Congress could restore its legitimacy by returning to conducting business by the “regular order” — a set of processes which ensure that all voices are given proper and respectful consideration.
There is a fundamental truth about our political system that seems to have been forgotten in these days of high-stakes brinksmanship over policy: Democracy is a process, not an outcome. In a representative democracy like ours, how we reach a result is every bit as important as the result itself — and maybe even more important.
For a long time, Congress recognized this. That is why, over many decades of practice, it built what is known as the “regular order” — a set of processes and means of doing business designed to ensure that proposals get careful scrutiny and all voices are given proper and respectful consideration.
The mechanics of the “regular order” can be arcane and time-consuming. You bring an issue — in the form of a bill — before a committee, whose members listen to what witnesses have to say and then argue over amendments to the bill both in committee and on the floor. Then a final version gets debated before being sent over to the other body, where the entire process gets repeated. Finally, the two versions get reconciled in a conference committee before the measure goes on to the president.
This can take months, if not years. Why bother?
Because the process may be convoluted, but its values are not. It is designed to ensure fairness, attentive deliberation, and a bedrock concern for building consensus that avoids riding roughshod over the concerns of the minority and throwing wrenches into the plans of the majority.
Different voices get heard through the regular order, opposing views get considered, and our representatives get the chance to ask hard questions, consider the merits of various approaches, propose alternatives, smooth out problems, build consensus, knock out bad ideas, and refine good ideas to make better laws.
These are not minor things. As a general rule, the better and fairer the process, the higher the quality of the legislation that comes out of it — and the higher the likelihood that it will find broad acceptance in the nation at large and be effectively implemented.
Sadly, the reverse is true as well. When those in positions of power within Congress start acting as though the process does not matter, the institution loses legitimacy among its own members and, more importantly, among the American people.
Which brings us to this moment. For what we have seen in Congress over the last few decades — through Democratic and Republican majorities alike — is the demise of the regular order. Rules get bent to marginalize committees. The party in charge denies the minority the chance to offer amendments. Debate and deliberation suffer. Extreme partisanship triumphs over the urge to seek common ground. Our entire system’s legitimacy suffers as a result.
Two developments in recent years have conspired to defeat good process. The habitual reliance on giant omnibus bills — especially to craft the federal budget — robs members of Congress of their ability to scrutinize legislation, debate it fairly, and address unpopular or badly written provisions. By allowing this practice to continue, Congress rejects a century of fair process and behaves in a fundamentally undemocratic manner.
Similarly, the Senate now effectively requires 60 votes in order to move most legislation, because that is what it takes to override a filibuster. The mere threat of a filibuster is now enough to stymie legislation; the overuse of this tactic has made it very difficult to move legislation in the Senate. There’s much to be said for legislating deliberately and thoughtfully—even slowly—but if a measure gets onto the floor through a fair process, then in most cases it ought to be voted up or down by simple majority rule.
The most frustrating aspect of all this is that there is no mystery to what Congress needs to do. It merely needs to look to the past, to the lessons in fairness and good legislating that it learned over the course of its history. A return to the regular order would do wonders for restoring its legitimacy in the eyes of the American people. Why should the world’s greatest democracy not honor what it has learned about the proper way to practice democracy?
Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.
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