Process as Substance

Much has been written about House dysfunction, and there is no shortage of reform ideas.  Floor procedure reform, Rules Committee reform, congressional capacity reforms, budget reforms, committee jurisdiction reforms, you name it.  But the one area that has not been developed is the reform process itself.  How could these reforms actually be enacted by the House?

The usual answer is to deny that issues of process are in any way important or consequential.  The process is simply a matter of bringing the requisite resolution to the floor of the House for a vote. These procedures already exist and do not present any real barrier.  The only barrier is the political will to make these reforms happen.  Once the necessary coalition is built to support a particular reform proposal, it can be brought to the floor. The House is a majoritarian institution, so all you need is to gather that majority.  The problem is one of power, not process.

But I would argue that process is absolutely critical – and those who are serious about reform first need to sketch out how to get from point A to point B.  Process precedes substance.  So I would propose that Members step back and address the prerequisite stage to enacting wide-ranging reform; namely, developing the process by which a new select committee could successfully undertake these efforts.

The Perils of Proceeding Without Process

The fate of the House’s late Select Committee on the Modernization of Congress is, I think, instructive.  In constituting said committee, there was no actual process laid out for how you get from drafting reform ideas to voting on the House floor.  The committee itself had some rules it had to follow in developing these ideas, including committee vote thresholds for making specific recommendations.¹  But there the process ended.  The committee had zero legislative jurisdiction. There was no mechanism to convert its ideas into floor votes. 

The only process was the highly irregular order that we’ve all become accustomed to: House leadership, working through the Rules Committee, decides what comes to the floor.  As such, they were in a position, procedurally, to block any reform efforts that didn’t meet their approval.  Tinkering at the edges?  Sure, a few technology reforms and good government efficiency measures do no harm (and many of those only require changing, say, policies in the Clerk’s office, not floor votes).  But fundamentally reorganizing the House to redistribute power in unforeseen ways? There was absolutely no path for such proposals, no doubt by design.

Reforming the House is not a small task. It is long overdue (moderate reforms were achieved 30 years ago; arguably the last major reorganization was in the 1970s). So tinkering at the edges will not suffice. The list of dysfunctional areas runs the gamut, from appropriations and budgeting, to committee realignments, to Members’ schedules, and even the nature of floor debate itself. These are all heavy lifts, and so the path toward their enactment must be made as clear as possible.

And in charting the course forward, a new Modernization Select Committee could also embody the principles of free and open debate that current congressional dysfunction impedes. In effect, a new Modernization Select Committee could itself serve as a proof-of-concept for fair, transparent, and efficient processes

Clearing a Path Forward

There is no denying that the House, as it is currently organized, is an incredibly top-down institution.  Indeed, many reform efforts acknowledge the necessity for some amount of decentralization in the final product – whether it’s by empowering committees, disempowering the Speaker, reforming the Rules Committee, or other mechanisms.  But the upshot is that any reform effort (decentralizing or not) must first sketch out a path that avoids interference by those with the institutional power to throw up roadblocks: the Speaker, the Rules Committee, the leaderships of both parties, committee chairs, etc.  Funneling reform efforts through the usual channels will inevitably find that those channels have been blocked up.  New channels must be created.

Procedurally, this is not difficult to do.  Select committees in the House have the powers that the House chooses to give them.  There is nothing preventing the House from establishing a select committee that has Rules Committee-like powers to bring resolutions directly to the floor of the House.  This is the single most important procedural guarantee that could be given to a committee, and obviously it is a closely-guarded prerogative.  Nevertheless, reformers must insist on it.  It’s the only way to ensure that real reforms are given a fair hearing.  There must be no silent vetoes from those at the top.

The Right People

Another way to stymie reform efforts is to stack the select committee with those opposed to reform.  Thus, the selection process for committee membership becomes crucial.  Again, the former Modernization Select Committee provides a useful warning.  Consistent with tradition, the Speaker made all of the selections for the select committee slots, subject to a few requirements designed to bring in perspectives from certain other committees (such as House Administration) and newer Members.  The result is that the Members essentially served at the pleasure of the Speaker, and were thus unlikely to make any recommendations that might jeopardize House leadership’s hold on the agenda.  I doubt they were told explicitly not to rock the boat, but they didn’t have to be.  

A new select committee cannot be subject to the Speaker’s domination in this way.  Its membership should represent the House writ large, independent of the Speaker or the leaderships of either party.²  Its purpose is to make recommendations to the full House, not to make recommendations for the Speaker to implement or ignore as they see fit.  
There are any number of neutral methods for selecting the members of this new select committee that guarantee its independence from other power structures in the House.  Members could be selected similar to how Speakers are chosen – with nominating speeches and votes by the entire House.  Different classes of Members, from freshmen to backbenchers, could elect representatives to serve on the committee.  Even a completely randomized lottery system would produce a group of Members with no predetermined biases or outside pressures.  However Members are selected, so long as their appointment does not depend on the goodwill of powerful people in the House, they can focus on producing reforms that are beneficial for all.

Transparency and Accountability

Part of the process of getting from A to B is building in backstops and failsafes.  We can hope that the committee members are serious about reform, are independent, and diligent, and thoughtful.  We can hope that they will act in good faith – proposing realistic solutions to genuine problems.  But we must admit that there is no way to guarantee this absolutely.  The best we can do is ensure that the internal committee processes are designed to promote thoughtful deliberation and expose bad faith attempts to derail reform.

