Irregular Order

The repeal bill still sits on the calendar, but the Republican Party still has no idea what to do about healthcare in any serious way. Their majority is small enough that the procedures in Congress gummed up the works, at least so far. But that may not last forever. Its elites want tax cuts. They accept a mass base that wants ethnonationalism. That fateful embrace is the central fact in contemporary American politics. The consequences go beyond legislative output in Congress to endanger the system itself. Far more than the first branch of government is tied up in the fate of the Republican Party.

Why Congress can’t work

“Let’s return to regular order,” John McCain implored his colleagues as he returned to the Senate chamber on Tuesday. And then, early on Friday morning, he joined the united Democratic caucus, Susan Collins, and Lisa Murkowski, to vote down the Health Care Freedom Act and to show he meant it. The Affordable Care Act outlasts its foes again; the exchanges limp on; the mandate endures; the zombie insurance plans remain the stuff of nightmares; and Medicaid survives unscathed—both the expansion of eligibility in states that took it up and the guaranteed federal commitment to pay its share for each and every recipient, the bedrock of the program since its establishment under Title XIX of the Social Security Amendments of 1965. If the Republicans had another seat—if, say, Claire McCaskill and Joe Donnelly hadn’t in 2012 beaten men who spoke callously about rape—they’d now have a bill. But they don’t.

Just after midnight, debate concluded on the “skinny bill” that nobody wanted, unveiled a mere two hours before. It was a three-layer cake of highly secretive policymaking, highly unorthodox procedure, and highly opaque policy effects. As Arthur Maass once put it, in a volume quaintly titled Congress and the Common Good (1983), “We no longer assume, as did the Jeffersonians, that each member has the capacity, with the aid of floor debates alone, to reach a decision on how to vote on all the questions that require a vote today.” For McConnell’s strategy on repeal, that was precisely the point. There was a sort of magical realism, a Macondo in air-conditioned DC, in McConnell’s behavior toward his preening colleagues. To the senators who want Medicaid cut, McConnell promised a conference committee; to those who didn’t, he promised speedy House acquiescence to whatever the Senate produced. And so everyone got to believe a slightly different reality. As the vote on the motion to recommit with instructions, the standard gambit for the minority party, stayed open for an hour, Mike Pence jawboned McCain and a gaggle of men from the West surrounded Murkowski. Bleary-eyed political junkies positioned themselves inches from the television, trying to read the body language via the feed on C-SPAN 2.

Then Pence vanished, sparing himself the indignity of having to announce the result. The vote was closed, and the roll called on the McConnell amendment. Just after the clerk read his name—Murkowski had already voted no—McCain walked into the chamber, gave a quick thumbs-down, and the skinny bill failed. McConnell returned the bill to the calendar. In a post-mortem that mixed pompous self-pity with delusion about the facts of healthcare, he cried. And then Chuck Schumer, too, called for regular order. The telenovela for the parliamentary procedure set concluded its latest episode.

With the failure of repeal, members harkened back to a golden age, when “regular order” supposedly ruled. What, then, is regular order? You won’t find it in a rulebook. Like pornography,  we know it when we see it—or, more accurately, we know when we don’t see it. As NPR’s Ron Elving wrote, “regular order is not only a process, it is also a state of mind.” Take one version of the story and its essence is careful legislative consideration in committee, with all the legislative text vetted to be sure it means what it says and says what it means. Take another, it’s freewheeling debate on the floor, so that all members can speak their mind and the chamber work its will. In both, bipartisanship usually figures somewhere in the story. The saga of repeal, with repeated bills crafted in secret by leadership, looked nothing like it. 

But it’s been a long time since we’ve seen anything like “regular order”—nor will it likely reappear any time soon, either to the House or the Senate. Process-oriented liberal reformers in the 1970s killed the old, lumbering deliberative Congress and bequeathed a series of reforms designed to modernize it. They largely failed. Instead, narrow partisan majorities, the filibuster, and the budget process with its tax-cut-friendly reconciliation procedures led to highly complex legislative solutions. As the Republican Party turned rightwards, it weaponized those same reforms. But the party proved incapable either of governing as a unified party or of checking the executive. And so we reach the present state, when the dynamics of a dysfunctional Congress meet the troubled and divided Republican Party.

