Many Americans have an idealized conception of how Congress legislates, one famously described by Schoolhouse Rock commercials. Under this renowned framework, a bill starts in a congressional subcommittee, where it is debated in hearings and edited in a process known as a “mark up.” If a subcommittee majority ultimately approves it, then the bill goes through another round of debate and edits, this time before the full committee. And if the bill passes out of the full committee, there is yet another round of debate and edits, this time on the floor of the House or Senate. Finally, if the bill survives all that, it’s sent to the other chamber of Congress, where the process starts anew. Thus, many of us have learned “how a bill becomes a law.”
Yet contemporary lawmaking looks far different. Consider the five COVID relief packages passed by Congress, totaling almost $6 trillion in spending. Never before has so much been spent by so few behind closed doors.
The first four COVID bills occurred during the 116th (last) Congress, when Democrats controlled the House, and Republicans controlled the Senate. These massive spending measures were negotiated by party leaders, and then dumped on the rank and file, who were expected to pass the bills sight unseen, under a parliamentary procedure known as “unanimous consent.”
The most recent COVID stimulus, the $1.9 trillion American Rescue Plan, came out of the (current) 117th Congress, in which Democrats hold majorities in both chambers. Unlike the prior pandemic relief bills, this last measure engendered partisan disagreement, so “unanimous consent” was unavailable. Instead, congressional Democrats turned to a procedural device known as “reconciliation,” which allows them to avoid a Senate filibuster. While unanimous consent and reconciliation entail obvious differences—the former requires unanimity, while the latter requires only a majority—these two parliamentary mechanisms share one crucial similarity: they are both controlled by party leaders, who negotiate legislation that is then dropped on lawmakers’ laps for a take-it-or-leave-it vote.
Clearly, we have fallen a long way from Schoolhouse Rock-style deliberation. Alas, there is further to fall.
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