Unorthodox Lawmaking, Budget Bills, and Comprehensive Policy Making in the 1990s
By Barbara Sinclair, UCLA
Paper for Congress Project Seminar
February 11, 2000
In a book entitled Unorthodox Lawmaking, published in 1997, I argue that the bill-becomes-a-law diagram that is a staple of American politics textbooks actually describes the legislative process on few of the major measures considered in the contemporary Congress. Rather than being sent to one committee in each chamber, many measures are considered by several committees, especially in the House, while some measures bypass committee altogether. Not infrequently, after a bill has been reported but before it reaches the floor, major substantive changes are worked out via informal processes. Omnibus measures of great substantive scope are a regular part of the legislative scene and formal executive-congressional summits to work out deals on legislation are no longer considered extraordinary. On the House floor, most major measures are considered under complex and usually restrictive rules, often tailored to deal with problems specific to that bill. In the Senate, bills are regularly subject to large numbers of not-necessarily-germane floor amendments; filibuster threats are an every-day fact of life, affecting all aspects of the legislative process and making cloture votes routine.
Don Wolfensberger has asked me to discuss unorthodox lawmaking, my short-hand term for this constellation of once-unusual procedures and practices, on budget bills in the 1990s. I've interpreted his charge as requiring as well an exposition of the reasons unorthodox lawmaking emerged and an evaluation of it in the context of budget bills.
Budget bills and the budget process are very much a part of what I have called unorthodox lawmaking. Budget resolutions and reconciliation bills are the quintessential omnibus measures; through not formally multiply referred, they are the result of a multi-committee process. Passing them often requires post-committee adjustments engineered by the majority party leadership. In the House they are now always considered under highly restrictive rules. Summits are most often used on budget measures.
Why Unorthodox Lawmaking?
Why did the "textbook" legislative process that had seemed so routinized and entrenched as of the early 1970s change so extensively in the following decades? I argue that changes in the internal structure of Congress, many stemming from the reforms of the 1970s, and alterations in the political environment created problems for and presented opportunities to members of Congress--as individuals and collectively--and that members' responses led to modifications and innovations in the legislative process. (For the arguments in more detail, see Sinclair 1983, 1989, 1995, 1997; also see Smith 1989, Loomis 1988, Dodd and Oppenheimer 1977, 1981, 1985, 1989, 1993, 1997.) Changes in the internal distribution of influence in both the House and Senate provided opportunities to individual members to participate more fully in the legislative process. However, the high rate of activity and the uncertainty that resulted from members taking advantage of their new opportunities created problems for the chambers and their majority parties; legislating became more difficult. The adverse political climate of the 1980s (divided government, big deficits, increasing party polarization) exacerbated the problems of legislating, especially for congressional Democrats, who were the majority party in the House throughout the 1980s and early 1990s.
Party leaders, responding to their members' demands for legislative success, sought ways of coping with the problems. They began to use omnibus legislation more frequently; summits were developed as a last resort means of reaching agreements between Congress and the president. In the House party leaders involved themselves in the legislative process on major legislation earlier and more deeply, often negotiating compromises after the committee or committees had reported legislation so as to ensure the legislation's passage on the floor. Special rules from the Rules Committee were developed into powerful tools for controlling floor consideration and sometimes for shaping floor outcomes. The Senate, in contrast, failed to develop ways of coping effectively with the problems created by internal reforms and the political environment. The enormous opportunities for influence that full use of the Senate's rules gave each senator were just too valuable to senators as individuals; senators were unwilling to curtail their power. Senate leaders also increased their involvement in the legislative process, seeking to put together deals that made legislation passable; but they did so without enhanced tools or resources. Consequently, legislating remained problematical in the Senate.
The budget process and how it has developed over time is inextricably intertwined with these developments. Created by the 1974 Budget and Impoundment Control Act, the budget process was intended and, in fact, has given Congress a mechanism for making coherent rather than just piecemeal budget decisions. However, actually using it as a mechanism for making coherent budget decisions required fairly strong central leadership and, for members of Congress to subject themselves to such leadership, required circumstances that made the alternative politically unacceptable. When those conditions arose and persisted, the potential of the budget process became evident and the budget process has become the vehicle of choice for those attempting to bring about comprehensive policy change.
