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August 21, 2014

Posts by Don Wolfensberger

26 Posts

August 11, 2014

Number of Laws Congress Enacts Isn’t the Whole Picture | Procedural Politics

The 113th Congress may well become the least productive Congress in modern history based on the number of bills signed into law. That is the measure many observers use to assess the institution’s productivity. But it does not provide the most complete or accurate picture.

As of Aug. 1, only 142 bills have been enacted into law, of which 118 or 83 percent have been non-controversial and bipartisan in nature. For that latter category, I look at public laws that initially pass the House under the suspension of the rules process that allows only 40 minutes of debate, no amendments and requires a two-thirds vote for passage. The most notorious suspension bills, accounting for 14 percent of all suspension laws in this Congress, are those naming (or renaming) post offices, federal buildings, court houses and veterans’ facilities after notable constituents.

Other suspension bills strike gold coins, designate memorials, monuments or historic sites, convey federal lands or buildings to localities, or deal with national parks, wilderness areas or Indian tribes. A few suspensions reauthorize expiring agencies and programs, usually without major changes. I once presented a paper on the increasing use of suspension bills, “Suspended Partisanship in the House: How Most Laws Are Really Made,” which a noted political scientist later cited as evidence Congress is not totally partisan.

A three-dimensional look at the changing numbers, size and content of laws over the last three decades (1983-2012) reveals the following: the number of public laws has dropped 62 percent, the number of pages per statute has increased by 52 percent and minor laws (suspensions) have jumped from 35 percent to 79 percent of all laws. Put another way, Congress is shying away from more substantive, controversial legislation today in favor of passing home crowd pleasers.

Divided party government and the fierce competition for control of both chambers every two years are largely responsible for the discrepancy between legislative input and final output as both parties use legislation more for campaign messaging than actual policymaking. This is evident in the number of measures passed versus those enacted as of Aug. 1. The House passed 509 bills, including 39 measures from the Senate, while the Senate passed 224 bills, including 116 from the House.

When one subtracts the 106 House originated bills and 36 Senate bills that have become law, there remain 354 House passed bills still pending in the Senate and 72 Senate passed bills pending in the House (including comprehensive immigration reform).

The disequilibrium is further illustrated by the Senate’s failure to pass any of the 12 regular appropriations bills, even though the House has passed and sent over seven of the measures and the Senate appropriations committee has reported eight.

It was once a joke among House members that the Senate is the place where good House bills go to die. That observation no longer evokes even a chuckle from the lower body. Senators of both parties have also expressed frustration about the paltry number of bills considered and amendments they have been allowed to offer over the last several months. The exceptions are the scores of amendments the majority leader has offered to “fill the tree” and block others’ amendments.

The majority blames the inaction on minority obstruction in the form of threatened filibusters and politically toxic amendments while the minority blames majority trepidation about taking any action that might have political consequences. The problem is, Congress is supposed to be the place where politically consequential actions are taken, not a safe house for the politically faint of heart. Past Congresses cast tough votes and let the electoral chips fall where they may. Today, members are apparently counting on voters not calling in their chips for lack of sufficient active players.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

July 28, 2014

Speaker’s Lawsuit Against Obama Is a Longshot | Procedural Politics

boehner009 072414 445x302 Speakers Lawsuit Against Obama Is a Longshot | Procedural Politics

(Tom Williams/CQ Roll Call)

Speaker John A. Boehner’s plan to sue the president for overstepping constitutional boundaries has produced a cascade of volume and verbiage in media echo chambers. In a memo to his colleagues, Boehner explained, “President Barack Obama has declined to faithfully execute the laws of our country — ignoring some statutes completely, selectively enforcing others, and at times, creating laws of his own.” The president in return has called the suit a “stunt” and waste of taxpayer dollars.

I give the speaker two cheers for standing up for the institution of Congress in the face of what he perceives as questionable unilateral actions by the president to get what he wants. The president did give Congress fair warning of his intentions last January when he said, “We’re not just going to be waiting for legislation in order to make sure we’re providing Americans the kind of help they need.” He added, “I’ve got a pen and I’ve got a phone…and I can use that pen to sign executive orders and take executive actions….”

The speaker’s initiative is designed in part to divert and relieve pressures from some in his party who want to impeach the president — something that would be politically suicidal and downright stupid. However, I have withheld the third cheer for the speaker’s stand because I think the judicial route is a long shot and the wrong shot.

It is a long shot because the odds are heavily against Congress being granted standing as an injured party in the president’s delay of the health care act’s employer mandate which is the target of Boehner’s suit. Even if Congress clears that hurdle, the courts would likely dismiss the suit as a “political question” between the branches — something in which courts have traditionally been reluctant to intervene.

It is the wrong shot because Congress should not be entrusting its fate to the third branch of government. If Congress clears the first two hurdles, the Supreme Court could well rule against it: hard cases make bad law and mad lawmakers. Even if not, such a precedent can only enhance the powers of the courts if either of the first two branches can go running to them any time it has a dispute with the other branch and expect intervention.

I am reminded of hearings before the Joint Committee on Congressional Operations in February 1974 on “Congress and Mass Communications.” The hearings were prompted by a persistent 20th century concern that the legislative branch was losing public confidence, power and stature vis-a-vis the executive, in part because the president dominates the airwaves (though President Richard Nixon’s press at the time wasn’t all that great in the wake of Watergate scandal revelations).

My boss then, GOP Congressman John B. Anderson of Illinois, cautioned the committee against falling into the “media mandate trap” of tailoring legislative behavior and actions to maximize media coverage. He quoted Yale law professor Alexander Bickel’s testimony earlier in the decade on war powers: “The way for Congress to resume control over the foreign and war policy of the United States is to resume. The way to redress the balance is to redress it — by action.” Paraphrasing Bickel’s sentiments, Anderson said: “The way for Congress to make the news is to make news. The way to redress the balance is to redress it — by action.”

