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June 13, 2014
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
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
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
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.
February 25, 2014
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
January 14, 2014
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.
November 5, 2013
Why do political parties in Congress sometimes fight, even when they agree? Is it like siblings who seem to quarrel over nothing — just the nature of the beast?
Frances Lee, a political scientist at the University of Maryland, agrees that a lot of the inter-party fighting seems senseless because it doesn’t involve deep philosophical differences. In her book, “Beyond Ideology: Politics, Principles and Partisanship in the U.S. Senate,” Lee writes, “The public perceives party conflict in Congress as ‘bickering,’ as excessive quarreling driven by members’ power and electoral interests.”
Political scientists, on the other hand, have “tended to interpret congressional party conflicts as evidence of members’ principled differences on the proper role and scope of government,” she writes.
Lee sides more with public perceptions that parties often spar just to advance narrow partisan interests, rather than giving voice to pre-existing policy differences in the larger political context. That only exacerbates and institutionalizes conflict. In their quest to win elections and hold power, she writes, “partisans impeach one another’s motives, question one another’s ethics and competence and engage in reflexive partisanship … rather than seeking common ground.”
Evidence of this can be found in instances in which the parties are in broad agreement on an underlying bill yet still engage in partisan combat. Lee’s analysis of the Senate reveals that “procedural votes on issues not involving ideological questions are just as intensely partisan as substantive votes on some of the most ideologically controversial issues in American politics.”
From my experience, the House is much the same. An example arose last month over House consideration of the Water Resources Reform and Development Act. The bill would authorize 23 water projects — dams, levees, canals, harbors, dredging and environmental restoration programs — at a cost of $3.1 billion over the next five years. It also would establish a new, non-congressional earmark process for selecting future projects.
The bill had nearly four dozen bipartisan co-sponsors and was approved on a voice vote from the 70-member House Transportation and Infrastructure Committee. Dozens of business, labor and civic groups endorsed the bill, as did the White House and bipartisan House leadership. With such a strong tailwind, it is little wonder the measure sailed through the House, 417-3.
And yet, before the vote, the special rule for the bill encountered partisan resistance. The Rules Committee had allowed one hour of general debate and 24 amendments — divided equally between the parties. However, 98 amendments had been submitted to the Rules Committee. Ranking Democrat Louise M. Slaughter’s attempt in committee to substitute an open amendment process was defeated on a party-line vote, as were attempts to make in order three additional amendments.
When the rule was called up on the floor, Rep. Alcee L. Hastings, who was managing the rule for committee Democrats, complained that the procedure blocked more than 70 amendments, “many of which were germane” — he said that “is not conducive to an open process.” The Florida Democrat then spent the balance of his time discussing something closer to home: Port Everglades, Fla., has been waiting 17 years for a report from the chief engineer of the Army Corps of Engineers on deepening its channels in anticipation of the new Panama Canal standards.
Near the end of the hour of debate on the rule, Hastings indicated that if the previous question on the rule was defeated (the only opportunity for the minority to amend the rule), he would offer a motion to make in order an amendment by Rep. Corrine Brown, D-Fla., to authorize projects that received a final chief of engineer’s report within a year after enactment, thereby holding out hope for Port Everglades. Despite Hastings’ efforts, the previous question was adopted on a near party-line vote, with only two Democrats breaking ranks, and the rule was subsequently adopted with all but 48 Democrats opposing it.
This minor partisan dust-up on the rule didn’t affect the eventual overwhelming passage of the bill. Hastings didn’t follow through on his implied threat to force a vote on an open amendment process and instead confirmed former Speaker Thomas P. “Tip” O’Neill Jr.’s axiom that “all politics is local.”
Nevertheless, the two procedural votes on the rule will be part of CQ Roll Call’s session-end tally of “party unity” votes (party majorities on opposing sides), as well as of ideological spectrum rankings of members. In the 112th Congress, 197 party unity votes on special rules alone (not counting other procedural votes) constituted 17 percent of all party unity votes — a significant exception to any ideology connection.
October 22, 2013
When asked if I intended to write a column on all the procedural moves and counter-moves during the twin crises of the shutdown and near debt default, I said “no.” I didn’t want to dignify or seem to make sense of such senseless forays into futility.
A procedural flow chart of the moves would probably resemble a wobbly, downward spiral into a sealed cul-de-sac — picture the flight of an inebriated bumble bee in death’s throes.
