Posted on April 6, 2017
A few notes on some of the procedure of the house and senate and how it is affecting our political landscape today.
As a quick review – the legislature is broken up into two houses – House of Representatives and the Senate. The founders of the country knew this would be a good expression of the balance of interests. The House of Representatives having members related to the population and size of a state makes them well suited to communicate the interests of their respective states and gives weight to the larger states to influence policy. The Senate is the counterweight – its members consist of two senators from every state, no matter the size, and thus it well suited to address the issues concerning the nation as a whole – getting evenly weighted perspectives from all the states. This is why the Senate confirms supreme court nominees and appellate court judges, presidential cabinet picks, and other presidential appointments.
The balance between these two houses of the legislature shapes our perspective, debates, and reactions to almost everything our government does — or at least it should. I’m writing this to share what I can about the interactions and mechanisms that drive the news headlines of today in hopes that you will get some clarity for future discussions.
As I mentioned in the last blog (here), the Republicans currently own a majority in both the house and the senate. They have 237 Republicans in the house to 193 Democrats (with 5 vacancies) and they have 52 Republican senators to 48 Democrats. While this situation is an obvious Republican advantage, it’s not necessarily the case that the government is subject to their whim. This is where the nitty gritty gets good.
There are an incredible number of rules governing both the house and the senate and I obviously don’t know them all … but I do know a few and certainly the ones being referred to more often in the media coverage. First we will start with the Congressional Review Act first enacted in 1996. (read more about this here) This law actually provides a mechanism by which congress can review regulations originating from the previous administration and or the executive agencies (EPA, FCC, DEQ, IRS etc) and pass motions of disapproval. (wiki link) These motions have to be approved by both the congress and the senate … but only with a simple majority of both houses. The CRA applies to regulations that have either A) not gone into effect but are on the legislative calendar or B) regulations that have had a report filed with the comptroller in the last 60 LEGISLATIVE days (days where congress is actually in session). Just FYI congress is in session about 140 days out of the year on average since the 1970s. (SOURCE) This gives congress the opportunity to roll back significant amounts of regulation within approximately a year’s time – and the CRA also enumerates that, once that regulation is repealed, it cannot be substantively re-engaged unless it is actually drafted into legislation that is voted on. To be clear – the Resolution of Disapproval must pass the house and the senate with simple majority and must be signed by the president. It cannot be used to enact new legislation. The Republicans have been getting lots of flak in the media about operating in “cloak and dagger” mode — when in reality they are using a law signed by President Bill Clinton and are well within their rights to operate this way. The CRA has rarely been used and the current congress has passed the most “disapprovals” by a long shot. The CRA is a great example of how congressional mechanics shape party policy — in this case it suits the proponents of smaller government quite well. (further reading here) (CRA full text HERE)
Second, we will look at a similarly structured mechanism allowing congress to roll back spending or slightly modify how money is spent – Budget Reconciliation. (details here) In short, reconciliation is the process that allows congress to expedite consideration and modification of taxes and spending and the passage requires only a simple majority in the senate — but there are limitations.
- Reconciliation bills can only be considered once a year (on each subject of tax, spending, and debt)
- It must not add to spending (according to the Congressional Budget Act and the Byrd Rule)
- Because of the “Byrd rule” the proposed adjustments to spending must be substantially related to the actual language in the budget. Meaning you can’t jam something like social policy into a reconciliation bill.
- You can’t touch Social Security spending
The process of reconciliation has been instrumental in policy such as Ronald Reagan’s deficit reduction, Bill Clinton’s welfare reform bill, George Bush’s Tax cuts in 2001, and last but not least … the Affordable Care act of 2010. (more on this here)
It’s important to understand these two tools of congressional mechanics in perspective of current debate over rollback of regulations and the discussions surrounding the Affordable Care Act and its repeal. There are legislative challenges that the Republicans face in both of those areas – especially considering the vehement pledges of Democrats to obstruct every possible thing. Rewind the clock about 8 years and the tables were reversed — and somehow the Democrats were still able to pass their agenda with relative ease. This is fruitful ground to consider the following questions.
- Are these rules in congress beneficial to America?
- Is the 3/5ths majority requirement for most laws to pass the Senate appropriate?
- Does the current system reflect the intent of the founders?
- Do these rules serve the original intent of each house of congress? Or do they result in both bodies functioning very similarly?
Republicans need to recognize that while the academics and the generally curious (like me) are interested in the behind the scenes mechanics — the American people want, need, and demand better legislation WITH more transparency. The current state of the Republican party under the black cloud of healthcare reform is easily explained when viewed through the lens of these rules and regulations in congress …. but WE DON’T CARE …. we know that there is a way to get things done if you really want to. The Democrats showed us that in 2010 and the Republicans showed us that in 1996 when they controlled congress and Bill Clinton was president. Stop hiding behind these procedural challenges and step up to the plate. Own your policy decisions and stand on conservative principles — unless you really doubt that conservatism works. In that case — may God have mercy on your souls.
Let me know if you like these more technical blogs – or if you’d prefer more of my commentary. As always, thanks for reading.