During its first few years, the budget process was not used in that way. In the House the battles over budget resolutions were hard fought and highly partisan; debate did turn on the political parties' different priorities, but the resolutions largely just incorporated the various committees' requests and did not call for significant policy change (Ellwood and Thurber 1981; Schick 1980).
Reconciliation instructions that mandated committees to make changes in legislation under their jurisdiction were first included in the budget resolution in 1980 (Sinclair 1983, 180-190). Frighteningly high inflation in January 1980 convinced President Jimmy Carter and the Democratic congressional party leadership that budget cuts needed to be made and quickly. The ordinary legislative process, they decided, would take too long and be subject to delay by interests adversely affected by the cuts. Therefore, they decided to use the budget process and to include reconciliation instructions in the first budget resolution. Doing so was highly controversial (in part because the Budget Act envisioned such instructions being included in the second budget resolution, which in this and most cases would be too late), and the committees subject to instructions objected vigorously. Nevertheless, the resolution with the instructions passed, and the committees did comply. To do otherwise was to defy the will of the Congress as expressed in its budget resolution.
Although the policy changes required by the 1980 budget resolution were modest by later standards, the experience made clear to perceptive participants that, under certain circumstances at least, the budget process was a mechanism available to central leaders for making comprehensive policy change. David Stockman, a Republican member of the House from Michigan from 1977 to January 1981, was one of those perceptive participants. As President Ronald Reagan's first head of the Office of Management and Budget, he suggested using the budget process to enact Reagan's economic program in 1981 (Stockman 1986). The administration-supported budget resolution included instructions to committees to make substantial changes in policy; supporters forced a single vote on them as a whole and then packaged the policy changes into one massive reconciliation bill where again the key vote was whether to accept or reject them as a whole. This strategy enabled Reagan and his supporters to achieve major policy change quickly in a system resistant to such change.
In the years since 1981, budget politics have remained at center stage. The attempt to control the big deficits Reagan's economic program created shaped the politics of the 1980s and most of the 1990s; the question of what to do with the surpluses is likely to be at the center of controversy during the next few years and will likely be fought out through the budget process.
This short history offers a number of clues as to why the budget process emerged as the vehicle of choice for making comprehensive policy change. In a period where budget issues were at the forefront, the budget process offered a quite powerful tool because of the packaging it allows and the procedural protections it provides. Through the budget process, many changes in policy can be made in one piece of legislation rather than in a number of separate bills, so members of Congress have to take fewer tough votes and fewer battles have to be won. The Budget Act prohibits extended debate on budget measures in the Senate, a huge advantage to those endeavoring to enact legislation in an era of senators' aggressively exploiting extended debate. The deadlines in the Congressional Budget Act, although seldom met, nevertheless exert a pressure to action that can work to the advantage of those attempting to pass a bill.
The Budget Process and Comprehensive Policy Change in the 1990s
With this background, we can now examine the legislative process on the big budget bills in 1993, 1995 and 1997. To what extent did the budget process and other of the practices and procedures of unorthodox lawmaking facilitate lawmaking, especially the making of comprehensive policy change? When legislation failed, was the process or something else at fault? Even if these practices and procedures contribute to lawmaking, are their other costs of which we should be aware?
The years 1993, 1995 and, to a lesser extent, 1997 saw attempts to make comprehensive policy change in situations where the stakes of legislative success were very high and the barriers substantial. During the 1992 campaign, candidate Bill Clinton advocated making major changes in the direction and priorities of the federal government. Because the economy was the 1992 campaign's dominant issue, the success of President Clinton and the Democratic Congress in enacting an effective economic program became a key test of whether the Democratic Party could govern. The problem confronting President Clinton and the congressional Democratic leadership was how to get such comprehensive--and sometimes painful--policy change through Congress. The usual difficulties of enacting major policy change would be exacerbated, they knew, by the highly charged partisan atmosphere and the growing ideological gulf between the parties.
