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The “Regular Order”: a Perspective

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The “Regular Order”: a Perspective The “Regular Order”: A Perspective November 6, 2020 Congressional Research Service https://crsreports.congress.gov R46597 SUMMARY R46597 The “Regular Order”: A Perspective November 6, 2020 Many contemporary lawmakers urge a return to “regular order” lawmaking. In general, the regular order refers to a traditional, committee-centered process of lawmaking, very Walter J. Oleszek much in evidence during most of the 20th century. Today, Congress has evolved to Senior Specialist in become largely a party-centered institution. Committees remain important, but they are American National less important than previously as “gatekeepers” to the floor. This development Government represents a fundamental “then and now” change in the power dynamics of Capitol Hill. Regular order is generally viewed as a systematic, step-by-step lawmaking process that emphasizes the role of committees: bill introduction and referral to committee; the conduct of committee hearings, markups, and reports on legislation; House and Senate floor consideration of committee-reported measures; and the creation of conference committees to resolve bicameral differences. Many Members and commentators view this sequential pattern as the ideal or “best practices” way to craft the nation’s laws. Regular order is a lawmaking process that promotes transparency, deliberation, and the wide participation of Members in policy formulation. Significant deviations from the textbook model of legislating—common in this party-centric period—might be called “irregular,” “nontraditional,” “unorthodox,” or “unconventional” lawmaking. The well- known “Schoolhouse Rock” model of legislating still occurs, but its prominence has declined compared with the rise of newer, party leadership-directed processes. Regular or irregular procedures can successfully be used to translate ideas into laws. They can be employed to enact partisan or bipartisan legislation. Neither is necessarily better than the other as a lawmaking approach. Much depends on contextual (e.g., divided or unified government) and situational factors (e.g., statutory deadlines or national crises). Sometimes, regular order is observed for problem-solving; on other occasions, nontraditional lawmaking may be the best or only way to pass legislation. Or a combination of both could be employed to achieve legislative objectives. In short, the regular order can be an elusive and changeable concept. People may legitimately contend that there is no such thing as the regular order for enacting laws. No legislative process or procedure can ensure that outcome. Moreover, the term is defined neither by the Constitution nor in House and Senate rules. As the U.S. Constitution (Article I, Section 5) authoritatively states, “Each House may determine the Rules of its Proceedings.” Accordingly, lawmakers who muster sufficient support and votes have wide freedom to create or change parliamentary rules, precedents, and norms. Since at least the mid-1990s, if not earlier (e.g., the early 1980s), nontraditional lawmaking has surged in both legislative chambers. Why? In large measure because a sharper, combative form of partisan and ideological polarization gradually emerged both in Congress and the country. Regular order legislating through bipartisan compromise is often harder to achieve in a polarized legislative environment. Today, major policy and political disagreements between the two parties are at times so wide and deep on many issues that gridlock can be the result. In response, the majority party may turn to nontraditional processes, in whole or in part, to advance the legislative agenda. Nontraditional processes have their own virtues, such as expedition over deliberation. An oft-used measure of partisan polarization is “party unity”: roll call votes on which a majority of Democrats and a majority of Republicans align against each other. Annually, CQ Weekly compiles, analyzes, and publishes the party unity scores. For example, partisan voting in 2019 for the Democratic- controlled House was a record-setting 95% compared with 58% of partisan votes in 1972; for the GOP-controlled Senate, 94% of Republicans in 2019 voted with their party against the other party; in 1972, 62% of votes split Republicans from Democrats. Congress functions on occasion like a parliamentary or quasi-parliamentary body, where the majority party governs and the minority party opposes. With party unity high, each side might employ any number of procedural Congressional Research Service The “Regular Order”: A Perspective tactics either to prevail or to stymie action. Parliamentary warfare is often the result, w ith each party turning to nontraditional procedures (bypassing committee consideration, for example, or limiting floor amendments) to achieve desired results. The centrality of partisan polarization has provoked an adaptive response common to both chambers: set aside regular order legislating as circumstances warrant and employ unorthodox procedures to advance party and policy priorities. In brief, the broad purposes of this report are to provide various perspectives on the meaning of the “regular order”; to discuss an array of nontraditional procedures that characterize decisionmaking in the contemporary House and Senate; to examine the forces and factors that gave rise to party polarization and wider use of nonconventional legislating; and, lastly, to offer summary observations about the transformation of contemporary lawmaking. Congressional Research Service The “Regular Order”: A Perspective Contents Introduction ................................................................................................................... 1 The Shift to Party Government .................................................................................... 2 Illustrative Instances: Rise of New Procedures .......................................................... 3 Summing Up ............................................................................................................ 4 Purposes of the Report: A Look Ahead..................................................................... 5 General Background ........................................................................................................ 6 Overview ................................................................................................................. 6 Unorthodox Lawmaking Gains Prominence: A Brief Review ...................................... 8 The Textbook Model........................................................................................... 11 Summing Up .......................................................................................................... 13 Selected Constitutional Provisions ................................................................................... 13 Interpretative Disagreements ..................................................................................... 15 Settled Practice ............................................................................................................. 17 Procedural Routines: House ...................................................................................... 17 Procedural Flexibility: Senate .................................................................................... 19 Informal Chamber Guidelines.................................................................................... 20 Unanimous Consent Agreements: From Informal Practice to Formal Rule................... 21 Regular Order: Multiple Perspectives ............................................................................... 23 Prelude .................................................................................................................. 23 Selected Definitions ................................................................................................. 23 Regular Order Can Provoke Irregular Order................................................................. 25 GOP Control...................................................................................................... 25 Democratic Control ............................................................................................ 25 Nontraditional Lawmaking: Several Advantages........................................................... 26 Features of “New Normal” Legislating ............................................................................. 28 Congressional Committees........................................................................................ 28 Unreported Bills Considered in the House .............................................................. 29 Senate Rule XIV: Bypassing Bill Referral to Committee .......................................... 30 Ad Hoc “Gangs” ................................................................................................ 30 Creative “Rules” of the House Rules Committee .......................................................... 31 The Senate.............................................................................................................. 33 Filibusters ......................................................................................................... 34 Cloture ............................................................................................................. 34 The 60-Vote Senate............................................................................................. 36 The “Nuclear Option” Is Detonated (2013, 2017, 2019)...........................................
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