The Strain of Regularity and Gridlock (no fun at home, but appealing in the halls of Congress)
Updated: Mar 10, 2022
Is Congress regular?
It occassionally extrudes laws and leaves them in a pile for the bureaucracy or judiciary to implement, clean up, or flush as the case may be. But this churn and output of Congress is barely recognizable as the “regular order” of the last century.
The Congressional Research Service defines regular order as “a traditional, committee-centered process of lawmaking” and “a systematic, step-by-step lawmaking process that emphasizes the role of committees: bill introduction and referral to committee; the conduct of committee hearings, markups, and reports on legislation; House and Senate floor consideration of committee-reported measures; and the creation of conference committees to resolve bicameral differences.”
he ”Regular Order”: A Perspective, Congressional Research Service (2020) What really happens in Congress is more akin to the Saturday Night Live send up of “I’m Just a Bill" than the original cartoon, which ironically came out just as regular order was falling out of fashion.
Like most things in life, it takes discipline to follow rules. It is difficult and challenging, and human nature is constantly looking for a workaround. Hence diet pills instead of diet changes, get-rich-quick schemes instead of austerity and savings, and all manner of appeals to satisfy our urges and desires immediately rather than delaying gratification for a much greater reward. One professor at the George Washington University School of Political Management used to say that one should never underestimate the people’s intelligence or overestimate their apathy. How insightful.
WU Professor, School of Political Management
Still, nothing in the Constitution dictates regular order, and the rules that created it are completely at the discretion of the House and Senate (Article 1, Section5). They have total control over their own mess, but any rule that expedites the process rather than promoting debate and deliberation stands in opposition to the purpose of having so many proverbial cooks in the kitchen.
The Framers intended the legislative process to be difficult and time consuming. In her excellent book, Miracle at Philadelphia, Catherine Drinker Bowen details the arduous debate and work that went into creating a frustratingly slow process for the Federal Government. It is designed to be slow, and the Senate is supposed to be the brakes to the gas of the House of Representatives. But there should be time taken even in the faster-moving House, as Madison notes in the first Federalist Paper, it is a choice between “good government from reflection and choice…or…accident and force.”
While the growing political divide makes a return to regular order unlikely, there remains some hope in the persistence of gridlock. Where there can be no debate, discussion, and compromise, Americans should be encouraged that there can be (mostly) no successful legislation. Gridlock is defensible and appropriate, particularly when the leadership revises and rejects rules that had previously served to support some semblance of good policy making it through the system.
Without regular order to slow things down, the total stop of gridlock steps into the void. This is cause for celebration. Even without the procedures in place, the American system of governance has found a way to do what it was designed to do. But it is hardly a long-term solution.
As habits make the man, so procedure makes the institution. Falling away from the habit and discipline of regular order was a mistake. It has promoted the ugliness of partisanship and encouraged the poor stewardship of our government, as evidenced by the annual legislative theater that the government will shut down without a continuing resolution to keep it open, and by the atrocity of appropriations omnibus bills, so cumbersome and full of pork they lollop over the finish line propped up by members who shrug their shoulders and assume that is how it should be.
It is not.
Even if there cannot be a return to traditional regular order, then there should be some revision of the rules to create a modern version of it. Then again, one could argue that regular order is completely unnecessary when a preponderance of rulemaking is happening at the administrative level due to the constant, voluminous abdication of Congressional authority. America suffers from an abundance of incredibly intelligent, yet inherently lazy leadership that is rewarded by working around not through the process.
Gridlock will not forever hold off this poverty of thought and wisdom.
The solution to restoring the process itself has a process – the political process. That one is inherently chaotic, and there is room for creativity there. This process should be marching continually for candidates who value reason and real debate, and that will require fortitude of thought from millions of individuals, coupled with a willful shutting out of divisive rhetoric and a resolve to restore restraint - not to mention a national awakening to the power of the unelected and unaccountable bureaucracy.
Like eating enough fiber every day, regular order may not seem like a lot of fun. It is, however, an established sign of health, and one we dearly need to see in Congress again.
 https://sgp.fas.org/crs/misc/R46597.pdf  https://www.archives.gov/founding-docs/constitution-transcript  https://www.thriftbooks.com/w/miracle-at-philadelphia-the-story-of-the-constitutional-convention-may-to-september-1787_catherine-drinker-bowen/252668/item/12935129/?gclid=Cj0KCQiA0eOPBhCGARIsAFIwTs4fOQCXAAuhsbmntbeejprAJnTyKXOX9dZSbjB6BpHWPnlokKvzyvMaAhLUEALw_wcB#idiq=12935129&edition=6826398  https://avalon.law.yale.edu/18th_century/fed62.asp  https://avalon.law.yale.edu/18th_century/fed01.asp  https://www.pgpf.org/blog/2021/12/what-is-a-continuing-resolution