Congressional Reform Promises Yield to Political Impulses
During one of the British parliamentary reform debates of the 1830s, a Member reportedly rose to complain, "Reform, reform, reform, that's all we hear — as if things aren't bad enough already."
I recalled that remark in reflecting on the House Democratic leadership's promise in 2006 of substantial Congressional reform if they regained majority control. Yet, when push came to shove, the Democrats — having won the majority — forcefully pushed their legislative agenda while quietly shoving aside their reform commitments. Why make things worse by slowing the process with the niceties of procedural fairness and openness?
As I pointed out in a column at the time ("Will Democrats' Timetable Trump ‘Regular Order' Pledge?" Nov. 20, 2006), the Democrats' promise of greater openness and deliberation in the legislative process was at odds with their promise to pass their "Six for '06" legislative agenda in the first 100 legislative hours. I likened it to the new Republican majority's dilemma in 1995, when it, too, promised a more fair and democratic process as well as votes on all 24 of its "Contract with America" bills in just 100 days.
In both instances, something had to give, and it did. Republicans slighted full committee deliberations while keeping the floor amendment process relatively open. But even after the "Contract with America" exercise, there was never a full return to the regular order as promised. With a razor-thin majority, Republicans were content to entrust more power to their leadership at the expense of the committee system and a more open floor process. Over the period of six GOP Congresses, open amendment rules declined from 58 percent to just 19 percent of the total, while closed (no amendment) rules climbed from 14 percent to 32 percent.
Enter stage left, the Democratic majority in 2007, promising in its "Open Government and Honest Leadership" plank that "bills should generally come to the floor under a procedure that allows open, full, and fair debate consisting of a full amendment process that grants the minority the right to offer its alternatives, including a substitute."
Not only did the House Democrats bring all six of their lead bills to the floor under closed rules, they went on to break the Republican record for closed rules by reporting 59 — 37 percent of all rules. Moreover, only 23 bills were considered under open rules —14 percent of the total. Democrats had become worse in just two years than the Republicans at their worst after 12 years.
How fair were the Democrats in the 110th Congress on structured rules that permit only specified amendments? Whereas majority Republicans in the previous Congress allowed an average of nine amendments per structured rule — five majority and four minority — Democrats in this Congress permitted an average of just 7.6 amendments per structured rule — five majority — hardly a ringing tribute to fairness.
What about restoring the "regular order" at the committee level? Democrats promised to develop their bills "following full hearings and open subcommittee and committee markups." While Republicans brought 33 unreported bills out of 124 under special rules in the 109th Congress (27 percent of the total), Democrats in the 110th Congress brought more unreported bills — 36 — though their share of total rules was smaller (22 percent).
Another pledge of the Democrats in their 2006 platform was to be more open and inclusive than their predecessors regarding House-Senate conference committees. They would do this by holding regular conference meetings and allowing "ample opportunity for input and debate as decisions are made toward final bill language."
And yet, they've managed to skirt even this minimal level of participation by resorting instead to the "ping-pong" approach of working out amendments in disagreement between the chambers in closed-door negotiations involving only majority party operatives. Looking at those bills involving differences between the chambers that became public law, only 11 percent were conference committee products in the 110th Congress compared with 30 percent in the previous, Republican-controlled Congress.
One explanation for the precipitous drop in conferences in this Congress is that the new earmark disclosure rules for conference reports have discouraged going to conference in this first place. The explanatory materials for ping-pong amendments, including earmarks and their sponsors, are usually not published in advance as conference reports must be.
Another reason for fewer conferences is that appropriations bills are routinely sent to conference committee; yet none of the 12 were this year. Instead, all were bundled into a massive omnibus bill in late September — the mother of all ping-pong amendments. The explanatory statement for the bill, including earmark information, was placed in the Congressional Record on the day of the House vote, meaning it was not publicly available until at least a day later.
Why do we have this recurring "Animal Farm" phenomenon of new majorities (regardless of party) assuming the characteristics and behavior of their former masters? You don't have to be Machiavellian to understand that the will to hoard power is greater than the will to share it. Political leaders and their allied interest groups not only have a compulsion to amass power but to use it to implement their policies and programs. They are not inclined to pursue bipartisan compromise or permit partisan competition that might dilute their ideological principles or disperse political credit. It's little wonder, then, that earlier reform promises of openness and minority rights are soon sacrificed on the altar of partisan power politics.
Will President-elect Barack Obama's call for greater bipartisanship and transparency change the way Congressional Democrats do business? History is not encouraging on that count.