March 11, 2021

“Regular Order” is AWOL in Congress, and That’s Bad.

by Hal Gershowitz

Comments Below

“Regular Order” — An esoteric legislative term on which our American Democracy really depends.

The arcane procedure requiring “Regular Order” in the conduct of business in the United States Congress is absolutely essential to American Democracy. Our co-equal legislative branch of government functioning without Regular Order runs the real and substantial risk of deteriorating into nothing more than an expeditor of authoritarian government. And that’s the slippery slope we’re on.

The Constitution doesn’t really address how Congress must transact its business. It left that up to Congress. Over time the House of Representatives and the Senate evolved rules and procedures that addressed the need for collaboration. Committees were established with minority and majority representation.

Proposed legislation is supposed to be routinely channeled through this committee system to assure that opposing views are considered, compromises joined, and ultimately, legislation written that all sides have a hand in creating. This process, known as Regular Order, had, by and large, worked well…for a while.

In the last quarter of the 20th century and, thus far, throughout the 21st century, however, Congress has become caustically party-centric. The majority party can, and too often does, ignore the perspective of the minority party, and eschew the desire, if not the need, for comity and collaboration in formulating the laws that govern the nation. Both political parties are equal opportunity offenders.

Reconciliation is the legislative process by which budget-affecting legislation can be passed by a simple majority, or a tie vote when there is a 50/50 split between the parties in the Senate as there is now, in which case the Vice President (as President of the Senate) casts the tie-breaking vote. The Reconciliation process can only be used once in a single fiscal year. However, given that the fiscal year begins on October 1st, Reconciliation can be used twice in a calendar year. For example, between January 1st and September 30th for the remainder of the 2021 fiscal year, and again between October 1st and December 31st for the beginning of the 2022 fiscal year.

Since its first use over 40 years ago, twenty-one major money bills have been passed using the reconciliation process. There would have been twenty-five such bills but four others were vetoed by sitting Presidents. 

The Current $1.9+ trillion American Rescue Plan is the product of Reconciliation. It is, essentially, $2,000,000,000 of mostly safety-net enhancements (that’s nine zeros in case anyone isn’t counting) approved without a single hearing or any debate. Probably one trillion of that is more than COVID Relief really requires.

Former President Donald Trump resorted to Reconciliation to pass the 2017 tax bill that the non-partisan Congressional Budget Office estimates will add nearly $2.3 trillion to the national debt over the next six or seven years. The ACA (Obamacare), and Trump’s attempted gutting of it, were all Reconciliation measures; immense bills with enormous budget implications requiring no hearings and no debate. These are simply fiat programs by the Party controlling Congress. No one should be okay with that.

Sen. Joe Manchin (D-W.Va.), has emerged as a kingmaker in that he is a Democrat that President Biden and Majority-Leader Schumer simply can’t afford to lose in a razor-close legislative contest. Manchin says he’ll insist that Republicans have some voice when the next big package comes along.

Hello, infrastructure

Soon, Congress and the Administration will be tackling a much-needed climate and infrastructure bill, which is estimated to require a price tag of another $2 to $4 trillion. Manchin insists he will not let that proceed through Reconciliation. Good for him.

Reconciliation is a work-around to avoid debate, and frankly, to avoid almost any semblance of bipartisanship. It has devolved to a tyranny of a minuscule majority. And to be sure both Democrats and Republicans salivate at the opportunity to try such tyranny when they have even the barest of majorities. As I wrote a short time ago, ten serious, well-intentioned Republicans came to the White House to offer the Biden Administration the votes needed to get a true filibuster-proof COVID relief bill enacted. They began the discussion by putting over $600 billion on the table for openers. They didn’t get the time of day. Instead, they got the door.

I don’t know if those same Republicans will offer their cooperation again, but they or an even smaller group of Republicans, along with some democratically-minded Democrats have to stand up, not as partisans, but as dedicated Americans and simply say, “Enough! No more legislation by fiat. No more major legislation with no hearings and no debate.” They have to insist that Congress transact its business through Regular Order because its absence is simply no order at all.

Without Regular Order, bi-partisanship suffers, the deliberative process suffers, and most of all, American Democracy suffers.

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

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14 responses to ““Regular Order” is AWOL in Congress, and That’s Bad.”

