Unorthodox Lawmaking

New Legislative Processes in the U.S. Congress

Barbara Sinclair

• Publisher: CQ Press
• Year: 2016
• Print ISBN: 9781506322834
• eBook ISBN: 9781506322858
• Edition: 5
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

"Barbara Sinclair does an excellent job of showing how contemporary lawmaking departs from the traditional legislative process. I can?t imagine teaching a course on Congress without this text—it's absolutely indispensable."

—Philip Klinkner, Hamilton College

Most major measures wind their way through the contemporary Congress in what Barbara Sinclair has dubbed "unorthodox lawmaking." In this much-anticipated Fifth Edition of Unorthodox Lawmaking, Sinclair explores the full range of special procedures and processes that make up Congress's work, as well as the reasons these unconventional routes evolved. The author introduces students to the intricacies of Congress and provides the tools to assess the relative successes and limitations of the legislative process.

This dramatically revised Fifth Edition incorporates a wealth of new cases and examples to illustrate the changes occurring in congressional process. Two entirely new case study chapters highlight Sinclair's fresh analysis and the book is now introduced by a new foreword from noted scholar and teacher, Bruce I. Oppenheimer, reflecting on this book and Barbara Sinclair's significant mark on the study of Congress.

Chapter One Clean Air: An Introduction to How the Legislative Process Has Changed

In 1970 congress passed a pathbreaking Clean Air Act, legislation Congressional Quarterly called “the most comprehensive air pollution control bill in U.S. history” (CQ Almanac [CQA] 1970, 472).

Reported by the House Interstate and Foreign Commerce Committee, the bill was considered on the House floor under an open rule allowing all germane amendments. Of the nine amendments offered, eight were defeated, most on voice votes; only one technical amendment was accepted. The bill passed the House 375–1.

In the Senate the Public Works Committee reported a bill stronger than the House legislation or the administration’s draft. After two days of floor debate, during which ten amendments were accepted by voice vote and two rejected by roll calls, the Senate voted 73–0 to pass the strong bill. The conference committee, consisting of five members of the House committee and nine senators, came to an agreement on a bill much closer to the Senate’s stringent version than to the House’s milder bill, and both chambers approved the conferees’ version by voice vote.

Although the bill was far stronger than the legislation he had initially proposed, President Richard Nixon signed the Clean Air Act: “one of the most far-reaching laws ever passed by Congress to regulate the domestic economy,” in the words of a prominent journalist. The act set auto emission standards so stringent that it forced the development of new technology, and it directed the Environmental Protection Agency to establish national air quality standards (Cohen 1992, 13).

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By 1989 when the 101st Congress began work on a major revision of the Clean Air Act, the political and institutional environment had changed, and the path the legislation traversed to enactment was very different from that of its 1970 predecessor. In the Senate the slightly renamed Public Works and Environment Committee again reported a strong bill. The bill was considered on the Senate floor for six days, but the majority leader, George Mitchell, D-ME, could not muster the sixty votes needed to overcome a threatened filibuster. To construct a bill that could pass the chamber, the majority leader began negotiations with the administration and with a large and shifting group of senators. Members of the Environment Committee participated on a continuous basis, but many other senators with an interest in specific issues also took part. After a month of talks, an agreement was reached. To guard against any unraveling of the compromise, Mitchell and President George H. W. Bush pledged to oppose floor amendments—even those that reflected their policy preferences.

Mitchell offered the compromise worked out in the talks as a substitute amendment to the bill the Environment Committee had reported. He negotiated a complex unanimous consent agreement (UCA) for considering the bill on the floor. That UCA did not limit either debate or amendments; it simply required senators to put the amendments they wished to offer on a list. This provided a modicum of order to floor consideration of the bill. After ten days’ debate over a month’s time, the Senate passed the bill 89–11. Of about 250 amendments on the list, 25 were offered and pushed to a roll call vote; 9 of these passed. None was a “deal-breaker.”

