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Sarah Binder recently analyzed whether incoming Majority Leader Mitch McConnell can make good on his promise to permit more open debate in the Senate. Like her, I believe the Senate’s rules combined with today’s polarized politics will make it hard for McConnell to carry out his pledge.
But what about the appropriations process? The dozen appropriations bills provide about a third of federal spending and have to be passed each year. The question is whether the Senate can return to the “regular order” to adopt the bills or whether it will continue to bundle them together into omnibus spending bills or yearlong continuing resolutions (CRs).
The regular order is the traditional way of passing appropriations bills in which each is brought to the Senate floor for debate, amendment and a vote. Omnibus bills and yearlong CRs are forms of “unorthodox lawmaking.” The packages are often adopted under constraints that permit minimal debate and amending. Republicans have complained that the crumbling of the regular order has decimated the Senate’s deliberation on spending bills and that passing bills as a package prevents transparency and accountability.
My research — my book Too Weak to Govern (released this month) and a recent article (gated) — has two findings relevant to this discussion. First, the decline of the regular order has limited debate in the Senate to such an extent that members of the House now have a substantially better opportunity to debate spending bills than senators. Second, the difficulty of managing the Senate floor presents a significant barrier to a return to the regular order.
The practice of packaging appropriations bills together has its origins the late 1970s, as the graph below shows. Between 1975 and 2012, a total of 39 percent of all appropriations bills were included in an omnibus bill or a yearlong CR covering multiple bills. As I show in my book, both chambers begin the year intending to follow the regular order, and create packages when that strategy fails. Historically, the Senate has been more likely to fail to vote on spending bills than the House.
Peter Hanson
To assess the debate in each chamber, I counted the number of roll call votes related to amendments in the annual appropriations process, defined as all debate on regular appropriations bills, omnibus packages or yearlong CRs. On average, House members have cast more roll call votes on amendments each appropriations cycle than senators since the 1990s. See this graph:
Peter Hanson
The difference is due to the way each chamber manages the bills. Appropriations bills are privileged in the House, and are typically debated without limits on amendments. Between 1995 and 2012, 69 percent of appropriations bills were initially debated under an open rule or without a rule, while 13 percent were debated with limitations on amendments. Eighteen percent were not debated in the regular order and came to the floor only as part of an omnibus package or CR. House leaders can and do impose a closed rule if open debate leads to difficulty, but these instances are relatively rare. On average, members of the House cast 94 roll call votes related to amendments during an appropriations cycle.
Senators start their appropriations season at a disadvantage because of a tradition that the House act first on spending bills. Spending bills that do not pass the House are usually not debated in the Senate. The standing rules of the Senate also allow the minority – or a single senator – to disrupt the smooth passage of a bill. As I show in my book, a spending bill brought to the floor by the majority party under the regular order is likely to be besieged by endless amendments or filibusters.
As debate bogs down, Senate leaders pull bills from the floor prior to a vote or fail to call them up at all. Instead, they work with the House to bundle problematic bills into a single package. Most members view obstructing these bills as a risky proposition because they are considered at the end of the year when funding for the government is about to expire.
Senate leaders failed to call a vote on 41 percent of all spending bills in the regular order between 1995 and 2012. The collapse of the regular order has taken a severe toll on the ability of rank-and-file senators to participate in lawmaking. Senators cast an average of just 43 roll call votes related to amendments during an appropriations cycle, and the amount of voting is declining over time. Members and staff say the fall in amending has occurred because debating a single bill is not an equivalent substitute for debating 12 bills in the regular order. Omnibus bills may also be brought to the floor as non-amendable conference reports.
My research shows that McConnell is right about the erosion of the Senate’s deliberation on spending bills, but there is no easy path back. The Senate’s problems are the natural result of high levels of polarization combined with rules that protect unlimited debate and amendment. The resulting gridlock gives Senate leaders a strong incentive to abandon the regular order and create a package that can overcome obstruction and help them pass a budget. This won’t change when Republicans assume control in January.
If McConnell is serious about creating more orderly debate in the Senate (or passing Republican policy priorities), then it’s likely that sooner or later he will face substantial pressure to reform the filibuster. Limiting the use of this dilatory tactic would smooth the path through the Senate for the routine passage of appropriations bills and other kinds of legislation. It would also deal a serious blow to the Senate’s tradition of accommodating the minority and individual members. But, in this polarized era, senators may deem a more efficient Senate worth that cost.
Peter Hanson is an assistant professor at the University of Denver. Peter’s book on the use of omnibus spending bills in the U.S. Senate, Too Weak to Govern, will be published by Cambridge University Press later this month. He can be followed on Twitter at @PeterCHanson.