Again, these goals can be achieved simply by writing good rules into the committee’s charter.  The charter can spell out the topics that the committee needs to address.  It can mandate particular kinds of studies or research.³  It can go so far as to require open hearings and meetings on a set schedule, moving down a pre-defined “to do” list of reform items.  In short, the House does not need to hand unlimited, unchecked power to this new committee.  It can instead set specific expectations about what is to be accomplished and along what timeline.  It doesn’t have to specify every nitty gritty detail, but it can, fundamentally, define the project and lay out the process for completing it.

Fairness and Deliberation

Another backstop can be built into the process at the level of final floor deliberations.  Whatever we might think of the Members on the committee and the reform proposals they are able to put together, it still remains the case that, until the proposals are actually on the floor, the House as a whole has not had an opportunity to examine and digest the recommendations.  That’s why it is crucial for floor debate to be as free, open, and thorough as possible.  These are, after all, proposals to fundamentally alter how the House conducts its business.  The entire House needs to be brought into that process.

Again, this is procedurally easy just by writing into the committee’s charter specific rules for bringing its proposals to the floor.  The House can give it Rules Committee-like powers to report special orders of business, but it can also specify the exact contours of those special orders, laying out in advance the debate time and amendment opportunities that will be available to every Member of the House.⁴ Again, these processes can be used as a kind of proof-of-concept for more open, robust debate on the House floor generally.  Guaranteed amendment opportunities for all Members would foster a sense of inclusion and agency.  In short, the process could be structured to make the final product the result of real deliberations involving the entire membership, rather than a single take-it-or-leave-it plan imposed from on high.⁵

Iterative Reform

Finally, it should be acknowledged that a new Modernization Select Committee is unlikely to get everything right the first time, nor will the House when it goes to review and amend the committee’s work. These reforms are complex and may have unforeseen consequences. Instituting one set of reforms without a plan for evaluating their efficacy and making necessary adjustments only invites further (new) dysfunction. The key point is that these reforms are best undertaken iteratively – Congress-by-Congress – with ongoing observation to assess whether the reforms are achieving their intended purposes.

For this reason, I would suggest that this new Modernization Select Committee be embedded directly in the House rules as the Permanent Select Committee on the Modernization of Congress.⁶ The mission of such a committee would be the same, Congress to Congress: to review House rules and operations, and to recommend necessary changes. Obviously the first Congress in which such committee exists would have the toughest job, proposing a long-delayed, far-reaching, and thorough reorganization of the House. But rather than disband the committee after making such a proposal, the committee would be automatically reconstituted in the next Congress, with the task of monitoring how the reforms are faring in practice. Such a system would prevent procedural dysfunction from metastasizing into unalterable practice. A permanent select committee would give the House the freedom to make necessary course corrections at any time.

A Suggestion

A modest proposal: let the freshmen do it.

Every Congress sees around 50-100 new Members elected to the House. A bipartisan group of, say, 12 of them would be well-positioned to take this initial step towards real reform in the House. As first-year Members, they would be insulated from all prior notions of how the House can or should work. Their task would be simple: devise fair rules for the new Modernization Select Committee to play by.

These freshmen would not be serving on the committee itself and they do not need any specialized knowledge of different reform proposals. Instead, their mandate would be to create a process to study those reforms, deliberate over them, devise recommendations, and bring them to the floor of the House. They would certainly need to consult with other Members, procedural experts, and good government groups who have been studying various reform proposals. But their biggest asset is, perhaps ironically, their inexperience. They would not be weighed down by previous attempts at reform or prior ideas of what reform should look like. They would simply be looking at the process for considering those reforms.

The analysis above lays out the areas that these first-year Members should address in forming a new Permanent Select Committee on the Modernization of Congress. Access to the floor, membership rules to guarantee independence, internal rules of deliberation, etc.- these are all key choices that can and should be geared towards thorough and fair debate. They can avoid the pitfalls of earlier reform attempts by focusing on the process of getting from point A to point B. They can establish the benchmarks by which the House will know whether progress is being made.

And first-year Members have the most incentive to get this right. Members come to the House and are immediately told “This is how the system works.” But these freshmen would instead be tasked with considering the question, “How do you want the system to work?” What procedures are fair? What procedures encourage good faith deliberations? What procedures will give Members a sense of efficacy and agency? In short, what is a good process? These are questions that even new Members (perhaps especially new Members) can and should be working on.

Let’s get them started on it.

---

1. For example, there was a supermajority vote requirement for formally approving recommendations to the House. While in theory this was intended to foster bipartisan proposals, the reality is that it put a veto in the hands of those opposed to (or at least less interested in) reform. ↩︎
2. Issues of funding also relate to this notion of independence. The committee must not only be populated with people willing and able to do the work but also be funded sufficiently to carry out its task. Staffing is just as important as the membership, in terms of guaranteeing independent action. ↩︎
3. For example, there is much to be learned from the procedures that govern state legislatures and international parliamentary bodies. The committee’s charter could include instructions to undertake this kind of comparative research in order to devise a set of parliamentary best practices that could be applied to the House. ↩︎
4. Developing the parameters of debate and amendment processes would provide an excellent opportunity to grapple with the proper bounds of deliberation in the modern House. A balance must always be struck between free and open debate and legislative efficiency. The process by which reform is debated on the House floor would provide a useful test case – one with no particular partisan or political implications. ↩︎
5. There is certainly a risk that deliberations break down on the floor, and that the final product is a mish-mash of conflicting ideas and values. But this is a fundamental risk of any representative assembly. Just as with regular legislation, we have to trust that Members can go through a deliberative process and come out with, if not the best policy (according to whatever metric), at least a coherent one. ↩︎
6. The House already acknowledges the existence of special, permanent select committees. The most famous example is the Permanent Select Committee on Intelligence (renewed automatically every Congress since the 1970s), which has its own special procedures embedded directly in the House rules. ↩︎