Center for American Progress

Skulduggery: What We Used to Call the Legislative Process

Skulduggery: What We Used to Call the Legislative Process

Originally published in Roll Call on November 16, 2005

Two weeks ago, Congress finished work on this year’s Agriculture appropriations bill and sent it to the White House for the president’s signature. Contained in the legislation was a provision that had not been present in either the House or Senate bill and which had nothing to do with funding the Department of Agriculture or any other agency whose budget is contained in the bill. The language was not discussed during any formal meeting of the conferees. When the final report surfaced, the question was raised, “Who among the conferees had insisted on that language?” But no one stepped forward.

The provision rewrites the legal definition of “organic food” and consequently guides the development of a $12 billion-a-year industry that is growing by 20 percent annually.

Joseph Mendelson, legal director at the Center for Food Safety, told The New York Times that the proposed legislation will open the door to a range of other chemicals and artificial materials. James Riddle, chairman of the National Organic Standards Board, stated, “We don’t want organic food manufacturers having carte-blanche use of the same kind of synthetics that conventional food processors use, especially when it involves things that do not appear on the ingredient panels.”

Whatever the merits of the language in question, the manner in which it became the law of the land should be a matter of grave concern to anyone who believes that debate, deliberation and the votes of elected representatives should determine what becomes law. While some amount of skulduggery has always been a part of the legislative process, it seems in recent years that skulduggery has all but become the legislative process.

In 1920, the House adopted a rule that prohibited House managers from agreeing to an amendment in an appropriations conference that constituted “legislating” under House rules. In other words, appropriators were to stick to funding government programs and not write permanent laws either in the House or when they reached conference. That job was preserved for authorizing committees — and there’s a formal process those committees must follow under House rules if changes in the permanent laws of the nation are contemplated.

As a result of the 1920 rules change, any provision contained in a Senate appropriations bill that went beyond the normal scope of funding federal agencies could only be agreed to if the provision were brought back from the conference as “an amendment in disagreement,” and the full House voted on whether that item should become part of the package. That system remained in place for 76 years.

A paper by Don Wolfensberger of the Woodrow Wilson Center indicates that as recently as 1994, all Senate-added legislative provisions were either stripped from the 13 regular appropriation bills in conference or taken back to the House so that separate votes could be demanded after a vote on the conference report.

But in the years that followed, that process has been abandoned. The Senate has ceased making individual amendments to House appropriations bills and now simply offers a single substitute to the entire House-passed bill. House leaders have accommodated that move by directing the Rules Committee to simply waive the violations of House rules with respect to legislative provisions, thereby allowing the package to come to the floor for a single up-or-down vote.

While all of this may seem very technical to anyone who doesn’t spend much of his or her life engrossed in the movement of legislation, its implications for the health of our representative democracy are enormous. Ultimately, the new practice offers virtually unlimited latitude for leaders in either chamber to circumvent virtually all of the normal steps of established legislative process and insert permanent changes into the U.S. Code based solely on the request of favored interests.

It does not matter how unjustly a provision benefits a small group of well-connected favor-seekers, how much violence it does to the public good or how little support it has beyond a narrow band of House leaders. The ability to use the Rules Committee to block separate votes gives those who run the House the unilateral power to rewrite the laws of the nation unless a majority of the House is willing to bring down an entire annual spending measure in order to block them.

Yes, the legislative process that evolved in Congress over the better part of two centuries, and that was still being practiced in the mid-1990s, had many imperfections. But it did allow all parties to a dispute to be forewarned when Congress was considering a change in policy. It provided them with an opportunity to present testimony; to hear the arguments of the other side in an open hearing; to press their case with individual committee members and to insist on a vote in both chambers of Congress if, after deliberation, the House and Senate committees of jurisdiction did not agree with their arguments.

That may be a lot of work for a Congress that likes to arrive late on Tuesday afternoons and leave by noon on Thursdays, for those weeks during the year that it is actually in session. But unless decisions about what is to become law are made by a majority of the elected representatives in both houses, there is no real reason to have a Congress in the first place.

Scott Lilly is a senior fellow at the Center for American Progress.

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Scott Lilly

Senior Fellow