The lifeblood of Congress is procedure, both formal rules and, particularly in the Senate, the accretions of precedents and norms on top of and around them. Votes on final passage are typically lopsided; the real action takes place beforehand, in negotiations and whip counts, and then in various procedural votes along the way. And procedure circumscribes the boundaries of the possible given the membership of the chamber. When majorities are narrow and parties divided, the barriers to action are high. Regular order gets replaced by what the late political scientist Barbara Sinclair called “unorthodox lawmaking.” This week’s fond hopes to the contrary, those stark barriers remain.

The high-water mark for power and influence of Congress came in the 19th century. Leaders in Congress, tied to local party organizations, held far more power than the largely forgettable Presidents. (And even there, Lincoln’s war cabinet showed how beholden Presidents were to the factions inside their parties.) The Senate served as the nerve center both of patronage and of foreign policy. Parties enforced limits on presidential authority, rather than, as with the recently departed Reince Priebus, serving as their handmaidens. Long into the 20th century, Congress held onto power, albeit largely the power to obstruct and block, through a committee system dominated by long-serving Southern Democrats. Nostalgia for the New Deal era to the contrary, between the passage of the Fair Labor Standards Act of 1938 and the Civil Rights Act of 1964, a conservative coalition dominated both chambers. Liberal reformers proceeded to redefine Congress; it is with that inheritance that today’s Republicans try, fitfully, to wield power.

The beginning of the end for the old system took place in 1961. “Mr. Sam” Rayburn, the legendary speaker, persuaded the chamber to add two members to the Rules Committee, finally allowing the party leadership to overcome the bottleneck of Howard W. Smith, the committee’s archconservative chair, making the Rules panel an arm of leadership and giving it control over the floor. The real reforms, however, took place a decade later. What happened in the Senate last week makes sense only in the context of the long shadows of those reforms. If the Watergate era failed to dethrone the imperial presidency, restrain the American imperium—though the horrors since September 11 would have been incalculably worse without the Foreign Intelligence Surveillance Act—or sully the reputation of the Republican Party, it undoubtedly transformed Congress. Attacks on the old committee system came from above and below.

Three actions taken between the summer of 1974 and the spring of 1975 together chart both the weird dual world of budgetary legislation and everything else that now defines the contemporary Senate, and the recrudescence of the partisan Congress. First came the Congressional Budget and Impoundment Control Act of 1974; signed by Richard Nixon just a month before his resignation, it created the modern budgetary process. Prior to 1974, the President submitted a budget, but Congress disposed of it in pieces, with program-by-program spending (“discretionary”) run through the Appropriations Committees, and automatic spending (“mandatory”; think: Social Security, Medicare, Medicaid, and Unemployment Insurance) and taxes run through the House Ways & Means and Senate Finance Committees.

With the new budget act, Budget Committees in each chamber would draft, and then the Congress would pass—no presidential signature needed—a concurrent budget resolution to instruct the relevant committees on how to shape legislation.1 The goal was both to bring some order to the process and to encourage fiscal responsibility. To do so, budget-writers would need specific numbers (“scores”), and so Congress set up the Congressional Budget Office. It has established itself, in an era when the concept has fallen out of style, as a refuge of technocratic, neutral competence. The scoring process is not just good-government dressing; it’s the heart of the cost estimates that make the budget process go. Still for all the good the CBO has done, the law has failed to bring order either to the public fisc or to the process. The snake in the garden was the new procedure called “reconciliation”: parliamentary vehicles duly scored to follow the instructions of the budget resolution would be exempt from Senate rules that, barring unanimous consent, require a supermajority to close debate (“cloture”) before a vote on final passage.

