The Monster That Ate The United States Senate
By Bill Dauster
Remarks at the Washington College of Law
American University, Washington, D.C.
January 13, 1998
Reprinted in Public Budgeting and Finance vol. 18, no. 2 (Summer 1998), at 87-93.
| Let's start with three stories
from the real world:
Story one, from the December 17 Washington Post: 1/
Four-year-old Sarah Jean lives with her aunt Sherry in Phoenix. Because of physical and cognitive problems, Sarah weighs 29 pounds, has trouble speaking, and is not toilet trained. Aunt Sherry earns $800 a month working part time as a private health aide, and used federal aid under the Supplemental Security Income program, or "SSI," to replace her lost income and buy diapers and food supplements to get Sarah to gain weight. Implementing the 1996 welfare law, the Social Security Administration terminated Sarah's SSI benefits and those of more than 135,000 low-income, disabled children because only children whose problems cause "marked and severe functional limitations" are now eligible for SSI. The new Social Security Commissioner Ken Apfel has taken steps to review and reverse large numbers of these terminations, but the welfare law continues to disrupt the lives of tens of thousands of families.
Story two, from the December 31 Wall Street Journal: 2/
Seventy-five-year-old Henry Bloch works in Kansas City as the chairman of the board of H&R Block, the tax preparation company. In large part because of the 1997 tax law, H&R Block's stock has soared more than 50 percent this last year. Because of the 1997 law, the tax code has 290 new sections. Block plans to open 250 new offices for the coming tax season. Henry says: "Every time the government changes things, business does increase." He adds: "Every year a few more people throw up their hands and say `I can't prepare my own return any more.'"
Story three, from the January 5 Palm Beach Post: 3/
Rose Naff works in Tallahassee as Director of Florida's Healthy Kids Corporation, 4/ a state-subsidized health insurance program for families with incomes just above those that qualify for Medicaid. Because of the 1997 balanced budget law, Rose is thinking about how Florida will spend its share of a $24 billion national fund to finance child health coverage. Florida has the third-highest number of uninsured children, with a quarter of children eligible for Medicaid not enrolled. Many poorer South Floridians don't speak English well enough to understand what's available or fill out the forms. Rose is suggesting a toll-free number for people to call to learn how to enroll their kids.
I tell these three stories to bring to life a thing that's happening in the United States Congress, a thing that's illustrated by the three laws that affect Sarah, Henry, and Rose. I'm not talking about the merits of the three laws -- we can debate the good and bad things about each of them. The thing about which I want to talk to you today is the lawmaking process that led to these three laws. For, like them or loathe them, the welfare law, the tax law, and the balanced budget law were the only three laws enacted since the change in control of the Congress that had more than $5 billion in consequences in any fiscal year. Like them or loathe them, all three laws resulted from the budget reconciliation process. It's my argument to you today that the budget reconciliation process is becoming more and more central to the lawmaking process. It's my argument that the budget reconciliation process is the monster that ate the United States Senate.
Let us begin at the beginning. As it says in the Good Book, "In the beginning . . . the [Senate] was without form, and void." 5/ Perhaps the Living version captures the meaning better when it says: "[The Senate] was at first a shapeless, chaotic mass." 6/
That is to say that in its formative years, from 1806, when it repealed the rule allowing Senators to move the previous question, through 1917, when it adopted rule XXII, the cloture rule, the Senate was a place where, in Woodrow Wilson's words in connection with the Armed Ship bill, "A little group of willful men, representing no opinion but their own, [could] render the great Government of the United States helpless and contemptible." 7/ That's what gives it its charm.
Even after the Senate adopted rule XXII, it still required a supermajority vote to bring debate to a close: two-thirds 8/ until 1975, and 60 Senators since then -- except for changes to the Standing Rules of the Senate, where two-thirds are still required. 9/
The Congressional budget process has changed all that. One might say that it has brought order out of the chaos. But one might also debate whether chaos might have been a better thing. The congressional budget process, like it or loathe it, has brought about the biggest change in legislative process since the adoption of the cloture rule.
The change came about in three steps. In step one, Congress enacted the Congressional Budget Act of 1974. In it, Congress created a fast-track vehicle, the concurrent resolution on the budget, with which to set fiscal policy. The budget resolution provides rules for Congress; the President does not sign the resolution and it does not bind the executive branch. The resolution paints with a broad brush; by convention it does not deal with amounts smaller than $100 million.
But the resolution gives every spending committee its allocation of spending for the year and gives the Congress as a whole overall caps on spending and a floor on revenues. These levels provide the basis for procedural objections, or "points of order," that enforce the Government's fiscal policy later in the year.
