The Decline of Lawmaking Reflects a Diminished Congress

William Yeatman

Many Americans have an idealized conception of how Congress legislates, one famously described by Schoolhouse Rock commercials. Under this renowned framework, a bill starts in a congressional subcommittee, where it is debated in hearings and edited in a process known as a “mark up.” If a subcommittee majority ultimately approves it, then the bill goes through another round of debate and edits, this time before the full committee. And if the bill passes out of the full committee, there is yet another round of debate and edits, this time on the floor of the House or Senate. Finally, if the bill survives all that, it’s sent to the other chamber of Congress, where the process starts anew. Thus, many of us have learned “how a bill becomes a law.”

Yet contemporary lawmaking looks far different. Consider the five COVID relief packages passed by Congress, totaling almost $6 trillion in spending. Never before has so much been spent by so few behind closed doors.

The first four COVID bills occurred during the 116^th (last) Congress, when Democrats controlled the House, and Republicans controlled the Senate. These massive spending measures were negotiated by party leaders, and then dumped on the rank and file, who were expected to pass the bills sight unseen, under a parliamentary procedure known as “unanimous consent.”

The most recent COVID stimulus, the $1.9 trillion American Rescue Plan, came out of the (current) 117^th Congress, in which Democrats hold majorities in both chambers. Unlike the prior pandemic relief bills, this last measure engendered partisan disagreement, so “unanimous consent” was unavailable. Instead, congressional Democrats turned to a procedural device known as “reconciliation,” which allows them to avoid a Senate filibuster. While unanimous consent and reconciliation entail obvious differences—the former requires unanimity, while the latter requires only a majority—these two parliamentary mechanisms share one crucial similarity: they are both controlled by party leaders, who negotiate legislation that is then dropped on lawmakers’ laps for a take‐​it‐​or‐​leave‐​it vote.

Clearly, we have fallen a long way from Schoolhouse Rock‐​style deliberation. Alas, there is further to fall.

A month ago, in what journalists called a “magic parliamentary trick,” Senate Majority Leader Schumer announced that he had persuaded the parliamentarian to accept a new interpretation of the Senate’s rules allowing for greater use of reconciliation–the same procedure that congressional Democrats used to pass the most recent COVID stimulus. Sen. Schumer said the change would permit congressional Democrats to pursue President Biden’s “big and bold” agenda. The problem is that that there is a lot of uncertainty surrounding the reconciliation process. This is so for the simple reason that reconciliation wasn’t designed to enact party agendas. Rather, it is meant to be part of the budget process. Only in recent years have congressional leaders embraced this mechanism as a means for moving substantive legislative packages. The upshot is that lawmakers are unfamiliar with how reconciliation would operate in its expanded role. Accordingly, multiple lawmakers have expressed confusion regarding how Schumer’s “magical parliamentary trick” actually works in practice.

That’s how far American government has strayed from Schoolhouse Rock‐​style legislating—in the contemporary Congress, lawmakers aren’t even sure “how a bill becomes a law”!

What happened to our legislature? As I explained in a recent policy analysis, Congress has undergone a fundamental shift in its internal organization since the 1970s. Forty‐​five years ago, when Schoolhouse Rock first appeared on the airwaves, Congress was at the highwater mark of a period known as “committee government,” when congressional committees were the primary powerbrokers in Congress. This explains why the famed commercials focused on committee deliberation. Back then, such deliberation was the sine qua non of lawmaking.

Over the last five decades, however, Congress has moved away from “committee government.” Today, power in Congress is centralized—to an unprecedented degree—within party caucuses and, by extension, party leaders (that is, the House Speaker and the Senate Majority Leader). The reasons for this shift are complex, and I discuss them at length in the aforementioned policy analysis. The important point is that Congress has gone from being committee‐​centric to being party‐​centric.

Above, I’ve already discussed how this shift has affected lawmaking. During “committee government,” virtually all significant legislation was debated and edited by committees and subcommittees, as memorialized in the Schoolhouse Rock ads. At present, however, almost 40% of all House bills and 80% of all Senate bills are deliberated outside the committee system, according to one recent scholarly survey. In today’s Congress, important bills are negotiated by party leaders in secret.

Beyond diminished deliberation, the biggest drawback to the centralization of authority is that it undermines the separation of powers. The Founding Fathers designed a government with three branches—executive, legislative, and judicial—and gave each the means to check the other. By dispersing power into competing institutions, the Founders’ constitutional design serves to protect our individual liberty. The problem is that a party‐​centric Congress loses the will to compete with the presidency. When, as now, party affiliation trumps institutional pride among members of Congress, half the legislature loses interest in executive overreach whenever “their guy” occupies the oval office. In this manner, the centralization of power in Congress has abetted a constitutionally dangerous concentration of power in the presidency.

Still, history gives me hope that Congress will revive itself and, ultimately, rebalance the separated powers. At some point, rank‐​and‐​file lawmakers will tire of having “to pass bills so that they can find out what’s in them,” to paraphrase Speaker Pelosi’s infelicitous admission. Put differently, it is the rank‐​and‐​file who are disenfranchised by the status quo, and they will always comprise a majority, such that they can empower themselves whenever they so choose. In 1910, for example, a bipartisan group of lawmakers stripped the Speaker’s office of the prerogatives he had used to rule the House of Representatives with an iron fist. This “revolt,” in turn, paved the way for the onset of “committee government,” a time when Congress fulfilled its constitutional role at the apex of American government. It can happen again.