The House and Senate go rogue?

By Joshua C. Huder

Today’s Congress is often rightfully perceived as lacking democracy and controlled by a select few. Mitch McConnell and Paul Ryan are cast as legislative shepherds, leading their conferences to decisions they have already made. And while that view is somewhat of a myth, there is also some truth to it. At a minimum, Ryan and McConnell want us to believe they’re in control. McConnell went so far as to say that he alone decides what the Senate votes on.

This perception of party power in Congress is justly earned. Party leaders have become extremely powerful compared to leaders in past decades. The speakership is as powerful as it has been since the turn of the 20th Century. The Senate majority leader is arguably exercising more control over the Senate agenda than at any point in history. Polarization is frequently blamed for this concentration of power. Like-minded parties empower their institutional leaders. Therefore, powerful leaders are a function of strong, ideologically cohesive, parties.

Yet, this narrative of powerful party leaders belies the politics of the last couple of weeks. Members are currently challenging Ryan and McConnell’s control of the chamber. In both the House and Senate, members are circumventing their leadership, or attempting to, to force votes onto the floor.

The past couple of weeks have been among the most procedurally interesting this year. House Republicans circulated a discharge petition to force votes on several immigration bills over leader objections. Interestingly, the petition is more procedural than policy; it describes an amendment process to secure debate on several amendments rather than force a vote on a specific bill.  In other words, member complaints are more procedural than policy oriented. The discharge petition secures debate on immigration, not necessarily victory.

Similarly this week, Senator McConnell’s “unrivaled” control of the floor was challenged. Senator Rand Paul (R-KY) moved that the Senate consider his budget proposal, which was then debated for 90-minutes before being defeated. McConnell was also rolled by Democrats and three Republicans who passed a disapproval resolution of the Trump administration’s repeal of the net neutrality rule. House Democrats then started a discharge petition to force a vote on that disapproval resolution in the House.

These processes aren’t new. The discharge process goes back to 1910; Senator Paul’s budget debate sprung from rules written in the 1974 Budget Control and Impoundment Act; and Senator Markey’s non-debatable disapproval resolution is derived from the 1995 Congressional Review Act. None of these procedures are new; actually using them, however, is rare. Leaders use deference, formal powers, or informal authorities to maintain control. And the past couple of weeks represent unusually democratic episodes in each chamber.

Put differently, these procedures are challenges to leaders’ control. The one fundamental power of party leaders – the backbone of their power in Congress – is their ability to prevent votes. It is not how many bills they pass or how much of the legislative agenda they usher through. Those barometers matter but are often contingent on the size of their majority. But focusing solely on positive actions overlooks the crucial authorities that leaders use to block amendments, bills, and provisions. Leaders may not always be able to pass an immigration bill. But what frequently goes unquestioned is their ability to block it. Undermining leaders’ negative agenda control would be akin to breaking the back of their authority.

Additionally, these challenges are an interesting addendum to the polarization narrative. If the parties are so ideologically cohesive, why aren’t they acting like it? Republicans lost their policy cohesiveness following the tax bill. The second highest priority this Congress (H.R.2) is a routine reauthorization – the farm bill, which ironically failed on the House floor last week – which is a remarkably low bar for a party that controls the House, Senate, and presidency. These procedural episodes add fuel to that fire. If the parties are so unified, why are they breaking with their leadership to force votes or pass bills over their objections?  Leaders’ procedural majorities may be beginning to fray. Losing policy cohesion means leaders cannot get anything done. Losing procedural majorities means leaders become less relevant to policy. The loss of procedural majorities is more damning because it undercuts the ability of the party to control the process. That hasn’t happened, but these events are interesting to consider in that context.

This wave of democracy within both chambers could, and very probably will, pass over. Or this could be a harbinger of unrest among the membership. In the last four years there have been more serious discharge petitions than there have been in decades. Members seem to increasingly lament leaders’ pushing rank-and-file members out of decision making. And while it is certainly far too early to say that politics have substantially changed in the House and Senate, the events of the past couple of weeks certainly raise eyebrows.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute at Georgetown University. You can find him on Twitter @joshhuder.