Is Fixing Congressional Procedure A Lost Cause?

Changes in how Congress operates have made it a less open, fair and democratic institution. Former Congressman Lee Hamilton worries that it may now be too late to change, and wonders, "Is Fixing Congressional Procedure A Lost Cause?"

Four years ago, the Democratic minority on the Rules Committee of the U.S. House — the body that oversees legislative process for that side of the Capitol — issued a lengthy report excoriating the Republican majority for abandoning "procedural fairness" and "democratic accountability." The House leadership of the time, it charged, had essentially shut down debate and boxed the minority out of any meaningful participation in congressional life.

Last year, the Republicans on the committee — now in the minority themselves — responded with a similar broadside. They accused the new Democratic majority, in the words of their report's subtitle, of abandoning "its promises of openness and civility." "The record demonstrates," they went on to say, that Congress under the Democrats "has actually been more closed than any in history."

This exchange may seem to be an obscure front in the usual partisan warfare on Capitol Hill, but there is something more fundamental going on than simple partisanship. There is, I believe, a generational shift that has taken place in Congress that raises the question of whether the deliberation, openness and fairness that most Americans would want to see in their premier legislative body are receding out of reach.

Simply put, the rules have become a tool of the leadership in both parties to pursue their goals — and there are very few members of Congress who still remember when they instead guaranteed the right of ordinary members to engage in open debate and to affect the course of legislation. Each side seems to recognize this now only when it is in the minority.

The body of rules that members of Congress like to refer to as "the regular order" evolved over time for a reason. It performed a balancing act: on the one hand, allowing any member a chance to participate in debate and legislation, and on the other, seeking to rein in and channel the determination of ambitious politicians to have their say. In doing this, the rules sought to preserve Congress' essential nature as the place where Americans' representatives could bring their various points of view — regional, ideological, moral, and parochial — and work to reconcile them as they grappled with promoting the national interest.

But gradually, beginning under Democratic majorities in the 1980s and accelerating under the Republican majority of the 1990s, the leadership — especially in the House — began to experiment with interpreting the rules to maximize its power. It did so in part because it wanted to banish uncertainty — the unforeseen amendment, the chance that a floor debate might change minds — and in part because the close partisan divide of the last couple of decades has raised the stakes in every vote, redoubling the determination of the majority to avoid politically uncomfortable votes arranged by the minority.

The paths the leadership took seem technical. It used the Rules Committee, stacked with loyalists, to limit the ability of members to debate or amend legislation. It found ways to bypass the general committee structure entirely and have bills considered only under conditions — and with amendments — of its own choosing. It began to rely on huge omnibus bills that are impossible for members to read through, let alone analyze and debate, before they're voted on. It limited the ability of conference committees between the House and Senate to depart from the script laid out in advance by leaders in both chambers.

The upshot, however, is not at all technical. Power is now concentrated in the hands of the leadership and its allies. Actual debate — debate in which the legislative outcome is uncertain — is largely a thing of the past. Legislative maneuvering is aimed less at affecting policy than at affecting elections. The divide between the majority and the minority — not just as partisan bodies, but as individuals serving in Congress together — is deepened by mutual unhappiness over how the other side behaves.

This is not healthy for Congress, and it is certainly not healthy for the American people, who deserve policies that are openly debated and fairly pursued. So I worry that with every passing year, it is getting harder to undo the changes of the past couple of decades. For most members of Congress now, the current state of affairs is "the regular order," and the earlier era isn't even a memory.

Change is unlikely to be driven from within; it will only happen, I believe, if enough members of the public come to see the disconnect between how Congress runs itself day-to-day, and our ideals for a representative democracy that is worthy of the name.

Audio Version