Last week, Politico published an article talking about how the Republican House of Representatives under Paul Ryan’s speakership set a new record for the number of bills approved under closed rules—which prohibit members of Congress from offering amendments. Although the Politico story didn’t use the term, it echoes the complaints of Sen. John McCain (R-AZ) surrounding Obamacare “repeal-and-replace” legislation this past summer: “I want the regular order.”
McCain’s comment invites a question: What exactly constitutes “the regular order” in Congress? Why do people keep calling for it? And if so many people keep calling for it, why doesn’t Congress just restore “the regular order” already?
Unfortunately, the answers often prove cynics’ skepticism about Washington. Members of Congress support “regular order” only as long as it delivers the policy outcomes they desire. The second “regular order” results in a policy defeat, those who would lose in an open vote attempt to jerry-rig the process to achieve their desired outcome—and those who would win in an open vote complain, and call for a return to “regular order.” Lather, rinse, repeat.
Politico quoted House Rules Committee Ranking Member Louise Slaughter (D-NY): “Under Speaker Ryan’s leadership, this session of Congress has now become the most closed Congress in history.” To call Slaughter’s complaints about a closed process ironic would put it mildly.
Seven years ago, when she chaired the Rules Committee, Slaughter proposed having the Democratic House enact Obamacare into law without voting on it. The House could merely “deem” Obamacare approved as a result of passing some other measure.
While the House has repeatedly used this “deem-and-pass” strategy under both Republican and Democratic majorities, the optics of passing such a massive and prominent piece of legislation using such dodgy procedural shortcuts led Democrats to abandon the gambit, but not before conservative bloggers noted that Slaughter, Rep. Steny Hoyer (D-MD), and others attacked the “deem-and-pass” maneuver when Republicans controlled the House in the 2000s.
To sum up: Slaughter was for an open process before she was against an open process before she was for an open process again. Got it?
In proposing the “deem-and-pass” strategy, Slaughter looked to protect House Democrats from taking a tough vote on the unpopular health-care bill Senate Democrats approved on Christmas Eve 2009—the one with the “Cornhusker Kickback,” “Gator Aid,” “Louisiana Purchase,” and the other backroom deals that made the legislation toxic in the minds of many. When in the majority themselves, Republicans have used the same tactics, using procedural blocks to avoid politically difficult votes.
In 2015, the appropriations process ground to a halt in mid-summer, when Democrats offered an amendment preventing federal funds from being used to display the Confederate flag in national cemeteries. The amendment, offered by Rep. Jared Huffman (D-CA), originally passed by voice vote, but some Republicans pledged to vote against the bill if the amendment remained in it.
Republican leaders didn’t have the votes to strip out the amendment, and didn’t have the votes to pass the bill with the amendment in, so the Interior appropriations bill got shelved—as did the entire appropriations process, because Republicans feared Democrats would offer Confederate flag-related amendments to any spending bill that came to the House floor.
House Freedom Caucus
Over the past several years, conservatives have played an interesting role in the legislative process, as the Confederate flag flap demonstrates. Early in 2015, a group of lawmakers formed the House Freedom Caucus, in part to assure a more open process on the House floor. The press release announcing the caucus’ formation said HFC would “give a voice to countless Americans who feel that Washington does not represent them” through “open, accountable, and limited government.” Specifically, its founding members viewed the caucus as a way to protect and unify conservatives against procedural abuses by then-House Speaker John Boehner (R-OH).
Yet on several occasions over the past few years—including the Confederate flag flap—conservatives and HFC members have looked to leadership to squelch debate on amendments. Earlier this year, moderate Republicans and Democrats combined to defeat an amendment that would have prohibited federal funding of soldiers’ gender-reassignment surgery. Conservatives responded a few weeks later by demanding that leadership insert such a funding prohibition into the defense spending bill—without a direct vote, via the “deem-and-pass” strategy—even though the provision would have violated the will of the House as expressed in a vote weeks before.
While the executive ultimately decided the transgender issue—at conservatives’ behest, President Trump issued an executive order prohibiting transgender troops from serving, making the House procedural dispute moot—it illustrates the problems inherent with a move to “regular order.” As with Slaughter and Democrats, conservatives support an open process in the House only up until the point when it detracts from their desired policy outcomes, at which point the legislative process quickly devolves into a game of ends justifying means.
If it wanted to, HFC could easily demand a more open floor process out of Ryan. It could vote down the rules governing floor debate on individual bills unless and until the Republican leadership allowed an open process and more amendment votes, at which point the Republican leadership would have no choice but to acquiesce to pass legislation through the House. However, a more open process would require conservatives to accept policy outcomes they might not like—federal funds being spent on gender-reassignment surgeries, for instance.
Therein lies the problem. No one wants to give an inch on substance, and while people complain about process, no one will vote against a bill on process grounds alone. Case in point: The “repeal-and-replace” debate. The House members who voted on their health-care bill without a full Congressional Budget Office score were playing a game of Russian roulette—but vote for it they did nevertheless.
These strictures require leadership to use all manner of procedural shortcuts and chicanery to cobble together legislation that can command a majority of votes. It’s no way to run a railroad. But until members’ desires for “the regular order” are strong enough that they will vote down bills on process grounds alone, it will remain the way Washington works—or, in many cases, doesn’t.
This article originally misidentified the 2015 author of the Confederate flag amendment.