Congress Confuses The Public And Itself

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Sunday, March 13, 2005
Sparked by the brouhaha over a clumsy move that would have allowed members of Congress and their staffs to look at Americans' tax returns, attention has once again fallen on Congress' habit of cramming all its spending provisions into one giant "omnibus" spending bill. Pundits at newspapers around the country have been condemning federal lawmakers for their now-ingrained habit of waiting until the last minute to appropriate money for government agencies, then relying on a massive bill that no one can possibly read before it's voted on. It's time members of Congress listened to these critics. The simple fact is that by allowing this practice to continue, they're behaving in an undemocratic manner. 

By now you're probably familiar with the problem. In the past, Congress would take up individual appropriations measures for defense, agriculture and so on according to a set schedule, allowing its members to scrutinize the bills with which they were unfamiliar and giving them opportunity to address unpopular or badly written provisions. That so-called "regular order" has not been followed since 2001, however. Instead, many of the separate appropriations bills are rolled into one and brought to the floor of the House and Senate in a form that allows the proponents of the bill to ask: Do we fund the federal government this year or not? 

This sounds efficient and practical, so you might wonder what's wrong with it. Let's start with sheer size. Both in 2003 and 2004, the omnibus bills came to over 3,000 pages and landed on lawmakers' desks just a day or so before they were due to vote on them. Clearly, it was impossible for legislators to know what they were actually approving when they voted. Not surprisingly, this offered plenty of opportunity for mischief. 

The tax measure was caught only after the bill had been passed by both houses. No member of the House committee responsible for that section of the bill would own up to the move, which was aimed at giving members of Congress access to IRS facilities but would clearly have violated taxpayers' privacy. In the end, a committee staffer took responsibility. Our elected representatives, in turn, were faced with the unpalatable choice of saying that they'd known about the measure but chosen to remain silent, or saying that they'd been entirely unaware of a highly controversial piece of legislation, written by an un-elected staff member, that they had just approved. 

That wasn't the only problem with the bill, though. It also turned out that the omnibus measure ordered NASA to spend millions of dollars on a manned spaceship to Mars, a venture that had never received so much as a hearing in Congress. And that it contained a record 12,000 individual projects and earmarks. And that it would undo three decades of federal protection for wild horses, allowing them to be shipped off to slaughterhouses — a measure that clearly would not have passed had it come up for a separate vote. 

And that, in fact, is the central problem with omnibus bills. It's not just that most House members and senators don't know what's in them, it's that they allow a small minority of legislators — often those in the leadership and members of their staff — to slip provisions into law that wouldn't stand a chance of passing if brought up separately. In other words, it's a process that allows a few legislators to bypass the traditional democratic processes that are supposed to govern Capitol Hill, undermining legislators' accountability to their constituents and the transparency lying at the root of representative democracy. 

To be sure, this need not be antithetical to good governance — there may be times when popular or badly needed legislation is bottled up by a recalcitrant committee chairman, and the only way to bring it to the floor is through some vehicle like an omnibus measure. But it hardly seems worth preserving an omnibus process for those occasions if it is used far more often to evade simple democratic rule. In early 2004, for instance, the congressional leadership used such a process to put several highly controversial measures into an early budget bill — such as allowing employers to stop paying middle-income workers overtime — even though majorities in both houses actually opposed them. 

What is both most frustrating and most encouraging about all this is that nothing terribly dramatic needs to happen to return to a more democratic process. There have been proposals to require that members have at least three days to study legislation before voting on it, and this would be helpful. The real issue, however, is the omnibus practice itself. To fix that, members need to insist that Congress return to the "regular order" — taking up individual bills on schedule. 

There was a time when legislators were keenly aware of the need for such a disciplined habit. When events on the floor seemed to be spinning out of control, or the leadership appeared to be trying to finagle the process to hide some action it knew could not garner majority support, cries of "Regular order! Regular order!" would ring out. Not long ago, a commentator in the Capitol Hill newspaper Roll Call remarked, "Allowing the individual appropriation bills to be considered separately, on their own merits, has become so unusual that it is difficult to even say that it is the 'regular order.'" That is an immensely sad comment on how far ordinary members of Congress have allowed their own prerogatives to be undermined. It should also be a call to arms. 

(Lee Hamilton is Director of the Center on Congress at Indiana University. He was a member of the U.S. House of Representatives for 34 years.)