Sen. John McCain has written a Washington Post op-ed making the now-standard Washington argument that “it’s time for Congress to return to regular order.” These days, the call for “regular order” in Congress is becoming like the weather: Everybody talks about it, but nobody does anything about it.
And there’s a good reason for talking about it. Compared to the bitter gridlock of the current Congress, it’s a nice vision: Bills work their way through committees, getting full hearings, and members work out bipartisan compromises. Bills then go to the floor, where the whole chamber gets to debate them and offer amendments. The result is a compromise legislation that a majority can vote for and support.
This is an idealized version, to be sure. But there was a period, from roughly the early 1970s through the late 1980s, when Congress approximated this. During this period, party leaders were relatively weak and both parties were loose overlapping coalitions, which meant there were plenty of possibilities for bipartisan dealmaking. It also meant members wouldn’t be punished by leadership for working with the other side.
Of equal significance, Congress invested in considerable internal policy expertise, which members and committees had not only the power but also the staffing resources to develop and work out complicated legislation.
But over the past three decades or so, members in both chambers have willingly given up more and more power to party leaders, letting them control more and more of both the process and policy. And Congress has deinvested considerably in its own policy expertise.
And without adequately staffed, largely independent committees, regular order simply can’t happen. Any honest call for regular order needs to acknowledge this.
Why regular order went away
So what changed? Why did regular order disappear?
First, parties became ideologically homogenous, as conservative Democrats in the South were replaced by conservative Republicans, and moderate liberal Republicans in the North were replaced by liberal Democrats. This internal consistency has made individual members more willing to delegate authority to party leaders, who could discipline or cut out the few remaining members of the party who didn’t get with the team program and control the agenda to avoid difficult votes. This put a crimp in regular order.
Second, as political scientist Frances Lee has convincingly argued, because control of both chambers is now always closely contested, both parties have strong incentives to make sure they don’t give the other side any potential legislative victories they can run on, and to try to draw strong contrasts between the two parties that bipartisan compromise would blur. This also put a crimp in regular order.
Third, as money has become more important in campaigns, governing has been increasingly taken over by fundraising. Committee posts go to members who can fundraise for the party, and therefore are just loyal supporters of party leadership. And party leaders, who control fundraising flows, have a powerful cudgel to discipline members in their own party to get in line, regular order be damned.
Members of Congress might complain publicly about the lack of regular order, but there’s a very good reason they don’t do anything about it. Doing something about it would mean overthrowing their own party leadership, which is not easy.
Individual members would also wind up taking lots of controversial and uncomfortable votes they’d prefer to avoid — which is one reason why many of them presumably support a leadership-driven process: it’s easier when party leaders are working out the compromises behind closed doors, rather than in open committees.
Moreover, because committees and individual members have been increasingly starved of staffing resources over the past three decades, it’s not clear they’d even be able to handle the responsibility of really working through complex public policy issues without just relying on industry-provided lobbyists who are now the true policy experts in Washington.
There’s also a very good reason party leaders don’t want regular order. If they accepted a more bottom-up, committee-driven process, in which bills really did go through largely independent committees, they’d lose control of the process. In the current system, party leaders get to control what comes to the floor and how it’s drafted, keeping individual members mostly “in the dark” (to borrow a phrase from political scientist James Curry). They argue they need to do this to get the votes, and work out difficult compromises. Otherwise, there’d be chaos.
And it’s a fair point: A regular order process could quickly turn chaotic. It’s possible extremist factions in the parties could hijack the process. It’s also possible bipartisan compromises could emerge, blurring the messaging and fundraising efforts of party leaders.
In short, there are very good institutional reasons why there is no “regular order” in Congress. Giving a nice speech and writing an op-ed won’t change that.
If John McCain is serious about regular order…
But if Sen. McCain is truly serious about bringing about regular order, here’s a plan:
First, assemble a new rump faction, big enough to determine the majority. Jeff Flake and Susan Collins would be obvious confederates. And since Republicans currently have a 52-48 edge in the Senate, you’ll need at least three confederates, though ideally you’d get more.
Then, go to Minority Leader Chuck Schumer and offer a deal: We’ll make you majority leader if you agree to a process of regular order. Let the committee process work. Give each committee an equal balance of Republicans and Democrats, and adequate staffing capacity to develop policy and hold hearings independently.
Would Schumer take this deal? He should. Democrats are not likely to win back the majority in 2018, so he’s looking at until at least 2020 before Democrats are in charge. It seems like a pretty good deal for Democrats. Though then again, it’s sometimes easier to be leader when you’re in the minority and all you have to do is say no, as Mitch McConnell is now learning. So who knows?
What would happen? Lots of chaos and possibly quite a bit of gridlock. But how would this be any different from what the Senate produces now? And yes, maybe both sides would just wait until the next election when they could gain back majority power. But if a few more Republicans and some Democratic senators (I’m looking at Joe Manchin, Joe Donnelly, and Heidi Heitkamp) join the rump middle faction as well, that might be enough to keep this arrangement stable enough to convince the rest of the Senate they should figure out how to make it work.
Over time, senators would learn how to operate in the new environment, and maybe the House would follow suit as well. New cross-cutting coalitions could form again, and we’d get the “regular order” that everybody in the know now wants.
And why would McCain, Flake, and Collins do this?
Collins is likely running for governor of Maine, so if she wants to run on a record of proven bipartisanship, what could be more convincing?
Flake is almost certain to lose a Republican primary ahead of 2018, and if he wants to save his career, this would allow him to run convincingly as an Independent.
And McCain probably has limited time on this planet — if he truly cares about making the Senate work again, this would be a significant legacy.
Realistically, I don’t expect this to happen, precisely because all of the forces that have put an end to regular order over the past three decades are still very much with us, and probably will be as long as we have the deadly combination two polarized parties and closely competitive national elections.
But it’s important to note that If McCain (and others) really want to get back to some version of “regular order,” they could actually do something about it. Talk is cheap.