Rules of the “Game”
The "Rules" are the rules of the House and Senate. The "Game" is the future of the United States of America. For all their greatness, the Founders made a huge mistake when they gave Congress the ability to make and change their own rules.
Imagine for a minute if workers were allowed to make their own rules or change them at will. There would be no need for unions to negotiate with management. Imagine the dysfunction and confusion for business and commerce. Or, imagine if the players on a sports team could establish their own rules or change them when things weren't going right. There would be no need for referees. You get the point; players and workers cannot be permitted to create and change the rules which they must follow. Is it any wonder that our ability to govern is out of control and we can no longer deal rationally with the critical issues of our time?
The House Speaker fiasco that played out in D.C. in January was completely the result of a ridiculous set of "House rules" that were created by Republican & Democrat members over many years. The problem is not really Kevin McCarthy, Donald Trump, MAGAs, or Republicans. It is a simple matter of rules that permit and allow chaos, gridlock, dysfunction, and encourage polarization that benefits party politics over what's best for the country and good government. How long are the American people going to put up with this insanity?
I have written extensively about this "Congressional rules" subject before in a blog post entitled, "New Rules To 'Discourage and Restrain' (October 2020). The title relates to a warning espoused by President George Washington in his 1796 farewell address when he said, "the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it. . ." Before that, I posted, "SLP: The Only Hope For "Country Over Part" in 2018 which also referenced a number of posts before that. Back then the polarization and dysfunction in Congress were considered to be undermining the basic foundation of our democracy. Since then they have become tragically worse.
The prophetic President Washington put the burden on the public to watch over the then-new, democratic republic and not let the "mischiefs of the spirit of party... [and] the spirit of revenge... [lead to] more formal and permanent despotism." He said it is the "duty of a wise people to discourage and restrain it. . ." As a free country with a huge, historic investment in our democracy we have to accept the burden of our duty to protect it from what Washington would call, "the spirit of party." Should we chose not to accept the burden of interest and duty, we should not complain about our eventual transition to despotism. We should also accept the fact that if we don't accept the duty, we are not "a wise people."
As said, the "game" the Members of Congress are playing is the future of the United States. The future which involves dealing with serious, game-changing issues of voting rights, climate change, gun control, abortion, race relations, immigration, artificial intelligence, world peace, trade relations, social media, Social Security, Medicare, healthcare, pandemic management, and so much more.
The nonsensical rules of the game which Congress has established were not created by the Founders or mandated by the Constitution. It's paradoxical that the Framers of the Constitution, who were deeply concerned about the disruptive nature of factions or political parties, did not envision the dysfunctional nature of allowing the "workers for the people" to create their own operating rules. In almost an aside to the otherwise brilliance of the Constitution, they simply said, "Each House may determine the Rules of its Proceedings..." (Article 1, Section 5). Apparently, at the time, they could not imagine how critically important these rules would be in carrying out their vision of a democratic republic and how they could be politically manipulated (Washington's, "mischiefs of the spirit of party") to completely destroy the concept of democracy.
Thus, over the years, the rules of the game have been created by power-hungry, full-time politicos that accommodate their individual self interest and bolster the interest of their Party first & foremost, not necessarily the interest of the public or the country as a whole. For Congressional members who indicate over and over that they "work for the people," we must ask the question, under what other game or business do the players or the employees develop their own rules?
Only under that kind of system could you have rules where one person could negotiate changes, additions, or deletions in any rule as a ploy to get elected as the leader. Only under that kind of system could you have a situation where a few renegade Members could hold the entire membership of the House of Representatives or Senate hostage until they got the concessions they wanted. Only under that kind of system could you make it nearly impossible for a large majority of Members to bring an item to the Floor of the House or Senate for a vote of the full body. The House and Senate established rules make all that possible and completely frustrate the ability to govern for the good or will of the country at large.
If we want a functioning government, we must have House & Senate rules, created or overseen by some respected, independent body. Rules that apply equally and consistently to all, and can only be changed by some formal, fair process – not at the whims of the party in control. The existing Congressional rules and the processes by which they are created are far too politically entangled and volatile. Developing Congressional rules that make sense and encourage good government must be Step #1 in getting at the heart of the out-of-control political polarization in the United States. Without such an effort the country will not be able to address the critical issues of the day or preserve the democratic republic for which we have spent enormous blood and treasure to maintain for nearly a quarter of a millennium.
One of the problems as a country in trying to deal with the issue of political polarization is that we are too easily distracted by various individual issues and personalities and fail to focus on the root cause of the problem. To make lasting changes in the faulty decision-making process that currently exists in addressing all major issues, there must be a dedicated focus on the root causes.
If the "good forces" of America were to unite and focus their staff and financial resources on the issue of changing Congressional Rules, I truly believe it would go a long way toward addressing the political polarization in our country. Among the "good forces," there are literally hundreds of organizations, university centers, and thousands of staffers and retired politicos that are involved in advancing specific issues related to good government and government reform that could be focused on such an effort.
Congressional rules have consistently been identified as a main cause of the dysfunction and widespread low approval ratings among the public. In response, Congressional Select and Joint Committees have attempted to identify and propose changes. Laws like the The Legislative Reorganization Act of 1946 and another act in 1970, the Joint Committee on Budget and Appropriations Process Reforms, and the recent Select Committee on the Modernization of Congress have all analyzed, proposed, and adopted some reforms. However, these efforts all suffer the same defect; a sitting Congress investigating and seeking reforms to its own actions in an active political environment, i.e. making its own rules. Additionally, most efforts have been carried out in the underbelly of Congress without widespread public exposure and input and overshadowed by the hotly contested issues of the time. A high visibility, focused, unbiased, independent, professional review with a goal of good government is needed.