In the House, the legislation was referred to three committees, rather than just one as the 1970 bill had been. The Energy and Commerce Committee, successor to the Interstate and Foreign Commerce Committee, was the lead committee, and after protracted internal negotiations, it reported legislation that represented a compromise among its factions. One key issue, however, had been decided by extremely close votes in both the subcommittee and the full committee, and Speaker Tom Foley, D-WA, was concerned that the issue might well lead to a bitter party-splitting battle on the floor. He thus instructed the lead representatives of the two Democratic factions, Henry Waxman of California, chair of the subcommittee, and John Dingell of Michigan, chair of the full committee, to work out a compromise. In order to pressure them to act expeditiously, Foley set a deadline for floor action on the legislation. The Speaker and his aides then worked with Waxman and Dingell to help them come to an agreement. The other committees, also under Speaker-imposed deadlines, reported their legislative language.

Unlike its 1970 predecessor, the 1990 clean air legislation went to the floor under a rule that restricted amendments to the nineteen listed in the Rules Committee report and that carefully structured how these amendments would be considered. The crucial Waxman-Dingell deal was offered as an amendment on the floor and approved 405–15. In all, six amendments were pushed to a roll call vote and five passed; none of these threatened the key compromises. The House then approved the bill 401–21.

Speaker Foley chose 130 conferees to represent the seven committees with some jurisdiction over the bill’s subject matter. Nine members from two committees represented the Senate. Protracted negotiations produced a bill that passed both chambers easily. A dramatic expansion of the Clean Air Act, the 1990 bill for the first time set up a program for controlling acid rain, established a stringent new program to control emissions of toxic air pollutants, and set new standards and timetables for improving urban air quality (Congress and the Nation 1993, 469, 473–474). Although it was considerably stronger than the draft he had proposed, President Bush signed the legislation.

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These examples illustrate how greatly the legislative process on major legislation changed between the early 1970s and early 1990s.¹ The legislative process on the 1970 Clean Air Act perfectly fits the bill-becomes-a-law diagram that is still a staple of American politics and legislative process textbooks (see Table 1.1). The 1970 bill was considered by a single committee in each chamber. It came to the House floor as drafted and approved by the committee, and it was considered there under an open rule allowing all germane amendments. The Senate also considered the bill as drafted by its committee; no senator mounted a filibuster, and no amending marathon occurred. After both chambers had passed the bill, a small group of senior members of the two committees got together in conference and worked out a compromise between the House and Senate versions.

The process on the 1990 bill, by contrast, was much more complex and not amenable to a nice, neat diagram. The legislation was considered by several committees in the House, and in both chambers, compromises arrived at through informal processes altered the bills after the committees reported their legislation. Floor procedures were complex and tailored to the specific bill at issue. In the Senate, the real possibility of a filibuster shaped the process, making it necessary for Majority Leader Mitchell to build through negotiations an oversized coalition. The final conference agreement was worked out by a much larger and more diverse group of members than in 1970.

Table 1.1

In the contemporary Congress the textbook diagram describes the legislative process for few major bills. The seemingly unorthodox legislative process on the 1990 Clean Air Act is actually more characteristic of contemporary major legislation than the supposedly standard textbook process that the 1970 Clean Air Act went through. And in the years since 1990, unorthodox processes have continued to evolve in form and increase in frequency of use.

To be sure, even during the textbook era, not all legislation followed the relatively simple, straightforward process depicted by Table 1.1; there always have been alternative paths. Their use, however, was extraordinary, not ordinary; most major legislation followed the textbook process.²

Today the bill that, like the 1970 Clean Air Act, is reported by a single committee and considered on the floor under a rule that allows all germane amendments is rare. In fact, the legislative process is now bifurcated to a considerable extent. Most bills are passed through shortcut procedures—suspension of the rules in the House (see Chapter 2) and unanimous consent during the end-of-the-day “wrap-up” in the Senate (see Chapter 3). These, however, are not major bills; they are neither controversial nor far reaching in impact. In contrast, the legislative process on major legislation is now regularly characterized by a variety of what were once unorthodox practices and procedures.

Rather than being sent to one committee in each chamber, many measures are considered by several committees, especially in the House, while increasingly the most controversial measures bypass committee altogether. Not infrequently, after a bill has been reported—but before it reaches the floor—major substantive changes are worked out via informal processes. Omnibus measures of great scope are a regular part of the legislative scene, and formal executive-congressional summits to work out deals on legislation are no longer considered extraordinary. On the House floor most major measures are considered under complex and usually restrictive rules often tailored to deal with problems specific to the bill at issue. In the Senate, filibuster threats are an everyday fact of life, affecting all aspects of the legislative process and making cloture votes a routine part of the process. This book explores how and why the legislative process in the U.S. Congress changed since the 1970s and examines the consequences of those changes.