  1. Chuck anderson says:

    Hal,
    Analogously are you suggesting that if one was entering negotiation to purchase a home that the opening offer of roughly 1/3 of the owners asking price would be ok. I believe were one to try this the owner wouldn’t give you the honor of a reply, just like the dems.
    The “ten serious well intentioned republicans”knew where the dems were and their 1/3 opening gambit was a non starter. “Serious, well intentioned”, personally I don’t think so.

  2. Prover Stephen E. says:

    Chuck Anderson: well said, Chuck. I could not agree more enthusiastically. The Republicans move struck me as a stunt. They anticipated abject rejection and used that to demonize the Democrats as unwilling to compromise. The Covid Bill was actually a stimulus plan to remedy the havoc the Covid Pandemic unleashed upon our economy. I think the size of this bill is far more supportable than the ridiculous gigantic tax cut provided to a small segment of the population provided by the Trump Administration.

  3. Perry says:

    As you correctly pointed out the necessity of a reconciliation
    committee is essential for any legislation of this magnitude.

    I believe firmly the Republicans wanted Covid relief, but not filled
    with the Pork stuffed into it to benefit the poorest run cities and
    states that routinely gouge taxpayers with little to show for it
    except crumbling crime filled cities with high unemployment and
    homelessness due in part because of the high cost of local
    governments and tolerance to drug abuse by others.

    Hopefully the printing press will not over heat or break down.

  4. Charles Anderson says:

    Response to Perry .
    Many economists including those with a conservative view suggest this is a positive step for the economy & have disabused the unsupported allegations a massive pork filled bill shouted out by the republican mouthpieces. Rather than parrot the republican talking points perhaps, to paraphrase Clara Peller, ‘where’s the pork’.
    Steve assertion of pork for the few in the republican’s 2017 tax cut is way more supportable , the promised ‘trickle down’ never happened.

  5. susan duman says:

    I can only comment on what I learn each week, thanks to you.
    I hope my appreciation is a welcome comment.

  6. Response to commenters Anderson and Prover: The essay’s point is that circumventing “Regular Order” so that important legislation can be rushed through Congress without hearings, debate, or discussion is very bad for our Democracy, and it is happening with growing frequency. Sidestepping Regular Order to promulgate transformative legislation along strictly party lines and in a purely partisan manner is bad governance. Elections certainly have consequences, but eliminating hearings, debate, and discussion should not be one of those consequences.

  7. james katz says:

    Hal, your educational commetary this week and your response
    are right on.

  8. Steve Marcus says:

    We have seen the enemy and it is us. From what I can tell both sides of the aisle are mostly engaged in intellectual dishonesty practiced at the holy grail of party loyalty. As an electorate we are treading on dangerous ground when we “line up” against the opposing party and penalize our own party members if they show the slightest inclination to try and arrive at compromises to difficult problems. Whatever happened to “win win”? Where we are right now it’s “lose lose”.

  9. LWY says:

    If anyone is really interested in understanding our fiscal crisis, I encourage you to read “America in 2040” by David M. Walker. He is neither a Republican or Democrat, but you will learn a great deal about the major issues we are facing as well as some possible solutions. I encourage you all to read it.

  10. Robert borns says:

    Hal has correctly pointed out that the problem is being pushed by both parties to our nations detriment. When a valid point is raised for our nations good why do some comments immediately get political and start the smear game. We have some serious problems and we need to get our act together. That will take honest work from both sides of the isle with tax paying citizens demanding that.

  11. Stephen Prover says:

    Response to Hal Gershowitz: Fundamentally I cannot disagree with the premise of you excellent piece… However, even acknowledging your position are we not all begging the question, “Should we not eliminate the non filibuster filibuster… If 60 votes were not required to pass virtually every bill regular order may not be so great an issue.. requiring senators to actually speak to maintain their filibuster moves the senate far closer to resuming regular order and make it far easier for the senate to abandon reconciliation…

  12. Mike says:

    Three points after reading your posting and the commentary.

    First, while your columns were busy attacking Trump, they overlooked the fact that what we are seeing today was totally predictable if Biden won and the Dems controlled both the House and the Senate. But nary a word was written about this priot to the election. And now you bemoan the loss of “predicatble order.” Honestly Hal, what did you expect?

