When Congress passed the Affordable Care Act more than six years ago, Democratic leaders were roundly criticized for how it was passed — endless behind-the-scenes negotiations, months-long filibustering in the Senate, and the use of ominous-sounding processes such as “self-execution” and “budget reconciliation” to ensure passage.
At the time, congressional Republicans and many commentators blamed the process for the intense partisan divide over the law, arguing that Democrats rammed the bill through without debate, and may have even “cheated” to get it passed. Critics argued that if Congress had just used traditional, “deliberative” processes, the health-care measure could have drawn bipartisan support and been a better, less-controversial law.
This argument extends much further than the health-care law, however. Many lawmakers, scholars and commentators argue that congressional dysfunction stems from abandoning traditional, committee-driven lawmaking, period.
Here’s the problem: This diagnosis is off the mark. You may not know it from the headlines, but Congress still makes laws as it always has: by building broad, bipartisan coalitions in support of policy proposals. Cases like Obamacare are the exception rather than the rule.
What’s changed about how Congress works
It’s certainly true that since the 1970s, traditional committee-driven lawmaking has waned. Today, bills are often considered and passed without being considered by a committee. Fewer bills are the subject of fact-finding committee hearings. Open debate and amendment appear to be things of the past. Instead, Congress uses informal, ad hoc and behind-the-scenes approaches — what the late political scientist Barbara Sinclair termed “unorthodox lawmaking.” This centralizes power in party leaders.
This is why critics argue for a return to traditional processes. This will, the story goes, help Congress deliberate and generate new ideas, retain talented lawmakers, foster expertise and spur entrepreneurial activity. Then Congress can develop and pass high-quality public policy instead of simply allowing party leaders to jam through partisan laws.
Why this diagnosis is wrong
Despite these trends, something hasn’t changed: the bipartisanship that still characterizes the lawmaking process. Total levels of support, and levels of bipartisan support, for new laws have remained fairly consistent. One way to see this is to ask what percent of minority party members supported bills that ultimately became law. If the majority party is just ramming through bills, then minority party support should decline with time.
That’s not what’s happened. During the 99th Congress (1985-86) new laws garnered, on average, the support of 72 percent of minority party members in the House and 83 percent of minority party senators supporting passage. During the recent 113th Congress (2013-14), these percentages were only a bit lower despite an intensely partisan Congress, with almost two-thirds of minority party members in each chamber supporting passage.
The trend in total overall support is even flatter. In 1985-86, new laws garnered an average of 341 votes in favor of passage in the House (78 percent of all representatives) and 83 votes in favor in the Senate. In 2013-2014, those numbers were nearly identical: an average of 321 votes in the House (73 percent) and 81 votes in the Senate.
Why do we still see so much bipartisanship?
Even as Congress has become more partisan in certain respects, it still exists in a constitutional system of bicameralism and separation of powers, with frequent periods of divided government as well. This almost always requires that congressional leaders put together broad coalitions to succeed in legislating.
Interviews we conducted with longtime members of Congress and congressional staffers revealed that changes to congressional process are simply adaptations to the challenges of intensely divided parties, small congressional majorities, tight budgets, and large deficits. Open and deliberative processes of the past, while once a means of building consensus, now often foment obstruction and political point-scoring — opportunities for which minority party lawmakers are more than happy to take advantage.
In fact, leadership-led processes are often more flexible and better suited for negotiating compromises in this environment. Leaders can selectively involve other lawmakers in negotiations, avoiding potentially recalcitrant committees, committee chairs, or other would-be power-brokers. Leaders can also more easily craft legislative packages across committee jurisdictions, finding creative ways to formulate or fund a policy that would be stymied within a single committee.
The secrecy that comes with leadership-led approaches to lawmaking — while often condemned — is actually beneficial too. Working in the public eye makes it difficult for lawmakers to have the open discussions necessary for productive negotiations, and it limits the willingness of negotiators to float ideas that may draw heavy skepticism within their parties.
Here are some concrete examples
Unorthodox approaches have helped Congress address some intractable policy problems. For instance, in 2015, Congress finally fixed the problematic Medicare funding formula known as the Sustainable Growth Rate (SGR) and ended an annual tradition of spending millions to billions of dollars on stopgap measures (the so-called “doc fix”). Democrats and Republicans in Congress had been trying to deal with the problem for more than a decade.
In early 2015, John A. Boehner’s and Nancy Pelosi’s staffs began quietly negotiating a permanent fix, holding behind-the-scenes discussions with key stakeholders, such as the American Medical Association, AARP, and the hospital industry. Swearing participants to secrecy, Boehner and Pelosi were able to put together a deal. The legislation passed overwhelmingly, 392 to 37 in the House and 92 to 8 in the Senate.
Earlier this month, Congress passed the 21st Century Cures Act—a major health care bill increasing funding for biomedical research, mental health care, and drug abuse, reforming practices for government approval of drugs, and more. The Cures Act began its legislative journey in a fairly traditional manner, being drafted in the House Committee on Energy and Commerce and then considered and passed on the floor of the House.
But then progress stalled. Only after months of private negotiations was a legislative package assembled that could attract broad support. The new Cures Act, which passed 392 to 26 in the House and 94 to 5 in the Senate, looked very different from the bill that had originally passed the House back in July 2015, but still represented a stunning legislative achievement.
Both of these bills dealt with contentious issues and yet in the end both passed Congress with overwhelming support from both parties. Both also relied on a centralized and nontraditional legislative process.
These processes are not a cause of congressional dysfunction. More often than not, they are a means of finding compromise in an extremely challenging political environment.
James M. Curry is assistant professor of political science at the University of Utah. Frances Lee is professor of Government and Politics at the University of Maryland. This research was produced as part of the Social Science Research Council’s Anxieties of Democracy program.