House Republicans are understandably angry over the president’s repeated assertions they have not taken action to help the middle class when in fact they have enacted several jobs-related bills and passed dozens of others that have gone nowhere in the Senate. Meantime, the president is doing what his predecessors have done by acting unilaterally to implement his agenda.

Whether Obama is pushing the constitutional envelope or shredding it is a matter of interpretation. Regardless, the two branches can better address their differences by reengaging each other in the national interest than by waging perpetual spitting matches in the national media.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

July 15, 2014

Budget Act Anniversary Prompts Introspection | Procedural Politics

Any anniversary divisible by ten, whether of a country, institution or historic event prompts a spate of news articles, speeches and special commemorations that inevitably pose the question: What does it mean today?

The Congressional Budget and Impoundment Control Act, signed into law by President Richard M. Nixon on July 12, 1974, is no exception. The Bipartisan Policy Center (where I am a resident scholar) marked the anniversary this week with a symposium, “The Congressional Budget Act at 40: Midlife Crisis?” I half-seriously suggested amending the title by adding, “or Terminal Illness?” Judging from comments made at a recent congressional hearing on budget reform, the current process is badly broken and in need of either substantial renovation or immediate demolition.

Any reassessment of the Budget Act requires understanding what Congress originally had in mind when it superimposed two new committees, a joint office, and an entirely new process on top of existing authorizing and appropriations processes. We can then determine how well the Act has met those expectations, as well as subsequent demands placed on it, over the last four decades.

As a staffer for a prominent member of the House Rules Committee where the final budget act language was hammered out in 1973-74, I observed two distinct expectations for the process emerging from liberal and conservative ranks. That produced a curious convergence of overwhelming bipartisan support for the Act though both camps would later see their hopes dashed.
Liberals saw the new process as a way to break the stranglehold conservative appropriators had on spending levels so that Democratic majorities in Congress could set their own priorities, independent of the president’s budget. Conservatives, including President Nixon, saw the process as a device for asserting control over the entire budget, making it easier to reduce spending and deficits.

Allen Schick, who helped shape the Budget Act a Congressional Research Service staffer at the time, later came down squarely in the middle of the two camps in his definitive work on congressional budgeting, “Congress and Money” (1980). He correctly points out that the budget law as drafted was fiscally neutral. It had no bias for or against more spending or lower deficits. The process was whatever Congress decided to do with it each year.

But that neutral statutory scheme did not last long as deficits continued to mount through the 1980s and the public became more concerned about where it all was taking the nation. The 1985 Gramm-Rudman-Hollings Balanced Budget and Emergency Deficit Control Act put a definite anti-deficit spin on the Act by establishing a downward glide-path in deficits culminating in a balanced budget. When that didn’t work, the Act was further amended in 1990 by the Budget Enforcement Act to establish discretionary spending ceilings plus a pay-as-you go requirement to offset entitlement benefit increases and tax cuts so they would be deficit neutral.

The brief period of budget surpluses at the turn of the century diverted attention from the necessity of such mechanisms and Congress hasn’t had the will or inclination since to confront the real source of reemerging deficits — the explosive growth in entitlement programs like Medicare, Medicaid and Social Security which comprise 65 percent of the budget. Instead, the two parties argue over appropriate levels of defense versus domestic discretionary spending which account for just 29 percent of the budget. Those are the fights, along with politically charged policy riders, that have so paralyzed Congress that it can’t adopt a final budget resolution or separately enact any of the 12 regular appropriations bills.

One thing the two sides can agree on is that the process must be broken because it is not advancing either party’s causes, outcomes or public reputation. The budget process has always been a convenient whipping boy at such junctures, especially since those wielding the whips are not about to turn them collectively on the real perpetrators of dysfunction.

Don Wolfensberger is a resident scholar the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

July 1, 2014

Defense Signing Statement Reveals President’s Prescience | Procedural Politics

One of my first columns for Roll Call was about the furor over President George W. Bush’s use of signing statements (“The Problem Isn’t Signing Statements; It’s Enforcing the Laws,” Aug. 14, 2006). I was reacting to an American Bar Association task force report that concluded that such statements, issued when a president signs a bill into law, are “contrary to the rule of law and our constitutional system of separation of powers.”

The report went on to recommend that the president veto any law he considers unconstitutional and that Congress enact legislation requiring the president to provide Congress with copies of all signing statements along with the reasons and legal basis for any provisions of law he claims authority to disregard, ignore or refuses to enforce. Moreover, Congress was urged to give itself standing in the courts to obtain a declaratory judgment on the legality of signing statements. The ABA’s House of Delegates subsequently endorsed the report.

Full story

June 13, 2014

First, Chill All the Lawyers in Congress | Procedural Politics

To put a gentler twist on Shakespeare’s more drastic remedy: The first thing we do, let’s chill all the lawyers in Congress. That way they may become cool and practical legislators.

I say that as one who has great respect for lawyers. My father wanted me to be one (I am not); I am married to one; and half my wonderful bosses on the Hill were lawyers before they became lawmakers. Having served with lawyer members and staff alike, I know they bring a critically trained eye to policy problems and legislative draftsmanship. There is something about an appreciation for the law that makes you more cautious about drafting new ones.

Having paid that well-deserved tribute to the lawyer class in Congress, I still have a brief grief with a small coterie of legal beavers who gnaw so much on their trees of legalese they lose sight of the legislative forest.

