Robert A. Levine 3-22-17
As Republicans work on a health care bill and then intend to go on to tax reform, it should be reinforced that the last several sessions of Congress have been among the least productive in history. Efficiency and Congress are two words that do not belong in the same sentence. The 112th Congress in 2011 and 2012 passed a total of 284 laws, the 113th Congress from 2013 and 2014 enacted 296 laws. The 114th Congress enacted 329 laws in 2015-2016. This compares to 600-800 laws per session twenty to forty years earlier.
The growth of Congressional inefficiency and Congress’s inability to enact new laws are related to partisanship and the unwillingness of those with extreme ideologies to compromise. Another significant factor undermining efficiency is the two year election cycle for House members, forcing them to spend time campaigning and fundraising. Every day in Washington when Congress is in session, members of both parties use ‘call time’ to solicit funds from potential donors over the phone. In addition, they attend fundraisers in the capital or at home in their districts. The quest for money never stops.
An orientation session given to incoming freshman by the Democratic Congressional Campaign Committee anticipated a nine to ten hour working day for House members in Washington. Four hours were to be spent in ‘call time’ and an additional hour for ‘strategic outreach,’ devoted to press contact and fundraisers. Another hour was set aside to ‘recharge,’ with three to four hours allotted for the real work of a lawmaker. Included in this period were hearings, discussion and votes on legislation and resolutions, and meetings with constituents.
Since the Senate has a six year election cycle, there is less pressure in terms of fundraising and the tyranny of ‘call time.’ But as an election approaches, everything changes. According to former Democratic Majority Leader Tom Dasche, during the last two years of a senator’s term, two thirds of every day is spent raising money. In both House and Senate, fundraising competes with the work of legislating.
The structure of Congress and practices with historical resonance also play a role in inefficiency. Bills may be introduced in either body of Congress and those that have been ratified in either the Senate or House must go to the other branch for passage. This usually results in some changes in wording or substance. Other legislation or amendments not connected may also be attached to the original bill, hoping to obtain quick passage of something unrelated. If there are great differences in the Senate and House versions of the bill, it may go to a conference committee of the two branches to work out differences. The bill then returns to each House of Congress for approval.
The Speaker of the House has significant power and may not permit bills to reach the floor if he or she is against them. In addition, there is usually a lengthy process most bills follow in the House before they come to the floor for a vote. A subcommittee of a standing committee with appropriate jurisdiction holds hearings on the legislation, interviewing witnesses who are for and against the bill, and possibly experts in the field the new law may impact. (Sometimes jurisdiction over a new measure is divided between two or more House committees that may hold separate hearings.) If the leader of the subcommittee and a majority of its members approve of a bill, it will be sent on to the full committee. At that point, further hearings may or may not take place depending on the committee chairman. After the hearings, the full committee may vote on the bill if the Chairman desires. Before or after a vote, the Chairman may keep the legislation bottled up in the committee if there are aspects he or she does not like.
The Speaker of the House is responsible for recognizing members of the House, allowing them to speak, and ruling on points of order (which are rarely appealed). Because of the large number of Representatives, the time they are allocated to debate a measure is generally limited. To conduct business, according to the Constitution, the House must have a majority of its members (218) present.
Constitutionally, the Senate needs a majority of its one hundred members to be in session. Because the Constitution mandated two senators from each state, senators from the twenty-six least populous states with 18 percent of the nation’s citizens can control the legislative process. Gerrymandering also allows House members representing a minority of citizens to decide legislation.
The presiding officer of the Senate is the Vice-President rather than the majority leader who refers legislation to the appropriate standing committee if it has not originated there. The chairman of the committee may direct the legislation to a subcommittee for hearings and deliberation, before it returns to the full committee. Once voted on by the whole committee, the bill can be reported out to the Senate with the approval of the Majority and Minority Leaders.
Individual members of the Senate have more power than members of the House. This can make it more difficult for bills to be passed. The Majority Leader picks the chairmen of committees and appoints members from his party, the Minority Leader determining committee appointees from his or her party. Individual senators with an interest in particular legislation are consulted when a bill is in committee because measures are supposed to reach the floor by unanimous consent.
There are two unique powers Senators possess that no other legislative bodies in the world have invested in their members. These are the freedom of unlimited debate and the ability to offer unlimited amendments to legislation. If an individual speaks on the floor simply to delay passage of legislation it is called a filibuster and can be ended only by cloture with a three fifths majority. Much of the Senate’s business is conducted by unanimous consent to expedite action and limit debate, which can allow a single member to delay enactment of a bill. Another prominent feature of the Senate is the practice of ‘holds,’ which is a request by a senator to his or her party leader to withhold floor consideration of legislation or nominations.
The Majority Leader controls when the Senate will meet and what it will consider. Whenever possible, the Majority Leader tries to call up bills and resolutions by unanimous consent to expedite passage. If there are objections, it indicates that senators oppose a measure, may filibuster it, or try to influence action on it.
Amendments to bills do not have to be “germane or relevant” according to Senate rules, except for appropriation bills and budget measures. If a committee does not report a measure out, any senator may submit its text as an amendment to any measure being considered, disregarding the scheduling preference of the Majority Leader.
Though it is obvious that Congressional rules and precedents are quite complex and make passage of legislation difficult, partisan conflicts causes most of the obstacles to enactment of new laws and regulations. Whichever party is in control of Congress tries to assert its own agenda, while the party in the minority tries to block it. Compromise on pending measures is not easy to achieve, as neither party wants the other to receive plaudits from the public because of bills that have been passed. When the two Houses are split between the two parties, the legislative process is even more convoluted. Though politicians are reluctant to admit it, cooperation is necessary but may occur surreptitiously.
The normal legislative process with its inefficiencies has been bypassed by Speaker Ryan and those trying to expedite passage of the new health care bill. Whether it will be successful remains to be seen.
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