Procedural Abuses and the Decline of Minority Party Rights
Two respected observers--moderate Thomas E. Mann of the Brookings Institution and conservative Norman Ornstein, have observed that Democrats in their half-century period of dominance engaged in some abuses, “But they were neither as widespread nor as audacious as those we have seen in the past few years.” Mann charged that the Republican majorities have damaged the legislative process by sacrificing Congressional prerogatives and independence by deferring to the White House. In the 1980s, Democrats occasionally bent the rules for partisan purposes, reducing the role of Republicans in the legislative process.
A few times they used closed rules to shut off all amendments to bills, and there were some instances of limiting the number of amendments that could be introduced in the last Democratic Congress before Newt Gingrich and his followers took over, 35% of the important bills came with closed rules, if one includes those that somehow or other limited the number of amendments. In 1985, the Democrats seated an Indiana representative, whom Republicans insisted had not won his election. From that time on, influential Democrats worked hard to see that the rights of the minority were preserved. According to Mann and Ornstein, the advent of Republican power in the House led to “practices that were more unsettling than those of the Democrats [and they became] the norm.”
The abuses of legislative procedures were sometimes motivated by determination to accomplish some ideological goal, but much more often they were for the intention of including “ earmarks” –special set-aside appropriations buried in legislation-- that would benefit contributors. Republicans have greatly expanded on exclusionary practices Democrats had sometimes employed in the past and effectively shut the Democrats out of deliberations on key measures. In the entire 109th Congress, only two significant bills were allowed on the floor with open rules. The three-hour open voting process in the House to pass the Medicare Reform Act demonstrated that the legislative process had been greatly restructured and perhaps damaged. Intense pressure, including serious threats, was brought to bear on the most conservative Republicans, who thought the bill authorized too much spending. Nick Smith, a retiring member from Michigan, was told that the part would prevent his son from succeeding him. Smith was also told that someone would invest $100,000 in his son’s business if Smith voted with the leadership. Another version of the story was that $100,000 would be invested in the son’s campaign if Smith submitted. He did not budge. Now roll calls frequently stretch to two and three hours as leaders prowled the chamber to twist arms and offer enticements for changing votes.
In 1987, Republicans chastised Speaker Jim Wright for keeping the voting open ten minutes more than the normal fifteen minutes. The Republican whip then was Dick Cheney, who branded this “the most arrogant, heavy-handed abuse of power in the ten years I have been here.” Such an extraordinary procedure was even labeled an abuse of power by the Republican commentators on the “Beltway Boys.“ Both Speakers Gingrich and Hastert had pledged to uphold the fifteen minute rule. As noted, Republicans held the vote open three hours to pass the Medicare Act, and they had many other votes that were open for an hour or more.
The move toward one party government was abetted by the inability of the Democratic leadership to deal with the situation. Too many Democratic leaders, on the other hand, were temperamentally and intellectually unable to cope and still believed give and take and compromise should be the order of the day in Congress. As these highhanded procedures became more frequent, some doubted that bipartisanship and compromise were essential to sound public policy and the preservation of democratic traditions.
Democrats often were not permitted to see key legislation until just before it was to be voted on, and more than 70% of legislation reached the floor with rules that prohibited amendments. Democrats also encountered great difficulty getting legislation they introduced to the floor. The operation of the House under the Republicans became far more centralized than it ever had been under the Democrats. Legislation was produced in leadership offices and simply put up for up or down votes. In November 2004, Speaker J. Dennis Hastert announced a new policy that prevented any legislation reaching the floor that did not have the support of the GOP caucus. The legislative role of the Democrats was reduced to” next to no role at all.” A Brookings Institution expert noted that the House restrictions on the minority had been taken to a new extreme.
Perhaps fearing even more restraints, the Democratic leadership refused to demand an investigation of Representative Mike Oakley’s demand that a Democratic lobbyist be fired in return for his Financial Services Committee’s dropping of an investigation of the mutual funds industry. Minority Leader Nancy Pelosi also declined to press for an investigation into Tom De Lay’s role in having the Department of Homeland Security track Texas legislature Democrats when they fled the state to avoid a vote. De Lay succeeded in getting the state redistricted, and Bush appointees trumped the objections of Justice Department lawyers that it violated the Voting Rights Act. Bush people at the top of the Department of Justice also scuttled the objection of those lawyers to what amounted to the reintroduction of the poll tax in Georgia.
Trent Lott, the Republican majority leader in 2001, fired the Senate parliamentarian when he ruled that the Bush tax cut package could not have the procedural protections afforded budgets. Moreover, the bipartisan Joint Taxation Committee was not given an opportunity to estimate the cost of the tax, perhaps because some suggest that the ultimate cost will be around $4 trillion. Such behavior reveals a troubling inclination to resort to authoritarian behavior. Some commentators believed the GOP numbers were simply manufactured from whole cloth. The numbers were not all that important to Republican ideologues because they adhered to a “market theology” that by definition was correct. Moreover, leaders of the Republican Congress and in the Bush White House had discovered “there are simply no limits to how much you can lie in American politics and get away with it.”