The shutdown and debt limit tactics weren’t brilliantly designed legislative game plans culminating in a successful exit strategy. The only outstanding question was whether the perpetrators could achieve extrication without self-annihilation. As it turned out, Congress belatedly stumbled out the exit, kicking a can.
Notwithstanding my demur at producing a full-blown flow chart, the following sketch may partially satisfy those still hungering for a procedural fix. On Oct. 12, the real Columbus Day, another Chris, surnamed Van Hollen, rose on the House floor and offered a motion to take from the speaker’s table the original continuing appropriations resolution passed by the House. The Maryland Democrat’s motion would concur in the Senate amendment, the clean CR language, and not the House amendment delaying implementation of Obamacare.
Under House Rule XXII, Clause 4, once the stage of disagreement has been reached between the House and Senate on a measure, any member can offer a privileged motion for the disposition of any amendments pending to it. However, Speaker Pro Tem Jason Chaffetz, R-Utah, informed Van Hollen that pursuant to a previously adopted special rule, only the majority leader or his designee could offer such a motion.
There ensued a series of parliamentary inquiries by Van Hollen that produced the following headline on a political blog: “House Republicans Changed the Rules So a Majority Vote Couldn’t Stop the Government Shutdown.” The blog noted that 28 House Republicans had publicly stated they would vote to reopen the government if given the chance — more than a majority of 217 if Democrats remained united. But Republican leaders “made sure no such vote could happen” by conspiring with Rules Committee members “to keep a clean CR off the floor.”
Van Hollen’s final inquiry was more rhetorical than parliamentary: “Why are the rules rigged to keep the government shut down?” Nevertheless, his complaint was valid (if not his motion). The special rule in question insisted on the House amendment and requested a conference with the Senate. That brought the two chambers into formal disagreement. The Senate sent the CR back to the House the next day (Oct. 1), after disagreeing to the request for a conference. That’s when House rules would ordinarily permit a privileged motion by any member, though such motions are usually offered by committee chairmen.
Although Van Hollen asserted that the special rule “amended the standing rules of the House,” it did no such thing. An amendment to the standing rules is a lasting action. By contrast, special rules from the Rules Committee relating to the consideration of a specified measure temporarily waive, set aside or otherwise depart from the standing rules. Put another way, special rules are exceptions to the standing rules.
For instance, most special rules allow for the immediate consideration of a bill after the rule is adopted, thereby setting aside the House rule requiring bills to be considered only in the order in which they appear on the calendar. That allows the leadership, through the Rules Committee, to control the floor agenda. Special rules also depart from the standing rules by limiting the amount of general debate time, restricting an otherwise open amendment process, and specifically waiving certain standing rules to permit the consideration of bills otherwise in violation.
As Republicans used to say when in the minority, the Rules Committee is really the “unruly committee” because its principal function, subject to House approval, is to temporarily set aside any number of standing rules to permit specific measures to be considered according to specified procedures.
Van Hollen’s complaint is the same as protests once raised by minority Republicans — that special rules are often used to advantage the majority party at the expense of the minority. That’s why the House is considered more efficient and less democratic than the Senate. The Rules Committee is an exceptional leadership tool for managing an otherwise unwieldy House.
October 9, 2013
House Rules Committee Chairman Pete Sessions, R-Texas, surprised even his own party caucus colleagues Tuesday by introducing a bill to create a Bicameral Working Group on Deficit Reduction and Economic Growth, then calling it up in his committee an hour later.
Predictably the bill was roundly denounced by Budget Committee ranking Democrat Chris Van Hollen, D-Md., and all four Rules Committee Democrats. Their main criticisms were: Supercommittees are proven failures; the bill doesn’t allow for closing corporate tax loopholes; and it replicates what the Budget committees already should be doing.
Under the terms of the bill, the working group would consist of 10 members from each chamber — six majority and four minority. It would be charged with making recommendations on the overall levels of discretionary spending, changes in the statutory limit on the public debt, and reforms in direct spending programs. The group would be appointed no later than one calendar day after enactment, would work every calendar day thereafter until it reaches an agreement (unless excused by both co-chairs) and would report its recommendations, including any legislative language, within three calendar days of adopting them. It would then go out of business.
While it is easy to dismiss the latest gambit as just another gimmick, there’s something about this effort that holds promise. First and foremost, it was introduced as a bill when a concurrent resolution, requiring adoption only by the two houses, would have sufficed.
