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April 24, 2014

Posts in "Procedural Politics"

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

November 5, 2013

Ideology Isn’t Source of All Partisanship | Procedural Politics

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

Procedural Maneuvers Go Nowhere in Twin Crises | Procedural Politics

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

Don’t Dismiss Bicameral Working Group Out of Hand | Procedural Politics

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

Intel Panels Are Making Original Doubts Come True | Procedural Politics

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

Oleszek Wrote the Book on Congress | Procedural Politics

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.

oleszek Oleszek Wrote the Book on Congress | Procedural Politics

Oleszek is recognized as the pre-eminent expert on Congress. (Courtesy American University)

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

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