The Democrats were in no position to challenge Republican claims because they lacked common vision and were fearful that too many voters subscribed to market theology as it applied to tax cuts. They were simply too craven to advance effective criticism or even complain loudly and repeatedly about the tactics employed to pass the tax cuts. Since taking control of the Congress, the GOP in the House repeatedly ignored informal rules of conduct and had simply rolled over their opposition. They did not appear to value informed public discourse or consider the long-term consequences of their actions. Perhaps they had come to believe that their opponents were so weak and demoralized that they would never be in a position to retaliate. Alan Wolfe observed that the GOP, both in Congress and the Executive Branch, acted as if “[it] had no interest in the long-term effects of its slash and burn political methods.”
In 2002, the Republicans increased their majority in the House and seized control of the Senate. Apparently accepting Grover Norquist’s dictum that “Bipartisanship is another name for date rape,” they were able to successfully pursue a bi-partisan agenda. When Newt Gingrich was speaker, he very rarely met with minority leader Dick Gephart, and the same pattern prevailed after he stepped down. Communications between Speaker J. Dennis Hastert and Minority Leader Nancy Pelosi were strained and irregular, whereas Democratic Speakers like Tip O Neill and Tom Foley had routine meetings with Minority Leader Bob Michel to discuss scheduling of legislation and the operations of the House. In 2003 and 2004, the Republican Senate leadership threatened to stop Democratic filibusters against court nominees by having Vice President Cheney exercise the “nuclear option, ” a parliamentary maneuver that would permit the Vice President, as presiding officer, to rule that filibusters to block judicial nominations ere contrary to Senate rules. It was a scheme to allow a Senate rules change with fifty votes upon authorization of Vice President Dick Cheney. They were also able to continue eroding the traditional independence of Congress.
Once the most independent branch of government, it was transformed into a reliable instrument of party rule. In October 2003, the Republican leadership in the very closely divided Senate decided to exclude Democrats from conference committee that developed the Energy Act of 2003 and the Medicare Reform Act 2003. Democrats were locked out of conference committees that dealt with other matters. The Medicare Reform Act of 2003 was formulated in secret by Republicans from both houses, with some help from two Democratic senators. A number of House Democrats politely appeared at the office where the act was being developed to protest their exclusion from the law-making process. Capitol police were called to evict the Democrats from the meeting room, but the police did not use force, fearing litigation.
Perhaps the most remarkable abuse of a conference committee occurred in January 2006. No Democrats from either chamber were permitted to sit on a conference committee considering a bill to cut the budget. One would expect this was to prevent them from protesting many cuts in social services. More was involved. A month later, the Congressional Budget Office revealed that the committee changed a funding formula so that HMOs would receive an additional $22 billion in federal funds.
A more frequent tactic to assure passage of conservative legislation was to have the Republican Senate accept as many compromise provisions as possible just to get a piece of legislation to a conference committee, where the will of the lockstep House Republicans will prevail. If Democrats were permitted to be members of the conference committees, they were of the most pliable sort, and they “become enablers of a game being played with a stacked deck.” Increasingly the House Republicans have relied upon “closed rules” which prevent Democrats from making any amendments to legislation. The Rules Committee frequently schedules legislation for votes with very little warning, making it very difficult for the opposition to organize and develop arguments.
In the Senate, the Democrats still had the right to offer amendments in most cases. However, the Republican majority has developed a pattern of accepting moderate amendments, which they know will be removed in conference committees. Frequently, the work of the conference committees is done in secret meetings of inner committees, comprised only of GOP members and perhaps some people from the Executive Branch. The moderate clauses are often stripped away, and the legislation is sent back to the two chambers for up or down votes. Moderate Republican Senators can point to their earlier support of moderate amendments and say they reluctantly voted for the final legislation. None of these techniques are without precedent, but what is unprecedented is the e3xtent to which they are employed now. When the Republicans barely lost control of the Senate in 2007, their leader Mitch
McConnell of Kentucky vowed that they would filibuster every “controversial measure” before the Senate, and the party kept that promise. In this way it blocked efforts to give accused terrorist detainees at least a few rights before the law as well as measures intended to give soldiers longer down time before being called back to Iraq. Voters seldom realize it requires 60 votes to end a filibuster and are prone t5o blame the majority party for accomplishing little. The GOP merrily used this tactic while complaining about a “Do Nothing Congress.” It is not illegal to abuse the Senate rules in this way, but it does not demonstrate a respect for majority rule or customary usages.
