Wednesday, March 09, 2005

Uncivil Procedures

Those who like to deny that the level of partisanship has reached unacceptable proportions *cough*Powerline*cough* would do well to read, or at least skim (it's quite understandably 147 pages) this report by New York Representative Louise Slaughter on the procedural ethical violations undertaken by this congress. I won't ask you to read the whole thing, indeed, all I'm going to do is summarize and highlight just the first third of the report.

The Fall and Further Fall of "Open Rules"
Matthew Yglesias (hat tip: Kevin Drum) excerpts just one of the charts from the report, showcasing the dramatic decline of bills offered under "open rules" (which let the minority party at least offer amendments to be considered and voted on under the "5 minute rule") since the GOP has taken charge of Congress. Starting at around 45% of all bills when the GOP took control of Congress (a number which they pledged to raise to 70%), now less than 25% of all bills are offered under open rules. The consistent, unjustified use of closed rules is egregious to begin with, but Republicans have taken it way beyond even its logical horizon. Republicans enforced closed rules on the "constitutional amendment (H.J. Res. 83)...that would allow Members to appoint their temporary replacements in the case of a disaster," refusing to hear alternatives presented by Reps. Lofgren, Larson, and Rohrabacher (pg. 21). Rohrabacher, it should be noted, is a Republican, which, hardly from saving the GOP from charges of partisanship, merely accentuates the ironfist by which the house leadership governs the chamber.

A shortlist of amendments prevented from even receiving a vote because of Republican tactics include "Rep. Spratt's amendment on the Defense authorization bill to speed up the dismantling of weapons of mass destruction in the former Soviet Union (H. Res. 247), Rep. Lantos' amendment to give tax credits to American businesses that continue paying their employees who get called into active military duty in Iraq (H. Res. 681), or Rep. Collin Peterson's amendment on the Intelligence authorization bill to increase the intelligence community's resources for counterterrorism activities (H. Res. 686)" (pg. 26). The objection to these tactics doesn't hinge on the relative merit of these bills, I'm sure Tom DeLay has a perfectly reasonable justification for why he does not want to help secure nuclear material in the Soviet Union, a task that both John Kerry and George W. Bush agreed was a integral part the highest national security issue America faces today, curbing nuclear proliferation. The point is that a deliberative democracy requires all voices to be heard. If the majority party doesn't want these ideas made into law, then they can vote them down. That's one of the perks of being the majority (and is something that distinguishes Democratic use of the filibuster in the Senate, more on that in a moment).

This is an Emergency?
Republicans have also drastically increased the amount of bills that are considered "emergencies." When you hear about members of congress being forced to vote on bills they haven't been able to read, this is what they're talking about. Normally, members are given at least 48 hours notice of any meetings and given any relevant materials (such as, oh, the bill) at least 24 hours in advance. Emergency rules dispense with all of that, preventing House Members from examining the bills they are voting on. Clearly, there are bona fide "emergencies" that the House must consider, and the report concedes as much. But I'd submit that the number of bills that actually fit that category is less than the 33% labeled such in the 107th congress. I say "I'd submit" because the GOP leadership clearly disagrees: in the 108th congress that number rose to 60% of all legislation debated (pg. 33-34). 40% of all the rules considered were held in sessions after 8 PM or before 7 AM, lending the term "vampire congress" to the body. The GOP has been particularly adapt at using this process after Joint House-Senate Committees, which seek to iron out differences between House and Senate passed bills. Republicans have granted blanket waivers to ALL objections that might be made under House rules, including the rules that allow Representatives three days to read any changes, and rules that prohibit House representatives from proposing changes that go beyond the scope of the bill the House originally passed. In 24 of the 28 Conference Report Rules, the rules were labeled "emergencies" (pg. 38-40). Given the length of some of these reports, this is simply unconscionable. The Energy Bill's report (H.R. 6) was 571 pages long; Representatives were given 10 hours to read it. The Prescription Drug/Medicare bill (H.R. 1) was 852 pages long (and filed at just past 1 AM); Congressman were given 20 hours. The Fiscal Year 2005 Omnibus Appropriations Bill (H.R. 4818) was 1,645 pages long; representatives were given 7 hours to read it over. You might remember that bill as the one where Rep. Ernest Istook (R-OK) slipped in a provision allowing congressional staffers to see the confidential tax returns of any American citizen. Oh, and the 9/11 commission recommendations (S. 2845)? 244 pages in four hours (pg. 41).

Yes, the Filibuster IS different
I'm sure that my Republican pals will respond to at least some of this by referencing the Democrat's use of filibusters in the Senate to block a few of Bush's court nominees. There are several flaws in the analogy, however. The first is prevalence: Democrats have used filibusters to block 10 of Bush's 229 nominees, or slightly over 4%. The cases I've documented above are occurring 60% or 70% of the time. Democrats have used their tactics as a rare exception, Republicans have (literally) made anti-democratic tactics into the House Rules. Second, Democratic tactics don't lead to any change in law. Filibustering doesn't change the composition of the Federal Courts, it maintains the status quo. Republican tactics, however, are being used to get laws passed, to change the status quo. This is a major qualitative difference. Indeed, one could very well argue that judicial appointments are a special case that demands a more deferential standard to the minority party. This is because judicial appointments are permanent. You can repeal a law, but you can't remove a judge. Democrats cannot, via the filibuster, take any positive action with regard to the judiciary, only the executive can. The filibuster thus only serves to moderate President Bush's preferences, it cannot be used to enact the Democratic Party's own. The GOP tactics in the House, by contrast, make positive, proactive changes to our nation's statutory law and thus need to be evaluated under a far stricter standard than the filibuster. Third and finally, the Democrats are the minority party. Congressional rules are designed to make sure they have a voice in the procedure. The power imbalance between the majority and minority parties justifies some differential treatment if the minority party is to be able to influence the process. I don't even think that we're really asking for any special treatment at all, to be honest though. I have no problem with Republicans using filibusters to stop bills they dislike (assuming that a bipartisan coalition of Democrats and moderate Republicans had a majority to get it passed) and I would have serious problems with Democrats somehow preventing the GOP from debating it's proposed amendments (though as the above discussion makes clear, the GOP isn't so much interested in debating anything as railroading through whatever special-interest sop it has on the agenda at any given moment). But any realistic appraisal of congressional rules has to give the minority party at least some rules in its arsenal to combat majoritarian abuse, and the filibuster is one of the oldest of these procedures.

The tactics of Tom DeLay and Company cannot be justified by mere partisan differences or shrugs of "that's politics." They represent the complete and utter breakdown of what it means to live in a deliberative democracy. I have no problem with legitimate, even passionate disagreement on the issues. But that presupposes that the majority party is even going to allow the discussion. Right now, they're not, and it's America's reputation as democracy's leading light that suffers.

1 comment:

Mark said...

I suppose the required homework would be to check back historically to see if this type of behavior is unusual or just what happens when one party gets a (convincing?) majority after a long drought? Alas, I'm not enough of a student of legislative history to even know where to look.