Well, if a little known House Rule is not reformed U.S. security could potentially be threatened. But if it is reformed, it could be threatened as well. So went the claims of two Members of Congress who offered two seemingly contradictory scenarios at a House Rules Committee hearing on reform of the procedures governing the Chamber’s debates.
Let’s start at the very beginning. Every two years, at the beginning of a Congress, the House adopts a package of rules to govern its procedures. The rules are passed by a simple majority vote, which is why the House is considered a majoritarian institution. The Senate is still operating off occasionally amended rules that were passed in 1794. (Since no more than one-third of the Senate is ever up for election, the Senate considers itself the only perpetually serving legislative body in the world. Hence, it doesn’t change the rules every two years.)
House Rule XXI has a number of clauses and subclauses, but the rule generally limits how Members may use the legislative process to make policy and increase or decrease spending. In theory, Congress should first make decisions on policy in one kind of bill—authorizing legislation—and then it uses what are called appropriations bills to actually spend money.
Budget authority is the power Congress gives to an official or institution to spend money, enter contracts, and employ personnel. Think of it as giving the Executive Branch permission to spend money on specified items if that money is appropriated. Usually, the authorization process is where most congressional oversight of the various Executive agencies occurs. On the other hand, a budget appropriation is the actual spending of money by Congress, supposedly only on the programs approved by the authorizing committees.
A common analogy on the Hill to explain the difference between authorizers and appropriators is that of a drinking glass and water. Authorizers determine the shape of the glass – what programs are approved, who can be hired, what contracts can be entered into, etc. Appropriators decide how full the glass is going to be. Oftentimes, authorizers envision a lot more money than appropriators are willing to give them.
Rule XXI (Clause 2(a)(1) for those keeping score at home) codifies the distinction between policymaking and funding by specifying the House may not spend money for a program or activity that has not already received an authorization. Clause 2(b) prohibits changes to “existing law”. This part of the rule means that entitlement spending, for programs like Social Security or food stamps, should not be changed through the annual appropriations process. Clause 2(c) prohibits amendments to general appropriation bills changing “existing law”. The upshot of all this is that the authorizers should set the laws and programs in each Federal agency, while the appropriators should limit their actions to deciding whether to fully fund all the programs approved by the authorizing committee.
Since appropriating money for an unauthorized program is against the rules of the House, any Member, in theory, could raise a point of order challenging unauthorized appropriations. If the Parliamentarian agrees, that particular appropriation would be stricken from the bill. However, despite Rule XXI, approximately one-third of Federal discretionary spending is for unauthorized programs or activities. This includes programs like the Department of Homeland Security, the Secret Service and the State Department!
One might ask, if this is against the rules, how do these programs keep getting funded? Good question. The short answer is that the rules permit it. The Constitution permits the government to spend money only when Congress has passed a law permitting it, which is why the government shuts down if the appropriations process is not completed on time. Since the mid-1990s, the country has seen several government shutdowns resulting from political impasses on appropriation bills. But the Constitution does not require an authorization bill before an appropriation bill, even though it allows each Chamber to sets own rules on how to pass spending bills. Taken together, requiring an authorization bill has become optional, in reality, since Congress can simply, and usually does, dispense with its own rules requiring programs to be authorized before appropriators can spend money on them. One way is that the House Rules Committee will generally waive the point of order from being considered when the appropriation bill comes to the Floor. As a result, once the special rule is adopted by a majority of the House, the point of order against appropriating for an unauthorized program is not allowed, and if a Member tries to do so, he or she would be ruled out of order. While it is tried and true legislative procedure, just about anywhere else this would be seen as cheating. A simple majority can decide the rules of the House don’t apply whenever they become inconvenient to the pressing legislative agenda. (The House’s ability to dispense with its own rules is not intrinsically bad. For instance, in an emergency, waiving rules might be necessary. The circumstances more than anything else allow us to say whether deviations from the standing rules are fair or not.)
At a hearing earlier this month, Rep. Tom McClintock of California argued in favor of changing Clause 2(b) to provide the House with the authority to change entitlement spending so it would come under the budget Congress should adopt each year. This would make it easier (procedurally, not politically) for Congress to amend the two-thirds of the budget that is now considered mandatory spending that is off limits to the budget process. Rep. McClintock started his testimony citing former Chairman of the Joint Chiefs of Staff Admiral Mike Mullen who said that the burgeoning national debt was the gravest national security threat. The Congressman argued that his rule change would strengthen the legislature’s ability to cut entitlement spending—so often a divisive and politically unpopular feat. “Before we can provide for the common defense or promote the general welfare, we must be able to pay for them, and history warns us that countries that bankrupt themselves aren’t around very long”, McClintock said.
