The Rise of Congress' Shadow Rule-Makers

Outgoing Senator Harry Reid answers reporters' questions during a news conference.

SourceAlex Wong/Getty

Why you should care

Because these new rules could restore productivity in U.S. government — or ensure gridlock.

Near the end of the election in November, Senate Minority Leader Harry Reid (D-Nevada) and vice-presidential nominee Tim Kaine (D-Virginia) made explosive statements: If Republicans were to fight one of Hillary Clinton’s picks for Supreme Court, a Democratic Senate could erase longstanding filibuster tradition and allow a simple majority to confirm her choice — stripping away the minority party’s last defense against having a justice rammed down their throat. “I have set the Senate,” Reid said at the time.

Of course, Donald Trump won, Republicans kept both chambers and the Reid-proposed “nuclear option” blew up in his face (and Kaine’s). Now the radiation of that remark threatens to cause fallout for their fellow Democrats, possibly poisoning the well for how the court is set for decades to come. “They really screwed up the rules,” Sen. Orrin Hatch (R-Utah) told Politico after the election. But the hardscrabble jousting over the filibuster is just one way the new rules of engagement will be set for the 115th U.S. Congress, which begins January 3. That’s when U.S. House members will move quickly on a number of alterations, through a process often quiet, yet incredibly influential in nature. The Senate, too, will convene, and hints from committee hearings and public statements show that Republicans plan to raise the voices of lower legislators, wield the filibuster as a bargaining chip and streamline the budget process to help avoid the near-yearly shutdowns of years past.

More radical recent suggestions are typically proposed by the minority party looking to stir up a dialogue.

  • To start, the House Republican conference will adopt at least five amendments, some of which give more power to lower-ranking members by codifying internal reporting requirements. “Members don’t like surprises from their leaders or colleagues,” as Woodrow Wilson International Center for Scholars congressional expert Donald Wolfensberger puts it.
  • The House Freedom Caucus will continue pushing adjustments like “Messer’s rule,” which forces hearings within 30 legislative days on major party-backed bills, and which will see its first session in the limelight after being enacted in November. “Previously, a committee chair or other powerful member could kill a proposal regardless of how much support it had from conference members — even if it was supported by over half of the conference,” Rep. Luke Messer of Indiana said in a statement.
  • In the Senate, Budget Committee Chairman Mike Enzi (R-Wyoming) has suggested requiring a two-thirds vote to increase government spending, replacing the current three-fifths threshold. “Our rules should make it harder to pass a bill that busts the congressional budget,” Enzi said this summer. And with Republicans keeping control, budget hawks will finally have a chance to make such anti-spending legislation common practice.

Certainly, most rule changes will be fairly inconspicuous. While Senate Majority Leader Mitch McConnell could make a splash by repealing filibusters on regular legislation as well — basically ensuring passage of a GOP-backed agenda — he’s unlikely to do so. That’s because, as Brookings governance fellow Molly Reynolds says, he could face opposition from his own party, including traditionalists (standing on principle), moderates (who could lose their swing vote leverage) and those on the right of leadership (for whom the filibuster is a weapon, as Ted Cruz has shown). Even the nuclear option of eliminating the filibuster for Supreme Court picks won’t be immediately discussed, says Reynolds: “Republicans will want to wait and see how much Democrats obstruct what they’re doing.”

More radical recent suggestions, such as a rule forcing a congressional hearing after every major gun-violence incident, are typically proposed by the minority party looking to stir up a dialogue. And while many of the boldest proposed changes don’t go forward, some do slip through. Legislators have long discussed turning the budget allocation process into a biennial chore, for instance, giving them more time to handle other matters of state. It would also decrease the frequency of the annual game of chicken Congress tends to play with shutting down government — and folks like Enzi have suggested the shift, which is politically more viable if Republicans are confident they’ll still reign two years from now.

Some moves make more of a point than a dent. In the past, hundreds of lower-chamber bills have languished in the Senate, partly due to its more stringent standards. So at a September House Rules Committee hearing, Rep. Morgan Griffith of Virginia proposed a rule making Senate bills sent to the House subject to the upper chamber’s restrictions. Basically, 60 percent of House members would be required to bring a bill to a vote, and any House member could put an anonymous hold on any bill. “Hopefully when they saw how ridiculous that was, they would then change their own rules,” Griffith said.

Yet it can be tough to roll back the negative effects of a well-intentioned change. Measures making committee hearings public were meant to shine a light on decisions made behind closed doors. Instead, they’ve made it difficult for rank-and-file politicians to craft the deals necessary for politicking — effectively leaving it to party leadership to hash out the tough choices. Some want to change that, but their moves are limited. Plus, any attempt to allow more backroom bargaining would be construed as an attempt to obfuscate government. Such rule minutiae have a practical effect on governing, says Wolfensberger, a former staff director of the House Rules Committee who paced the Capitol hallway for decades. “Now it’s a lot of posturing — bumper-sticker bills, as they call them … and less seriousness about getting things done for the country,” he says.

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