“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.
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.