Image source:  Washington Times
Image source: Washington Times

By James M. Curry and Frances E. Lee

Last month, Congress passed its latest omnibus spending deal, and it did so using legislative processes that have come to characterize contemporary lawmaking. The package was negotiated, largely in secret, by the “big four” party leaders. Its development featured no committee process to speak of, and it was pushed through both chambers with limited debate and no opportunity for amendment.

In recent years, members of Congress, political pundits, and political scientists alike have come to see this form of “unorthodox lawmaking” as a cause of party conflict, and a feature of majority party power. It is widely held and asserted that, as Rep. Justin Amash (R-MI) put it, “under regular order bipartisanship and compromise flourish,” while these newer “unorthodox” processes make lawmaking more partisan.

In a new paper, we challenge this prevailing wisdom. We find no meaningful relationship between the processes used to pass laws and levels of partisan conflict on final passage votes. Today’s congressional leaders turn to unorthodox processes in most cases not to enact partisan laws, but because they provide advantages that can help Congress successfully legislate in a difficult and contentious political environment. The recent spending package is instructive—it was passed by a bipartisan majority.

Wither, Regular Order

Scholars have long connected congressional process and partisanship. Traditional committee processes are supposed to help Congress resolve conflicts and build consensus and bipartisanship, and a decentralized congressional organization, centered around committees, is supposed to strengthen a legislature, insulating it from outside pressures, including partisan pressure.

Unorthodox processes are expected to be tools of party leaders used to help majority parties pass programmatic partisan laws or enact partisan legislation to help establish a partisan brand name for voters. And generally, party leadership control over process is believed to undercut bipartisan agreement, as leaders push more partisan-favorable legislation to the floor.

For many, recent legislative efforts lend credence to these claims. Republicans’ efforts to repeal and replace the ACA and enact tax reform in 2017 both used highly-unorthodox processes and both reached their final voting stages without any Democratic support. But cases like the bipartisan omnibus spending package passed last week should lead us to question whether process and partisanship are tightly related.

Assessing Process and Partisanship

We traced the legislative histories of 621 important laws enacted by Congress from 1987-2016 to assess how closely the processes followed “regular order.” We constructed two indexes for each law: A bill development index—assessing the degree to which traditional committee processes were used to develop the law—and a bill management index—assessing the degree to which traditional and open floor procedures were used to consider the law.

We find there is almost no relationship between how unorthodox bill development processes were and the likelihood of a partisan final passage vote. Bills developed using traditional processes in committees were no more likely to be bipartisan than those developed behind closed doors by party leaders and skipping committee processes entirely.

The relationship between bill management processes and partisanship is more nuanced. Bills considered on the floors of the House and Senate under more closed-off, unorthodox processes are more likely to pass via a party vote. However, it is also true that unorthodox floor processes result in the passage of both bipartisan and partisan laws. Among those laws considered under the most unorthodox floor processes in the House and Senate, 56% and 52% passed by a party vote, respectively. However, this means almost half of such laws received considerable bipartisan support.

The Benefits of Unorthodox and Leadership-led Processes

Interviews we conducted with long-time members of Congress and congressional staff reveal that unorthodox processes are frequently used in today’s Congress because they help lawmakers achieve legislative successes in a difficult political environment.

For one, these processes are efficient. Regular order requires legislation to face a gauntlet of formal, deliberative processes. While this can help improve the legislation, it also provides opportunities for rabble-rousers to obstruct, or hijack the proceedings and turn them into a circus. As one staffer told us, if “you try to work through an open [committee] mark-up or something, the bill gets weighed down in partisan attacks and nothing happens.” Bypassing traditional steps of the legislative process can allow Congress to avoid obstructionism and pass bills into law.

Second, unorthodox processes can provide much needed secrecy for negotiations. On controversial issues, congressional negotiators need to be able to discuss proposals in confidence, knowing their conversations won’t be leaked, as there are “hyper-partisans on both sides that will turn everything into a wedge.” As one staffer put it, “the politics of each party’s base has made [regular order] impossible.”

The secretive nature of unorthodox processes can also help lawmakers deal with lobbyist pressure. Traditional processes allow well-financed interest groups to monitor the proceedings and use their clout to influence reelection-minded legislators. In at least one staffer’s view, to make a deal these days, “you need the back-room discussions outside the view of the lobbyists.”

Lastly, these processes provide flexibility to help negotiators cut a deal and make it stick. The committee system splits issues up into jurisdictional boxes. A committee and its members simply cannot reach outside the committee’s jurisdictions to look for policy solutions, or to find the money to pay for legislation. Party leaders are free from these restrictions, and can take a broader view of policy issues, as well as potential solutions. As one staffer told us, simply, this is why “all the big deals tend to be leadership-driven.”

Alternative Paths to the Same Ultimate Ends

Today’s unorthodox congressional process are many things, but they are not leading indicators of how partisan a lawmaking effort is or will become. Unorthodox and leadership-led processes are used to advance both highly partisan and highly bipartisan laws—such as the recent spending deal—just as regular order can produce a variety of outcomes as well. Instead, these processes provide a different, oftentimes more successful avenue for passing bills into laws.

James M. Curry is an Assistant Professor of Political Science at the University of Utah and Frances E. Lee is a Professor of Government and Politics at University Maryland.

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Topics: Legislative Procedure
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