I hadn’t really thought of it until someone told me of meeting with a group of members to discuss some of the major policy issues confronting the nation and what they were doing about them. Instead of demonstrating any considered appreciation for the causes and consequences of the problems and their solutions, the members wandered off onto esoteric legal side streets and cul-de-sacs, all the while ignoring “the meat of the coconut” (as one of my non-lawyer bosses used to call it). This may be a useful tack at an ABA seminar on an obscure section of federal contract law, but it does not resonate with John Q. Citizen who is more concerned about jobs and the economy.

So why do some members get so sidetracked? I don’t think it is to impress anyone with their legal acumen; they know that only turns most people off. Nor do I think it is necessarily an intentional device to avoid talking about the real nature of the problem at hand. But that is getting closer. Usually it bespeaks members’ limited familiarity with the details of the multiplicity of things they are expected to grapple with in each Congress.

Sometimes it reflects a legal angle from their leadership’s talking points about pending issues. Quite often those are part of the larger party message machine on how to parry criticisms from the opposition about the party’s policy positions (or lack thereof). Clever legal arguments can be effective (or at least deflective) defense mechanisms.

Think of it as dueling moot court teams exchanging what they hope are winning gotcha points. Unfortunately, that only tends to impress other lawyers and skirt the coconut altogether. Still, you go with what you know to show some understanding of the situation.

I won’t go into examples here but they become apparent once you start considering arguments being advanced using this template. They can be found in discussions of mega-problems from global warming and legal culpability for it to immigration laws and enforcement technicalities. And it can be found in congressional investigations of government scandals that often get hung-up on the legal vulnerabilities of witnesses instead of addressing the actual sources of systemic government failures and correcting them.

Many of these legal haggles are tied to the permanent campaign and individuals seeking to score legal points for partisan gain. While it is not effective with average voters, as already mentioned, it does feed a certain element of the political base of both parties that sees the tight political struggle for power as depending in part on superior legal arguments to bolster the parties’ policy positions. Some of those legal disputes end up as frivolous lawsuits filed by partisans to tie opponents down.

Former Democratic Speaker Champ Clark of Missouri (1911-1919) recounts in his memoir Supreme Court Justice David Brewer’s observation that, “America is the paradise of lawyers.” No one has ever accused Congress of inhabiting such a lofty perch.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

May 15, 2014

Ukraine Crisis Dimly Illuminates Public Ambivalence | Procedural Politics

In our democratic policy process, there is an obvious link between popular sentiment and our elected leaders. However, matters can be somewhat murky when it comes to foreign policy. That’s due in part to the deference paid by the people and Congress to the president’s role in acting and speaking for the nation, at least at the outset of international incidents. It is also due in part to the public’s low level of knowledge and interest in foreign affairs.

President John F. Kennedy perhaps best explained why foreign policy should be treated differently. In a Salt Lake City speech in September 1963, he said, “The purpose of foreign policy is not to provide an outlet for our own sentiments of hope or indignation; it is to shape real events in a real world.”

Still, Congress and public opinion do come into play whenever an international crisis erupts. The current crisis involving Russian military intervention in Ukraine helps illuminate the complex dynamic at the intersection of the presidency, Congress and the people.

President Barack Obama’s policy of not providing lethal military assistance to Ukraine while working with our allies to marshal diplomatic and economic pressures against Russia is consistent with his overall foreign policy approach. If there is an emerging Obama Doctrine it involves encouraging multilateral action when the U.S. is not directly threatened. The reluctance to reengage militarily anywhere is consonant with the wishes of Congress and the people in the weary wake of the wars in Afghanistan and Iraq.

A late April poll by NBC News and the Wall Street Journal showed 45 percent disapproval of the president’s handling of the Ukraine crisis, and only 37 percent approval — a turnaround from an early March poll by the same pollster showing a 43 percent-41 percent approval-disapproval breakdown. A larger number in the most recent poll, 53 percent, disapprove the president’s overall handling of foreign policy, with just 38 percent approving.

Foreign affairs analyst Robert Kagan surmises that this paradox of greater dissatisfaction with the president’s overall handling of foreign policy compared to his specific policies can be attributed to public unhappiness with America’s perceived retreat as leader of the free world.

That same late April NBC/WSJ poll showed 47 percent favored a less active U.S. role in world affairs, 19 percent favored a more active role, and 30 percent favored current levels of involvement. However, 55 percent agreed we need a president “who will present an image of strength that shows America’s willingness to confront our enemies and stand up for our principles.” Just 39 percent felt we need a president who shows a more open approach and willingness to negotiate with friends and foes alike.

On Ukraine, this ambivalence over foreign policy played out in Congress, with some members noisily criticizing the president for not providing more military aid to Ukraine and for not imposing tougher sanctions on the Russians, while others were quietly content to use less dramatic means to defuse the situation. Congress moved haltingly in the early days of the crisis, balking at the administration’s requested reforms in the International Monetary Fund to better deal with economic crises like Ukraine.

What started as a more ambitious 40-page bill devolved into two modest laws totaling 12 pages. One provided $1 billion in loan guarantees for Ukraine, authorized $50 million in democracy support, and imposed mandatory targeted sanctions on the Russians. The other authorized (but did not appropriate) an additional $10 million in stepped-up Radio Free Europe/Radio Liberty and Voice of America broadcasts to the region. Sen. Angus King, I-Maine, said of the broadcast booster: “As drafted, it is an unfunded mandate.”

The public was probably unaware of either enactment because the measures tiptoed through and around committees of jurisdiction without recorded votes or reports and then passed both chambers overwhelmingly without controversy, fanfare or signing ceremony. For Congress the watchwords were bipartisan, “first step” and presidential support, while it stayed far enough back should anything go wrong. It might be called, “following from behind.”

