Changing the rules won't fix congressional dysfunction

Changing the rules won't fix congressional dysfunction
© Greg Nash

In the wake of the $1.3 trillion spending bill passed by Congress last week, there have been calls — most notably from President TrumpDonald John TrumpDavid Axelrod after Ginsburg cancer treatment: Supreme Court vacancy could 'tear this country apart' EU says it will 'respond in kind' if US slaps tariffs on France Ginsburg again leaves Supreme Court with an uncertain future MORE — to eliminate the Senate’s legislative filibuster.

Like many Republicans, President Trump is frustrated with the inability of Republican congressional majorities to fulfill nearly any of their campaign promises. The rules are a natural place to put the blame — Republicans would do the right thing if it was just easier, right? But as this omnibus process has demonstrated, passing rules to compel good behavior rarely results in a better outcome when the root of congressional dysfunction resides much deeper.

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Consider just some of the “good behavior” rules that were waived or violated during the flawed passage of the omnibus.

 

The most obvious was the House’s 72-hour rule, which states that it is not in order to consider legislation that has not been publicly available for 72 hours, or three legislative days. This reflects the promise House Republicans made to voters in their “Pledge to America,” where they promised, “no more hiding legislative language. Legislation should be understood by all interested parties before it is voted on.”

And yet, none of this prevented House Republicans from doing exactly the opposite — playing hide the ball with text as it was drafted out of sight from the rank and file, posting 2,232 pages of text online at 7:57 on Wednesday evening, and demanding a vote less than 24 hours later. This is exactly the sort of process that former Speaker of the House John BoehnerJohn Andrew BoehnerScaramucci compares Trump to Jonestown cult leader: 'It's like a hostage crisis inside the White House' Israel should resist Trump's efforts to politicize support Lobbyists race to cash in on cannabis boom MORE (R-Ohio) famously railed against on the House floor during the passage of ObamaCare.

In the Senate, Republican leadership provided even less time to read and consider the legislation, waiving its debate rules to speed up consideration of the bill so that senators would not be delayed in leaving for their overseas junkets.

Notably, senators chose not to object to the seven budget violations contained in the spending bill, which ranged from overspending to blatant budget gimmickry. Despite having clear authority to do so, no senator acted on them.

Even Sen. Rand PaulRandal (Rand) Howard PaulGraham promises ObamaCare repeal if Trump, Republicans win in 2020 Conservatives buck Trump over worries of 'socialist' drug pricing Rand Paul to 'limit' August activities due to health MORE (R-Ky.), who famously led the Senate into an overnight shutdown to give him time to read and try to amend the last spending bill, was subdued into silence. Like every other senator, Paul had the right to object to the expedited process. And it looked like he might, as he made a public show of his effort to read the legislation before he was asked to vote.

But perhaps the very public lashing he was given by his colleagues last time he tried to do his job, Paul relented. To be sure, had he forced his colleagues to miss their taxpayer funded overseas trips, the wrath would have been unrelenting.

All of this is reflective of a deep, cultural dysfunction in the Congress that passing new rules or abolishing older ones will not change.

Particularly when it comes to the Senate’s filibuster, the rise in its use is directly reflective of institutional decay, rather than solely a partisan desire to obstruct. Consider the Senate several decades ago, where filibusters were a rarity, even on controversial legislation. Bills were drafted openly in committee and brought to the floor in a similarly open process. Amendments were freely offered and considered, with the minority party sometimes having even more of their changes considered than the majority.

The result was a consensus approach to passage, with barely any filibusters. When there is no filibuster, legislation can be passed at a simple majority. The Senate’s historical record makes clear: transparent deliberation and an open amendment process dramatically reduces the use of the filibuster.

Yet, in the modern Senate, there is no transparency, deliberation, or amendments. The omnibus, like many bills before it, was drafted in secret before being dropped on a bunch of mystified senators who were simply told to vote for it. There were no amendments (except for the substantive change given to Sen. Jim RischJames (Jim) Elroy RischTrump moves forward with billion F-16 sale to Taiwan Trump moves forward with F-16 sale to Taiwan opposed by China Overnight Defense: US exits landmark arms control treaty with Russia | Pentagon vows to 'fully pursue' once-banned missiles | Ratcliffe out as intel pick | Trump signs budget deal that boosts defense | Trump defends North Korea's Kim as 'friend' MORE (R-Idaho) to settle a political dispute) and even less debate.

No wonder the rise in filibusters are directly correlated to the increase in a secretive, shadowy process where no one has a say except for a chosen few. Threatening to filibuster is now the only way a senator can have his or her concerns — and the concerns of the people they represent — given any regard.

Eliminating the filibuster will not save the Senate, when it is the Senate that does not want to do the work required to engage in deliberation, transparent debate, and open amendments. As the passage of this omnibus makes clear, Congress is suffering from a much deeper crisis of identity, one in which members won’t use the rules they currently have to force transparency and deliberation — either because they’re too ignorant, or too scared of the inevitable retribution from their leadership, who too willingly protect the substance of their secret deals than gather input from those they were elected to lead.

Rachel Bovard (@RachelBovard) is the senior director of policy for The Conservative Partnership, a nonprofit group headed by former South Carolina Sen. Jim DeMint aimed at promoting limited government.