Why a bill that necessitates a presidential signature to become operative? The most obvious reason is to assure presidential buy-in with the concept, even though he wouldn’t be a direct party to the group’s negotiations. Moreover, the special rule on the measure incorporated language from a joint resolution that immediately restores the pay of federal workers not furloughed.
But the more intriguing prospect for such a bill is that it allows the Senate to amend it with provisions that would require statutory enactment, namely a short-term continuing resolution and debt limit increase — say, to mid-November or December.
Wouldn’t such a linkage violate the president’s resistance to tying any conditions to a CR or debt bill? Not necessarily. President Barack Obama has now indicated he could support a short-term CR and debt increase to allow time for further negotiations on other matters. The key would be whether the ultimate recommendations for reducing the deficit would be directly tied to a longer-term government reopening and debt ceiling increase.
They need not be. They could be presented by the working group as separate sidecar agreements to be taken up and voted on before the CR and debt limit measures are considered.
As to the criticism that the bill wouldn’t authorize tackling tax reform, the fact is that it doesn’t prohibit it. And that’s certainly something else the Senate could also add in the form of a timetable for reporting tax reform measures in both chambers. One could even interpret the bill’s term “direct spending programs” to include tax loophole plugging, since such provisions are referred to in the Budget Act as “tax expenditures,” while the act’s term for mandatory spending programs like Social Security and Medicare is “entitlement authority.”
As to the criticism that the working group would usurp the Budget Committees’ responsibilities: yes and no. Budget Committees do recommend overall discretionary spending limits and changes in entitlement, revenue and debt levels. But they can’t directly report bills implementing those recommendations. The working group is authorized to do so.
Sessions may actually have come up with a plausible first step in an expedited exit strategy from the mess his party has wrought. Let’s see if the Senate has the good sense to build on it.
October 8, 2013
During the 1977 House debate to establish a Permanent Select Committee on Intelligence, two lawmakers expressed concerns that the new panel could become a third chamber of Congress that would constrain other members’ abilities to make informed decisions on intelligence matters.
Rep. Robert Giaimo, D-Conn., said he feared the resolution would permit the committee to write regulations “which are going to limit and infringe upon those rights which we now have.” And Rep. Ted Weiss, D-N.Y., said his constituents “did not expect that I would become a second class member of Congress, subject to 13 other members telling me what I could say and what I could read and what I could talk about.”
Such tensions between the intelligence committees and non-committee members came into stark relief most recently with the illegal disclosure by government contractor Edward Snowden of classified information regarding the intelligence-gathering activities of the National Security Agency. Some members were shocked at what they perceived to be a massive intrusion into citizens’ privacy rights and wondered how much the intelligence committees knew and condoned.
Back in 1977, some members worried that the new committee would issue regulations restricting the open access to committee materials by all members that House rules require of other committees. To finesse the issue, the resolution reported by the Rules Committee provided that the committee “shall, under such regulations as the committee shall prescribe, make any information … available to any other committee or any other member of the House.” The resolution creating a counterpart Senate Select Committee on Intelligence in the previous Congress made access to information by non-committee members discretionary with the committee.
Notwithstanding the more liberal access thrust of the House rule, the new committee confirmed the suspicions of Giaimo and Weiss by ultimately adopting a committee rule more akin to the Senate rule: “Pursuant to the Rules of the House, members who are not members of the committee may be granted access to such classified transcripts, records, data, charts or files of the committee,” upon written notification with specific justification for the request and the need for access. The committee would then determine whether to approve or deny the request.
Flash forward to 2013. Rep. Morgan Griffith, R-Va., filed specific requests for information with the intelligence committee in June. When he received no response, he followed with three more letters in July and still received no answer before a House vote late that month to dismantle the NSA’s bulk collection of everyone’s phone records.
Rep. Alan Grayson, D-Fla., had a similar experience with information requests about the NSA’s intelligence-gathering, except he did get a response. Like Griffith, he had filed a request in June. Four weeks later he received a letter from House Intelligence Chairman Mike Rogers, R-Mich., informing him that the committee had denied his request “by voice vote.” But committee rules specify that “the Committee shall determine, by record vote, what action it deems appropriate in light of all the circumstances of each request.”
The House and Senate Intelligence committees are currently working on ameliorative legislation to head off moves in both chambers’ Judiciary committees to impose tighter restrictions on the NSA.
