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Congress arguably less democratic than ever (and it's not what you think)

The Founders imagined Congress as a place were legislators could assemble and collectively shape the bills that would become law. That's not happening anymore. A few powerful people control the process.

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    Senate majority leader Harry Reid (D) of Nevada, seen here on Capitol Hill in Washington Tuesday, froze many lawmakers out of the legislative process the past two years. Speaker John Boehner (R) of Ohio did the same in the House.
    Joshua Roberts/Reuters
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The 113th Congress may very well go down as the least democratic in our nation’s history. Except probably not in the way you are thinking. This has nothing to do with how much money was spent in campaigns, gerrymandering, voter suppression laws, or other things that distort the electoral process. The 113th Congress, more than any other Congress, excluded elected representatives and senators from the ability to offer amendments. Members of the 113th Congress have arguably had the fewest opportunities to put their imprint on policy than at any other time in the nation’s history. Congress, as a deliberative institution, is increasingly failing as a representative body.

The legislative branch was intended to be, to varying degrees, the people’s body and a reflection of their will. At a practical level, this isn’t possible. If all representatives were given equal say in the process, nothing would be done. To find a contemporary approximation of this concept, just look at today’s Senate. Obstruction is rampant and passing routine measures is extraordinarily difficult. Congress has, and always will, solve this problem by giving some members more power in the policymaking process.

Party leaders (speaker, majority leaders, whips, etc.) and committee chairs are perfect examples of this. They control greater procedural power in order to push the policymaking process forward. Without them, nothing would be done. While giving some members more power to shape policy is not entirely fair, it is necessary. And under the current rules, party leaders control the most power.

Today, however, these well intentioned rules have become distorted. As a result, party leaders are badly undermining the deliberative process. This is not entirely new. In fact, this has occurred at increasing rates since the mid- to late-1970s. It really ramped up in the late-1980s and has been on a steady (some might suggest steep) upward trajectory since. In that sense the 113th is just the most recent Congress in a decades-long trend. That said, the 113th reached new heights (or depths).

In the 113th, Speaker John Boehner (R) of Ohio set a record for the most “closed rules” in House history. At this point, 74 bills (and counting) brought to the House floor have come under closed rules, passing the previous record of 61 under Speaker Nancy Pelosi (D) of California in the 111th. These rules prevent any member from offering amendments to the bill, typically limit debate to an hour, and offer no policy alternatives. Representatives can either take it or leave it. In other words, this process is the most strong-handed way to bring a bill to the floor. Influential members may be able to alter the bill behind closed doors before it reaches the floor, but most often, rank-and-file are forced to consider the bill as its written; a straight take-it-or-leave-it proposition.

Further, 60 more bills were brought to the floor under a “structured rule,” where leadership (by virtue of the Rules Committee) chooses the amendments that are debated on the floor. In most cases, this, again, shuts out significant portions of House membership. Today, even large bills with histories of open deliberation eliminate hundreds of amendments from consideration.

For example, members submitted 322 amendments to the National Defense Authorization Act (NDAA) considered earlier this year. The leadership prohibited 137 of those amendments from being offered on the floor. It is true that most amendments made it to the floor. However, for most of the past 53 years this bill has passed the Congress, this bill was brought up under open rules, allowing any representative to debate and offer amendments to the bill.

And further, the NDAA is the exception to the rule. It’s common for the Rules Committee to eliminate most offered amendments. For example, 42 amendments were offered to Cyber Intelligence Sharing and Protecting Act (CISPA) in 2013. Only 14 amendments made it through the Rules Committee to the House floor. Additionally, the Rules Committee forces members to pre-print amendments to a bill 24-hours in advance of their hearing, often deterring members from submitting amendments. So far in the 113th House a full 95 percent of all bills brought to the floor (exempting the suspension process) were considered under these special rules.

The Senate, historically known for open debate and deliberation, did not fair much better. Majority leader Harry Reid (D) of Nevada used his procedural prerogatives to stifle the regular amendment process. In only a hand full of occasions, Senator Reid “filled the tree,” a process where he offers several non-consequential amendments before other senators can offer their policy amendments/ideas to the bill. Like the House, this tactic cuts out senators from the amendment process. Like the House, this is not new. However, this Senate was particularly bad. Only four bills out of the more than 50 receiving roll call votes in the 113th Congress had more than five votes on amendments. Obstruction and filibusters have reached an all-time high. However, it’s hard to argue that encroachments on senators’ right to offer amendments are not also reaching historic levels.

Processes that were once open for the membership to debate are now closed. Congress was intended to be a body where the nation’s representatives gathered to debate and vote on legislation. However, current practice in both chambers (and from both parties) brings the principle of open debate and deliberation into serious question. It is rarely mentioned but nonetheless important: How party leaders use the process affects how members of the parties behave within it.

The party rank-and-file share blame in this story. For the past several years, they have pushed leaders to use more strong-handed tactics by abusing the privileges they once enjoyed. However, this cycle is reaching dangerous depths. Party leaders are exercising more power without delivering any political or policy benefits. It has led only led to more partisanship and more dysfunction.

You will likely hear a lot about regular order over the next month. It is an overused and arguably anachronistic trope that members in both parties clamor for. However, it hasn’t been seen on Capitol Hill for more than 20 years. And until members start demanding more influence in the policymaking process and creating ideological and political room to compromise, it has little to no chance of returning. With party leaders clamping down debate and bringing partisan-charged bills to the chamber floors, it is no wonder the parties no longer trust one another.

Joshua Huder publishes his Rule 22 blog at http://rule22.wordpress.com.

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