Two years later the new Republican congressional majorities faced the same problem in even starker terms; House Republicans were advocating considerably more far-reaching changes in policy direction including major alterations in the big entitlement programs such as Medicare, they confronted an opposition party president, their margin was narrower, and the atmosphere had become even more intensely partisan.
In 1997 both President Clinton and congressional Republicans wanted a budget deal; Clinton sought to burnish his legacy and congressional Republicans needed a big legislative accomplishment. Although the hard experiences of 1995 and 1996-the government shutdown for which they were blamed, the "near death" experience of the 1996 elections in which they only narrowly maintained control of the House-- had made Republicans more realistic about what they could accomplish under conditions of divided government and so more willing to deal, reaching an agreement would require cooperation between political actors far apart on policy and bitterly distrustful of each other.
In each case, the procedural solution was the budget process; it and other practices and procedures of unorthodox lawmaking were essential to legislative success in 1993 and 1997; they were insufficient to produce success in 1995 but instrumental to the Republicans passing their legislation. Beyond the broad similarities, these cases do vary somewhat in which procedures and practices of unorthodox lawmaking were used and which were most important. I will argue that these differences as well as the similarities are a function of the political problems that leaders faced in these cases.
The packaging that is the essence of the budget process facilitates legislative success in two ways. The process is a coordination device; the budget resolution instructs committees and set deadlines for their reporting. In 1993, the resolution instructed 13 House committees and 12 Senate committees; in 95, 12 House and 11 Senate committees; in 1997, 8 in each chamber. Without a formal coordination device and one with the force of a formal expression of congressional authority behind it, it is unrealistic to expect so many committees to act, often in ways inimical to their members' preferences, and do so in a timely fashion. Even if they did, passing the dozen or more bills separately on the floors of each chamber and getting them through conference would itself present a big coordination task.
Second, packaging provides political advantages. Having to pass one rather than a dozen bills eases the political task at least as much as it lessens problems of coordination. With fewer victories having to be won, leaders can concentrate their efforts and their resources; they need not ask their members to take dozens of tough votes. The process also allows for flexibility. In 1997, for example, the budget resolution specified that two separate reconciliation bills would be enacted, one with the spending cuts and the other with the tax cuts. Packaging the changes into two bills rather than one would allow for the building of somewhat different coalitions on the two bills, a possibility given that this was the product of a bipartisan deal, and would let those members, who for policy or reelection reasons believed they could not vote for one of the bills, defect on that bill but vote for the other.
Packaging allows the bundling of the sour with the sweet; it allows unpopular policies to be combined with more popular ones. All of the reconciliation bills under discussion here contained policy decisions deeply unpalatable to important constituency groups; the 1993 bill included tax increases on the well off; the 1995 bill incorporated big changes in Medicare, Medicaid and farm programs; all of the bills included significant spending cuts. Many of these provisions would have been very hard for members to vote for as stand-alone measures; just as they would have been hard for committees to report without the pressure of reconciliation instructions. Packaging provides members with cover.
When the budget process is used to try to make comprehensive policy change, the stakes in the legislative battle are intrinsically high and are further increased by the intense media attention focused on the battle. Members are thus confronted with an up-or-done vote on a reconciliation bill where the stakes for their party and their leaders are enormous. In 1993, for example, many members saw the fate of the new Clinton presidency riding on enacting the reconciliation bill that contained his economic program. Similarly in 1995, the fate of the new Republican majority was perceived as closely tied to its success on the reconciliation bill. When the stakes are so high, members hesitate to vote against their party; both their personal sense of responsibility and peer pressure push members towards supporting their party's position.
Central Leaders and Committees in the Budget Process
Although perhaps not intended as such, the budget process is a mechanism available to central leaders for making comprehensive policy change and, for the budget process to work as a real priority setting mechanism and certainly as a mechanism for making comprehensive policy change, strong central leadership is required. Given the complexity of the process, its successful completion depends upon supervision and coordination by central leaders; when the process is used to make major policy change, leadership involvement must be continuous and intense. The ultimate leadership need not come from within Congress; the budget process is a instruments that presidents too can use. Nevertheless, central congressional leaders, who are party leaders, are always deeply involved.
