These days, knowledgeable observers rarely refer to the U.S. Senate or the House of Representatives as great deliberative bodies. Neither chamber rigorously observes “regular order” by, for example, requiring committee hearings before voting on a bill. Members often vote on legislation before they read the fine (or not so fine) print. With rare exceptions, when a member speaks on the floor, no one (except for the audience of C-Span) is listening. Most important, lots of legislation with substantial bi-partisan support from the American electorate is not even considered.
Resurrecting our deliberative bodies will not be easy. That said, Congress might begin by ending the virtual monopoly of the Majority Leader of the Senate and the Speaker of the House in deciding how, when, and whether a bill will be brought to the floor.{mosads}
House Speakers and Majority Leaders have not hesitated to use this power. Majority Leader Harry Reid (D-Nev.) routinely decided what amendments, if any, could be offered on pending legislation. In 2016, Senator Mitch McConnell (R-Ky.) declared he would block consideration of Judge Merrick Garland, President Obama’s nominee for the Supreme Court. More recently, McConnell refused to allow his colleagues to consider legislation protecting Special Counsel Robert Mueller. When a reporter asked why the Senate would not take up a House bill addressing partisan gerrymandering, voter registration, and campaign financing, McConnell replied, “Because I get to decide what we vote on.”
In 2013, House Speaker John Boehner (R-Ohio) refused to schedule a vote on a comprehensive immigration reform package that had been passed in the Senate (and was supported by a substantial majority of Americans). Five years later, Paul Ryan (R-Wis.) declined to take up a bill protecting Deferred Action for Childhood Arrivals (DACA) recipients.
This year, sensing an opportunity to brand the Democrats as “garden variety 20th century socialists,” McConnell scheduled a vote on Rep. Alexandria Ocasio-Cortez’s (D-N.Y.) Green New Deal, even though Nancy Pelosi (D-Calif.) has not committed to do so.
House Speakers and Senate Majority leaders have not always had so much clout over the legislative process. The office of Majority Leader of the Senate did not exist before the 1920s. The Leaders’ “right” of first recognition, the ability to schedule consideration of and votes on bills and amendments, rests on precedent, not on any formal or informal institutional rules or provisions in the United States Constitution. Only a vote of 51 or more senators can overrule a procedural decision by the Majority Leader.{mossecondads}
In the House, a revolt against Speaker Joe Cannon (R-Ill.) in 1910 resulted in a practice that permitted a single member to propose that a bill be discharged from a committee and brought to the floor. Subject to abuse, this discharge process was subsequently revised. Set at 145 members in 1931, the number of required endorsers was increased to 218 by the Democratic majority in the House in 1935, and has stayed at that number. Given this high threshold, and the reluctance of members of the majority party to challenge their leaders, discharge petitions are rarely attempted, and are even more infrequently successful.
In a democracy, the legislative agenda — on climate change, background checks for every person seeking to purchase a gun, a pathway to citizenship for DREAMERS, ending government shutdowns — should not be determined by one person. As James Wallner, a senior fellow at the R Street Institute has suggested, rank and file members of the House and Senate “can change overnight” how their chambers conduct their business (subject to procedural rules that guard against dilatory and obstructionist behavior) if they summon the political courage to challenge the powers that be.
It’s a big if, of course, but the House has recently taken a small step to address the problem. House rules now mandate that any legislation receiving 290 co-sponsors will receive a floor vote. To enhance the role of the minority party, the House of Representatives, in my judgment, should consider returning to a 145 vote threshold for discharge petitions. House Republicans should abandon the Hastert Rule, a practice that requires a majority of party members to support a bill before the Speaker brings it to the floor for a vote. Even more important, to help resurrect Congress as a deliberative body, our elected officials should serve their constituents by putting principles above party and forging bi-partisan coalitions reaching the numbers 51 and 218.
Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies, Dean of the School of Continuing Education & Summer Sessions, and former Vice President for University Relations at Cornell University. He is co-author (with Stuart Blumin) of Rude Republic: Americans and Their Politics in the Nineteenth Century.