Since March 1975, that threshold has been sixty votes. Though the history stretches further back still, since 1917 a formal Rule XXII provided for cloture—that is, for the end of debate before a vote on passage, whether for certain motions or for underlying legislation—with a two-thirds vote. For half a century, it was used principally by Southern Democrats to defend Jim Crow. Northern liberals impatient with a Congress still dominated by Southern obstructionists railed against it; the NAACP and the UAW tried and failed to get rid of the cloture rule in 1965. A decade later, the Senate formally changed its rules and lowered the threshold for cloture from two-thirds of members present and voting down to three-fifths of the chamber’s membership. It was a fateful deal. Where once the filibuster was reserved for extraordinary circumstances, in line with the treaties and veto overrides that also demand a two-thirds vote, its use became everyday as the minority party, with Republicans in the lead and Democrats following in their stead, aimed to gum up the works. Reformers hardly anticipated that a lower cloture threshold would render Rule XXII increasingly critical to the chamber’s everyday workings. With partisanship on the rise, more and more legislation faced extended-debate problems as use of the filibuster, both to bottle up the floor and to impose a threshold on passage, became entirely routine. If cloture had remained at two-thirds, would extended-debate problems have become so utterly ordinary and the rules essentially unchanged since? Maybe, maybe not. Either way, reformers, most notably the liberal Minnesotan Walter Mondale, aimed to break down the barriers in the Senate. It has not worked out.

The third change was the decisive shift from committee to party power. In a sharp departure from the old system, where Democrats on Ways & Means also served as a Committee on Committees that assigned members, and chairmanship worked by strict seniority, in January 1975, the House Democratic Caucus chose the chairs. They quickly threw out three aging chairs, Wright Patman, an old populist, at Banking; the hawkish F. Edward Hébert at Armed Services; and Bob “the Farmer’s Friend” Poage at Agriculture. Henceforth, committee majorities could not deviate far from the views in their caucuses. For all these reformers in both chambers, the problem was hidebound Southern committee chairmen; they saw clear skies on the Right. If, in the view of Missouri’s Richard Bolling, a Rayburn protégé, the “majority of the majority” ought to rule, the reforms would serve that end.

Liberal reformers attacked the committee system from above and below. The centralizing reforms stuck and the decentralizing reforms didn’t. The “Subcommittee Bill of Rights” of 1973 has vanished into the same category of once-critical Congressional arcana as the disappearing quorum. More importantly, Congressional parties were historically weak in the 1970s as members ran on their own brand names and cooperated across party lines in Washington, so reformers aimed to strengthen them. But the ongoing partisan sort more than did the job for them. In the ’70s, there were conservative Democrats aplenty, many of them white Southerners (in 1981, the ones who supported the Reagan budget would be termed “Boll Weevils), along with moderate Republicans from the Frost Belt’s bougie suburbs and small towns. With their disappearance, the incipient partisan transformation of Congress would accelerate. In the short run, process-oriented suburban Democrats were the winners. In the long run, it was conservative Republicans. As the storylines from mid-’70s reform met the new political reality and merged, their implications would become clear.

Procedures in Congress shaped how “the rise of the Right” worked in practice and, still more important, resurgent conservatism reshaped the reforms to new ends. David Stockman, an aggressive junior member of the House plucked to serve as Ronald Reagan’s budget director, masterminded the strategy of using reconciliation not as a last-ditch, mopping-up operation to meet budget targets, as in the early years of the budget process, but as the centerpiece of a drive—the most successful of its kind—to slash taxes and spend more on defense and vastly less on the welfare state. For Stockman, the goal was less to evade the filibuster than to bypass the committee system, especially in a House where liberals chaired most of the panels, and over the interest groups that dominated it. The intellectual lens was public-choice economics, and the parliamentary vehicle was reconciliation.

