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Will Congress Stay Dysfunctional Course Amid Election Year?

By Michael Thorning

Thursday, May 31, 2018

This installment of the Bipartisan Policy Center’s Healthy Congress Index is the fifth analysis of the 115th Congress, covering the entire First Session and the first three months of the Second 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 March 30, 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

One quarter into 2018, and with the midterm election on the horizon, initial data suggests some parts of the legislative process are operating well while others are worsening. Committees in the House and Senate are reporting high numbers of bills to the floor, and the Senate is spending more time working in Washington than in recent years.

However, leadership in both chambers has severely curtailed the ability of members to offer amendments on the floor. The 115th Congress is the worst of any in the index for the ability of members to offer amendments. The filibuster on legislation has, thus far, been a non-factor, as have conference committees. Congress only completed work on the fiscal year (FY) 2018 budget and appropriations process in March of this year, six months after the fiscal year began. It’s unclear if Congress will set itself up for success when it comes to  FY2019. Congress may be tempted to focus on the November elections, but it would do well to get back to the basics of legislating.

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 has mostly been a non-factor thus far in the 115th Congress. The Senate voted on the lowest number of cloture motions of any of the years in the index. It voted on just 15 cloture motions on bills and 14 were invoked, meaning the Senate was not blocked from voting on the measure at hand. Comparatively, there were 73 cloture votes on legislation in the 114th Congress, 45 in the 113th, 40 in the 112th, and 40 in the 111th. The 110th Congress voted on 43 cloture votes on legislation and the 104th voted on 34.

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.

The current Senate considered the lowest number of amendments of any of the years tracked in the index. The Senate considered only 179 amendments in total between January 2017 and the end of March 2018. Comparatively, the 114th considered 535, the 113th considered 299, and the 112th considered 312. 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.

From BPC’s Healthy Congress Index: Initial data suggests some parts of the legislative process are operating well while others are worsening.  

The distribution of amendments between the majority and minority has been out of step with recent norms as well. In the past, amendments tend to have been split evenly between majority and minority, or perhaps a 60-40 split in favor of the majority. Since January 2017, however, 72 percent of amendments considered were sponsored by the majority Republicans and just 28 percent came from the minority Democrats. In the first quarter of 2018, of the 20 amendments considered, only one amendment was offered by a member of the minority.

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 this Congress. Since January 2017, 56 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-four 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, 49 percent were offered by Democrats, the minority, 40 percent were offered by Republicans, the majority, and 11 percent were offered on a bipartisan basis. Zero rules were open. Only one other comparative congress, the 111th, had zero open rules at this point in the two-year period.

Taken together, this is the most closed amendment process among all 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.

By BPC’s standard, each chamber should have worked at least 210 days at this point. Between January 2017 and the end of March 2018, the House was at work in the Capitol for just 171 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. The low number of working days is consistent with recent practice in the House, however. In the 114th Congress, the House spent 159 days in Washington in its first year, 165 days during the 113th, 168 days in the 112th, 182 days during the 111th, and 179 days during the 110th.

Since January 2017, the Senate worked 196 days in Washington, a slight improvement over the number of days in the 112th-114th congresses, but still well below BPC’s recommendation. The Senate in the 114th worked 185 days, the 113th worked 172, and the 112th worked 183 by this point in the two-year period. The Senate during the 111th Congress was in Washington for 224 days and the 110th for 207.

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 both the House and Senate have been very active in reporting bills.

A key element of regular order in Congress is the number of bills reported by committees. Committees in both the House and Senate have been very active in reporting bills. House committees reported 487 bills in the 115th Congress, the highest among any years in the index. Senate committees reported 296 bills, the third-highest among the index’s comparative years, and much higher than the lull seen during the 112th and 113th Congresses.

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. Since January 2017, only one conference report has been approved by both chambers.

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 process during the 115th Congress has been anything but regular.  

The budget and appropriations process during the 115th Congress has been anything but regular. To start, the FY2017 budget process, which normally should have been completed during the 114th Congress, spilled over into the 115th. Congress enacted a final budget resolution for FY2017 in January 2017, almost four months into the fiscal year. Congress then relied on a series of three continuing resolutions to fund the government until May 2017, eight months into the fiscal year, when it finally enacted appropriations for the remainder of the fiscal year.

The FY2018 budget and appropriations process functioned even worse. President Trump submitted the administration’s budget 107 days late, though that is not unusual for new administrations. Congress then did not enact its own budget resolution until late October 2017, more than 6 months late and several weeks after the start of the fiscal year. Congress then relied on five continuing resolutions to provide stopgap funding for the government before it enacted full year appropriations in March 2018, more than six months into the fiscal year. This kick-the-can-down-the-road approach Congress took resulted in a brief lapse in funding, or shut down, that lasted less than one day.

For FY2019, which begins in October 2018, President Trump submitted his budget just seven days late. Congress has yet to act on its own budget resolution or appropriations bills.

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 data presented in the index shows that over time, spending on programs with expired authorizations has grown as a percent over overall spending. From FY2014 through FY2016, funding for programs with expired authorizations made up one quarter or more of all discretionary spending. This finding suggests that the number of federal programs that have not been reauthorized by congressional committees has grown since 1995, when these programs made up about 17 percent of spending.