Tuesday, June 22, 2021

Atrophying Congressional Procedures

David Super

      The point of legislating is (usually) to pass legislation.  Accordingly, Members of Congress and those seeking to influence them focus most heavily on the actions and decisions that determine whether proposed legislation will become law.  Experience teaches, however, that some of these crucial tests are more difficult to pass than others.  This further concentration of energy and attention on the make-or-break event often causes the easier procedures to become taken for granted or even to partially disappear. 

     A common example is the requirement that bills receive three readings before a final vote.  If all the attention, and all the realistic opportunities to change or kill the bill, come on the third reading, the first two readings may either be waived by unanimous consent or performed in a near-empty-chamber by a long-suffering clerk in front of a bored presiding officer. 

     Similarly, for many years Congress constrained spending with the equivalent of the two-signature requirement many organizations have for large checks.  Programs could only be funding if Congress first enacted authorizing legislation (which went through authorizing committees) and then passed appropriations (which went through appropriations committees).  As political and procedural pressure converged on the appropriations stage, the authorizing stage atrophied significantly.  Authorizations for many programs, often with lusty spending figures, became easy to pass and hence the source of cheap, if misleading, headlines for Members.  Blocking an authorization often proved not worth the trouble as both chambers became adept at circumventing the rules that theoretically prevent them from appropriating money for unauthorized programs.

      Subcommittees long have been far more important in the House than in the Senate.  The House Rules Committee, and its increasing preference for closed or modified closed rules restricting floor amendments to major bills, leave Members with little ability to shape legislation after it leaves committee.  Their opportunities come in committees and subcommittees, and they take them seriously.  In the Senate, on the other hand, most legislation is freely amendable on the floor, making subcommittees unnecessary for senators wishing to shape bills.  Outside of the Appropriations Committee, Senate subcommittees provide senators with additional titles and (in the majority party) vehicles for holding hearings, but they rarely mark up (vote on) pending legislation. 

     The annual concurrent resolution on the budget has partially atrophied as well.  Architects of the congressional budget process envisioned the formulation of a budget resolution as the means of forcing Congress to make high-level decisions about the amount of revenues it would legislate and the broad outlines of its spending priorities.  The Congressional Budget Act accordingly creates points of order against spending bills until the current budget resolution has been approved.  Members of both chambers and parties eventually determined that making concessions on the budget resolution held considerable risk of political embarrassment but offered few compensating benefits.  Budget resolutions stalled repeatedly.

     Congress then learned to live without a budget resolution in ordinary years.  The House, whose Rules Committee can toss aside points of order at will, developed a practice of passing “deeming resolutions”:  resolutions that declared that a budget resolution with particular spending levels should be deemed to have passed (even though it had not) for purposes of applying House rules.  And the Senate increasingly did not bother to bring appropriations bills to the floor at all, eliminating the need to surmount points of order.  (The absence of meaningful floor consideration of appropriations bills many years is part of why appropriations subcommittees remain important in the Senate.)  This year, the House has already passed a deeming resolution and its appropriators are busily composing their bills behind closed doors. 

     The main situation in which the concurrent budget resolution remains important is when the majority party wishes to pass a budget reconciliation bill.  Reconciliation is perhaps the most important means of circumventing the Senate filibuster to pass legislation with a simply majority.  This device allowed President Reagan and Speaker Gingrich to enact their sweeping reductions in domestic programs, allowed Presidents Reagan, George W. Bush, and Trump to pass massive tax-cuts skewed to the affluent, and allowed President Biden to pass the American Recovery Plan Act (ARPA) earlier this year.  Reconciliation is only possible if directed in a concurrent budget resolution and only within revenue floors and spending caps provided for in such a resolution.  A budget resolution for the current fiscal year paved the way for ARPA, and Congress is expected to approve a budget resolution for fiscal year 2021 in July to allow it to move many of President Biden’s fiscal priorities – including infrastructure spending that does not move as part of a bipartisan deal and his American Families Plan – as a reconciliation bill, perhaps as early as September. 

     In the current hyperpolarized environment, and with the Democrats holding a razor-thin margin in the Senate, the crucial vetogate for anything that can pass by a simple majority – such as a concurrent budget resolution or a budget reconciliation bill – is securing the 49th and 50th Democratic votes on the Senate floor.  With all attention there, Senate committees are atrophying at least as far as budget legislation goes.  In all likelihood, both the concurrent budget resolution and the subsequent reconciliation legislation will move through the House Budget Committee and the House floor but then bypass Senate committees and land directly on the Senate floor.  Nobody sees much point in delaying the process with negotiations among a subset of senators on a committee when negotiations with any senator potentially willing to bring down the legislation will have to occur on the Senate floor.  Thus, although Senator Bernie Sanders is chair of the Senate Budget Committee and is certainly a central participant in budgetary discussions, he seems unlikely to craft his own budget resolution or budget reconciliation bill.

     Another longstanding feature of congressional procedure that has largely atrophied for budget-related legislation is the House-Senate conference committee.  Rather than appointing conferees to resolve any differences between the two chambers’ budget resolutions or budget reconciliation bills, the House will almost certainly bow to the tenuousness of Democratic control in the Senate and approve unchanged whatever the Senate produces.  This may be indirectly related to the demise of Senate committees:  if the House is going to surrender its prerogative to dispute portions of the Senate-passed legislation, at least it should have its version go directly to the Senate floor for consideration.  In a sense, the House itself is now playing the role that the Senate Budget Committee once handled. 

     This is not the only important example of the decline of the House-Senate conference committee.  The major coronavirus relief bills of 2020, although not enacted through reconciliation procedures, also avoided formal conference committees.  With control of the federal government split, negotiations between the parties became paramount; negotiations between the two chambers offered only a distorted echo.  Chambers’ majority and minority leaders have enough difficulty speaking for their caucuses; few are inclined to assume that those that happen to have risen to chair or ranking minority member of a committee can similarly seal a major deal. 

     Most of these procedural shifts can be criticized at least to some degree as reducing transparency.  In reality, however, most of the de-emphasized processes were fairly opaque anyway.  Conference committees rarely meet in public for anything more than photo opportunities.  The Senate Budget Committee’s deliberations on concurrent budget resolutions are public but indecipherable even to many veteran reporters because of the hypertechnical way in which they are drafted.  (Deeming resolutions are little better but certainly no worse.)  The Senate Budget Committee’s role on budget reconciliation legislation is nominally that of a very large stapler – assembling other committees’ work – leaving little for any but the savviest observer to discern. 

     More broadly, these changes clear away procedural underbrush that obscures what is really happening in Congress.  Seemingly munificent program authorizations with no prospect of appropriations are legislative disinformation whose departure we should not mourn.   As personalities become less important and party positions more so, reporters and voters should be able to discern what each party is, and is not, doing so that each may be held accountable at the polls. 


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