The other week I found myself testifying before the Select Committee on the Modernization of Congress. Someone on the committee had seen my column grousing about the crazy process used to pass a half billion debt increase last autumn. I was asked to show up and discuss why I thought the People’s House was drowning in a surfeit of legislative procedure rules.
Before it was time for me or the other witnesses to speak, Chairman Rep. Derek Kilmer (D-Wash.) deftly made my point by referencing “clause 2(J)(2) of Rule 11” of the House of Representatives, which declares:
“(2)(A) Subject to subdivisions (B) and (C), each committee shall apply the five-minute rule during the questioning of witnesses in a hearing until such time as each member of the committee who so desires has had an opportunity to question each witness.”
Take that all in for a moment. Kilmer was referencing the second subpart of the tenth subpart of the second clause of a rule. And he was doing it because that is what a chairman of a committee does as a matter of course when commencing a hearing.
To be sure, there is nothing inherently wrong with complex rules. One need only think of the complex protocols of etiquette that have evolved over the centuries, including the recent emergence of the use of pronouns in interpersonal addresses in some parts of our country. And, yes, since politicians are crafty it makes sense to have plenty of rules to curb them from engaging in misbehaviors that hobble the carrying out of the public’s business.
Yet, ultimately, the rules governing any human actions need to serve the ultimate objectives of the institution, embody shared values of the institution and be readily understandable by participants in the enterprise and the public. By these standards, I believe we see signs that the House’s rules have grown overly complex.
Indubitably, the House’s rules are prolix. They begin on page 345 of the House Rules and Manual and conclude some 700 pages later. Admittedly, various chunks are devoted to non-procedural matters, such as broadcasting in the House and media in the galleries. Make no mistake, though: The manual holds a lot of rules and explications thereof. Approximately 130 pages are devoted to committee procedures, 56 address motions and amendments, 86 pages relate to the budget process and so forth. As a point of comparison, consider that the legislator’s guidebook for the lower chamber of the Ohio statehouse has only 200 pages, many of which are devoted to other matters (like ethics).
Adding to the complexity is that some standing rules are dead letters. Calendar Wednesday, for example, “allows each committee in turn to call up bills not otherwise privileged that have been reported but have not reached the House floor through a more conventional route.” No committee chairman has invoked the procedure in decades, presumably due to concern about upsetting House leadership, who prefers to set the agenda.
The costs of complexity are substantial. The more complex the rules are, the more difficult it is for the average legislator to work the process on behalf of his constituents or, for that matter, the national good. A baroque system of rules naturally creates a caste system, with a handful of super savvy, long-in-the-tooth mavens who exert disproportionate influence over the legislative agenda. (Which is one of the rifts one sees among House Democrats.)
The existence of oodles of byzantine chamber rules also incentivizes bad behavior. Really, ask yourself: If you were a legislator and felt helpless to move legislation, wouldn’t you be tempted to spend your time doing things other than governing, like stoking the culture wars on Twitter?
Anyone doubting there is a problem need only consider how frequently the House waves some of the rules near the end of the legislative process. It has become the norm. When legislation clears a committee and reaches the Rules Committee, an Alice in Wonderland-type process ensues. A resolution is drafted that sets limits on legislators’ authority to debate and amend the legislation and then to wave various standing rules.
I am thankful the select committee afforded me the opportunity to flag this problematic situation. Hopefully, sufficient legislators will decide that enough is enough and demand changes. Certainly, another select committee could be established to study the rules. Or the Rules Committee could be directed to simplify the procedure with an aim toward enabling more deliberation and legislator participation in the chamber.
And, certainly, this December when a new Congress is forming, members of the majority can demand changes to the rules in exchange for their votes for the new speaker. The House Freedom Caucus already has issued demands for rules changes. The more legislators who do so, the higher the odds of success.
Kevin R. Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute. He is the coeditor of “Congress Overwhelmed: Congressional Capacity and Prospects for Reform“ (University of Chicago Press, 2020). He hosts the Understanding Congress podcast.