The U.S. Select Committee on the Modernization of Congress held a hearing on Thursday, December 5, to examine how its committee and Floor procedures could be improved. Members and witnesses discussed various conflicts that affect the legislative process, like tensions in the committee structure and the majority’s ability to govern, which often conflicts with the minority’s ability to shape legislation. To address the various conflicts and perceived problems, they examined potential changes to the amendment process, committee jurisdictions, the motion to recommit, and others.
Christopher M. Davis, an analyst on Congress and the Legislative Process for the Congressional Research Service, provided testimony about the history of past congressional reform efforts. C. Lawrence Evans, the Newton Family Professor of Government at the College of William and Mary and a staffer for the 1992 Joint Committee on the Organization of Congress, discussed indicators of increased partisanship in the House and suggested how the House could increase minority participation while maintaining the majority’s ability to legislate. Natalie Wood, the director of the Center for Legislative Strengthening at the National Conference of State Legislatures (NCSL), presented how different state legislatures structure their Floor procedures and committee systems.
The Members and witnesses spent a considerable amount of time discussing how to balance majority and minority rights in the House. On the one hand, the majority party expects that it will be able to advance the agenda it has campaigned on. On the other, the minority party (and minority sub-groups of the majority party) also desire to shape legislation. Yet in the House, the minority’s ability to legislate on the Floor has been sharply curtailed in recent decades, since the majority—whether it has been Democrats or Republican—has more frequently used closed rules, which forbid amendments. The majority does this both to control policy outcomes and to prevent the minority from offering embarrassing amendments that they will highlight in the next election. Limiting amendments provides the majority great power over the process, but when the minority thinks that it has no shot at actually legislating, obstruction becomes its modus operandi. For instance, at the very end of the debate but just before the final vote on a bill, the minority is guaranteed the right to offer a motion to recommit, which kills a bill if it is offered without instructions, or which amends it, if it is offered with instructions. The minority will often include instructions that are controversial and put the majority party Members (especially those from competitive districts) in a dilemma: Vote against the motion and look bad in the eyes of voters; vote for it and undermine the party’s leadership and agenda.
Select Committee Chairman Derek Kilmer highlighted the negative dynamics that prevail when the minority has no ability to participate in the process.
“I always describe engaging people in the legislative process as like walking my dog. If I don’t walk my dog, he chews the furniture,” Kilmer said. “To some degree, if people are left on the sidelines, it’s far more likely they chew the furniture in the process.”
To encourage minority participation, Professor Evans suggested shifting the focus of minority participation to the normal amendment process in the Committee of the Whole, rather than at the end with the motion to recommit. He proposed guaranteeing the minority leader (or his or her designee) the right to offer an amendment in the nature of a substitute in the Committee of the Whole. At the same time, he suggested eliminating instructions with the motion to recommit.
Another major topic of discussion was the committee system. For instance, Representative Suzan DelBene asked how committee jurisdictions could be modernized. Panelists cautioned that jurisdictional realignment was very challenging. Davis said that it would be very difficult to find a jurisdictional scheme where more Members found that they were benefiting than losing. Similarly, Professor Evans recalled from his experience working for last Joint Committee on the Organization of Congress that Speaker Tom Foley said the attempts at realigning committee jurisdictions in the 1970s was the most contentious issue he had ever seen divide the Democratic Caucus—outranking even the Vietnam War. Instead, Evans suggested perhaps focusing on having committees come to agreements over issues where there is shared jurisdiction, rather than going through a major realignment.
Throughout the hearing, the Select Committee returned to a theme that has become familiar to its meetings: How can the House promote civility and bipartisanship among its Members?
“I think that certainly it’s always important for us to be able to treat each other with respect and always looking for ways to increase that,” Representative Dan Newhouse (R-WA) said.
“I don’t think you’re alone in the challenge that you face,” Wood said, noting that state legislatures also face the issue. The NCSL sessions on civility and respect are always well attended, she noted. However, one benefit state legislatures have over Congress is size: Smaller bodies allow people to get to know each other better.
While participants discussed how rule changes could incentivize serious attempts at legislating and discourage gotcha-style politics, Representative Rob Woodall (R-GA), a member of the House Rules Committee, that forces outside of Congress have led to reduced opportunities for lawmaking.
“I don’t actually view the rules of the House as having diminished my opportunities as a minority Member. I view the body politic as having diminished my opportunities,” Woodall said. “I’m rewarded for saying something outrageous more than I am for getting something tucked into a bill.”
The Congressional Institute has offered potential options to increasing Member participation on the Floor and in Committee. See “Should the House Follow Its Own Rules” and “Open House: How the House Can Reinvigorate the Amendment Process.”
Mark Strand is the President of the Congressional Institute and Timothy Lang is a research director. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the Legislative Branch.