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Congressional Rules

Why the arcane rules of the House and Senate are important to you and me.

What follows is a bit detailed. It tells how a Senate or House with no majority party will be forced to write procedural rules that will divide party power, and empower independents. You might just accept this statement without reading the discussion. Or you might read it and assure yourself that it's conclusions are reasonable. Or you could follow the links at the bottom to do your own research on House and Senate procedures and rules. Then you'll know.

The Majority Party Controls Everything

Today, every committee in the House of Representatives is chaired by a Republican. Every subcommittee is chaired by a Republican. The majority of members on every committee and subcommittee are Republicans. Every piece of legislation is steered through those committees by the Republican leadership. Every rule decision bringing legislation to the floor is made by Republicans on the House Rules Committee. The constitutionally mandated Speaker of the House, who steers all this is a Republican.

The majority party in the House controls everything that happens there. All the minority party can do is vote yes or no. Because they're in the minority, they always lose.

Essentially the same situation exists in the Senate, except it's reversed—Democrats control the Senate. They control every committee and subcommittee chair, majority membership on every committee, all the procedures. All are in the hands of Democrats.

There are a couple of differences between the House and Senate, though. The U.S. Constitution specifies that "The Vice President of the United States shall be President of the Senate..." and that "The Senate shall choose...a President pro tempore, in the absence of the Vice President." Of course the Vice President seldom appears in the Senate, and the rotating President pro tempore is largely a traffic cop. The effective head of the Senate is the Majority Leader—a position similar in some ways to the Speaker of the House, but created by Senate rules rather than by the constitution.

And the Senate has a cloture rule. Legislation can only come to the floor for a vote if sixty percent of the Senators agree. In practice, this all means that only the Democrats can currently advance legislation, but the Republicans can block it.

These rules and a few others give the majority party in the House unbridled power, and virtually guarantee that a few Senators can prevent any effective legislation from being enacted.

Each House Writes Its Own Rules

These rules are not in the U.S. Constitution. They are not even laws. The Constitution specifies that "Each House may determine the rules of its proceedings..." So the House and the Senate are governed by rules of their own making. The Senate has standing rules, meaning that they stay in force unless changed by specific Senate action. But in the House, because every member is elected every two years, they get new rules after every election. The party that will hold the majority in the new House caucuses before the new year and rewrites the rules. In practice, they clone the old rules, sometimes with a few new provisions designed to punish the minority party. The new House rules are typically adopted by a party-line vote on the first day of the new Congress.

There's one other critical point regarding the rules as we now have them: In both the House and the Senate, no provision is made for organizing the body if there is no majority. That hasn't mattered in a very long time. We only have two parties, so we always have one or the other in the majority in each house.

But suppose we didn't. Suppose we elected a Congress that reflected our political affiliations. In recent polling 44% of American voters said they are independent, or gave no party preference. (Less than 1/2% identified a minor party.) By those numbers, we should have 44 independent Senators and 191 independent Representatives! The current House has no independents. Two Senators call themselves independents, but caucus with the Democrats in order to have committee assignments.

Actually, we could force changes in House and Senate rules by electing far fewer Representatives and Senators than the numbers above. If in 2010, only twenty-five of the Republican Representatives had been elected instead as independents, there would have been no majority in the House. The Senate is even more interesting. If just two more of the Senate Democrats had been elected as independents, and if all four had then declined to caucus with the Democrats, the goal would have been accomplished. As dissatisfied as Americans are with both parties and with Congress as a whole, these twenty-five House independents and two Senate independents could have been elected in 2010 if there had been viable candidates in winnable districts. There were none.

If There's No Majority, the Rules Have to Change

What would happen if one November morning we awoke to learn that neither party had elected a majority in either the House or the Senate? In both houses, business moves through committees, and current rules give the majority party full power to form those committees. In either house, the rules would have to be changed before business could begin. It's easy to be cynical and assume that the politicians would find a way to change nothing. But try as they might they wouldn't be able to do that.

The old rules wouldn't apply. Republicans and Democrats would be unable to cooperate against the few independent members, because neither big party would be willing to give the operating majority to the other. Both big parties would try every imaginable trick to bribe or coerce the independents to join their ranks. But these newly elected independents, elected specifically to end big-party majorities, would be signing their political death warrants if they gave in. One way or another, they would all come to realize that proportional assignment of committee chair positions would be the only workable solution. In the end, Republicans and Democrats would hold most of the chairs, but neither party would hold them all. And the independents would surely withhold their support for a rules package until rewarded with at least one significant chair position.

There are also plums in the leadership positions, including Speaker of the House, what has been the Senate Majority leader, but will now be called something else, and the House Rules Committee. These positions will be bargained for in the rules writing process, and the parties will have to make sacrifices to get those plums. The independents will hold out for major concessions and guarantees in the procedural rules before giving away any of the plums.

When the dust settles, we'll have a different kind of House or Senate—or both. It won't be perfect. Politicians will still be politicians. Lobbyists will still be lobbyists. Demagogues will still be demagogues. Money will still buy influence. But no one party will have a lock on power. Meaningful legislation will be much more likely to evolve. Political deadlock will be far less likely. And genuine reform of some of the deeper problems of governance will begin to be possible.

For deeper study:

This link describes the first day of a new Congress, in the House of Representatives.

This is a similar page for the Senate.

And if you're especially wonkish, here are the actual rules of the House and Senate.

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