It is hard to grasp how the most transparent branch of government can sometimes stutter-step so stealthily. But, as a reactive and representative body it is simply reflecting in a mirror dimly the people’s mixed mindset.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

April 28, 2014

Does Congress Care About Public Opinion? | Procedural Politics

Do members of Congress care what the people think of them? With Congress’ job approval running at historic lows, you might conclude they don’t care because they don’t seem to be doing anything about it.

If you ask members directly whether they are concerned about public opinion polls showing them mired in a swamp of low esteem, you will likely get the curt response: “I don’t need public opinion polls to tell me what my people think. I am back in my district every weekend listening to them.” Pressed further, they might tell you the people are indeed angry with Congress, but very supportive of their own member’s tough stands on the issues.

This ambivalence is reflected in those polls that differentiate between job approval of Congress and approval of the respondents’ own representatives. A March poll commissioned by the Bipartisan Policy Center in conjunction with USA Today showed Congress’ job approval rating at just 19 percent, while people gave their own representatives a 52 percent approval rating.

The gap between institutional and individual approval has remained relatively constant over time, though both ratings are down roughly 10 percent from historical averages. The disparity between Congress’ approval and that of one’s own representative even has a name, “Fenno’s Paradox,” after political scientist Richard Fenno. He identified the anomaly in a 1972 lecture titled, “If, as Ralph Nader Says, Congress Is ‘the Broken Branch,’ How Come We Love Our Congressmen So Much?”

The reasons for the difference are not difficult to discern. Voters tend to know more about their representative than about Congress itself, and their views of the former are based on what they feel their member has done for the district and individual constituents. The typical constituent’s view is, “Our member is a smart, hard-working and caring person. It’s the rest of them who are a bunch of lazy bums.” That helps explain why incumbent re-election rates continue to exceed 90 percent even when Congress is only scoring 20 percent favorability ratings.

People have a negative view of Congress because they think it accomplishes little and is intent on waging noisy, partisan battles that usually end in stalemate. Pummeling Congress has been a popular national sport since the beginning of the republic, with everyone playing offense: the media, the public and even members themselves. Those negative attacks tend to feed on each other and grow.

That is not to say criticism of Congress is not usually justified. However, even when Congress manages to accomplish some the important things, they tend to be incremental and barely noticed, leaving the institution with precious little credit, recognition or respect.

So why hasn’t Congress done more to dispel this stereotype of a do-nothing, gridlocked body? One of the reasons previously alluded is that members think they are acting and voting in accord with what their constituents want. Never mind that voters want two different things simultaneously. According to the BPC/USA Today poll cited above, 80 percent of respondents feel their representatives should vote for what the people they represent want as opposed to 17 percent who feel members should vote according to their own conscience and experience.

However, only 29 percent think members should stick to their principles and do what they and their constituents think is right, even if it means not passing legislation that addresses serious problems. Sixty-seven percent think members should work across party lines and engage in give and take to come up with solutions to the nation’s problems, even if it means giving in on some of their principles.

While those responses may seem contradictory, they actually reflect a common conviction by the people of why they send their representatives to Washington in the first place: They fully expect them to work things out among themselves through consensus building and compromise when it is in the best interest of the nation. It is all about governing.

As Rep. John D. Dingell, D-Mich., recently reminded his colleagues upon announcing his retirement, Congress means “a coming together.” The fact that members instead seem to be flailing apart bespeaks a basic misunderstanding of their constitutional role. Maybe in addition to opening each day’s session with a prayer and the pledge, members should be forced to watch that classic kids’ cartoon, “School House Rock,” on how a bill becomes a law.

This will be my last column with Roll Call due to new directions at the publication. I simply want to thank Roll Call for carrying “Procedural Politics” since 2006, and for all its editorial support along the way. I am especially grateful to the many faithful readers of the column for their encouraging comments and suggestions over the years. I expect to continue publishing elsewhere in a similar vein, at least until we get Congress right. Until next time …

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

April 1, 2014

Discharge Petitions Are Useful Minority Tools | Procedural Politics

Perhaps only Congress can invent a tool that it fully expects will rarely perform its intended function. It’s called the discharge petition, a device designed to dislodge bills stuck in committee. This year, House Democrats have filed three such petitions on issues they hope will propel them back to majority status in the midterm elections — a minimum wage increase, an immigration overhaul and unemployment compensation.

The original House discharge rule was adopted in 1910 as a further blow for majority rule just three months after minority Democrats and insurgent Republicans ousted Speaker Joe Cannon as Rules Committee chairman. Under the modern version of the rule, adopted in 1931, a member can file a petition on a motion to discharge any bill that has been pending in committee at least 30 legislative days or on a special rule for consideration of such a bill if the rule has been in the Rules Committee for at least seven legislative days. The advantage of discharging a special rule is that it keeps the process alive even if the bill is reported from committee. A petition directly discharging a bill from committee is dead once the committee reports the measure.

When a petition gains 218 signatures (a full House majority), the motion to discharge is placed on the discharge calendar. After seven legislative days it can be called up on the second or fourth Monday of the month by any member who signed the petition. If the motion is adopted after 20 minutes of debate, the House proceeds immediately to consider the bill or special rule.

On Feb. 26, Democratic Rep. Timothy H. Bishop of New York filed a discharge petition on a bill introduced last year by Education and the Workforce Committee ranking Democrat George Miller of California to increase the federal minimum wage from $7.25 to $10.10 an hour. The petition, filed at the clerk’s desk at the front of the House chamber, currently has 195 of the requisite 218 signatures.