The whole drama raises the question of whether the primary responsibility of the intelligence committees is to protect and defend the agencies they are overseeing, or whether it’s to protect the integrity of Congress and serve the informational needs of its members. Ironically, the House and Senate Intelligence committees occupy the same secure Capitol Dome quarters as the former Joint Committee on Atomic Energy. Perceived as too cozy with the nuclear power industry, it was abolished in 1977.
Former Rep. Lee Hamilton, D-Ind., who chaired the House Intelligence panel in 1985-86, recently wrote: “In the past, the congressional overseers of the intelligence community have been captivated, if not captured, by the people they’re supposed to be supervising.” Speaking of the current controversy over the NSA, Hamilton says, “There is no place for the timidity Congress has shown so far on these issues.”
While Washington “is beginning to debate the proper extent of government eavesdropping powers,” he adds, “it’s hardly as robust a discussion as it should be, but it’s a desperately needed start.” Let us hope that discussion continues, and that the Intelligence committees will welcome and assist in fully airing the issues and in taking the corrective actions needed.
September 24, 2013
From his perch at the Congressional Research Service, Walter J. Oleszek has helped train hundreds, if not thousands, of members and staff over the past 45 years. It’s not surprising that he’s widely recognized, both on and off the Hill, as the pre-eminent expert on Congress — its rules and procedures, and how they have evolved over the past two and a quarter centuries.
Oleszek has literally written the book on Congress, “Congressional Procedures and the Policy Process,” now in its ninth edition from CQ Press. Most top staff have relied on the book as their procedural bible, from college to Congress and beyond.
The National Capital Area Political Science Association has formally acknowledged his unique stature in Washington. It recently honored Oleszek with its annual Walter Beach Pi Sigma Alpha Award for making “a substantial contribution to strengthening the relationship between political science and public service.” Full story
September 18, 2013
When I was 4 years old, two kids ages 10 and 12 invited me to play castle. They instructed me to stand still in the middle of the living room, arms at my sides, while they erected four walls using large, cardboard building blocks. When the walls were well over my head, they asked whether I could get out. I lifted my arms straight out from my sides and began pivoting back and forth, bringing the walls tumbling down to my squeals of delight.
I remembered that little game shortly before Congress left town for its August recess. The House was in particular disarray that final week. The leadership pulled the transportation-HUD appropriations bill midstream because there weren’t enough votes on the majority side to pass it: Half thought it too harsh, and half thought it didn’t go far enough. No Goldilocks solution was in sight. Full story
July 30, 2013
It is ironic that Sen. John McCain, R-Ariz., two days after he brokered the compromise on filibusters of executive nominations to avert the “nuclear option,” threatened to hold up the nomination of Army Gen. Martin E. Dempsey for a second term as chairman of the Joint Chiefs of Staff. McCain was angered that Dempsey, during his public confirmation hearing before the Senate Armed Services Committee, refused to offer his personal opinion on what to do about Syria.
Dempsey gave the understandable explanation that he did not want publicly to influence opinion while the president was still considering the options. He added that the Armed Services Committee had already been briefed in a “classified setting” on what those options are. Full story
July 16, 2013
Back in the late 1940s and ’50s, as scores of witnesses were “taking the Fifth” in public hearings before the House Un-American Activities Committee, Speaker Sam Rayburn and friends were privately “striking a blow for liberty” by taking their fifth (bourbon and branch) in the speaker’s Capitol hideaway — the infamous “Board of Education” room.
I draw this parallel not just for the pun of it, but because the anti-subversive committee’s active pursuit of domestic communists and the majority leadership’s passive acquiescence in it is emblematic of the “textbook Congress” — a period when committees acted semi- autonomously and party leaders tacked between majority rule and party responsibility. That’s because the House was then informally controlled by a conservative coalition of Southern Democrats and Republicans, and muscular anti-communism was one of the sinews binding their alliance. Full story
June 25, 2013
In this age of the Internet and high-tech surveillance, is individual liberty irrelevant, obsolete or just undervalued? The answer could well be all of the above, judging from tepid public and congressional reactions to recent government intrusions into individual privacy, speech, press and association rights.
Twenty-one years before the signing of the Declaration of Independence, the Pennsylvania Assembly sent a letter to the colonial governor urging him to sign a bill he was opposing on orders from headquarters (the monarchy). Included in the letter is a passage widely attributed to Benjamin Franklin, a member of the assembly, sounding the clarion call of liberty: “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.” (A variation of this sentiment can be found inscribed on a plaque inside the Statue of Liberty, thereby completing the circle of Franklin’s French connection.) Full story