Irregular Order II
Chaos on the House Floor
The House of Representatives failed to agree upon a new Speaker after three ballots on Tuesday, January 3rd. The Democratic caucus nominated and voted for Hakeem Jeffries (D-NY-8). As a member of the minority party in power, Jeffries was unlikely to win. The Republican conference nominated and voted for Kevin McCarthy (R-CA-20), but on three ballots he fell short of the necessary 218 votes of House members to become Speaker.
The Republicans hold 222 seats in the House, but McCarthy could not afford to lose more than 4 votes. A five-vote loss would doom his candidacy. About 20 House members did not vote for McCarthy.
The Republican’s House Freedom Caucus stated it would not support McCarthy unless he agreed to several demands to reform the House. Among these were a pair of issues addressed in my column Irregular Order from earlier this year.
Both demands included a return to Regular Order. One demand would include participation of all members of Congress in the legislating process. It notes the two-century old tradition of an open amendment process has not occurred in nearly 7 years.
The other demand was to return to decades-old tradition of passing all 12 appropriations measures as stand-alone bills throughout the legislative year, and not as a single, massive multi-thousand page omnibus appropriation at year’s end.
Here is my original column, as it appeared earlier this year:
Throughout much of the 20th century, the lawmaking process in Congress was referred to as “regular order.” The procedure in making laws was straightforward. This time-honored step-by-step process is clearly explained on the House of Representatives website:
Laws begin as ideas. First, a representative sponsors a bill. The bill is then assigned to a committee for study. If released by the committee, the bill is put on a calendar to be voted on, debated or amended. If the bill passes by simple majority (218 of 435), the bill moves to the Senate. In the Senate, the bill is assigned to another committee and, if released, debated and voted on. Again, a simple majority (51 of 100) passes the bill. Finally, a conference committee made of House and Senate members works out any differences between the House and Senate versions of the bill. The resulting bill returns to the House and Senate for final approval. The Government Printing Office prints the revised bill in a process called enrolling. The President has 10 days to sign or veto the enrolled bill.
Some might view the process of the House and Senate simultaneously considering nearly identical bills as slow and laborious. The flip side of the argument is it is deliberative, includes negotiation and compromise, and provides the greatest opportunity for proposed legislation to get reasoned and well thought-out consideration. It is also the process that provides the greatest opportunity for bipartisanship.
The regular order process allowed all members of Congress to participate in formulating policy. However, not all bills would get equal consideration. Historically, committee chairs wielded tremendous power and oftentimes would decide if a bill was to receive any consideration or would merely die in committee. Members might have to wait until the following Congress to resubmit their proposed legislation. In some cases, they would have to wait years to gain enough seniority for their legislation to be seriously considered.
To be clear, regular order is not a formal process that is spelled out in House and Senate rules, Rather, it’s an understanding of a traditional process that was in place throughout much of the 20th century. Of course, regular order does not guarantee that all proposed legislation will get identical treatment. A bill that is absolutely ridiculous may never see the light of day in a committee room.
The exception to the committee approach in the House is a discharge petition. A bill that languishes in a committee may be brought out of committee and to the House floor for consideration – discharged – if a majority of House members agree to it. Sometimes the mere threat of a discharge petition can get a bill moving through a committee. Still, this is a relatively rare occurrence. The last successful discharge petitionwas in July 2001.
The Senate has a different procedure that is unlike the House discharge petition.
In the last three decades or so, passing massive thousand, two-thousand page bills has become common, particularly if the same party occupies both the White House and Capitol Hill. Bipartisanship for big measures rarely occurs. By bipartisan, we don’t include a vote of 220 House members of one party joined by a couple of the opposing party. There was a time when there was a more even mix of Republicans and Democrats on both sides of a bill vote.
There are probably several contributing reasons for this party-centric behavior in Congress. In general, liberal Republicans in the northeast became Democrats and conservative southern Democrats joined the GOP. There is probably more ideological alignment among the two parties than the US has witnessed in more than a century.
Another likely contributor is the state redistricting process where House members are ensconced in safe districts where allegiance to partisan legislation nearly guarantees reelection. There are relatively few contested House seats where a single “wrong” vote can spell reelection defeat.
The consequences of the failure to adhere to a regular order law-making process may be best exemplified by Congressional budgeting and spending.
Since 1965, Congress has submitted only five balanced budgets. Those were for fiscal years 1996, 1998, 1999, 2000, and 2001. The last time the US experienced a budget surplus was in 2001. In the two decades since, the federal government begins the very first day of its fiscal year knowing it will spend more money than it takes in (e.g. taxes). It is difficult to imagine a candidate running for the House or Senate (or reelection to either chamber) on a platform of routinely spending more money than the nation has. Yet, hundreds of senators and congressmen and have voted for overspending without suffering serious consequences at the ballot box.
Similarly, it’s been two decades since Congress passed all 12 appropriation measures as stand-alone bills. In fact, this has occurred only six times since 1990. The value of passing stand-alone appropriations bills is immeasurable. It is a transparent process that includes committee hearings, mark-ups, and committee reports. It provides the greatest opportunity for legislative and public scrutiny.
What has occurred with near absolute consistency in the last twenty years is the combining of all appropriations measures into a single, massive omnibus bill. Such a bill does not undergo the regular order law-making process. In most cases, the bill is compiled behind closed doors with only single party leadership involved. To be more precise, this irregular order is completely party-centric with the majority party calling all the shots. Unlike the regular order of consideration of a bill in a committee, the minority party is not even in the room when an omnibus spending bill is drafted. Literally, not in the room. The rise of the giant, omnibus spending packages has also sidelined committee chairs, effectively removing them from the appropriations process.
Make no mistake, this failure to pass all individual appropriations measures is a two-party issue. The failure to submit a balanced budget and the passage of stand-alone appropriation measures occurred when Democrats controlled both the White House and Congress, when Republicans were in charge, and when there was divided government. No party has clean hands.
Passing gigantic omnibus spending measures has become the new norm. This new norm of irregular order is just the opposite. Virtually the entire process is in secret, hidden from public scrutiny. The product of irregular order are bills, sometimes totaling more than 2,000 pages, that are chock full of surprises. This approach was best described when House Speaker Nancy Pelosi infamously said in 2010 of the Patient Protection and Affordable Care Act, “We have to pass the bill so that you can find out what is in it.”
The appropriations measures for fiscal year 2023, which begins October 1st, follow the pattern of recent years. At the moment, six bills (HR 8236, HR 8237, HR 8256, HR 8257, HR 8282, HR 8294, and HR 8295), encompassing 12 appropriations measures, are in various stages of House and Senate approval. None have been passed and been sent to the president to sign into law.
It appears irregular order is here to stay.
Mark Hyman is an Emmy award-winning investigative journalist. Follow him on Twitter, Gettr, Parler, Post, and Mastodon.world at @markhyman, and on Truth Social at @markhyman81.
His books Washington Babylon: From George Washington to Donald Trump, Scandals That Rocked the Nation and Pardongate: How Bill and Hillary Clinton and their Brothers Profited from Pardons are on sale now (here and here).