When House Republicans complain that Democratic leaders are trampling all over “the regular order,— they are usually dismissed as a tedious whine party. But when majority Democrats call on their own leadership to return to the regular order, you know that something is seriously amiss. And that’s exactly what’s been happening in this Congress.
[IMGCAP(1)]It all started with a draft letter to Majority Leader Steny Hoyer (D-Md.) signed by 68 members of the Blue Dog and New Democrat coalitions (plus the ousted Energy and Commerce chairman, Michigan Democratic Rep. John Dingell), calling for a return to the regular order.
The letter was headed off when Speaker Nancy Pelosi (Calif.) scored a pre-emptive strike Feb. 5 at the House Democrats’ Issues Conference in Williamsburg, Va. Before any Caucus members could raise the issue, Pelosi pledged in her opening remarks that there would be an immediate return to the regular order with a bottom-up, subcommittee- and committee-driven process for writing and moving legislation.
In a Feb. 12 National Press Club address, Hoyer said: “After the economic recovery plan is passed, the House must return to regular order. More Members from across the ideological spectrum need to have input into the work we do because the result will be better legislation, stronger consensus and a House that is as open and representative as we pledged it would be.—
Pelosi’s and Hoyer’s assurances quieted things for awhile, until it became apparent that there was not going to be an immediate restoration of the regular order after all. The next big bill out of the box was the $410 billion omnibus appropriations measure covering 12 Cabinet departments and combining nine spending bills left over from last year. None of those bills had been formally reported by committee, let alone passed, in the House or Senate; and yet the omnibus bill was being treated like a conference report between the two bodies.
What was being short-circuited, of course, was the normal, open amendment process for the initial consideration of such bills. For those who might have been interested in excising some of the 8,500 Member earmarks worth $7.7 billion, forget about it. The 1,122-page bill was introduced and posted online on Feb. 23. The next day, it was rushed through the Rules Committee, where no amendments were allowed, even though several Members testified in favor of amendments that they wished to offer.
A day after the omnibus passed the House, the chamber took up the Helping Families Save Their Homes Act, a bill designed to prevent mortgage foreclosures and enhance mortgage credit availability. It had not been reported by any committee, though similar provisions had been reported as four separate bills from the House Financial Services and Judiciary committees. One Member, Rep. Steve King (R-Iowa), complained that an amendment of his, adopted in a 21-3 vote by the Judiciary Committee, had inexplicably been dropped from the new bill.
Only four of the 41 amendments submitted to the Rules Committee were allowed. The majority leadership was taken aback when 26 Democrats joined with 172 Republicans in voting against the special rule. The rule was still adopted, 224-198, but a clear warning shot had been fired across the leaders’ bow, and they yanked the bill from the floor before any of the four amendments could be offered. The New Democrats and Blue Dogs were still unhappy with a “cram-down— provision that would allow bankruptcy judges to reduce the principal and interest on mortgages.
Immediately after the bill was pulled, Rep. Marcy Kaptur (D-Ohio) delivered a one-minute speech, “Regular Order Should Be the Rule of the Day,— in which she suggested that “it would be incumbent upon leadership to allow the membership, if they wish, to offer amendments before the Rules Committee.— The leaders followed her advice and went back to the Rules panel to get one more amendment to mollify their Caucus critics. It was enough to secure passage of the bill the next day.
Over the following two weeks, bipartisan bills dealing with water projects and volunteerism were brought through the regular committee process. But then came the American International Group bonus controversy and the immediate response to impose a 90 percent tax on Troubled Asset Relief Program “bonus babies.— The bill was introduced by Ways and Means Chairman Charlie Rangel (D-N.Y.) on March 18 and brought to the floor under suspension of the rules the next day (just 40 minutes of debate, no amendments and a two-thirds vote for passage).
It would have been judicious for some committee (say, Judiciary) to have first looked into the contractual and constitutional implications of the legislation. Some might argue the tax on this specific group of individuals is a “bill of pains and penalties— that is treated the same under the Constitution as a bill of attainder.
Was the bill sufficiently urgent to justify circumventing committee hearings and deliberations? The taxes on the 2009 bonuses wouldn’t come due until April 15, 2010. The only urgency was political: Members had to demonstrate to angry constituents that they were taking swift and forceful action. Public outrage had set off a panicked, bipartisan stampede of Members in support of the bill. For now, the Senate has become the saucer to cool the hot coffee from the House.
Despite all the grumbling in Democratic ranks over the past few months, it is still not clear that the leadership fully gets it. Repeated promises of a return to the regular order are wearing thin. The leadership seems to be saying, “We’d really like to get back to the regular order, but important legislation keeps getting in the way.— Surely someone remembers the refrain from that old Perry Como hit, “Forget Domani——“for tomorrow never comes.—
Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.