The Senate considers the budget resolution under rules that restrict debate and amendment. As a result, Senators cannot filibuster against it. A simple majority of Senators will determine what amendments the Senate will adopt, and a simple majority will pass the resolution. The Congressional Budget Act thus expedited Congress's making of fiscal policy and enhanced the power of the majority party.
One can find discussions of the early years of the budget resolution in books by the University of Maryland's Allen Schick 10/ and Emory's Dennis Ippolito. 11/
Participants in the Federal budget process initially underestimated the power of the budget resolution. They failed completely, however, to foresee the power of the second step in the monster that ate the Senate, a fast-track procedure called "reconciliation." The Congressional Budget Act originally provided for two budget resolutions: The first would advise, and the second, passed closer to the start of the fiscal year, would bind. The Act provided that the second budget resolution could instruct committees of Congress to reconcile substantive laws passed within their jurisdiction to the new budget priorities of the second budget resolution.
The reconciliation process did not turn out that modestly. Rather, in 1981, in an effort to expedite President Reagan's first budget, the budget resolution included instructions for years beyond the first fiscal year covered by the resolution, extending the reach of the reconciliation vehicle to more permanent changes in law.
Since Congress used the process so powerfully in 1981 to implement President Reagan's economic program, reconciliation has become a regular feature of most budget resolutions. Since 1981, Congress has accomplished most significant deficit reduction through the reconciliation process.
Early scholarly review of this period of reconciliation can be found in Miller and Range's piece in the Harvard Journal on Legislation 12/ and another book by Allen Schick. 13/
The power of reconciliation thus attracted much matter not strictly related to the budget-related purposes of the process. In response to such "extraneous" matter, in 1985 the Senate adopted the Byrd Rule, named after its sponsor, then Minority Leader Robert C. Byrd. At the pain of requiring a 60-vote waiver, the Byrd Rule prohibited provisions that, roughly speaking, do not have to do with deficit reduction.
Step three in the growth of the budget process monster came in the last Congress, as the new Republican Congress sought to move three reconciliation bills -- on welfare, Medicare, and tax cuts. And in a marked departure from past practice, the Republican budget devoted one of the three reconciliation bills -- the one to cut taxes -- solely to worsening the deficit.
On May 21, 1996, Democratic Leader Tom Daschle formally challenged the procedure. The Parliamentarian gave it his blessing. In a series of exchanges with the presiding officer, Leader Daschle demonstrated that the new procedure has few limits. After Leader Daschle appealed the ruling, the Senate sustained the procedure on a straight party-line vote. From now on, the Senate will conduct much of its business at its hallmark deliberative pace only if the majority wants it that way.
In the wake of that precedent, the majority party can create reconciliation bills to increase spending or cut taxes, worsening the deficit. From now on, the majority can use the reconciliation process to move its entire legislative agenda through the Senate with simple majority votes and few distractions. As I wrote in an article in the newspaper Roll Call, 14/ the old Senate is dead.
Some may say, "Good riddance." After all, as a Democratic Member of Congress once said, "In the Senate, you can't go to the bathroom without 60 votes." If a simple majority can now pass important legislation in the Senate, perhaps a lot more will get done.
But the character of the Senate has been unmistakably altered. The budget reconciliation process is transforming the Senate into a much more majoritarian institution.
What does this mean for the law? A number of things. It invites us to revisit the longstanding debate over simple majority voting, reopening the division between classical liberals and those who want a stronger government.
The threads of this debate on majority voting may lead on in a variety of different directions. Majority rule is a principle fundamental to the distinction of democracy. For example, John Locke in his Second Treatise imagined that when people enter into a public or civil society, they submit to whatever the legislature may decide by majority vote. And the weakness of the Articles of Confederation, with its supermajority voting among states, were foremost among the complaints of the founders at the Constitutional convention.
But many of the Founders also expressed the classical liberal distrust of the tyranny of the majority. Madison, for example, said that "[i]n Republics, the great danger is, that the majority may not sufficiently respect the rights of the minority." 15/ And I could produce similar quotes from Madison, 16/ Thomas Jefferson, 17/ John Adams, 18/ and Edmund Jennings Randolph 19/ to much the same effect. And the Constitution itself manifests a belief in supermajorities in the in the veto power, the ratification of treaties, the Constitutional amendment process, and a number of other places. Similarly, the Congress's bicameral structure supported the classical liberal antipathy to legislation.
As the needs of society have grown, so also have grown calls for a more effective, more responsive government. But, as well, the classical liberal tradition is reflected in Public Choice Theory. Applying game theory, Kenneth Arrow demonstrated 20/ that where choices are not bipolar, where for example three separate pluralities favor three distinct results, majority voting may yield a variety of possible results. And depending on how choices are structured, majorities may cycle from one result to another.