As mentioned above, the Constitution, Article 1, Section 5, simply says that "Each House may determine the Rules of its Proceedings..." The important word is "may" as opposed to "shall." While this wording implies that the House and Senate can, themselves, develop their own rules of proceeding, it does not in any way prohibit the development of rules of proceeding by some independent, outside source which would then be adopted by the House and Senate.
At a minimum, there is absolutely nothing to prevent some outside respected source from conducting a deep dive review of Congressional rules and recommending changes that would minimize political polarization and advance rational, governmental decision-making. Such an initiative could be the rallying point for a a massive public campaign to address the current, widely accepted, public agreement on the dysfunction of Congress. It will not be easy to change Congressional rules, either voluntarily with Congressional support or by some kind of external public initiative.
As a starting point, a rules review could examine strengthening the legislative committee process to a more "Regular Order" process. The Congressional Research Services (CRS) indicates that "Many Members and commentators view this sequential pattern (regular order) as the ideal or 'best practices' way to craft the nation’s laws. Regular order is a lawmaking process that promotes transparency, deliberation, and the wide participation of Members in policy formulation." If regular order is considered by experts to be a "best practice" method to develop legislation, why have we let it slip away to an extremely untenable politically dominated process.
Additionally, the House and Senate Ethics Committees operate completely differently from all of the other 200-plus Committees and Subcommittees in Congress. The Ethics Committees' rules require "Professional, Nonpartisan Staff" & Equal Party Representation "to provide a fair procedural framework." Why shouldn't we be providing "a fair procedural framework" for all of the legislative committees?
As it stands now, Committee staff are being paid to implement one-sided solutions, gotchas & revenge actions on opposing party Members and positions. To make it even worse, and to further fuel the political polarization, existing rules provide two-thirds of available funding to the majority party and one-third to the minority party. Equally funded "professional, non-partisan" legislative committee staff and equal party representation with co-chairs on committees could actually work on developing real solutions & employ dispute resolution & mediation techniques to resolve political differences. This structure would also eliminate the creation of non-productive, distracting, political revenge investigations, and strengthen Executive oversight.
Universities might even start to offer new associate and undergrad degrees in PoliMed (political science + mediation & dispute resolution) and advanced degrees in PoliDep (domestic relations & political diplomacy) to fill the many new job positions of "professional, non-partisan" legislative committee staff in state and federal government.
Additionally, the rules that that control how legislative matters are brought up for a Floor Vote are critical to the dysfunction and polarization issues in Congress. In the Senate, the filibuster and reconciliation rules are major obstacles to effective legislating. Similarly, the fact that any, one Senator can derail or delay action with Senatorial "Hold" procedures is outdated and disruptive. In the House, the informal Hastert Rule used by Republicans requires that the Speaker will not schedule a floor vote on any bill that does not have majority support within their party (majority of the majority) even if the majority of the all members of the House would vote to pass it. Even more frustrating, changes in the House Rules over that last three decades have given more and more power to the Speaker to basically control whether a bill ever receives a Floor Vote, even if the “majority of the majority” agrees.
These are just a few examples of rules and procedures that are being followed in the House and Senate that impede effective governing and increase polarization and dysfunction in Congress. An effective, functioning government, that must make decisions, critical to the future of the country, cannot be burdened by these politically, self-imposed restrictions that allow the Congress to conduct its operations contrary to the will of the public and voting electorate.
As said previously, it will not be easy to implement Congressional Rule Reform. But, considering the dire strait of our current government, on the verge of a collapse of fundamental democratic principles of rule of law, and individual rights, the difficulty cannot be a deterrent. As our very first President said, it is the "duty of a wise people to discourage and restrain it. . ."
An initial step must be to focus on this major root cause of polarization – Congressional Rules. Short of a Constitutional Convention, a massive coordinated public campaign must harness the vast economic resources and human energy of the "good forces" to educate the public and call for the in-depth investigation and analysis of the existing rules. That effort must be followed by specific recommendations for improvement and an acceleration of the campaign at the state and federal level to effectuate changes through lobbying, to obtain individual legislator commitments and commitments from candidates at the ballot box in future elections to make the changes.
There is a glimmer of hope, even within the now GOP-controlled House. The House Committee on Administration has voted to establish a Subcommittee on Modernization. The Subcommittee will attempt to pick up the work of the House Select Committee on the Modernization of Congress, or ModCom, or the “fix Congress” panel, organized in 2019 under Democrat leadership. The Select Committee was disbanded for the 118th Congress; however, this new Subcommittee could be a focal point for lobbying efforts of the public initiative to change Congressional rules.
Many observers, including the President himself, have said, “Something must change.” One change, that is within our grasp and could make a huge difference in the decisions we make as a country, is Congressional Rules. Now is the time to make the change.
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1. CRS Report: The “Regular Order”: A Perspective November 6, 2020
2. CRS Report: The Legislative Process on the House Floor: An Introduction, Updated December 14, 2022
4. CRS Report: Eight Mechanisms to Enact Procedural Change in the U.S. Senate, Updated December 2, 2020
6. Negotiating Agreement in Politics, American Political Science Association, 2013
7. Analysis of House Rules Changes for the 118th Congress9. If We Want Congress to Work Differently, We Have to Do Things Differently, Derek Kilmer (D-WA) & William Timmons (R-SC), Newsweek, January 4, 2023
10. The Congressional Institute efforts on Congressional Reform
11. State of the Congress 2022, The Congressional Management Foundation and the Partnership for Public Service first annual assessment, July 2022
