The Importance of Good Process

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Saturday, November 9, 2002
When I was in Congress, I must have served on just about every congressional panel that sought to improve the institution's structure and operations. Attentive constituents would occasionally ask me about this, since few people can imagine anything more tedious than the details of the legislative process. Why, they wondered, would I choose to spend time considering such arcane matters as motions to recommit, or cloture votes, or the number of subcommittees? I have to confess, there were some mind-numbing moments when I had to ask myself the same question. Yet in the end, I always felt it was worth it. To me, Congress can't function properly or uphold its place in our democracy without good process. And in too many cases, we're losing it. 

Most Americans are familiar with the standard textbook diagrams of how a bill becomes law, with one step following neatly after another: The bill moves smoothly from its introduction to its consideration in subcommittee to its approval by the full committee, and so on. This description is fine as far as it goes, but it doesn't actually depict how Congress works. The truth is, an astute legislator can get around virtually any step in the process. And members of Congress are increasingly choosing to pursue this "unconventional lawmaking," as it is sometimes politely called, when it comes to important legislation- the kind of legislation, in other words, that deserves full scrutiny, not back-door maneuvering. 

For example, a proposal might bypass the important committee review process- that's where the hard questions tend to get asked- if a member of Congress can convince the leadership to tack it on to another bill that has already cleared the committee. Even a committee chairman might discover bills his committee has already approved heading to the floor with provisions he's never seen before. Or, as is happening more and more frequently in the House, a bill might be brought to the floor under restrictive rules that permit few or no amendments, essentially cutting off most legislators' chances to improve legislation. 

One of the most pernicious developments of recent decades has been the habit of assembling so-called "omnibus" bills- these are measures that contain literally thousands of provisions, many of them unrelated- and then stapling them to legislation that must pass to prevent the federal government from shutting down. Such omnibus bills might be put together by leadership staff, sometimes with the help of outside lobbyists, and presented to legislators at three in the morning with a vote scheduled just a few hours later; usually, that vote can only be "yea" or "nay," with no chance for amendments. So in addition to making it nearly impossible for members of Congress to read and understand the bill before they vote on it, the procedure keeps them from trying to remove its more obnoxious provisions should they happen to discover one. 

By some estimates only half the bills that become law these days go through all the stages of the standard legislative process. The leadership and members of both parties have become extremely skillful over the last several years at manipulating the rules and circumventing the regular order to get the results they want. For them, the end clearly justifies the means. 

So it's worth taking a step back, and asking whether there is a cost to bypassing good procedure. Is quickly moving a desired piece of legislation the only goal? Certainly our country's founders didn't think so. They designed a system in which all new proposals get careful scrutiny by going through many layers of review. They were far less interested in moving good ideas efficiently than they were in preventing bad ideas from passing in the heat of the moment and becoming the law of the land. Granted, an extraordinary procedure might sometimes be needed. Yet the founders would be appalled at how often these days the process is circumvented to advance ideas that would have virtually no chance if considered carefully on their own. 

The truth is, traditional law-making is not just a nicety- it's a necessity if we're to remain a democracy. In a country as huge and diverse as ours, the careful review of new ideas is the only way all viewpoints and interests can be heard. It is what allows the majority to rule without sacrificing respect for those in the minority or cutting off access to the system for those without an "in" with the leadership. When this process is abridged, we lose the transparency, accountability, deliberation, openness and accessibility that are fundamental to the system's fairness. We need to make sure we do not abandon the careful, thorough deliberation our country's founders had in mind. For in the end, democracy is a process, not a product. 

(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.)