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House leadership has been writing bills behind closed doors for years

What’s new is that secretive bill writing may be reaching the limits of its effectiveness.

House Speaker Paul Ryan Holds Weekly Press Briefing At The Capitol Photo by Alex Wong/Getty Images

Over the past day or so, House Democrats, journalists, and a handful of very conservative Republicans been fulminating over the secretive ways House Republican leaders have been drafting their Obamacare repeal bill: behind closed doors, where nobody can see it, with plans to rush it quickly to a floor vote that will put pressure on Republicans to vote for a bill that will be aggressively marketed as “repeal.”

While the optics might look bad — especially since just a few days earlier, House Speaker Paul Ryan explicitly said on NBC’s Today show that “we’re not hatching some bill in a backroom and plopping it on the American people’s front door” — this is actually nothing particularly new or shocking. It’s more or less how House leaders have been doing business for years. And they’ve been doing it for a reason: It’s by far the most effective way to get a bill passed.

And it’s really Ryan’s only option. The longer he waits, the more likely it is that fellow Republicans get cold feet on a repeal, as they hear from more and more constituents and various interests that didn’t get the influence they wanted in the early drafting stages. And the more likely somebody in the Trump administration might actually come up with their own plan, ceding agenda control away from Ryan.

But Ryan might not just be on borrowed time in trying to get his repeal through. He might be on borrowed time in being able to exert centralized, top-down leadership at all. If Ryan fails, it could be more than just the health care repeal that unravels.

Most US House members are legislating in the dark

In September 2015, political scientist James M. Curry published an important book, Legislating in the Dark: Information and Power in the House of Representatives. Curry advanced a straightforward and compelling take on the modern House. In order to get legislation passed, party leaders were increasingly cutting their rank-and-file members out of the process, and even bypassing committees. Instead of working with their caucus, they were dropping long, complicated bills on the floor at the very last minute, giving members little time to actually read them, and then structuring the rules processes on the floor to further steer the outcome. To the extent that rank-and-file members were consulted, it was primarily to ensure their votes, rather than to seek their input.

In Legislating in the Dark, Curry wrote that “[i]nformation provides power in Congress.” And those in the leadership have “extensive information about the legislation being considered and the political dynamics surrounding that legislation. Rank-and-file members in Congress, in contrast, have limited resources and find it very difficult to become informed about most of the legislation being considered at any time.” Members are mostly given a few select talking points by leadership, and told to vote the party line and trust the party leaders. As one leadership staffer told Curry in justifying the practice: “Maybe that’s intellectually dishonest or something, but you don’t really have the benefit of time if this thing is moving quickly.”

Curry lamented the development: “In shutting most lawmakers out of the legislative process, stifling their voices, and keeping them in the dark,” he wrote, “rather than displaying the pluralistic policy views of a diverse membership representing distinct geographic constituencies, debates in Congress largely reflect messages that legislative leaders have constructed to frame issues. … It gets worse when leaders actively restrict the information available on legislation.”

But he also acknowledged that less deliberation was efficient. Leadership’s techniques worked. When you drop a bill at the last minute, and whip it as a party vote, members mostly vote their party.

Still, as Curry noted, there were limits to what the information-restriction techniques could accomplish. He wrote, “Legislative leaders’ aggressive use of information tactics may have the side effect of eroding trust, especially among moderate members and others outside their party’s orthodoxy. … Consequentially they grow skeptical about what their leaders tell them and ultimately may be less influenced by it than other members of their caucus.”

In other words, at some point, those outside the party leadership might revolt.

The limits of legislating in the dark

You might say Curry was prophetic. In October 2015, around the time his book came out, the House Freedom Caucus did indeed revolt against their speaker, John Boehner. And Rep. Justin Amash, one of the leaders of the Freedom Caucus, basically argued Curry’s thesis in his cri de cœur for change. “[Boehner] operated a top-down system,” Amash complained. “Which means that he figures out what outcome he wants, and he goes to the individual members and attempts to compel and coerce us to vote for that outcome.”

Amash and his fellow revolutionaries wanted to participate in the legislative process more, and made a set of demands on leadership they thought would help them accomplish this. In the end, Paul Ryan paid some lip service to their demands, and became speaker. Many, including me, wondered how he would able to hold his caucus together to pass a budget last year. But Trump’s surprise electoral victory brought an unexpected glow of party unity, and hope that the real work of conservative budget cutting could finally begin in 2017, under unified government.