The horse had left the barn. For the Republican Party since 1981, tax cuts have served as the glue to keep the tribes of the Right together. And reconciliation, Stockman realized, offered an extraordinary fit between policy and procedure. The great success of Republican policymaking, after all, has come not in eliminating programs but in cutting taxes, even under divided government, and reconciliation has served as the vehicle. Perhaps the party could have found or at some point created, whether via rules change or, though harder to enact, statute, another parliamentary vehicle to serve its tax-cutting interests, but the reconciliation exemption makes it easy to cut taxes (majority in the Senate!) and hard to pass ordinary legislation (sixty votes in the Senate!). The rules shaded into an asymmetric budgetary politics: Republicans had latitude to cut taxes as much as they pleased while Democrats, including the framers of the Affordable Care Act, felt pressure for the fiscal responsibility that motivated the Budget Control Act in the first place.

Even as he expanded the use of reconciliation, Howard Baker, a well-regarded Tennessee Republican who served as majority leader from 1981 to 1987, worried about what he called “an unacceptable degree of tension between the Budget Act and the remainder of Senate procedures and practice.”2 His point has come to seem more prescient with the passing decades. In 1985, Baker and his Democratic counterpart, Robert C. Byrd of West Virginia, the florid defender of senatorial privilege, negotiated a rule to limit reconciliation to budgetary rather than policy matters. In 1990, with Byrd having left leadership to chair the Appropriations Committee, where he proceeded to name everything in West Virginia after himself, the rule was enacted in statute. The result of the rule was this: If the parliamentarian, having been queried and following precedent, finds a given provision to be more policy than budget, then it takes sixty votes—the same threshold as under Rule XXII—to keep the provision in the bill.3 As passage of ordinary legislation, something like the vaunted “regular order,” became increasingly fraught and Congress more partisan, reconciliation became the vehicle for big-ticket legislation, including most prominently the Bush tax cuts. While the Affordable Care Act was not passed under reconciliation, as the Democrats still had sixty votes to close debate before passage in December 2009, instructions in the Senate bill, to which the House then concurred, pushed the bill over the finish line once they lost their supermajority. As Democrats, all of them, stood to protect the ACA, Republicans proceeded under reconciliation, the only way they could. But the hurdles to programmatic change and not just budget-slashing, as Republicans discovered, are high—like, to take a hackneyed metaphor, the pig in a python. Had the Senate abolished Rule XXII or had committees, even in an increasingly polarized Congress, retained their full autonomy, then reconciliation would not have bit so hard. But given the configuration that emerged from the Watergate-era reforms, it has become the central fact of contemporary policymaking, win or lose.

When the golden years ended is subjective. Like recollected teenage summers, senior members conjure up halcyon days; Schumer summoned up remembrance of things past early on Friday, though the year he arrived, the Senate was considering whether to remove Bill Clinton from office—not one of the chamber’s finest hours. The liberal policy largely stopped when Richard Lugar’s and Orrin Hatch’s Senate filibuster defeated labor-law reform in 1978, but the comity lived on a bit longer.4 That fall, Newt Gingrich entered the House, and his aggressive tactics transformed it. The once pliant minority sought to embarrass the Democratic majority. In 1989, Gingrich forced the resignation of Jim Wright, a hard-charging Texas Democrat, as speaker after what seem now picayune charges about a book deal. And when Gingrich took the speaker’s gavel in 1995, he accelerated the hardball tactics. Though federal employees had been briefly furloughed several times in the 1980s, the government shutdown of 1995–6 upped the ante in budgetary politics. At the same time, numbers for committee staff, the real experts in their corners of the federal government, stagnated; increasingly, Congressional staff worked for leadership and specialized in “messaging.” Gingrich, of course, transformed the House; the world of sixty-vote cloture and majority-vote reconciliation was not his. But as his young acolytes got themselves elected to the Senate, they brought the same aggressive tactics to the upper chamber. Then came impeachment in 1998, the earmarks-laden Bush years presided over in the House by a child molester, and the obstruction and brinksmanship of the Obama presidency. As the House, under the influence of the Freedom Caucus, became ungovernable, Mitch McConnell took a hammer to what remained of comity in the Senate.

