There’s a lot of talk about the broken processes in the House and Senate, particularly around the health care bill. Extraordinary secrecy has been employed to push the AHCA through the House and the BCRA through the Senate. In fact, there’s so much commentary about how “broken” the institution is that people are overlooking what a disastrous strategy this is for Republicans. In short, this leader-centered process is horribly mismatched to the current, fractured Republican Party. The strategies employed by House Speaker Ryan and Senate Majority Leader McConnell’s are exacerbating tensions in the party, opening their members to damaging votes, and putting their colleagues in untenable political positions.
First, let’s assess the broken process. These arguments rest on a couple assumptions: first, that committees should hold hearings and markups, and second, that these debates should be open to the public. These components are commonly referred to as ”regular order.” But the truth is that neither of these things are completely regular. In fact, these processes barely overlap in congressional history. They are features from different legislative eras.
Committee hearings and markups have become increasingly less relevant to the language that actually passes through Congress. Committee influence is minimized and often bypassed entirely, a trend that can be traced back to the late-1970s, gained steam in the 1980s, and hit warp-speed in the 1990s. Over that time it’s become more common for bills to be pulled out of committees, significantly changed after committee consideration, or skip committees altogether. If regular order is for bill language reported from committees to receive debate and amendment on the floor, it’s been a long time since Congress has been regular. Today, it’s far more regular for party leaders to control the process from the beginning.
This brings us to the openness of the process. The period in which committees worked through bills and saw their language largely intact when these bills reached the floor is roughly the same period when their hearings were closed to the public. Decades ago, committee hearings were closed until voted open. Today, they are open unless voted closed. This has only been a feature in congressional deliberation since 1970, and it has indeed made committee action more transparent. But that transparency is accompanied by less relevance in the legislative process, not more.
As Walter Oleszek points out in his essay in the Congressional Research Service’s The Evolving Congress, regular order is a flexible construct. Things haven’t been “regular” in a long time. As a result, many current critics lament a process that barely existed. In doing so, they miss the more important point: how this strategy is potentially catastrophic for Republicans.
Leaders have taken a more central role in the process, in part, to protect their majorities. They forward bills that promote the party’s image and brand. They use their power to prevent politically damaging amendments on the floor. They use the process to accomplish policy and political goals that will, on the whole, enable their party to win the next election. In recent decades this has become the norm.
It’s safe to say we are no longer in recent decades. The health care process has accomplished none of these things. Instead, the McConnell and Ryan strategy has presented members with horribly unpopular bills. Now, Majority Leader McConnell is in the process of exposing his members to a variety of potentially damaging amendments. Senator Heller’s 2018 challenger is already fundraising off of his vote to just debate the bill.
The process changes. It always has. Getting back to regular order is a misnomer. But focusing on how different this process is misses how bad it’s likely to be for the Republican Party. Members are being forced, begged, or coerced to adopt a strategy that will likely damage them. The process is not bringing the party together; leaders are instead likely to drive an even deeper wedge between the ideological wings of the party. Conservatives like the House Freedom Caucus, Senator Lee, Senator Cruz and others are frustrated they are not getting what they want. Meanwhile, moderates are being forced to take difficult votes that could exacerbate their already vulnerable status. As a result, these tactics are creating in a loss of confidence.
It’s possible the Republican Party has become too ideologically diverse to effectively govern. If that’s the case, no process will cure its ills. But one thing is certain: this process is not helping bring the party together. Instead, leaders are intensifying intraparty tensions. And as bad as this process is for democratic norms, it’s arguably worse for the majority party.