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114th Congress: Two Steps Forward, Two Steps Back on Regular Order

By Michael Thorning

Tuesday, November 15, 2016

This is the seventh quarterly installment of the Bipartisan Policy Center’s Healthy Congress Index, and the third for 2016. The index provides Americans with crucial metrics for evaluating the current Congress’s ability to effectively legislate and govern and compares the data against past congresses. The period covered by this installment is January 2015 through the end of September 2016, and the numbers presented here are cumulative.

The measures track key recommendations released in June 2014 by BPC’s Commission on Political Reform (CPR), which was created to investigate the causes and consequences of America’s partisan political divide and make recommendations to reinvigorate a political process that can work during a time of hyperpolarized politics.

The key measures of the index include: the number of days Congress spent on legislative business; how open the Senate was to debate and amendments; and how effectively Congress followed regular order by allowing a substantial committee process, robust floor debate, and resolving of House and Senate differences in conference committees.

View 2016 Q3 data

Working Days in Washington

Congressional work periods are divided into two different types: when Congress is “in session,” and therefore meeting for legislative business, and when Congress is “in recess,” and members are in their districts or states directly interacting with constituents.

CPR recommends that Congress be in session conducting legislative business five days a week for three straight weeks followed by one week in recess. If adopted, the recommendation would translate to between 45 and 50 days working in Washington per quarter. The Healthy Congress Index uses the term “working days” to mean those days on which Congress meets in Washington and conducts legislative business.

The current House has worked the lowest number of days at this point among all of the congresses measured in the index.

With less than two months left in the 114th Congress, both chambers remain far below the 45 to 50 working days per quarter recommended by CPR. Under that standard, at this point in the two-year period, each chamber should have completed around 315 to 350 working days.

The current Senate has worked in Washington for just 250 days. This number is not only below BPC’s recommendation, but also below the number of working days in the 111th, 110th, and 104th Congresses. The 111th worked 302 days, the 110th worked 295, and the 104th worked 320. The Senate is, however, about on par with the 113th and 112th Congresses at this point in time.

The current House has worked the lowest number of days at this point among all of the congresses measured in the index. As of the end of September, it has worked only 215 days in Washington. This finding seems to be a continuation of the downward trend that started during the 113th and 112th Congresses.

With few days left on the calendar, it is impossible for either chamber to reach the recommended number of working days before the end of the 114th Congress.

Regular Order

Three index measures address the regular order of Congress: floor debate in the House, the committee process, and conference committees.

A key element to regular order in the House is the ability of members to offer and consider amendments on the floor. Throughout the 114th Congress, the process has remained mostly closed with no opportunities to offer amendments. Compared with recent congresses, a high number of bills were considered under closed rules, where no amendments may be offered, and fewer under open rules, where the bill is completely open to amendments. There was no changed in that trend during the last quarter.

This Congress, closed, no-amendment rules accounted for 64 of the 150 rules reported by the Rules Committee, while only eight were completely open to amendment. The remaining 78 were considered under structured rules, meaning the only amendments allowed were those specified by the Rules Committee, which is controlled by the majority party. In the 113th Congress, 66 of the 140 bills were considered under closed rules, 12 under open rules, and 62 under structured rules. In the 112th, there were 47 bills considered under closed rules, 25 open, and 65 structured.

In instances where structured rules were in place, both the minority and majority parties were afforded ample opportunities to offer amendments. This Congress, Democrats have offered 549 amendments under structured rules, and Republicans offered 474. One hundred ninety-three were offered on a bipartisan basis.

Both chambers have been active in reporting bills out of committee, broadening the input of members. 

In 2015, after many members complained of the lack of opportunities to offer amendments, newly elected House Speaker Paul Ryan pledged to improve the amendment process in the House as a part of returning to regular. There has yet to be a noticeable shift in the share of bills considered under closed rules, thus far. BPC will continue to monitor progress in this area, however, it will be difficult to make progress with such little time left in the current congress.

An additional measure related to regular order is the number of bills reported by committees. Both chambers have been very active in reporting bills out of committee this Congress. The Senate, with 484 bills reported, had the second highest number among the years included in the index, surpassed only by the 110th Congress. The House, with 645 bills reported, had the highest number of bills reported at this point among all of these congresses. This development is the most positive in terms of returning the House to regular order, and the chamber’s leadership should continue to build upon this success in broadening the input of members in the legislative process.

BPC’s commission recommended that important legislation should have the benefit of conference committees to reconcile differences between the chambers. By the end of September 2016, the current Congress had only adopted six conference committee reports, which is a slight improvement over the previous Congress and on par its other recent predecessors. BPC hopes the leadership of the current Congress will more fully utilize this vital process through the remainder of the year.

Senate Debate: Cloture, Filibusters and Amendments

Two measures of the index—cloture and amendments—provide information about how much the Senate is debating legislation and allowing majority and minority party members to influence legislation.

Cloture is a vote to end debate and proceed to vote on a measure or amendment. By ending debate, the chamber prevents members from filibustering and possibly holding up a measure indefinitely. A large number of cloture votes is not necessarily indicative of the minority party blocking the majority party. It is possible that the majority moves to a cloture vote quickly without much time on the floor used by the minority. It is also the case that there can be several votes for cloture on the same measure.

The momentum in toward considering more amendments has continued. The Senate considered 728 amendments by the end of September, compared with 352 in the 113th Congress.

The current Senate has considered an extremely high number of cloture motions. With 117 cloture votes, the Senate took nearly twice as many cloture votes as either of the two preceding congresses and more than any other in the index. This high number reflects the protracted floor processes for the measures the Senate considered. In several instances, multiple votes were taken and/or multiple cloture motions filed on the same underlying measure.

On a more positive note, the momentum in the Senate toward considering more amendments has continued. The current Senate considered 728 amendments by the end of September, compared with 352 in the 113th Congress and 478 during the 112th.

As for the distribution of amendments, of the 728 considered, 397 were offered by the majority party and 331 by the minority party. This division means that approximately 55 percent were offered by Republicans and 45 percent by Democrats.

Conclusion

Both chambers have accrued a mixed record of progress toward a better functioning legislative process with little time remaining in the 114th Congress. With each step forward, there seem to have been as many steps back. The areas of improvement should not be discounted, however.

In terms of positive developments, the House and Senate committees are significantly more active than their recent predecessors. This finding is particularly true in the House. The Senate has also seen an improvement in the number of amendments considered on legislation.

Less positively, neither chamber has improved on the number of working days in Washington. The Senate has been increasingly hamstrung by the filibuster with cloture votes on legislation at an all-time high. Finally, the House has made no noticeable progress on opening up the amendment process.

The leadership of both chambers will have to work diligently to ensure the improvements they have made do not slip away before the 114th Congress adjourns.

KEYWORDS: PAUL RYAN, HOUSE RULES COMMITTEE, 114TH CONGRESS