In The Calculus of Consent, 21/ Buchanan and Tullock add a transactional analysis to this discussion. What if legislators trade a vote for one thing for another, what if they engage in what public choice calls "strategic" voting, what legislators commonly call "logrolling"? Buchanan and Tullock argue that in a budgetary context, logrolling can very easily lead to a majority voting for more spending than any legislators in the majority actually want. They thus argue that the constitution needs rules that require supermajorities, what they call "reinforced majorities," as a break on the logical excesses on simple majority voting. Plainly the new budget reconciliation process is a step in the opposite direction.
A number of institutional critics have faulted public choice analysis from a variety of perspectives. For example, Farber and Frickey argue in their book Law and Public Choice 22/ that political parties can help limit cycling. Parties help to focus legislative choices into bipolar choices. Although party affiliation may not be what it used to be, it still controls many situations.
Then again, Moe and Wilson 23/ argue that public choice theory often gives short shrift to the role of the President. The President has a focused backing and a single voice, and may thus dominate Congress. In such an environment, one might be looking for ways to enhance the power of the legislature, not diminish it. Presidents are capable of much undemocratic behavior. As J. William Fulbright once said, "The greatest single virtue of a strong legislature is not what it can do but what it can prevent."
These days, I must admit that I often find myself thinking with Mark Twain that "Whenever you find yourself on the side of the majority, it's time for reform."
But one may be able to separate disagreement with what the government is doing from a belief that the government ought to be able to do something. Perhaps there is value in showing the voters what they are getting in a clear, understandable way. Or as H.L. Mencken said, "Democracy is the theory that the . . . people know what they want, and deserve to get it good and hard." 24/
1/ Barbara Vobejda, As Children Are Cut From Disability Rolls, New System Is Challenged, Wash. Post, Dec. 17, 1997, at A14.
2/ Tom Herman, Growth Industry, Wall St. J., Dec. 31, 1997, at A1; Amity Shales, The Market Value of the Tax Code, Wall St. J., Dec. 31, 1997, at A11.
3/ Get Children Signed up, Palm Beach Post, Jan. 5, 1998, at 16A.
6/ Id. (Living Bible).
7/ Statement of Mar. 4, 1917
8/ See S. Res. 5, 63 (special) Cong. Rec. 19-45 (Mar. 8, 1917).
9/ See S. Res. 4, 121 Cong. Rec. 21,433-34 (June 25, 1975).
10/ Allen Schick, Congress and Money (1980).
11/ Dennis S. Ippolito, Congressional Spending (1981).
12/ James A. Miller & James D. Range, Reconciling an Irreconcilable Budget: The New Politics of the Budget Process, 20 Harv. J. on Legis. 4 (1983).
13/ Allen Schick, Reconciliation and the Congressional Budget Process (1981).
14/ Bill Dauster, The Day the Senate Died: Budget Measure Weakens Minority, Roll Call, May 30, 1996, at 5.
15/ James Madison, speech to the Virginia constitutional convention, Richmond, Virginia, Dec. 2, 1829.
16/ "There is no maxim, in my opinion, which is more liable to be misapplied, and which, therefore, more needs elucidation, than the current one, that the interest of the majority is the political standard of right and wrong." James Madison, letter to James Monroe, Oct. 5, 1786.
"On a candid examination of history, we shall find the turbulence, violence, and abuse of power, by the majority, trampling on the rights of the minority, have produced factions and commotions which, in republics, have, more frequently than any other cause, produced despotism." James Madison, speech to the Virginia Convention on the adoption of the U.S. Constitution, June 5, 1788.
17/ "Though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable. . . . The Minority possess their equal rights, which equal laws must protect, and to violate which would be oppression." Thomas Jefferson, first inaugural address, Mar. 4, 1801.
18/ "That the desires of the majority of the people are often for injustice and inhumanity against the minority, is demonstrated by every page of the history of the whole world." John Adams, A Defence of the Constitution of the Government of the United States, 1787-88.
19/ "Our chief danger arises from the democratic parts of our constitutions." Edmund Jennings Randolph, attributed remark in debate at Constitutional Convention, May 29, 1787.
20/ Kenneth Arrow, Social Choice and Individual Values (2d ed. 1963).
21/ James M. Buchanan & Gordon Tullock, The Calculus of Consent (1962).
22/ Daniel A. Farber & Philip P. Frickey, Law and Public Choice 56 (1991).
23/ Terry Moe & Scott Wilson, Presidents and the Politics of Structure, 57 Law & Contemp. Probs. 1 (Spring 1994).
24/ H.L. Mencken, A Book of Burlesques (1920).