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Budget and Appropriations Bungled, Regular Order Missing in Congress’s First Nine Months

By Michael Thorning

Thursday, October 19, 2017

This installment of the Bipartisan Policy Center’s Healthy Congress Index is the third analysis of the 115th Congress. The index provides Americans with crucial metrics for evaluating Congress’s ability to effectively legislate and govern and compares the data against past congresses. The period covered by this installment is January 3, 2017, through September 30, 2017, 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.

@BPC_Bipartisan: Regular Order missing in the first nine months of the 115th Congress. Read the analysis. 

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

New in 2017, two added measures of the index will further examine how well the current Congress is functioning relative to those in the past.  We will track 1) progress on the budget and appropriations processes, and 2) programs receiving appropriations after authorizations have expired.  

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 House was at work in Washington for 100 days between January and the end of September. This was about on par with the number of days it worked in recent years, but also below the number of days worked in the 104th, 110th, and 111th Congresses. It was also below the number of days we would expect the House to work if it adhered to BPC’s recommended schedule. By that measure, the House should have worked about 120 days at this point in the current Congress, accounting for the traditional August recess. 

The Senate worked much closer to the number of days BPC recommends. The Senate was working in Washington for 113 days. This was about the same number of days worked as last Congress and more than the 113th and 112th Congresses. The 111th, 110th, and 104th Congresses each were in Washington considerably more days than the current Senate, however. 

Committee Process 

A key element of regular order in Congress is the number of bills reported by committees. CPR recommends that major legislation should have the benefit of the committee process before coming to the floor of either chamber. 

Committees in the 115th Congress continued to report a high number of bills. In the House, committees reported 251 bills between January and the end of September. This number was the highest among any of the years in the index. Senate committees also reported a high number of bills. Committees in that chamber reported 195 bills, the second-highest among any of the years in the index. 

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. 

Continuing with a trend seen earlier in the 115th Congress, the Senate took the fewest number of votes on cloture among the years covered by the index. There were just seven cloture votes on legislation between January and September 30. The closest comparative Congress, the 104th, had more than twice as many at this point. Also unlike other congresses in the index, each cloture motion was invoked, meaning debate was ended and members did not successfully filibuster the measure before the Senate. Though not included in this index, it should be noted that the Senate has taken a much higher number of cloture votes on nominations than legislation this year. Between January and the end of September, there were 41 cloture votes on nominations compared with the seven on legislation. 

With three months left in the year, both chambers have much room for improvement.

This year, the Senate considered the fewest number of amendments compared with recent congresses. Only 103 amendments were considered on the Senate floor. With the exception of the 112th Congress, which considered 117, each of the other congresses in the index considered 100 to nearly 800 percent more amendments.  

In another deviation from recent congresses, 70 percent of amendments were from members of the majority party—Republican members in the case of the current Congress. Historically, amendments tended to be more evenly divided, with amendments submitted by majority party members typically at around 50 to 60 percent.  

Amending Process in the House 

Essential to regular order in the House is the ability of members to offer and consider amendments on the floor. When a measure is considered under open rules, unlimited amendments may be offered by members. Under closed rules, no amendments may be offered. Under structured rules, the only amendments that maybe be offered are those specified by the Rules Committee, which is controlled by the majority party. 

Members of the House also had fewer opportunities to offer amendments this year. So far, there have been zero open rules, which allow any member to offer amendments. Only one other comparable year, during the 111th Congress, had zero open rules at this point.  

The House mostly operated under closed rules, meaning no amendments can be offered. Fifty-four percent of rules were closed, meaning no amendments at all could be offered. This finding represents the highest percentage of closed rules among the comparative years in the index. Structured rules, where some pre-determined amendments can be offered, accounted for 46 percent of rules. 

When structured rules were in place, the Democratic-minority received a majority of the amendments. Democrats offered 409 (51 percent), Republicans offered 303 (38 percent), and 91 were offered on a bipartisan basis (11 percent).   

Resolving Differences Between the Chambers 

CPR recommends that important legislation should have the benefit of conference committees to reconcile differences between the House and Senate.  

Nine months into the 115th Congress, the chambers have yet to rely on a single conference committee to resolve differences between their bills. Comparatively, the 104th had used 10 at this point, the 110th had used six, and the 111th had used five. Similar to this year, the 112th and 113th Congresses also had not relied on conference committees between January and September 30.  The 114th Congress had convened one. 