Because Bishop filed his petition directly on the Miller bill and not on a special rule, he is counting heavily on Education and the Workforce Republicans not reporting the bill to vitiate the discharge process. Should the Bishop petition succeed, the House would proceed to consider the bill in the Committee of the Whole subject to up to one hour of debate per member, followed by an open amendment process under the 5-minute rule (an unintended filibuster?)

Coincidentally, the first discharge petition to succeed in the enactment of a law occurred on the very first federal minimum wage law, the Fair Labor Standards Act of 1938. It was an unusual situation because the Democratic majority was twice forced to dislodge a special rule from the Rules Committee for consideration of the Senate-passed 40-cents an hour minimum wage bill reported by the House Labor Committee. In 1937, the Rules Committee was under the control of a conservative coalition of Democrats and Republicans reflecting in part a backlash in Congress against President Franklin D. Roosevelt’s attempted packing of the Supreme Court.

Because the minimum wage bill was recommitted to the Labor Committee after the first discharge success, a second petition was filed in the next session on a new special rule for the same bill after the Labor Committee again reported it. Both discharge moves were led by Labor Committee Chairman Mary T. Norton, a fiery liberal Democrat from New Jersey. The bill’s second iteration scaled-back the earlier 40-cents an hour minimum wage to 20 cents. It overwhelmingly passed the House and became law after a conference with the Senate.

Miller and Sen. Tom Harkin of Iowa, both retiring “Watergate Babies” (class of 1974), succeeded in bringing President Barack Obama around this year to their $10.10 minimum wage bills from the $9 hourly wage the president advocated just a year ago. Miller, former chairman of the House Education and Labor Committee, is rounding-out the circle begun by his 1930s counterpart, Chairman Norton.

Historically, discharge petitions are exercises in futility given majority party opposition. Since 1931, 637 discharge petitions have been filed, including nine in this Congress. Only 47 have reached the discharge calendar — none in the past decade. Only three discharged bills have become law although other targeted discharge measures have been enacted using alternative procedures. Nonetheless, the device remains a useful tool in rallying House minority party members, pressuring vulnerable majority party members, mobilizing grass-roots supporters, raising campaign funds from allied interest groups and educating voters on major issues dividing the parties.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

March 11, 2014

Is Negotiating Political Agreement a Lost Art? | Procedural Politics

Voters often complain that members of Congress “can’t seem to agree on anything.” You know people are on to something when their own representatives in Washington echo the same complaint — one of the few bipartisan sounds emanating from the capital, if not in perfect harmony.

Political scientists are now weighing in on the same topic though they don’t all agree on the causes and effects of contemporary political gridlock, let alone the cures. Princeton’s Michael Barber and Nolan McCarty recently analyzed some of the popular explanations and remedies in a paper on the “Causes and Consequences of Polarization,” published as part of an American Political Science Association task report on “Negotiating Agreement in Politics.”

The authors concede that “social science research has only recently begun to help shape … discussions on the causes of polarization,” though the reform-minded are already looking for “panaceas” to mitigate its effects. Perhaps ironically, the reforms most backed by the public and press for reducing polarization — neutral redistricting, open primaries and campaign financing changes — have already been found wanting in various studies.

According to the authors, “The evidence in support of gerrymandering as a cause of polarization is not strong,” and “it is implausible that partisan primaries are a major cause of polarization.” Likewise, “there is a weak connection between campaign spending and election outcomes.”

Other reformers look to internal procedural changes in Congress as a way to reduce partisanship and gridlock. They point to the large increase in party-line votes on amendments in the House since recorded votes were first permitted in the committee of the whole in the 1970s. But this does not explain the parallel growth in polarization in the Senate.

Another explanation is the growing powers of party leaders who can exert pressures on members to vote the party line. “Unfortunately,” the authors write, “the effects of party can be recovered only under strong assumptions,” and an alternative methodology actually shows “declining party pressures in the contemporary Congress.”

Rather than look for electoral or discrete procedural fixes to reduce polarization and gridlock, the APSA task force has recommended that Congress relearn the art of deliberative decision-making. That entails using an “integrative negotiation” process in which participants discover or create joint gains beyond what was originally considered the bounds of possible agreement — what they call pie-expanding versus a fixed-pie bias.

The task force members concede “it would be naïve to think that all conflicts can be negotiated,” especially in today’s Congress. Sometimes parties and their allied interest groups prefer electoral gains over substantive solutions. In such cases, they write, “political struggle rather than negotiation may well be the better recourse for altering the status quo.”

But other issues do lend themselves to negotiation and can succeed if “the rules of collective political engagement” are followed. Those rules include a formal role for nonpartisan, technical expertise in advance of specific legislative proposals; repeated interactions among participants to nurture trustworthy behavior; penalty defaults (action-forcing deadlines); and negotiations in private settings that avoid posturing in favor of pondering.

Deliberative negotiation has occurred since the beginning of the republic, the report observes. It is now a matter of convincing Congress to “return to the basics.” The difficulty in implementing such an approach today is that Congress is time-limited while deliberation is a timeless value. Each Congress is under a two-year gun, each committee has only a few hours each week to process numerous pieces of legislation, and each member is buffeted between committees, office appointments, floor votes and fundraisers, all in truncated, three-day workweeks.

Second, it is true that more can be accomplished in candid, private discussions. Sun exposure can be malignant to good-faith bargaining. However, House and Senate rules prohibit closed committee sessions except for sensitive national security matters. Rolling back Congress’ sunshine rules is a non-starter.

Third, it is doubtful that many of today’s re-election-fixated members are willing to master the art of deliberative negotiation, let alone sit through more balanced, thorough and prolonged committee hearings and meetings. Dialing for campaign dollars takes priority.