But according to Rep. David Price of North Carolina, the same reforms could actually endanger national security. The changes, he said, would make the appropriations process even more politically charged and dysfunctional, thereby threating the funding of government services. “A number of agencies and programs critical to our national security would be forced to put up a ‘closed’ sign: the entire U.S. Coast Guard, Immigration and Customs Enforcement, the Federal prison system, Secret Service, Customs and Border Protection, along with Federal grants to state and local law enforcement agencies. We’d also have to close a little-known agency known as the U.S. State Department”, he said. “It’s a recipe for chaos. It’s a threat to national security.”
You might roll your eyes at the suggestion that national security hinges on House rules, but it is not that great a leap to point out the economic reality that ever-increasing national debt threatens to crowd out all Federal spending, not just defense. And the House rules do determine the situations and circumstances in which fiscal bills are debated. Allowing the House to address the issue of entitlements through the regular authorization process would increase Congress’ ability to affect overall spending decisions. Whether or not they would have the political will to do so is an entirely different question. Congressman Price justly points out that the appropriations process is already broken. A big part of this is because Congress won’t authorize programs it is already “required” to approve. Adding a new layer of authorizations won’t make it any easier to pass appropriation bills. Merely creating another rule for Congress to waive would do nothing to increase the credibility of the Legislature – already suffering from an all-time low in the public’s esteem.
A system that has no penalties for failure, and makes completion of the process exceptionally difficult, will more often result in failure than success. For example, Congress must enforce its own budget rules, which it can easily work around: Regrettably, it’s been nearly 20 years since it has completed the process on time and according to the rules. One possible way to promote success is to create incentives that will “punish” failure. It would be reckless and dangerous for Congress to shut down the operations of the CIA and the FBI if their authorization bills did not pass. The consequences to the country would be too great, which is why Members have allowed the Rules Committee to develop a work around. However, this work around has become standard operation procedure, reducing the incentive for both the Administration and the Appropriations Committees to work with authorizing committees to complete their work. Rep. McClintock’s proposals are a step towards disincentivizing failure, as is Rep. Cathy McMorris Rodgers’ USA Act. The basic premise of her proposal is that Congress should withhold a small percentage in the appropriations for a non-authorized agency. A structure like this would give both the agency in question and the appropriation committee members incentive to see that authorization bills pass on time. Funding unauthorized agencies and programs at a reduced level would also pinch the Administration and the two major political parties enough to get their work on time. There’s any number of ways to create rules to reinvigorate the authorization process—and, if successful, they would have major, if perhaps unseen, effects upon policies affecting us all.
In this post, our goal is not to explain all the intricacies of the congressional budget process, or every option for Congress might consider to make the budget process work better, but to point out that every reform of the rules is a complicated matter with far-reaching consequences. The testimony the Members offered shows the importance of congressional rules—and therefore rules changes—to the country’s interests. Congressional rules might be difficult to understand, let alone master, but they are essential to making the policies that affect everything from our nation’s highways to the equipment being used by our soldiers on the field of combat.
Process seems boring, and you won’t see a lot of stories about it on the evening news or in your friends’ Facebook posts, but it matters enormously to the functioning of democratic government. The members of the House Rules Committee like to remind their colleagues, “process is policy.” Our corollary to that maxim is: When the process breaks down, policy doesn’t get made and the government becomes dysfunctional. Dysfunction is not boring—but it certainly isn’t fun. Ignore process at your peril.
This is why we believe so strongly that Congress should consider reforms of the authorizations-appropriations process in the context of a new Joint Committee on the Organization of Congress. Congress has traditionally reformed itself by creating a bipartisan, bicameral committee specifically to systematically consider and debate ways to strengthen the legislative process. Every generation, the Congress needs to reform its rules, eliminate its procedural contradictions and hypocrisies and generally modernize its process to fit with changing technology and economic theory. Since the authorizations-appropriations process has such wide-ranging effects on the country, it’s critical that reforms to those procedures receive careful consideration. A new Joint Committee would be an ideal venue to do so.
Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.