Party leaders are now more frequently and deeply involved in the substance of legislation than they used to be. As, in the 1970s, members became less willing routinely to defer to committees and more willing to question committee bills on the floor, as in the House multiple referral destroyed committees' monopoly over legislation in their area of jurisdiction, as the political climate became harsher in the 1980s and 1990s and the political stakes higher, committees became less capable of crafting legislation that could pass the chamber without help. In responding to their members demands for assistance, majority party leaders were drawn much more deeply into the substantive aspects of the legislative process and, in effect, changed how the process works. Now party leaders often involve themselves well before legislation is reported from committee; they sometimes bypass committees altogether, and they are frequently involved in working out substantive adjustments to legislation after it has been reported from committee and before it is brought to the floor. They also play a much greater role in conference negotiations than they used to. (see Sinclair forthcoming 2000).
Leadership involvement is aimed at assuring that the bill at issue is satisfactory to most of the party members and that it can pass the chamber, so it is when accomplishing these twin objectives is most problematical that leaders become most involved. Budget process measures -both the budget resolution and reconciliation bills-almost always fall into that category. For the congresses for which I have data, House party leadership involvement was major on every budget resolution and reconciliation bill.1
These forms of unorthodox lawmaking were prevalent in all three of the cases under study, but 1995 nevertheless stands out. In all cases, leadership involvement, mostly by the majority party leadership but sometimes by the president as well, was intended and did facilitate legislative success.
In the 1993, for example, House Majority Leader Dick Gephardt negotiated several post-committee adjustments, most notably a compromise on entitlement caps that satisfied conservatives without alienating liberals and thereby brought enough conservatives on broad to pass the reconciliation bill. Senate Majority Leader George Mitchell was deeply involved in the Finance Committee, of which he was a member; he also engineered the addition on the floor of a small business provision that had to be taken out of the Finance bill for procedural reasons. In 1997, party leaders pressured Ways and Means Chairman Bill Archer to alter his chairman's mark which, they believed, was politically untenable. Speaker Gringrich also insisted on a number of post-committee adjustments to the bill; thus a provision ending ethanol subsidies, anathema to farm state representatives, was dropped and the child tax credit made a bit more generous to lower income families. On the spending reconciliation bill, Budget Committee Chairman John Kasich, under the supervision of and with guidance from Speaker Gingrich, worked out a number of post-committee adjustments.
The very active party leadership involvement and the prevalent use of once unorthodox procedures in 1993 and 1997 pales by comparison with 1995. What congressional Republicans were attempting to accomplish was more ambitious and, with a hostile president in the White House, the conditions were more difficult. Gingrich enjoyed enormous prestige among Republicans and his members, many of whom were newly elected, believed themselves to be mandated. That combination both allowed and demanded an unusually aggressive use of leadership tools to accomplish the Republican party's objectives. Gingrich was deeply involved in the substance of legislation. Because successful Medicare reform was essential to the Republican party's attaining its policy and electoral goals, Speaker Gingrich decided to direct the effort himself. He designated a "design team" of eight from the party leadership and the Ways and Means and Commerce Committees to put together the legislation and chaired the group himself. At the instructions of the party leadership, cuts in agriculture subsidies and in federal pensions were included in the reconciliation bill. The Agriculture Committee and the Government Reform Committee, which have jurisdiction over farm subsidies and federal pension legislation respectively, had not been able to report those provisions; too many committee members believed they hurt their constituents. Relying on his prestige and on the authority provided by the budget resolution, the Speaker in effect bypassed the committees. In the week preceding floor consideration, the House Republican leadership engaged in considerable last-minute bargaining as well as intense persuasion. Gingrich agreed to restore $12 billion in Medicaid spending and to distribute the money to states particularly hard-hit by the committee's plan and thereby assuaged the concerns of some moderates and members from high growth states. Although the agricultural provisions were not altered, disgruntled farm-state members were brought back on board with implied promises that, since the Senate provisions were less radical, changes to their liking would be made in conference. Moderates upset by environmental provisions were not given any concessions; the provision to open the Alaskan Arctic National Wildlife Refuge to oil drilling, which they especially opposed, was left in the bill. The leadership did agree to drop the repeal of the Davis-Bacon Act, which requires federal contractors to pay the prevailing wage, a move aimed at many of the same moderates. (Hook 1995, A20). As a sweetener for Washington area representatives, a provision increasing parking fees for federal employees was dropped. Fred Upton (R-MI) won a provision important to a major business in his district that allowed drug companies to sell their products abroad without FDA approval.
