To see what is in front of one’s nose needs a constant struggle. — George Orwell
There is a lot not to understand about what is going on in Congress. If it’s worth the effort, maybe a good to start is “regular order” and why that is so hard to get back to.
The Congressional Research Service (CRS), the non-partisan research agency of the Congress, says the term “implies a systematic lawmaking process rooted in a committee structure that promotes deliberation, negotiation, and compromise, as well as amendment opportunities for law makers of both parties.”
Think the Schoolhouse Rock video “I’m Just a Bill,” or Jean Arthur splainin’ to James Stewart, in Mr. Smith Goes to Washington, how a bill does, or doesn’t, become a law. Congress itself provides a pretty good working video-description of regular order on its website, congress.gov.
But, as CRS put it, “regular order is not always regular.” It is not static. Special rules, from a rules committee, “constantly establish a unique ‘regular order’ process to accommodate the procedural and political conditions surrounding a particular measure or series of measures.”
According to the late Lee Hamiliton, a representative from Indiana in Congress from 1965 to 1999, conventional lawmaking diagrams give “a woefully incomplete picture of how complicated and untidy the process can be, and barely hints at the difficulties facing any member of Congress who wants to shepherd an idea into law.”
Even so, Hamilton was a believer because: “Different voices get heard through the regular order, opposing views get considered, and our representatives get the chance to ask hard questions, consider the merits of various approaches, propose alternatives, smooth out problems, build consensus, knock out bad ideas, and refine good ideas into better laws.”
Regular order had its best years in the mid-20th century. That is, if you believe good things come from hard-nosed compromise. The trend since has been to intransigent partisanship. In the 1950s, 1960s and 1970s, according to CRS, “the typical member of Congress voted with his (or her) party on party-dividing questions just 60% of the time, in the 1980s, over 70% of the time, and in the 1990s, over 80% of the time.”
In the 2000s unity on party-dividing issues rose into the upper 90s in percentage. The Affordable Care Act passed in 2010 without a single Republican vote. The 2017 Tax Cuts and Jobs Act passed without a single Democrat vote. Both of these highly significant laws passed in a situation of one-party governance — that is, one party controlled both houses of Congress and the Presidency.
As partisanship intensified in Congress, traditional, committee-centric regular order gave way to top-down methods of drafting of legislation within the closed doors of leadership offices, and to a “permanent campaign” of messaging to energize voters — even to the point of fomenting a nationwide “negative polarization” by which voters for one party dislike what the other party seems to stand for more than they like what their own party stands for.
When, in January, Kevin McCarthy was elected Speaker of the narrowly divided House of Representatives, it was with the support of the two dozen or so Republican members of the House Freedom Caucus (HFC) who extracted from him, for their support, commitment to return the House to more traditional regular order, including: * a return to committee-centric bill formulation. * a time frame to read bills before voting on them. * a bill is limited to a single topic — in other words, no more omnibus bills in which unrelated purposes are included in a single piece of legislation.
McCarthy also committed to a rule by which a single member of the Republican caucus, if dissatisfied with his performance as Speaker, could ask for a vote to remove him from the Speakership.
When, in June, Speaker McCarthy negotiated a deal with the White House that avoided the financial default of the federal government by raising the debt ceiling, the HFC became restive, believing or pretending to believe that McCarthy had reneged on his promise to return the House to regular order.
Not to worry, McCarthy countered. The two-year freeze on discretionary federal spending negotiated in the deal was a maximum ceiling. Such spending is subject to twelve different authorizations from twelve different committees. Before the beginning of the next fiscal year, regular order could take place in those committees. If reducing federal spending is a Republican priority, further reductions could take place there.
Some Republicans rolled up their sleeves and got to work — including, from the HFC, Scott Perry, Chip Roy, and Byron Donalds. But regular order entails drudgery. It also entails “getting along to go along.” Grandstanding and self-promotion, which some HFC members are known for, is antithetical to the process.
As the new fiscal year approached, only four of the twelve House subcommittees had reported regular-order bills for their portions of federal discretionary spending. A government shutdown loomed — which would cause not only national parks to be closed, but our armed forces servicepeople not be get paid.
To buy time, Speaker McCarthy sought a continuing resolution to fund the government into mid-November. To make the resolution attractive to outliers in his caucus, he allowed in it cuts in current non-defense related discretionary spending and some provisions of a border security bill. The cuts and border measures precluded any Democrat votes.
There are loose cannons in the HFC. This fringe group refused to support the continuing resolution, even with the provisions intended to accommodate them. So, it went nowhere. To shut down or not shut down became McCarthy’s question. On the very eve of the new fiscal year, he allowed on the House floor a “clean” continuing resolution — that is, with no purpose other than continue existing funding. It passed with the votes of all Democrats and a large majority of Republicans. Quickly endorsed by the Senate, it was signed law, minutes before midnight, by the President.
No good deed goes unpunished, as the saying goes. For keeping the federal lights on, McCarthy was rewarded by the most recalcitrant member of his caucus with a call for a vote to remove his as Speaker. The vote achieved its purpose. The majority against McCarthy was comprised of just eight Republicans and every Democrat.
I get that Democrats don’t like Kevin McCarthy. For more than a decade, he has been a leader in the ratcheting-up of partisanship. He undermined the investigation into the January 6 attack on the Capitol. He is subservient to Donald Trump. On his own authority as Speaker, he launched an impeachment inquiry against President Biden.
The House Freedom Caucus, especially its loose-cannon component, are vilified by Democrats as Trump-addled threats to American democracy. Yet, to a person, the Democrats House joined with this Republican fringe to expel McCarthy from the Speakership.
It may have been a moment, now lost, to restore some comity, and regular order, to Congress.
Good article that sums up the chaos and confusion that is our government.