According to Thomas E. Mann of the Brookings Institution, Republicans had also damaged the legislative process by sacrificing Congressional prerogatives and independence by deferring to the White House. Too many Democratic leaders, on the other hand, were temperamentally and intellectually unable to cope with the new situation. They still believed give and take and compromise should be the order of the day in Congress. As these draconian procedures became more frequent, some wondered if they doubted that bipartisanship and compromise were essential to sound public policy and the preservation of democratic traditions. David Broder has noted that Democrats had sometimes abused power when they ran the House of Representatives for 40 years, “But the abuses were rarer before Republicans gained control in 1994....”
The high-handed procedures employed in fashioning the Energy Bill were justified by reference to the days when Wilbur Mills, supported by huge Democratic majorities, worked out tax policy by himself and then had his Ways and Means Committee dutifully pass it with little debate. But the fact was that this committee had a history of holding down partisanship and placing a premium on institutional integrity and good legislative workmanship. All that changed when Bill Thomas assumed control of the committee. He had said that when the GOP took control of the House, it would abandon “civilized” behavior, and he was as good as his word. The committee became the cockpit of partisan warfare where he frequently resorted to brute political force. The committee’s tradition of discussion and patient negotiation was abandoned and bridges between the two parties were burned.
On one occasion Thomas ordered the House Police to break up a meeting of the committee’s Democratic members in the Ways and Means Committee library because he did not want them to confer on strategy. On November 12, 2003, Republican leaders ordered staffers to remove an amendment that had passed the House from the Transportation Bill that was going to a conference committee. The point was to save President Bush from vetoing the bill, which included an amendment that forbade spending money to keep people from traveling to Cuba. Similarly, in 2006, the Republican leadership sent to the White House a measure that had not gone through both houses in the same form. It cut $40 billion over five years. Bush signed it because they had “certified” it. That version of the bill cut two billion more than the one that had passed both houses. The leadership pointed to an obscure 1890 Supreme Court ruling that seemed to validate this practice.
The House Rules Committee has taken to announcing at one and two o’clock in the morning that certain legislation will be on the floor at 10 AM, a tactic that prevents Democrats from preparing to deal with the measures to be brought up for a vote. For this reason, Democratic lawmakers refer to the Dracula Congress, because the decisions are made very late at night. All sorts of rules prohibiting amendments and debate have appeared in the House. The seventy-two hour rule is now violated with great frequency, and even omnibus bills running a thousand pages now appear on the floor with no notice at all. Until now, the Rules Committee was supposed to only slightly change the language of legislation committees submit to it. The committee now completely rewrites legislation and then forces votes on the measures before the bills can be read or opposition can organize. It has also become very difficult to debate or amend bills that are taken to the floor. Now the vast majority of such bills cannot be amended.
When the Democrats last controlled the House, the number of bills open to revision had gone down to 57%. By 2004, under the Republicans this number had fallen to 15%. Pork barrel provisions added to appropriations bills jumped from 47 in the last year of Democratic control to 3,407 this year. Even respected Republican leaders such as Jim Leach of Iowa have been shut out. He tried unsuccessfully to subject the banking operations of financial services firms to normal banking regulations. Passage of legislation in the House is so automatic that it now only meets two days a week. A significant but not mandatory part of the legislative process is meeting with lobbyists who represent groups that might have interests that diverge from yours. Lois Gibbs, a longtime consumer lobbyist complained “Anybody who’s an advocate for the environment or public health the other side of corporate interests is immediately dismissed.” Referring to both houses, respected nonpartisan reformer Fred Wertheimer said, “There is no legislative process anymore.”
Before the 2004 omnibus appropriations bill was passed, House Democrats were forbidden to speak in the debate on the rules under which the spending legislation would be handled. By 2003, there was also a great disparity between how much the federal government spent in Republican and Democratic districts. The majority party districts were receiving $612 million than the average Democratic district. In 1994, the average Democratic district received $35 million more than the average Republican one. In 2003, Conservative Democratic Representative Ralph Hall was told projects for his district could not be funded and “the only reason I was given was I was a Democrat.” Also facing the prospect of losing his seat through redistricting, Hall saw no choice but to become a Republican.
House Republicans regularly rode roughshod over the rights of the Democratic minority. Moreover, they used conference committees to ignore the wishes of their colleagues in the Senate. A pattern has developed where in the Republican Senate takes a more moderate line on social and tax legislation only to surrender entirely to the wishes of House Republicans in conference committee. At the end of the 2005 session, the Senate caved in to the wishes of the House in accepting drastic cuts in Medicaid, and it gave up its demand that required greater savings at the expense of Preferred Provider organizations. Of course, the appearance of a measure of moderation and compassion may be a necessary posture to disarm Senate Democrats who still have some legislative rights and could deploy them to delay legislation.
Sherman has written African American Baseball: A Brief History, which can be acquired from LuLu Publishing on line.http://www.lulu.com/browse/search.php?search_forum
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