal like sterile reactionary fogeyism.