Now Donald Trump wants the filibuster gone, whether to cover the failure of ACA repeal to garner, albeit under constraints, a simple majority, to needle the Senate, or actually to pass legislation. Had the Democrats killed the filibuster in 2009, they would have passed a larger stimulus, cap-and-trade, a DREAM Act. Medicare eligibility would have expanded for the first time since 1972, allowing those aged 55 to 64 to buy their way into the program. Today, the prospect of ending it is unlikely, and for reasons beyond Trump himself. Individual senators still like their incentives to delay. In particular, less extreme members of the Republican caucus who want to vote for legislation but not see it enacted have in the filibuster a convenient excuse. Everybody knows that, via the playbook of “reform by ruling” the Democrats followed in 2013 for nomination, an appeal of a ruling from the chair and the creation of precedent could with a simple majority knock all the teeth out of Rule XXII and create a majoritarian Senate. To wade into the perennial question, as to whether Democrats obstruct in the minority and engaged in unorthodox lawmaking when they served in the majority, of course—but not to the same degree.

Add to these long-simmering dynamics the much-discussed pathologies of 2017. Trump, who doesn’t care about policy beyond some deep-seated bigotry and a powerful desire to enrich himself and his family, can’t resist Congress, lest its leadership decide that, however horrid the process of getting there, President Pence is worth the trouble. The Republicans in Congress can’t stop Trump, lest he stir up a hornet’s nest that would threaten a leadership already struggling, especially in the House, to keep its restive membership in line, and the hopes for reelection of legions of members who would go down with the sinking ship. Should Trump actually decide to go for “an independent White House”—well, that way the presidencies of John Tyler and Andrew Johnson lie. As even Trump knows, if Democrats take the House in 2018, impeachment looms.

The handwringing about how to fix Congress holds out the promise of “regular order” somewhere over the rainbow. And then, with Congress working its will, the system would muddle through. The crises would become less intense. Hostage-taking over must-pass legislation, from supplemental appropriations to fund troops overseas to increases in the debt ceiling, would occasion no more than passing skirmishes. The parties would restrain their extremes. Oversight would return and the executive, in good Madisonian fashion, would be checked.

That hope seems wildly inflated. The last two decades of evenly matched parties are virtually without precedent in modern American history; the last such stretch was between the end of Reconstruction and the election of 1896. Nor is anything like the Progressive Era that followed, with a unified elite ready to assume command, in the offing. With deep hatred for the opposing party and the prospect of taking over control at the next election always close at hand, minorities have little incentive to cooperate rather than to obstruct, run against Congress, and get their chance to govern. Those dynamics inside Congress will end only when the losing side sees no hope of soon regaining control—and reforms itself. That will happen only when this long period of even partisan control finally breaks cycle after cycle. Let us hope it is the Republicans who break.

The repeal bill still sits on the calendar, but the Republican Party still has no idea what to do about healthcare in any serious way. Their majority is small enough that the procedures in Congress gummed up the works, at least so far. But that may not last forever. Its elites want tax cuts. They accept a mass base that wants ethnonationalism. That fateful embrace is the central fact in contemporary American politics. The consequences go beyond legislative output in Congress to endanger the system itself. Far more than the first branch of government is tied up in the fate of the Republican Party.

  1. In the House, members rotate on and off the Budget Committee, rather than accumulating seniority, making it a very good place for relatively junior members who want to make a statement. Paul Ryan is the outstanding example. 

  2. Just as McConnell cut his teeth under the moderate John Sherman Cooper of Kentucky (a notable dove on Vietnam), Lamar Alexander, pliant chairman of the Senate’s health committee, served as an aide to Baker in the late 1960s. 

  3. Though Trent Lott, the Republican majority leader, replaced the parliamentarian in 2001 largely over rulings on the budget process, no presiding officer has yet ignored the proffered advice. That would be a genuine explosion in norms. 

  4. Henry Waxman, a California Democrat elected with the Watergate Babies of 1974, skillfully used budget deals in the Reagan years incrementally to expand Medicaid. 

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