The main obstacles to results-driven deliberation are a paucity of informed argumentation and an excess of dramacracy — acting out rather than acting on problems. Still, efforts can and should be made to restore some semblance of rational discourse in committees that empowers members of both parties to contribute and benefit. The APSA is to be commended on initiating this back-to-basics conversation.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

February 25, 2014

Congress’ Budgeting Would Baffle a Martian | Procedural Politics

If a martian landed here today with the mission to bring back information on how Congress makes budgets, he might report back there is no sign of intelligent life in Washington — at least when it comes to budgeting. On the other hand, he might conclude the opposite: The budget process is so convoluted and complex that officials have obviously encrypted the whole thing so no other country or planet can crack the code as to how U.S. budgets are really made.

That scenario occurred to me recently when I was interviewed by an aspiring young journalist who asked how it was that Rep. Lamar Smith, R-Texas, was the chief sponsor of the omnibus appropriations bill signed into law in January. As Smith is not a member of the Appropriations Committee, let alone its chairman (he chairs the Science, Space and Technology Committee), it indeed would have been curious if the leadership had tapped him to carry the big government funding bill.

As it turns out, the Smith measure began as a one-page bill extending the license application deadline for commercial space launch indemnity insurance. In December it passed the House under suspension of the rules (a process for noncontroversial matters), and then the Senate with an amendment. In January, Smith’s bill was used as the vehicle in which to stuff the 1,500-page, $1.012 trillion omnibus government funding bill. Think of it as the cargo-hold of a space shuttle being used to transport gobs of greenbacks. Full story

February 11, 2014

Can Senate De-Escalate Partisan Nuke Warfare? | Procedural Politics

In my previous column (“McConnell’s Lament Stirs Fresh Breeze of Hope,” Jan. 29) I called attention to Senate Minority Leader Mitch McConnell’s Jan. 8 floor remarks in which he conceded that both parties are to blame for today’s hyper-partisanship and vowed to restore the committee system, Senate floor debates and a full week’s work if Republicans regain control of the chamber. McConnell said this will not require a change in Senate rules, but rather a change in behavior that will not happen overnight.

There is no question that Congress needs a major makeover from a culture of campaigning to a culture of legislating. There is no procedural elixir that can produce that kind of behavioral conversion. It will instead require leadership dedication and direction by example, membership willingness to alter deeply embedded behavioral patterns geared primarily to winning re-election, and a strong and sustained public demand for a Congress that works.

Although McConnell reiterated his anger over Senate Majority Leader Harry Reid’s power play last November to unilaterally change the Senate’s filibuster rules on most nominations, he did not indicate what, if anything, he would do about it if Republicans regain majority control.

Reid’s change alone has not altered the basic character of the Senate, but it will if taken to its logical conclusion of permitting a simple majority vote to shut down minority floor participation. Those who ask whether the Senate could come to look just like the House are posing the right question. If the Senate loses its unique role as the cooling saucer for the impetuous actions of the House, its check on majority power will be lost.

A Senate Democratic majority today or Republican majority next year could well decide to extend the Reid rule to legislation to expedite enactment of the party’s legislative agenda. One person’s slippery slope is another’s invitation to strap on the skis and race to the bottom, taking out all those pesky procedural gates along the way.

Despite McConnell’s contention that no changes in Senate rules are needed, there are three changes the Rules and Administration Committee would be well-advised to consider before the partisan makeup of the next Congress is determined. First and foremost, a rule change should be adopted that takes future threats of deploying the “nuclear option” off the table. Specifically, the rule should prohibit the practice of indirectly changing Senate rules by new precedents based on overturning a ruling of the chair on a point of order.

The House already has such a prohibition in its precedents. In 1977, during House debate on a contentious foreign aid conference report, Rep. John Ashbrook, R-Ohio, attempted to slow things down by raising a point of order that a quorum wasn’t present. The chairman refused to entertain the point of order on grounds that House rules explicitly prohibit a quorum call demand unless an actual vote is pending. When Ashbrook attempted to appeal the chairman’s explanation, the chairman responded: “To permit an appeal would be tantamount to permitting a direct change in the rule itself.” As Deschler-Brown’s House precedents elucidate: “An appeal from the ruling of the chair is not in order if the effect of the appeal, if sustained, would be to change a rule of the House.”

Because the Senate has no such rule or precedent, pulling the nuclear trigger and changing the rules by majority vote after overturning the chairman’s ruling is a live option whenever the majority wishes to deploy it. Playing egg-toss with live grenades anytime the majority is upset with minority obstruction is no way to secure parliamentary peace or consistency.

Abolishing the nuclear option should be tied directly to walking-back the Reid rule of majority cloture for nominations. Reid is correct in arguing that nominations are different from legislation and that presidents should be entitled to at least an up-or-down vote on their choices — an understanding that has held sway for most of Senate history. Perhaps a cloture threshold of 55 votes plus expedited consideration of nominations favorably reported from committee would achieve a reasonable balancing of interests.

Finally, the committee should report a rule change to guarantee minority and majority party senators an equal and reasonable minimum number of amendments to legislation to preclude the majority leader’s practice of blocking them by filling the amendment tree. De-escalating partisan procedural wars is possible when both parties benefit. Let the nuclear disarmament talks begin.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

January 28, 2014

McConnell’s Lament Stirs Fresh Breeze of Hope | Procedural Politics

It is not unusual for sitting members of Congress to twitch and moan that the other party is destroying the institution. The majority party lambastes the minority for obstructing the important business of the country and the minority counter-bastes the majority for excluding it from making those important decisions.