    It is not just the Covid Relied Bill that should concern folks. In addition to some disastrous Executive Orders, the House has already approved HR 1 and HR 5. In less than 8 weeks we have as a country, seen the a tremendously signficant move to the Left.

    Once again, this was totally predicatble. And when you see the the Dems talking about passing legislation that is a direct attack on the Second Amendment, don’t be too surptised. Fortunately, these bills will require 60 votes in the Senate.

    Second, this is not an ad hominem attack on Chcik Johnson or anyone else, but I’d like to know where he and others Like Plover, are getting their facts. If you read a synopsis of the Legislation, there are some really important facts that have aparently not been considered.

    For example, we have almost one Trillion unspent from the previous two Covid relief bills. Also, If the 1.9 Trillion is so important then why is almost one trillion to be spend over the next three years insted of being spent reight now? And please what almost One Trillion in payments to the Kennedy Center, the USPS and the bailout of underfunded State/Govermental pension funds has to do with Covid,? And when you take a look at the financial impact of the stimulus payment AND the impact of tax credits, you can make a plausible argument that you are incteivizing people to remain unemployed.
    But the real question is why should the US Government be bailing out Blue States that have been woefully mismanaged. Forget about the “net donor” argument that Gov’s like Pritzker, Cuomo, Newsome and Whitmer make, they have pension plans that are woefully mismanaged based on the decisions that the politicains have made for several years.

    Third, Mr Anderson states that even conservative economists think this is a good bill. Name two of those economists for me. I’ll spare Mr. Anderson and any of your other readers a discussion about issues and concerns and how all of the Covid related legislation will affect our economic issues in the future. But I have read some rather interesting articles that highlight the eery resemblance of today’s issues with the issues of the Weimar Republic. Overall, I think there are very real concerns about how the impact of Modern Monetray Theory (MMT) will play out over the next couple of years.

    So while some of the readers of this column (e.g. Prover) continue to decry the impact of the Trump Tax Cuts – despite their role in reinvigorating the economy by things like incentivizing the Repatriation of Foreign earnings and the purchase of capital equipment whihc helped create jobs, I find it interesting that neither you or any of your readers have expressed any concerns about the fact that within the last twelve months, we have added in excess of six trillion dollars in debt to our budget. Apparently, someof the people making comments here must agree with the Roman Poet and Master of Satire, Juvenal: “Give them bread and circuses and they will never revolt.”

    And as someone who has been very involved with infrastrcuture issues for several years, the next infrastructure bill that Biden is promoting may well have a cost between two to three Trillion dollars.

    Finally Hal, you close by noting that elections have consequences but: “eliminating hearings, debate, and discussion should not be one of those consequences.”

    Once again, what did you expect? Please tell me you’re not surprised because as noted above, this is exactly what I and others predicted would happen if Trump lost aqnd more importantly, the Republicans lost the Senate. Yet, I can’t recall one of your posting that explicitly addressed this as an important issue.

    p.s. I’d be remiss if I didn’t state that it makes me angry and sad that Trump was too stupid/.egotistical, narcissistic – filli whatever blank you want) to understand his role in the loss of the two Senate Seats in Georgia. It is one of the reasons that I hope he never runs for any elected office again.

    • Response to Mike: Mike asks what I expected with respect to the loss of “Regular Order” as though I am surprised by the loss. Hardly. As the column states quite clearly, the loss of Regular Order has been a recurring problem for decades and for many Administrations, including the Trump Administration. Mike’s recitation of the excesses within the Biden Administration’s COVID relief legislation is actually consistent with my own editorial observation. Finally, in response to Mike’s “please tell me you’re not surprised” (that eliminating hearings, debate, and discussion can be a consequence of an election). No, I’m not surprised. Mitch McConnell demonstrated that consequence on behalf of the Trump Administration with remarkable determination and success.

  13. BLB says:

    Hal, very well written essay, and much needed explanation. Totally agree with your points.
    Covid Relief Bill is history, but hope we can learn from it.
    My main concern now is the HR-1 bill that went quickly through the House without “Regular Order”.
    Very scary and frightening without this process!
    Hopefully some Order will prevail in the Senate.
    PS….I agree with Mike re Trump’s responsibility in Republicans losing the two Georgia Senate seats.
    That was more upsetting than losing the White House…

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