Once again, though, Ryan is being squeezed on all sides as he tries to advance health care legislation. Amash is unhappy. So are Sens. Rand Paul, Ted Cruz, and Mike Lee, who are all concerned that the proposal Ryan is putting together won’t be the true repeal that they believe is needed. But Ryan also has to protect his members in vulnerable districts, who could get punished if too much of Obamacare gets repealed, since some parts of it are quite popular and voters seem energized on the issue.

Is the Obamacare repeal a kamikaze mission?

With each passing day, it will become harder and harder for Paul Ryan to pass a Republican Obamacare “repeal.” Public opinion is turning in favor of Obamacare, vulnerable lawmakers are inching closer to contested reelection races, and Trump remains a wild card who could at any moment decide he, too, has a plan. (Though for now, the president seems to be stymied by his recent revelation that health care is “unbelievably complex.”)

If Ryan strikes now, he figures, he might still be able to push his members into voting for a “repeal” bill without having the time to raise objections. This is certainly possible in the House, where, again, most members are extremely ill-informed on policy and tend to defer to party leaders. The Senate will be more difficult. With only 52 votes, Republicans don’t have much room for dissension, especially if Paul, Cruz, and Lee are all unhappy with something that isn’t full repeal. I’d give the bill a 50-50 chance in the House, and maybe a 20 percent chance in the Senate contingent on making it out of the House. But who knows?

Still, the big problem for Ryan is that the Republican caucus is just not that unified. In taking on this mission, Ryan is going to lose some trust with some of his members, who are going to feel pissed off that they had this bill forced on them without adequate deliberation and input. They will feel especially pissed off if it then flounders on the shoals of the Senate (where, as the saying goes, “legislation goes to die”).

And if this effort fails, health care reform is effectively dead, and any other big legislative proposals (I’m look at you, corporate tax overhaul) look particularly unlikely. In short, my colleague Mark Schmitt’s prediction that Trump’s presidency would not be a legislative success are looking increasingly prescient.

What about Paul Ryan’s speakership?

Back in October 2015 when Boehner went down, Sen. Mike Lee predicted disruption was coming to the party’s congressional leadership, whether leaders wanted it or not.

Whether the GOP embraces uncertainty or not, it is coming. It’s not chaos or crisis. It’s just disruption. You know, that cool, buzzy phenomenon Republican elites have championed in every other industry (that is, when it was at some one else’s throat)? Well, now it’s coming to drink their milkshakes, too. When Washington insiders today talk of “getting back to regular order”—which, let’s be honest, they do only selectively, when it serves their own interests—what they’re often longing for is a process in which leaders and committee chairmen write bills in secret with the help of lobbyists, then hand out earmarks to buy off principled dissent and secure votes for passage.

That centralized, hierarchical process, long ago discredited as corrupt and corrupting, is just another victim of the disruptive forces of transparency and accountability that took down your local Borders Books and Tower Records stores years ago. It’s not coming back.

History is on Lee’s side. In 1910, it was progressive Republican George Norris who led the internal House revolt against Republican Speaker Joe Cannon, stripping Cannon of most of his authority and devolving considerable powers back to individual members, who had increasingly chafed under their marginalization.

Like John Boehner in 2015, Cannon in 1910 represented the culmination of exactly 20 years of increasingly centralized leadership control in the House speakership. Just as Gingrich had radically centralized control in 1995, Republican Speaker Thomas Reed had radically centralized control in 1890. The House has now lived with a very strong speaker for longer than ever. There are limits to centralized power.

As political scientists Jeffery A. Jenkins and Charles Stewart III wrote in an analysis of the October 2015 House speaker crisis:

Since Newt Gingrich (Ga.) became speaker in 1995, the Republican Party has centralized power. Committees are less important, and so getting handed a plum committee position is less valuable. So, why compromise if there's no prize for doing so?

Stated differently, the traditional way of dealing with internal party factions was to divvy up institutional positions of power among the various factions. Before Newt, committees and entrepreneurial House members could pursue policy in their domains under a broad party umbrella. No more. Now uniformity is expected and reinforced. Which is precisely why groups like the HFC are forming.

For now, Paul Ryan is trying to squeeze what he can out of the top-down process, and hoping it can achieve a few more legislative victories. Maybe there’s still a little juice left in a centralized process. But if there’s not, we could see upheaval again, especially now that everybody is paying closer attention to the techniques House leaders have been quietly using for years to pass legislation.