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Six Month Review of the Legislative Process

By Michael Thorning

Monday, July 31, 2017

This installment of the Bipartisan Policy Center’s Healthy Congress Index is the second 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 June 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.  

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.

Halfway through 2017, the Senate worked in Washington nearly as many days as CPR’s benchmark of 45 days per quarter.

Halfway through 2017, the Senate worked in Washington nearly as many days as CPR’s benchmark of 45 days per quarter, while the House began to slip behind. Each chamber should be in the 90-day range at this point. The current Senate worked 85 days between January and June. This is almost exactly as many days as at this point in the last Congress, which worked for 86 days.  Comparatively, the Senate in the 113th Congress worked for just 71 days, and the 112th for 73.  The current Senate’s numbers are tracking closer to those seen in the 111th and 110th, which worked 94 and 100 days respectively. 

The House, so far this year, has been at work in the Capitol for 75 days. This is below CPR’s recommendation, but higher than any Congress since the 111th.  In the 114th Congress, the House had worked 70 days, the 113th worked 69, and the 112th worked 68. The 111th, 110th, and 104th Congresses all saw higher numbers of working days by this point, however. 

Committee Process

A key element of regular order in Congress is the number of bills reported by committees. As in the last quarter, both chambers remain active in reporting bills out of committee. Senate committees reported 139 bills in the first six months of the yearhistorically surpassed only by the 110th Congress. Committees in the House reported 137 bills, which was also among the highest in the index and higher than any of the last four congresses.

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. 

Six months in, the Senate has taken an unusually low number of cloture votes. There have only been two cloture votes on legislation thus far in the 115th Congress, and only one since last quarter.  In comparison, last Congress there were 34 cloture votes by the end of the second quarter. There were 14 in the 113th Congress and eight in the 112th. In the 111th there were 17 and in the 110th there were 39. It is important to note that this only measures cloture votes on legislation and not those on nominations, on which the Senate has taken a considerable number of votes. 

BPC’s Healthy Congress Index provides metrics for evaluating Congress’s ability to effectively legislate & govern. 

While this low number might appear to suggest a lack of obstruction on the Senate floor, it is more likely due to a combination of other factors. The Senate has spent significant time considering executive branch nominations and measures that could not be filibustered, and little time on controversial legislation. For instance, it considered a large number of resolutions disapproving of agency regulations, which are not debatable and therefore cannot be filibustered. Otherwise, the Senate has mostly passed bills this year by unanimous consent or voice vote, suggesting they were less contentious and therefore less likely to be filibustered. In both cases where measures were subject to a cloture vote—the NATO Montenegro treaty and the Iran sanctions bill—there was overwhelming support to invoke cloture and end any attempt to filibuster. Both cloture motions were invoked 97-2. 

The number of amendments considered in the Senate was also very low compared with recent history. The Senate considered just 18 amendments by the end of June. This is hundreds less than most of the other congresses included in the index. The only Congress with nearly as few amendments was the 112th, which considered 86. The lack of amendments in the Senate is not necessarily due to members being blocked from offering them, however. As with filibusters and cloture votes, a number of factors likely contributed.  In some cases, there may have been broad consensus on the measures the Senate considered and a lack of need for amendments. Also, the same resolutions disapproving of agency regulations that were not debatable also could not be amended. Finally, there were many fewer amendments considered to the budget resolution passed in January than usual. These amendments typically account for a significant portion of the total number considered. Last Congress the budget resolution accounted for 155 amendments. The Congress before that, 104 were considered. This Congress, just two received floor consideration. 

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. 

Essential to regular order in the House is the ability of members to offer and consider amendments on the floor.

The amendment process in the House remained mostly closed through the end of June. Closed rules, where no amendments could be offered, accounted for 57 percent of rules. This is the highest share of closed rules at this point among the congresses included in the index. The remaining 43 percent of rules were structured. No rules allowed for an open amendment process where any member can offer amendments. 

When structured rules were in place, the Democratic minority received most of the amendments. Eighty-five were offered by Democrats, 49 by Republicans, and six were offered on a bipartisan basis.  

Resolving Differences Between the Chambers

BPC recommends that important legislation should have the benefit of conference committees to reconcile differences between the House and SenateIt is still early in this Congress to expect significant use of conference committees, however. This Congress, like some of its predecessors, has moved zero bills through conference so far. 

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 1.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 president and Congress have often missed their deadlines, shutdowns have occurred, and omnibus bills and continuing resolutions have become the norm.

As our timetable suggests, in recent years, the textbook process has broken down. The president and Congress have often missed their deadlines, shutdowns have occurred, and omnibus bills and continuing resolutions have become the norm. With regard to the 115th Congress, two key deadlines were missed for fiscal year (FY) 2018, which begins on October 1, 2017. 

First, President Trump did not submit his FY 2018 budget by the first Monday in February. This is not unusual, however, in transition years when the outgoing president did not propose a budget for the upcoming fiscal year, as was the case here.  His budget proposal was submitted to Congress 107 days late. For comparison, President Obama’s first budget resolution was submitted 94 days late. 

Second, Congress failed to adopt its FY 2018 budget by April 15. This was due to Senate Republicans relying on the FY 2017 budget resolution and its reconciliation instructions to attempt to pass a health care reform bill. Congress still has not adopted a budget resolution for the upcoming fiscal year. The remaining steps in the FY 2018 budget and appropriations process will be updated in the third and fourth quarters of this year.  

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 suggests that the number of federal programs that have not been reauthorized by congressional committees has grown. Further analysis on this metric is expected early in 2018.

The first six months of the 115th Congress show mostly business as usual in the House and some unusual developments in the Senate.

Conclusion

The first six months of the 115th Congress show mostly business as usual in the House and some unusual developments in the Senate. As in recent years, the House has been working fewer days than our recommendation. While its committees continue to report a high number of bills, the amendment process on the floor remains mostly closed to members. The Senate is spending a healthy amount of time working in Washington and its committees are active as well. Unlike in recent years, there have been very few attempts to filibuster legislation in the Senate and very few amendments to legislation. As more controversial and significant legislation comes before the Senate, that is likely to change.

KEYWORDS: PRESIDENT BARACK OBAMA, IRAN, NATO, 114TH CONGRESS, HEALTHY CONGRESS INDEX, FY 2017, 115TH CONGRESS, PRESIDENT DONALD TRUMP, FY 2018