What is unusual is for a sitting member to admit that both parties are to blame for the sorry state of affairs in Congress, let alone suggest ways to correct it. The exceptions, of course, are those members who vent their pent-up frustrations with Congress and both parties upon announcing their retirements. Never mind they did little to correct matters when they could.

Senate Minority Leader Mitch McConnell, R-Ky., is the exception to that exception: He is not retiring and has a primary challenge from a tea-party-backed candidate this fall. And yet, in a floor speech on Jan. 8, McConnell confessed that both parties are at fault for the current state of dysfunction in Congress.

Granted, he does not abandon his partisan lens in portraying the process used for passing Obamacare or Majority Leader Harry Reid’s unilateral change in filibuster rules last November. But he acknowledges that both sides use “theatrics and messaging wars that go on here day after day” and says that “show votes” have become “entirely too routine and it diminishes the Senate.” Over the past several years, he observes, “the Senate seems more like a campaign studio than a serious legislative body.”

Rather than replay the blame game, McConnell suggests returning to what the Senate does best and that is resolve legitimate differences between the parties through vigorous debate in which all 50 states are represented “and every single senator … has a say in the laws we pass here.”

He reminds his colleagues that the great laws of the past were not made by “throwing these bills together in a backroom and dropping them on the floor with a stopwatch running.” Instead they were made through “a laborious process of legislating, persuasion, and coalition building” that “took time and patience and hard work.” The Senate, he says, has “lost our sense for the value of that.”

That brings him to his three main recommendations: restoring the committee process, allowing senators to speak through an open amendment process, and putting in “a decent week’s work” right up to the end to get things done — “using the clock to force consensus.” He vows to return to all three practices if Republicans regain majority control next year.

A robust committee system has been lost, he says, even though it provides the best means of developing national policy, acting as a counterweight to the executive and serving as a school for bipartisanship. Likewise, an open floor amendment process that guarantees all senators and their constituents “a greater voice” is often denied today.

Partisanship is not the problem, says McConnell. “The real problem has been a growing lack of confidence in the Senate’s ability to mediate the tensions and disputes we have always had around here.” There are many reasons for that, he says, but “ultimately both parties have to assume some of the blame.” It will take both parties, working together, to restore the institution. He reminds his colleagues that “it is during periods of its greatest polarization that the value of the Senate is most clearly seen.”

McConnell concludes his remarks by admitting that getting back to normal won’t happen overnight. “This is a behavioral problem,” he says, and “doesn’t require a rules change. We just need to act differently with each other, respect the committee process, have an open amendment process, and work a little harder.”

McConnell’s outrage is still evident over the majority leader’s use of the “nuclear option” last November to impose a new filibuster precedent. It is worth noting, however, that so far Republicans have not “blown up the place” in retaliation, as some Democrats vowed they would do nine years ago if the GOP majority had pulled the nuclear trigger. The Republicans’ response so far has been muted and measured while holding out an olive branch for greater floor amendment fairness.

McConnell’s Jan. 8 remarks are worth all senators’ reading because they offer a way to de-escalate the hyperpartisan warfare currently wracking Congress. If both parties step back from the jagged red line dividing them, they will be better positioned to shake hands instead of butt heads.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

January 14, 2014

Czar Speaker Is Vindicated on Overthrow Ruling | Procedural Politics

In my Dec. 18 column, “Senate Leader Reid’s Rule Recalls House Czars”, I recounted how a group of progressive Republicans and Democrats removed Speaker Joe Cannon, R-Ill., as chairman and a member of the Rules Committee in 1910 by claiming a constitutional privilege to change House rules from the floor. When Cannon ruled the motion was not privileged under the Constitution, his decision was appealed and overturned.

The bipartisan coalition proceeded to adopt its rule change, which converted the Rules Committee from a speaker-appointed committee of five members to a 10-member committee elected by the House. Cannon, gracious in defeat, immediately announced he would entertain a motion that the speakership be vacated, and a Democratic member obliged. But even the progressive Republicans returned to the fold and helped defeat what would have been Cannon’s ultimate humiliation.

That column may have left the impression that the precedent set during that revolt against the “Czar Speaker” means that the House can still change its rules at any time as a matter of constitutional privilege. Nothing could be further from the truth. Although Republicans lost control of Congress in the 1910 elections, Cannon saw to it, before relinquishing his gavel at the end of that Congress, that the precedent set by his eviction from the Rules Committee was reversed.

On Dec. 5, 1910, a third session of the 61st Congress convened. A month later, on Jan. 9, 1911, Rep. Charles Fuller, R-Ill., rose in the House to offer an amendment to House rules which he claimed was “a question of constitutional privilege.” His rule change would reverse the order of a rule that gave motions to discharge committees priority over motions to suspend the rules.

Rep. James Mann of Illinois, who would become Republican leader in the next Congress, raised a point of order that the motion was not privileged. Cannon, still in the chair as speaker, apparently relished revisiting the question because he entertained a lengthy debate on the point of order before issuing his ruling.

Rep. Oscar Underwood, D-Ala., who would become Mann’s counterpart as his party’s leader in the next Congress, said he had never argued that Cannon’s 1910 ruling was wrong, but simply that it had to be overturned because the American people were in favor of divorcing Cannon from the Rules Committee, and a House majority could only secure a vote on that proposition by leading “a revolution.”

Mann responded that “a revolution sometimes changes a form of government” and asked Underwood whether he was for “following up the revolution or is returning to the original form of government”  — whether he is “now for the new republic or the old kingdom.” Underwood said further revolution wasn’t necessary in the present case because the will of the House was not being blocked. In response to another question from Mann, Underwood agreed that the rule change being proposed by Fuller “is not in order.”