On the Senate side too leadership involvement was intense, though there the leadership commanded neither the procedural powers nor the prestige that Gringich had. Starting well both before the Budget Committee reported the reconciliation bill and continuing even as the bill was being debated on the floor, Majority Leader Dole held a series of meetings with Republican moderates who had deep concerns about a number of the bill's provisions. Because of the narrow Republican margin in the Senate, these senators had considerable bargaining power and several threatened to vote against the legislation if changes were not made. Dole agreed to restore about $13 billion in Medicaid spending, reduce cuts in education funding and reinstate some federal nursing home standards. These restorations were offered as floor amendments. In addition, Dole promised that Senate conferees would move substantially towards the House's lower cuts in the earned income tax credit for the working poor.
In all three cases, central leaders were deeply involved in conference. Simply the size of conference delegations, especially on the House side, necessitates a coordinator. All the committees with provisions in a reconciliation bill expect to be represented on the conference committee. In 1993, the conference committee consisted of 164 House members from 16 committees and 53 senators from 13 committees. In 1995, the conference committee consisted of 43 senators divided into 12 subgroups and 71 House members divided into 14 subgroups. Had Gingrich not assertively exercised the Speaker's discretion in the appointment of conferees the House delegation could easily have been much larger; fearing that sheer numbers would delay resolution, Gingrich choose whenever possible members who could do double duty because they served on the Budget Committee and another concerned committee and, in this and other ways, kept the numbers down. In 1997, the Senate conference delegation consisted of seven general conferees and of three conferees from each of eight committees; the House conference delegation numbered 73 members. These large conferences work in subgroups, with most conference members given authority to negotiate only on the legislation in the jurisdiction of the committee or committees they serve on. The House conference delegation for the 1997 spending reconciliation bill, for example, consisted of thirteen subgroups from eight committees, each with authority to negotiate on only a specific title or subtitle of the bill.
On the House side, the party leaders each designate a leadership representative to serve on the Budget Committee and, when Democrats were in the majority, that representative was the Majority Leader. This gave the party leadership a representative on the conference; thus in 1993, Majority Leader Gephardt played a major role in resolving many of the most delicate issues. Increasingly on reconciliation bills of the scope under discussion, House party leaders appoint a number of top leaders to the conference committee. In 1995, the eight House members who had authority over the entire bill included, in addition to high ranking Budget Committee members, a number of party leaders--Majority Leader Dick Armey, Whip Tom DeLay and Conference Chairman John Boehner on the Republican side and Whip David Bonior on the Democratic side. In 1997, Speaker Gingrich appointed Majority Leader Richard Armey, Majority Whip Tom DeLay, and Chief Deputy Whip Dennis Hastert to the spending reconciliation bill conference; they were three of the five Republican general conferees with authority over the entire bill.
In addition, the scope and the stakes of the decisions being made now inevitably draw in the party leaders. Members are unlikely to feel comfortable having committee leaders making such decisions on their own. In 1995, for example, the Republican members of the conference subgroups made most of the large number of detailed decisions that a bill of such broad scope required. However, Gingrich and Dole working with shifting groups of committee leaders, depending on the issue, hammered out agreements on the most sensitive issues such as agriculture and Medicaid. In 1997, before going into negotiations with President Clinton at the conference stage, key House and Senate Republicans met in Speaker Gingrich's office to develop a unified Republican position.