Although the changes in the legislative process in the past several decades that I focus on here were preceded by a long period of stability, they are by no means unique. The Constitution does not specify how Congress is to carry out its core task of lawmaking; beyond a few basic requirements, it allows each house to determine its own rules and procedures. During its history of more than 200 years, the Congress has altered its legislative process a number of times.

In the very early years the legislative process in both the House and Senate emphasized the full membership’s responsibility for lawmaking. The full membership debated a subject on the floor, decided whether legislation was warranted, and, if it was, laid out substantive guidelines. Then a special or select committee was appointed to draft legislation according to those guidelines (Cooper and Young 1989; Risjord 1994).

Even in the early decades not all business could be given so much time and attention; minor business was sent first to small committees. The House then began to create standing—that is, permanent—committees to handle recurrent complex issues, and the Senate began to send to a particular select committee all matters relating to the subject for which the committee had been initially created. During the second decade of the 1800s in the House and not much later in the Senate, standing committees became predominant. The committees did the initial work on legislation; only after they were finished did the rest of the membership have their say.

Floor procedure, too, has changed over time. In the early years both chambers’ floor proceedings were relatively fluid and unstructured; even the House placed few limits on members’ debate time (Binder 1996). Considering bills in the order they were introduced, the House was able to dispose of all of its business. Soon, however, House floor procedures became problematic. In 1811 the House adopted its first significant restrictions on floor debate, and throughout the nineteenth century the chamber struggled to develop a fair and efficient way of setting and ordering its floor agenda. Not until the 1880s and 1890s did the House develop its premier device for floor scheduling of major legislation: special rules from the Rules Committee (Oppenheimer 1994). Special rules, which required a simple majority of the House membership for approval, allowed legislation to be taken up out of order; this innovation made it possible for the majority party and its leaders—if they controlled the Rules Committee in fact as well as in form—to control the House schedule.

Senate floor procedure changed in much less basic ways over the course of its history (Bach 1994). The chamber’s lack of limits on debate, initially the result of no considered decision, became over time a revered defining characteristic (Binder 1997). In the early years, the Senate’s small size made it unnecessary to limit the time members could debate an issue. Eventually, however, senators’ extended debate prerogative became a problem. By then the prerogative was well entrenched; the formidable barrier the rules themselves erected against change was fortified by the widely accepted myth that extended debate reflected the Framers’ intent (Binder and Smith 1997). Under extraordinary pressure from the president and the public, the Senate in 1917 for the first time changed its rules in such a way as to make cutting off debate possible. The resulting cloture procedure, however, was cumbersome and required a two-thirds vote for success.

Why has the legislative process changed over time? The long evolution of the legislative process is far too complex to review here, and scholars do not agree about just why things happened as they did (Cooper 1981; Gamm and Shepsle 1989). Certainly increases in workload, alterations in the political and social environment, and the strategic behavior of parties and of members as individuals were important determinants. For example, increases in the congressional workl...

Table of contents

• Cover
• Half Title
• Acknowledgements
• Title Page
• Copyright Page
• Contents
• Table List
• Illustration List
• Foreword
• Preface
• Chapter One Clean Air: An Introduction to How the Legislative Process Has Changed
• Chapter Two Multiple Paths: The Legislative Process in the House of Representatives
• Chapter Three Routes and Obstacles: The Legislative Process in the Senate
• Chapter Four Getting One Bill: Reconciling House-Senate Differences
• Chapter Five Omnibus Legislation, the Budget Process, and Summits
• Chapter Six Why and How the Legislative Process Changed
• Chapter Seven Making Nonincremental Policy Change through Hyperunorthodox Procedures: Health Care Reform in 2009–2010
• Chapter Eight High-Stakes Budget Politics: The 2013 Government Shutdown and the Ryan-Murray Deal
• Chapter Nine A Cross-Party Coalition Forces Policy Change: The USA Freedom Act
• Chapter Ten The Consequences of Unorthodox Lawmaking
• References
• Useful Websites for Congress Watchers
• Abbreviations of Commonly Used In-Text Citations
• Index
• Publisher Note