Budget and Appropriations Process 

Congress and the president must take actions before certain deadlines to ensure the government is funded before the start of the next fiscal year on October 1st.The textbook process requires the president to submit a budget proposal to Congress by the first Monday in February. Congress then works to adopt a budget resolution, which sets overall spending limits for government programs, by April 15. Congress then begins writing appropriations bills to approve spending for specific government programs. Currently, programs are divided into 12 regular appropriations bills. These bills must be passed and signed into law by September 30 to avoid a gap in funding or shutdown of some or all government operations.  

When these deadlines are not met, Congress often takes stopgap measures outside of the regular process. One option is to combine all or a number of the 12 appropriations bills into one bill, often called an omnibus or consolidated appropriations bill. Another option is to pass a continuing resolution to temporarily fund the government until a certain date. 

This year, like many recent years, the president and Congress failed to adhere to the budget process timeline outlined by the Congressional Budget Act. In fact, almost everything about the budget and appropriations process has been a deviation from regular order. 

The budget and appropriations process has completely broken down.

President Trump, for his part, did not submit his fiscal year (FY) 2018 budget to Congress by the first Monday in February. The president’s budget was submitted 107 days late. It is not unusual for a president to submit a budget late in the first year of their first term. However, even in those circumstances, no president has submitted a budget that many days late. 

Congress’s first responsibility in the process is to adopt its final budget resolution by April 15. By the end of September, Congress was five months late on taking this action for FY2018, and as of this writing, Congress will be more than six months late. It should be noted that the delay in adopting a final budget resolution was not the product of deficiencies or gridlock in the legislative process, but a strategic choice made by congressional Republicans. Comparatively, for the last 10 fiscal years, Congress has only adopted a budget resolution five times and never on time. However, when it has been late, it has typically been by a few weeks or a month. The only exception is for FY2017, when the budget resolution was adopted nine months late. 

Congress also failed to enact any of the 12 regular appropriations bills before the September 30 deadline and October 1 start of the new fiscal year. However, between FY2008 and FY2018, Congress never enacted all 12 bills before the start of the fiscal year, and only twice had enacted at least one by that deadline.  

To prevent a government shutdown, the current Congress enacted a continuing resolution—a stopgap measure—to keep the government funded at current levels for a limited time. By kicking the can down the road, Congress will have to address this issue again in early December or face the prospect of a government shutdown. Continuing resolutions have been enacted in each of the fiscal years since FY2008, and in some cases multiple resolutions have been necessary to keep the government open. 

Taken as a whole, the president and Congress have missed every deadline in the FY2018 budget process and resorted to temporary measures outside of the normal process to keep the government from shutting down. While this is disappointing, it has become the norm in recent years. 

Oversight and Reauthorizations  

The index provides data on programs receiving appropriations for which the underlying authorization has expired. This measure will give some sense of how diligently authorizing committees in Congress are working to provide oversight and review of government programs, and to renew, adjust, or eliminate authorizations for their funding. This measure is likely only to be updated on an annual basis.  

The initial data presented in the index shows that over time, spending on programs with expired authorizations has grown as a percent over overall spending. This finding suggests that the number of federal programs that have not been reauthorized by congressional committees has grown since 1995. Further analysis on this metric is expected early in 2018. 

Conclusion 

In the first nine months, the 115th Congress was at work in the Capitol more, but it’s unclear what there is to show for it in terms of adhering to regular order.  

Positively, both the House and Senate worked more days in Washington than in the recent past, and committees produced and reported high numbers of bills. The Senate also saw few attempts to block legislation through a filibuster when a bill was brought to the floor, and none of those attempts was successful. 

Even so, the budget and appropriations process has completely broken down, though, this is not unusual compared with recent years. The quality and openness of debate was also stifled in both chambers with little opportunity for members to offer amendments to bills. In the case of the Senate, in the few instances where amendments were allowed, it was mostly to the benefit of the majority. The House carried out the most closed process among the years tracked in this index. 

With three months left in the year, both chambers have much room for improvement if they are to reestablish a healthy legislative process and to take the first step towards earning back Americans’ trust that their political system can address the big issues during a time of hyperpolarization.  

KEYWORDS: 114TH CONGRESS, FY2017, 115TH CONGRESS, PRESIDENT DONALD TRUMP, FY2018