Special Rules in the House
Since the early 1980s, House majority leaders have developed special rules into powerful tools for focusing attention and debate on the critical choices, for saving time and preventing obstruction and delay, and sometimes for structuring the choices members confront on the floor in a way that promotes a particular outcome. By the mid-1980s little major legislation was considered under a simple open rule; by the 1990s approximately 80 percent of major measures were brought to the floor under restrictive rules (Sinclair 2000 [forthcoming]). Budget resolutions and reconciliation bills are always considered under highly restrictive rules and have been since the early 1980s.
Carefully designed special rules were instrumental to passing in the House each of these reconciliation bills and the budget resolutions that mandated them, as they have been to passing most other budget bills. The 1993 rules offer a good illustration.
That rule for the 1993 budget resolution allowed votes only on four comprehensive substitutes; crucially, no narrow amendments aimed at particular unpopular provisions, tax increases, for example, were allowed. The substitutes were not amendable and were to be voted on in the order specified using the king-of-the-hill procedure under which the last one approved prevails. A substitute by Rep. John R. Kasich, then ranking minority member on the Budget Committee, was placed first; it proposed deeper spending cuts and no tax increases. Another Republican substitute, offered by Gerald B.H. Solomon of New York, was placed second; the Solomon substitute added to the Draconian spending cuts in the Kasich proposal some of the tax increases in the Democrats' plan to achieve much deeper deficit reduction. The Black Caucus substitute, placed third in order, was a liberal plan that increased taxes more and made greater cuts in defense spending in order to make fewer domestic spending cuts. Last, in the advantaged position, was the "substitute consisting of the text of the concurrent resolution as reported by the Budget Committee"--that is, the Democratic leadership's proposal.
The rule for the 1993 reconciliation bill allowed only a vote on a comprehensive Republican substitute; amendments to delete various unpopular elements of the package--the Btu tax and the tax on social security payments to high-income recipients, for example--were barred. The rule also prohibited the minority from offering a motion to recommit with instructions, which is another way of amending the bill. The rule thus gave Republicans an opportunity to offer a comprehensive alternative to the Democratic plan, and it gave the whole House a choice between two distinct approaches. The rule, however, made it impossible for Republicans to use the amending process to unravel the Democratic package by narrowly targeting the least palatable provisions, and it also protected Democrats from having to cast some excruciatingly difficult votes. A vote for a deficit reduction package would be easier for Democrats to explain to their constituents than a stand-alone vote for higher taxes.
In addition to these provisions, the rule contained a "self-executing" provision by which adoption of the rule simultaneously results in adoption of certain legislative language. In this case the deal on the entitlement cap, as well as some other language about enforcement of the budget agreement that was worked out after the bill was reported from committee, was thereby incorporated into the bill without requiring a separate vote.
The rules in 1995 and 1997 were generally similar, though each was tailored to the problems at hand. The rule for the 1995 budget resolution also made only four comprehensive substitutes in order. In addition, it demanded that any substitute meet the Republican goal of balancing the budget in seven years.
Furthermore, anticipating difficulty in getting Clinton to accept legislation enacting the major policy changes the budget resolution required, the Republican leadership inserted a special provision in the rule: it suspended a House budget process rule that automatically raises the debt limit by providing for the automatic adoption of a debt limit identical to the level contained in the conference report on the budget resolution. Republican House leaders wanted to keep the need to increase the debt limit as a weapon in the confrontation with the president that they knew would eventually come.
The rule for the 1997 budget resolution allowed votes on five substitutes, including the Shuster-Oberstar substitute which the leadership knew was likely to pose a real threat to the bipartisan deal. Rules can be powerful tools but they must be able to command a majority vote in the House.
Like the rule for the 1993 reconciliation bill, the rules for reconciliation bills in 1995 and 1997 severely restricted amendments; one Democratic substitute was made in order to the 1995 reconciliation bill and to the 1997 tax reconciliation bill; none was in order to the 1997 spending cut reconciliation bill, although a motion to recommit with instructions was made in order.
These rules all contained self-executing provisions to incorporate post-committee adjustments into the bills without separate votes. Because the post-committee adjustments were especially major in 1995 so too were the provisions included into the base bill without either committee consideration or a floor vote.
