Congress: America's most anti-democratic institution

By Congressman Michael D. CrapoHouse of Representatives, Washington, D.C. 20515

November-December 1993 – Not too long ago, I sat down to play a board game with my children. Since we hadn’t played it before, we first read through the rules to make sure we understood the proper way to play the game. We learned that the tokens moved around the board clockwise, that everyone had an equal turn to move, and that the rules were the same each time a player took a turn. When we finished reading the rules, it struck me that it might be nice if the rules of Congress were as fair and straightforward.

The rules of Congress developed over hundreds of years and have been described as arcane, complex and cumbersome. In the short ten months I’ve been in Congress, I’ve seen those rules stifle debate, free exchange of ideas and real honest representation of the American people. The system has been corrupted and convoluted through an absolute powerlock by those in control, and consequently, the American people lose out on being fully represented in Congress.

This issue extends beyond party lines. Democrats and Republicans alike are often frozen out of the process. Rigging the rules is the only way those in control can ensure they aren’t challenged on the House floor.

The Powerful Rules Committee
Every bill that comes to the House floor comes under a “rule” designed by the Rules Committee. This 13-member committee, nine Democrats and four Republicans, decides which bills move to the floor, what amendments (if any) will be allowed, and how long debate will last.

This is a tightly controlled group, where the House leadership holds a two plus one plus one vote on every issue. It is here the leadership says “no”over and over and over again to amendments and proposals for the House floor. The very composition of the Rules Committee is by design so that no leadership position can ever lose...even when a 2/3 vote is required the ratio between the parties in the House is not two to one, but the ratio on this committee is.

The manipulation by the Rules Committee also provides cover for representatives on tough issues like a balanced budget or gays in the military. The committee will disallow amendments for those issues, and that way representatives don’t have to make recorded votes on anything but carefully crafted bills that can be challenged only if and how the Rules Committee allows.

Open rules
Ideally, every bill brought to the House floor should come under an “open rule.” Open rules allow any member of Congress to offer germane amendments to any bill.

This is the way Congress was intended to operate. Every member should have the opportunity to offer amendments, to debate the merits of a proposal, and to fully explain and explore their concerns on an issue. The people are best served with a free exchange and clash of ideas, when representatives can offer changes and improvements to legislation.

Restrictive rule practices
The very first vote I made in Congress was on the rules under which we would operate for the next two years. I learned quickly that day how the abuse of House rules has led to the stranglehold the leadership now has over debate on the floor.

The majority leadership proposed a body of rules for the 103rd Congress; the minority had worked out a substitute bill with some important reform changes to those rules. Because the Rules Committee would not approve the minority substitute to be presented on the floor, we were not allowed to debate or even vote on it. The majority rules package was presented and passed without any amendments, any improvement, or any input from the members of Congress. And, of course, there were no recorded votes on any embarrassing reform proposals like ending proxy voting, reducing committees or the like.

During the first ten months of the 103rd Congress, only 26% of the legislation brought to the House floor came under open rules. In the past 16 years, the number of open rules has consistently declined. Since 1977, the use of restrictive rules has dramatically increased. In the 95th Congress (1977-78), open rules were applied to 85% of the legislation brought to the floor. By the mid-1980’s, that percentage began to dip below 50%, and it has continued its downhill slide. Last Congress, 66% of the rules were closed. The powerlock on Congress has taken firm hold.

There were 163 amendments submitted to the Rules Committee on the first ten bills in the 103rd Congress. Only 32 of those amendments, less than 20%, were allowed to be offered. Among those amendments held back by restrictive rules from the Rules Committee were rules to:

• Require a balanced budget;
• Give the President line-item veto;
• Bar immigrants with AIDS;
• Cancel $1.96 billion in pork projects;
• Remove dead voters from registration rolls;
• Prohibit non-citizens from voting;
• Require off-setting budget cuts to fund the stimulus package;
• Strike the BTU energy tax;
• Retain the ban on homosexuals in the military; and
• Give the President a modified line-item veto.

Closed rules
A closed rule prohibits all floor amendments or, as is most often the case, all amendments except those offered by the reporting committee or committees. Closed rules were originally intended for use in emergency legislation, such as legislation to raise the debt ceiling or a continuing appropriations bill to continue funding of the federal government.

Closed rules also restrict the amount of time given to discuss the merits or problems with legislation. And all of this time is given to the sponsor of the bill. It is only through tradition that the bill’s sponsor gives half of that time to those opposing it. But if you listen carefully when the sponsor hands that time over, he/she does so “for purposes of debate only.” That means those opposing the bill cannot offer any amendments or propose any changes to the legislation. Time is allowed only to the opposition for debate, but not for amendment of the legislation pending before the House.

