Robert A. Levine
Though this week America is focused on John McCain’s death, and is otherwise mesmerized by Trump, Cohen, Mueller and Manafort, regular life in Washington goes on. The government’s lack of accomplishment under Trump falls squarely on the shoulder of a barely functioning Congress. Given 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 296 laws, the 114th Congress 329 laws in 2015-2016. The first year of Trump’s White House sojourn with the GOP controlling Congress has been even worse with only 123 laws enacted. This compares with 600-800 laws per session twenty to forty years earlier.
All bills dealing with appropriations or revenue are supposed to originate in the House. Confirmations of cabinet members, judges, ambassadors, and treaties are within the province of the Senate through the Constitution’s “advice and consent” provisions. The House is able to indict or impeach federal officials by a majority vote while the Senate has the power to try all impeachments and remove officeholders by a two thirds vote. The growth of Congressional inefficiency and Congress’s inability to enact new laws is directly related to partisanship and the unwillingness of those with extreme ideologies to compromise.
Another critical factor undermining efficiency is the two year election cycle for the House. Every day 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 in their districts. The quest for money never stops. An orientation session for freshman by the Democratic Congressional Campaign Committee anticipated a nine to ten hour working day for House members. 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: hearings, discussions, votes on legislation and resolutions, and meetings with constituents. If the latter are potential donors, more time may be required to spend with them.
Since the Senate has a six year election cycle, there is less pressure in terms of constant fundraising. Legislating, hearings, interacting with other senators, occasional trips back home to make appearances before constituents, and some fundraising are part of a Senator’s schedule. 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. Daschle noted Senators had to collect an average of $10,000 for every day of the six years they were in office to come up with the amount spent in most Senate contests. In both House and Senate, fundraising competes with the work of legislating, frustrating lawmakers who want to do a decent job.
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 ratified in the Senate or House go to the other branch. This usually results in some changes in wording or substance. 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 the differences. Assuming the Speaker of the House and Senate Majority Leader believe the changes will result in passage, the bill then returns to each body of Congress for votes of approval.
Even if a bill has majority support in the House, if there is Republican control, a GOP Speaker may keep it from coming to the floor for a vote because of the ‘Hastert Rule.’ Formulated by Speaker Hastert in the mid-1990s, it requires a majority of the majority (the Republican caucus) to pass a bill before it can go to the floor. This means that even if Democrats and a minority of Republicans support a bill, it cannot be voted upon because consideration will not be allowed. The Speaker has significant power and may also not permit bills to reach the floor if he or she opposes them. On the other hand, bills or resolutions may be rushed through the House if the Speaker favors them.
Usually, there is a lengthy process bills follow in the House before coming to the floor. A subcommittee of a standing committee with jurisdiction holds hearings, interviewing witnesses and possibly experts in the field. Sometimes jurisdiction over a measure is divided between two 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. Then further hearings may or may not take place before the full committee votes on the bill. 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. Special rules on legislation may be generated by the House Rules Committee, (controlled by the majority), when major bills are to be considered.
The Rules Committee may also bring up bills for deliberation pending before Standing Committees, though this is rarely done. Thirty days after a measure has been referred to a committee, a motion to discharge it and bring it to the House floor can occur with approval of 218 members. Filing a discharge petition, or threatening to do so, may hasten committee action on a bill, but it is unlikely to get to the floor over the objection of the Committee Chairman. The Speaker of the House is also responsible for recognizing members, allowing them to speak, and ruling on points of order (which are rarely appealed). Because of the number of Representatives, time allocated to debate a measure is generally limited.
Constitutionally, the Senate needs a majority of its 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 decide legislation. Gerrymandering also allows House members representing a minority of citizens to control the legislative process. Unfortunately, these are among a number of flaws in the Constitution that conservatives are unwilling to change.