Thus special rules provided a tool for holding these big and often delicate packages together by protecting them from the multitude of amendments that might split the supportive coalition. They allowed leaders to persuade members to vote for a comprehensive package aimed at accomplishing broadly agreed-upon goals (deficit reduction, strengthening the economy) without those members having to vote individually for the least palatable provisions.
The Budget Process and Senate Rules
The budget act limits debate on both budget resolutions and reconciliation bills and requires that amendments to them be germane. It specifies that overruling the chair on a ruling of nongermaneness requires 60 votes in the Senate.
These are enormously valuable protections in a chamber that has the most permissive rules of any legislature in the world. With unlimited debate unless a supermajority of 60 senators is willing to impose cloture and no requirement that amendments to most legislation be germane, the Senate gives minorities great power to obstruct and delay. The extent to which senators have used their prerogatives has varied over time (Binder and Smith 1997). In the period since the early 1970s, senators have become increasingly inclined to employ them aggressively and, in the 1990s, the minority party has regularly used these prerogatives as an integral part of its strategy (Sinclair 1989, 2000; Evans and Oleszek 2000). In the 103rd, 104th and 105th Congresses, half of all major legislation subject to a filibuster did in fact encounter a filibuster-related problem (a hold, a threatened filibuster as well as actual filibuster) discernable from the public record in the Senate (Sinclair 2000 [forthcoming]).
Considering the effectiveness of Senate Republicans in killing or extracting concessions on legislation in the 103rd Congress and of Senate Democrats in doing the same in the 104th and 105th Congresses, it seems unlikely that the reconciliation bills of 1993 or 1995 could have survived the Senate without the protections the budget process afforded.
In the 1980s and 1990s, the president and Congress began resorting to "summits" when normal legislative processes were incapable of producing legislation and the costs of failing to reach an agreement were very high (see Gilmour 1990.) Relatively formal negotiations between congressional leaders and high-ranking administration officials representing the president directly, summits have no official status; they occur when the president and the majority party leadership decide to engage in such talks. During the 1980s and 1990s, normal legislative processes often ended in stalemate on budget issues because of divided government, the sharp differences in policy preferences between the president and an opposition party congressional majority, and the tough decisions that big deficits made necessary. Because summits take place only when the stakes are very high, congressional party leaders have always represented their members in such talks; members are not willing to rely solely on committee leaders to make such decisions on behalf of the party membership as a whole.
When the congressional majority and the president are of the same party, normal processes supplemented by informal consultation and negotiations generally will suffice to reach agreement. Thus, there were no summits, budget or otherwise, during the 103rd Congress. Despite all the news media's emphasis on intra-party disagreements, President Clinton and the Democratic leaderships of the House and Senate worked together closely and successfully passed the budget bills.
In 1995 and 1997 control was divided between a Democratic president and new and conservative Republican congressional majorities. In both instances, president and Congress resorted to a summit, but the conditions were quite different. In 1995, Republicans passed their budget resolution, which does not require the president's signature, and their reconciliation bill which does without conferring with the president or taking his preferences into account. Talks began after Clinton had vetoed their bill and pitted a new congressional majority still adverse to compromise against a president who gained increasing political strength during the lengthy encounter. Republicans had hoped that public support for a balance budget in the abstract would translate into strong public pressure on Clinton to make a deal on their terms. Instead, the Democrats' warnings that the Republicans' plan would cut Medicare, education and environmental protection proved more persuasive. When Clinton won the battle for public opinion, Republicans lost their chance of winning the policy war, yet they were unwilling to make a deal on Clinton's terms. Under these circumstances a summit, which is, after all, a procedure of last resort, did not yield an agreement.
In 1997 political circumstances were more favorable, with both sides more committed to reaching a realistic budget deal, and negotiations began before a budget resolution was approved in either house. The budget resolution was based on the agreement worked out in summit talks. Translating the summit agreement into law through the reconciliation bills proved to be a highly contentious process; Democrats and Republicans disagreed on many of the "details." The final bills were shaped by more summit talks at the conference stage.