One of the most blatant examples of the abuse of this type of rule came in February over legislation that would allow automatic voter registration when a person applied for a driver’s license. The legislation is commonly called “Motor Voter,” and it is a concept that I supported during my tenure in the Idaho State Senate. But the legislation on this issue before Congress was not good legislation, and opened our voting system to abuse and fraud.

When the bill was before the Rules Committee, 20 amendments were proposed—everything from requiring proof of U.S. citizenship or address verification to purging names of people on voter registration rolls who hadn’t voted for four, ten or fifty years, to requiring the government to fully fund the program before making it mandatory to the states. The Rules Committee refused to permit any of those amendments to be offered, and instead only allowed one of its own to be presented on the floor.

King-of-the-Hill procedure
The King of the Hill rule has evolved in Congress over the last 12 years. It permits the House to vote on several substitute amendments, but stipulates that the last substitute amendment to pass is the only one that counts for the purpose of amending the bill. This allows members to be on record as being in favor of or against several versions of a bill.

For years, the people have pleaded with Congress to pass a Presidential line-item veto. Nearly all the governors in the country have it. But true line-item veto legislation has been consistently stalled in Congress—until this year, when the King-of-the-Hill rule allowed members to vote on a true line-item veto, knowing that, even with a majority vote, the legislation would not pass Congress.

When Congress voted in April on line-item veto legislation, we were given several options including: a substitute line-item veto bill proposed by Representatives Michael Castle (R-Delaware) and Gerald Solomon (R-New York); an amendment by Representative Robert Michel (R-Illinois) extending the terms of the line-item veto to tax bills; and an expedited rescissions bill which allowed the President to propose cutting certain spending measures in appropriations bills after it has already been signed into law. The Castle-Solomon amendment was a true line-item veto supported by several taxpayer watchdog groups like Citizens for a Sound Economy and Citizens Against Government Waste. The Michel amendment extended the line-item authority to tax bills. The expedited rescissions bill was a complicated version of line-item veto, which did not provide a true line-item. It changed very little about the present system. Some have called it a sham. Others refer to it as “line-item voodoo.”

When the line-item issue came up from the Rules Committee, it came under a King-of-the-Hill rule. The amendments were to be offered in a specific order, beginning with the Michel amendment, then to the Castle-Solomon amendment, and ending with the “enhanced rescission” bill. Under the rule, the last amendment or bill to pass would be the winner—even if other proposals were successful. The Michel amendment passed on a vote of 257 to 157, but the Castle-Solomon amendment failed 198 to 219. The weaker line-item veto version, enhanced rescission, passed 258 to 157, and since it was the last one voted upon, it was reported out of the House and sent  to the Senate.

The King-of-the-Hill rule allowed representatives who did not really support a true line-item veto to vote in favor of it as well as vote in favor to the weaker version, knowing full well that even if the true line-item veto passed, it would not become the final bill out of the House. Members are on record as voting for true line-item veto; they can claim to support such a proposal, but they know House Rules like King-of-the-Hill would let them get away with lip service to something the American people overwhelmingly support.

Three-day waiting period
The Clinton tax package, first proposed in February, was finally voted on in August. When it came up for a vote, not one Congressman had read the bill.

There is a House Rule that requires a three-day waiting period on legislation. The requirement is quite simple—it states that the House cannot consider a bill until the committee report on it has been available to House members for three days. That time frame allows members to get copies of the bill, read through the legislation, and determine the best vote on the proposal. But that rule is routinely waived on legislation. This prevents informed debate and votes at the final stages of the legislative process, and opens the door to finding “hidden goodies” in legislation after a bill is already enacted.

During debate over the Administration tax plan, several Members expressed their concerns over the waiving of this rule, to no avail. We plowed through the debate in one day and voted on the largest tax increase in American history without ever reading the legislation on which we just voted. The American people deserve better.

When you elect a Representative to Congress, you have the right to expect your voice to be heard. The Member has that same expectation—that he or she will be exercising his/her rights as a lawmaker on behalf of his/her constituents.

House Speaker Sam Rayburn said in 1942, “It is in the Congress that the varied needs and interests of the people find expression. It is in the Congress that out of the clash of contending opinions is forged the democratic unity of a democratic people. Too many people mistake the deliberations of the Congress for its decisions.

“Common consent in democratic government springs from common understanding. It is out of the airing of conflicting opinions in hearings, debates, and conferences that a people’s Congress comes to decisions that command the respect of a free and democratic people.

“Not all the measures which emerge from the Congress are perfect, not by any means, but there are very few which are not improved as a result of discussion, debate, and amendment. There are very few that do not gain widespread support as a result of being subject to the scrutiny of the democratic process.”

Something is radically wrong with the way the House is operating. The essence of our democracy and the central role of Congress in mediating competing ideas and opinions is stymied. It does not enrich the process. It does not allow for the clash of ideas. It does not require representatives to be recorded on the hard decisions they face. And it must be changed to restore the integrity and respect our Founding Fathers intended for
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