In short, even the Democrats recognized that allowing the precedent to stand was a dangerous proposition, especially because they would control the House in just two months. When Cannon sustained the point of order that Fuller’s proposed rule change was not privileged, Fuller did not appeal the ruling out of “great respect for the speaker” — a clear clue the whole exercise was a setup. A Democratic member, however, did appeal, and Cannon’s decision was overwhelmingly upheld, 235-53.

Today, the House is also guided by a 1977 precedent that “an appeal from the ruling of the Chair is not in order if the effect of the appeal, if sustained, would be to change a rule of the House.” The Senate, on the other hand, has no such prohibition, which is why, on Nov. 21, Majority Leader Harry Reid was able to make a point of order that, on his successful appeal, lowered the threshold for ending debates on most presidential nominations from three-fifths to a majority vote  — a rule-changing precedent.

Thomas Jefferson, in his manual of parliamentary practice for the Senate, asserts that “the only weapons by which the minority can defend themselves” against abuses of power by the majority “are the forms and rules of proceeding” and “a strict adherence” to them. The House recognized in 1911 how dangerous the precedent could become if rules could be changed willy-nilly from the floor at the whim of any member. The Senate will eventually have a similar day of reckoning over what it has done. The sooner that occurs, the better.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.

December 18, 2013

Senate Leader Reid’s Rule Recalls House Czar Speaker Reed | Procedural Politics

The joke used to be that the House of Representatives has dozens of rules while the Senate has just two: unanimous consent and exhaustion.

However, after Senate Majority Leader Harry Reid pulled the trigger on the “nuclear option” on Nov. 21 to effect a change in the filibuster rule for most nominations, it can now be said that the Senate has three rules: unanimous consent, exhaustion and Reid’s rule. The latter can be defined as any procedural edict the majority leader wishes to impose on the Senate so long as he has the backing of just 50 members.

Reid’s rule is not to be confused with “the Reed rules” after former Speaker Thomas Brackett Reed, R-Maine. Both party leaders had the same intent of ensuring a majority of their respective bodies could work its will. But the Nevada Democrat concocted his rule change using a point of order from the floor designed to elicit a vote overturning the chair’s ruling, whereas Reed propounded his changes as rulings from the chair against which points of order were not successful.

Reed’s rulings in January 1890 eliminated a host of dilatory motions and tactics employed by the minority to block a final vote on declaring the Republican candidate the winner in a contested election case. His rulings included abolishing the “disappearing quorum” whereby minority party members could stall business by not answering to their names during a roll call vote. Reed simply told the clerk to take down the names anyway of those members whose presence he announced.

What was different about Reed’s maneuver was that his rulings did not overturn any standing House rules — they simply outlawed some long-standing practices used by the minority to obstruct House business. He subsequently asked the Rules Committee, which he chaired, to incorporate his rulings into the resolution adopting House standing rules for that Congress.

Senate Majority Leader Reid, on the other hand, in calling for the reconsideration of an unsuccessful cloture vote on a nomination to the U.S. Court of Appeals for the D.C. Circuit, pulled off his change by raising a point of order asserting that only a majority vote is required to invoke cloture on a filibuster of any executive or judicial branch nominees (other than to the Supreme Court).

When Senate President Pro Tem Patrick J. Leahy, D-Vt., ruled that Senate Rule 22 requires a three-fifths vote to invoke cloture on nominations, Reid appealed the ruling of the chair. That forced a vote on the question: “Shall the decision of the chair stand as the judgment of the Senate?” The Senate overturned the chair, 48-52.

Minority Leader Mitch McConnell, R-Ky., then raised a point of order that the Senate rule still required a three-fifths vote for cloture. Presiding officer Leahy responded that under “the precedent set by the Senate today … the threshold for cloture on nominations … is now a majority.” McConnell appealed the ruling, but Leahy was sustained by the same 52 senators who previously overruled him.

Although Reid described his ploy as a rule change, Leahy’s characterization of it as a new precedent is more accurate. Reid’s point of order did not amend the standing rule requiring a three-fifths vote for cloture. It instead indirectly put that rule in abeyance for most nominations. According to former Senate Parliamentarian Floyd Riddick’s manual of procedure, if the chair’s decision on a point of order is overruled on appeal, the “decision of the Senate becomes a precedent for the Senate to follow in its future procedure until altered or reversed by a subsequent decision of the chair or by a vote of the Senate.”

Reed’s rules earned him the nickname “Czar Speaker” by Democrats, a sobriquet that carried forward to one of his successors, Speaker Joe Cannon, R-Ill. Ironically, the reign of Czar Speaker ended when a small group of progressive Republicans joined with Democrats in 1910 to offer a rule change on the floor to remove Cannon as chairman and a member of the Rules Committee. The insurgents claimed their motion was privileged under the Constitution’s clause that gives each house authority to determine the rules of its proceedings — what some today call “the constitutional option.”

Cannon, citing a ruling by a previous Democratic speaker, held that the motion was not privileged under the Constitution and that only the Rules Committee can originate rules changes. However, his decision was appealed and he lost. Time’s pendulum is a two-edged scythe.

November 19, 2013

Are Committed Ideologues Making Governing Impossible? | Procedural Politics

In my previous column, “Ideology Isn’t Source of All Partisanship” (Nov. 6), I used partisan votes on special rules in the House as an example of high partisanship unconnected to ideological issues — noting that 17 percent of all House party unity votes in the last Congress were on the previous question and final adoption of rules alone.

The procedural fights that the public perceives as petty partisan bickering are as much a part of a party’s purpose as advancing ideological policy choices. They are used to enhance party self-branding and team-building efforts. Full story

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