The Budget Process, Unorthodox Lawmaking and Legislative Success
The budget process assisted by other aspects of unorthodox lawmaking has made major policy change possible under circumstances that were adverse to such ambitious lawmaking. The packaging, the greater role for party leaders that it demands, the special rules for holding the deal together in the House, the protections from filibusters in the Senate, all contributed to the successes in 1993 and 1997 and were instrumental to the Republicans being able to pass their enormous bill in 1995. In 1997, summits were crucial as well.
As the 1995 case makes clear, the procedures and practices of unorthodox lawmaking are just tools and are by no means sufficient to produce nonincremental policy change. The American governmental system of separate institutions sharing power has a status quo bias; making major policy changes is difficult and usually requires compromise. When the philosophical differences between the president and the congressional majority are so great that what one considers a reasonable compromise the other regards as selling out, significant policy change is unlikely unless the actor advocating such change can marshal intense public support and thereby make holding out too costly in electoral terms for the other actor.
Other Costs and Benefits
Beyond their impact on legislative outcomes, what effects do the use of the budget process to make comprehensive policy change and the practices and procedures of unorthodox lawmaking that accompany it have? (For a more extensive discussion see Sinclair 2000[forthcoming], Chapter 12)
The budget process so used does focus debate on the big questions of national priorities and usually on the parties' different visions of the direction the country should take. As Leon Panetta has pointed out, that is important for the country. It performs this critical function even when it fails legislatively as in 1995. The public, at least the attentive public, emerges with a better understanding of what the big choices and the contending alternative approaches are.
Less positively, reconciliation bills make a multitude of policy decisions through an abbreviated legislative process in which many provisions receive limited scrutiny. No committee hearings may have been held on changes included in the legislation. With the committees operating under time constraints, many provisions may have received only perfunctory attention during committee markup; others receive no committee consideration at all but are post-committee adjustments inserted into the reconciliation bill, often at the last moment. The bill is considered on the House floor under a tight rule that limits amendments to a small number of comprehensive substitutes. In the Senate the bill is protected from a filibuster and by strict germaneness rules. Most members have neither the time nor the incentive to familiarize themselves with the contents of a reconciliation bill in any detail. Simply the size of the package tends to take attention away from any but the most major provisions.
When the critical decisions are made at high-level summits, many of these problems are exacerbated. Policy proposals may not have received the thorough vetting that the committee process at its best provides, decisions are made by a very small number of people, most members are relegated to the side lines and lack much information about the details of the package they are asked to vote up or down.
Yet we should remember that the budget process has become the tool of choice for those attempting to make comprehensive policy change because it is the only procedural tool available. In a system with a strong status quo bias and during a period in which circumstances were often conducive to gridlock, political actors use the tools available. The process is often not neat and not pretty. It does have costs; thorough deliberation and broad participation are to varying extents sacrificed. That should be kept in mind and ameliorated to the extent possible. Yet the costs of prolonged gridlock are even higher; a government that cannot act, that cannot respond satisfactorily to its citizens' demands, loses its legitimacy. The budget process and the attendant practices and procedures of unorthodox lawmaking allow big decisions to be made and the budget process frames those decisions as ones about national priorities and the direction the country should take.
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Sinclair, Barbara. 1989. The Transformation of the U.S. Senate. Baltimore: Johns Hopkins University Press.
Sinclair, Barbara. 1995. Legislators, Leaders and Lawmaking. Baltimore: Johns Hopkins University Press.
Sinclair, Barbara. 1997. Unorthodox Lawmaking. Washington, D.C.: CQ Press. (second edition 2000, forthcoming)
Sinclair, Barbara. 2000. "The Senate Leadership Dilemma: Passing Bills and Pursuing Partisan Advantage in a Non-Majoritarian Chamber," paper presented at the conference "The Myth of Cool Judgment? Partisanship and Ideology in the Contemporary Senate," Florida International University, Miami, Jan. 21-22.
Smith, Steven. 1989. Call to Order: Floor Politics in the House and Senate. Washington, D.C.: Brookings.
Stockman, David Alan. 1986. The Triumph of Politics. London: Bodley Head.
1 Data are for the 94th, 95th, 97th, 100th, 101st, 103rd-105th Congresses. The operationalization of major involvement (and of major measures used later) can be found in Sinclair 1995.