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Little Debate or Deliberation in Congress in 2017

By Michael Thorning

Monday, February 12, 2018

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This installment of the Bipartisan Policy Center’s Healthy Congress Index is the fourth analysis of the 115th Congress, covering the entire First Session. 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 January 3, 2018, and the numbers presented here are cumulative, unless otherwise noted. 

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; 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) the amount of oversight performed by Congress measured by programs receiving appropriations after authorizations have expired. 


Summary

The first year of the 115th Congress mostly saw breakdowns in the legislative process and Congress’s ability to function. Neither chamber gave its members many opportunities to offer amendments to legislation. The Senate was not gridlocked by many attempts to filibuster legislation, but the cause seems to be more that the Senate considered few controversial bills that could be filibustered rather than any trend away from reliance on the filibuster. This may also explain the low utilization of conference committees to resolve differences between the chambers. Congress’s ability to carry out its most basic functions, the budget and appropriations processes, seem to have completely atrophied, and could be considered failures. Though the Senate spent ample time working in Washington, the House continued to lag behind in this area. Halfway through the 115th Congress, there is much room left for improvement.

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 filibuster on legislation in the Senate almost completely disappeared during the 115th Congress’s first year. The Senate voted on the lowest number of cloture motions of any of the years in the index. It voted on just eight cloture motions on bills and each was invoked, meaning the Senate was not blocked from voting on the measure at hand. Comparatively, there were 62 cloture votes on legislation in the 114th Congress, 29 in the 113th, 27 in the 112th, and 34 in the 111th. The 110th Congress voted on 61 cloture votes on legislation and the 104th voted on 19.

Amendments are an important aspect of regular order in the Senate. They give members an opportunity to contribute to bills and participate in the legislative process. This is especially true for members of the minority. The Senate amendment process has historically been relatively open, however, in recent years, majority leadership has regularly used procedural tactics to block members from offering amendments.

Halfway through the 115th Congress, there is much room left for improvement.

Last year, the Senate considered the lowest number of amendments of any of the years tracked in the index. The Senate considered only 159 amendments in total during the first year of the 115th Congress. The 114th considered 483, the 113th considered 256, and the 112th considered 257. The Senate during the 111th Congress considered almost four times as many as the 115th and the 110th considered more than six times as many amendments. Also interesting is the distribution of amendments between the majority and minority. In the past, they tend to have been split somewhere between 50-50 and 60-40. In 2017, however, 70 percent of amendments considered were sponsored by the majority Republicans and 30 percent came from the minority Democrats.

The unusual lack of filibusters and amendments on legislation likely has more to do with the number and types of bills the Senate considered in 2017 rather than obstruction by the minority or a roughshod majority. The Senate spent considerable time on executive branch nominations and other measures that could not be debated or amended. For instance, the Senate passed a number of joint resolutions under the Congressional Review Act, which cannot be amended or filibustered. Health care and tax bills considered under the reconciliation procedures of the Congressional Budget Act, which cannot be filibustered, also consumed a significant portion of the Senate’s floor time. Unlike recent years, few amendments were considered related to the two budget resolutions passed by the Senate this year. Otherwise, the Senate did not take up much controversial legislation. When cloture votes were necessary to end or prevent filibusters, cloture was invoked with votes in favor well above the 60-vote requirement.

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 were mostly closed off from offering amendments to legislation on the floor last year. In 2017, 53 percent of rules were closed rules, meaning no amendments could be offered. This is the highest percentage of closed rules among the years in the index.

Forty-seven percent of rules were structured, meaning the only amendments that could be offered were those pre-approved by the majority-controlled Rules Committee. When structured rules were in place, 52 percent were offered by Democrats, the minority, 41 percent were offered by Republicans, the majority, and 7 percent were offered on a bipartisan basis. Zero rules were open. Only one other comparative congress, the 111th Congress had zero open rules at the end of its first year.

Taken together, this is the most closed amendment process among the years in the index.

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.

In 2017, the House was at work in the Capitol for just 138 days, which is about the same as in recent years and well below the number of days it would have worked if it adhered to BPC’s recommended schedule. By BPC’s standard, the House would have worked at least 165 days by the end of the year. In the 114th Congress, the House spent 129 days in Washington in its first year, 133 days during the 113th, and 135 days in the 112th. Since Republicans took over the majority of the chamber in the 112th Congress, the House has had a lighter work schedule than during the two Congresses under Democratic control.

The first year of the 115th Congress mostly saw breakdowns in the legislative process and Congress’s ability to function 

The Senate has noticeably increased the number of days spent working in Washington since Republicans took over the majority in the 114th Congress. In 2017, the first year of the 115th Congress, the Senate worked 153 days, and in 2015, the first year of the 114th Congress, it worked 154. Both of these are about on par with BPC’s recommended schedule, which would have the chamber in session for at least 165 days per year. And both of these are higher than the 113th Congress when Democrats held a majority, which worked 138 days in its first year, and the 112th, which worked 147. The Senate is still working fewer days than during the 111th and 110th Congresses.

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.

A key element of regular order in Congress is the number of bills reported by committees. Committees in both the House and Senate were very active in reporting bills in 2017. House committees reported 372 bills in the first year of the 115th Congress, the highest among any years in the index. Senate committees reported 240 bills last year. This robust number is the third-highest among the index’s comparative years.

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. 

BPC recommends that important legislation should have the benefit of conference committees to reconcile differences between the House and Senate. In its first year, the 115th Congress relied on conference committees for only two measures.

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. 

The budget and appropriations processes in Congress completely broke down in 2018. 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.

The budget and appropriations processes in Congress completely broke down in 2018.

Congress did not enact its budget resolution until late October, six months later than the deadline. 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. 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 in order to setup a budget reconciliation process.

Even worse, neither chamber passed a single stand-alone appropriations bill of the 12 by the start of the fiscal year or by the end of the calendar year. The House did pass all 12 regular appropriations bills in an omnibus bill, but the Senate took no action on it. Consequently, to fund the government from October 1 through the end of 2017 and prevent a shutdown, Congress enacted a series of three continuing resolutions, which are stopgap measures that keep the government funded at current levels for a limited period of time. This can be fairly described as “kicking the can down the road.”

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.

KEYWORDS: 115TH CONGRESS