Why hardliner bid for open debate is a high-risk venture on Capitol Hill

Only a few current members have experienced an open, deliberative process on Capitol Hill. Attempts to reincorporate 'regular' processes in modern day have failed miserably. 

J. Scott Applewhite/AP
House Speaker Paul Ryan (R) of Wisconsin and the Republican leadership meet with reporters following a GOP strategy session on Capitol Hill in Washington on Tuesday.

Members in the House are calling for regular order. If you have no idea what "regular order" means, don't worry. You're not alone. In fact, you're probably in the company of many members of Congress.

Calls for regular order are almost as old as the institution itself. In theory, regular order is open, deliberative processes that often mimic lawmaking in Congress’s committee era. During that time, committees began the process. Once a bill hit the floor, debate and amendments flowed freely. Any member was typically free to offer an amendment and, as a result, members contributed policy language on the House floor.

Keep in mind this era died in roughly 1975 and has remained thoroughly dead ever since. Today, fewer than nine House members (four Republicans, five Democrats) have been around Congress long enough to have actually experienced some version of it while in office. Compared to today’s House, it’s an alien way of doing business. It’s been so long since anything like regular order has been practiced that long-time Congress observer Walter Oleszek wrote in the Congressional Research Service’s centennial study, "The Evolving Congress," that it’s essentially become an empty term. Legislative process has been a lot of things in the last 40 years but “regular” is not among them.

Regular order is anachronistic because today’s politics are so different. Attempts to reincorporate “regular” processes in modern day have failed miserably. A big reason has to do with increasing partisan warfare in the chamber. Opening up the process to mimic regular order requires cooperation between the parties. This has not been Congress’s strong suit for some time. Each time the leadership has attempted some version of regular order in the last 30 years, partisans in Congress have used it for political advantage.

The best example came during the Republican Revolution of 1995. Prior to the 1994 election, Democrats increasingly prohibited amendments and shut down debate on the House floor. In the late 1980s and early 1990s, Republicans had become adept at offering poison pill amendments. These amendments divided the Democrats and at times prevented passage of the legislation. Democrats responded by increasingly preventing amendments, closing down the process. In 1995 Republicans returned to the majority on a platform that promised more open debate and amendments in the House. Democrats responded by offering the same poisonous amendments that Republicans had hurled at them for years. After a few months, Republicans predictably reversed course and shut down the amendment process.

The House has polarized even further in the last 20 years. At this very moment, two poison pill amendments, Syrian refugees and Planned Parenthood, threaten the omnibus spending bill. In fact, seemingly every spending bill the past few years have included riders that threatened a government shutdown. Political and messaging amendments prevail in both the House and the Senate. And as a result, cooperation has plummeted to new lows. Given this climate, we have to assume that opening the process will be met with predictable, partisan results.

In this context nobody truly knows, members and observers alike, how the new leadership will assuage members calling for “regular order.” Those calling for a return to regular order – today personified by the House Freedom Caucus – are typically those not in power who want a greater voice.  But in today’s polarized environment, the desire to be heard can quickly deteriorate, erupting in more mud-slinging than inclusive deliberation. Some version of regular order would be a more inclusive process. But recently, including more members in policymaking has resulted in more politically charged votes. How Speaker Ryan and his leadership team deal with this risk, while also allowing for more robust deliberation, is unknown. But one thing is certain, the balance between open debate and political risk is a very delicate one.

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

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