Almost a quarter century ago, political scientist Barbara Sinclair made the persuasive case that partisan forces motivated innovations in the legislative process as majority party leaders confronted minorities that were willing to fully exploit parliamentary procedure to their advantage.[1] Drawing upon a wide range of studies of procedural and process developments in the late 20th century, Sinclair summarized the developments as “unorthodox lawmaking.” She emphasized that legislative priorities, key policy choices, and parliamentary strategies were increasingly made by party leaders and in party venues and fewer were made by committee and subcommittee chairs and in committee rooms. She did not argue that all policy choices originated in party venues; they do not. She did argue, correctly, that by the early 21st century central party leaders had become deeply involved in setting agendas, shaping strategies, and negotiating policy details on most—close to all—of the most important legislation.
Contrarian perspectives have popped up. Harbridge-Yong, for example, argues that bipartisan thrives but is hidden from view—that is, bipartisanship is not obvious in patterns of floor voting. A substantial volume of bipartisan legislating still occurs in committees and other venues, although bipartisan bills tend to be approved without roll-call votes on the floor.[2] A different take is offered by Curry and Lee, who observe that legislation rarely passes without substantial backing from the minority party, even in recent Congresses, and there is some record of success for majority parties that seek support from the minority party.[3] From these perspectives, the emphasis on partisan polarization and its consequences is overdone—bipartisanship remains below the surface and is essential to enacting important legislation. Bipartisan coalitions can still produce legislation.
Claims that a significant volume of legislating remains “orthodox”—that is, bubbling up from rank-and-file legislators working in committees, often in bipartisan coalitions—do not contradict Sinclair’s thesis about the centralization generated by deepening party conflict. To the contrary, the trends visible at the turn of the century have accelerated since then. The mid-20th century reliance on committees for setting the policy agenda and fashioning the details of legislation eroded further, the incentive for committees to be pro-active in holding hearings on issues and markups for writing legislation weakened, and the use of committee-based conference committees to work out final details of legislation plummeted. At the same time, top party leaders stepped in to set the agenda with party interests in mind, party venues became the location of serious strategizing, and eventually party leaders took the lead in negotiating the policy substance of major legislation.
To take a closer look “beneath the surface” of floor voting, let’s take a look at committee activity over the period since the 1970s, a period of intensifying partisanship.
Committee action has been transformed in the era of intensified partisanship and party-centered policy making. Figure 2 shows that committees and their subcommittees became much less valuable to legislators in both houses. The House of Representatives, with more members and usually about 30 more committees and subcommittees, shows the greatest decline.
Hearings and Markups
To get some sense of the shrinkage of committee activity in recent Congresses, consider the number of meetings held by the typical committee or subcommittee (Figure 2-1). In 2017-2018, the House averaged 14 meetings (including hearings) per unit (committee or subcommittee) over a two-year period; the Senate average was about 18 over a two-year period. Slumber, not robust bipartisan activity, characterizes most units in the House and Senate committee systems in the last two decades.
Why would this happen? One reason is that partisan conflict was more likely to make successful legislating less likely (as we will see). Another reason is that committees were more likely to restrict their activities to issues that were on the majority party’s agenda. And yet another reason is that committees were frequently avoided altogether—legislation was often written without formal action by committees and placed in large bills packaged in reconciliation measures, omnibus appropriations bills, or other measures under the supervision of party leaders.
Committee and Subcommittee Chair Productivity
In the context of more limited committee activity, full committee chairs have come to dominate committee activity, particularly in the House. In fact, in 1995, House Republicans led by Speaker Newt Gingrich (R-GA) recentralized power within committees by doing away with rules and practices that Democrats had adopted years earlier that gave subcommittees and their chairs substantial autonomy. Remarkably, Democrats did not fully reinstitute those practices after they regained a majority in 2007 or again in 2019. Full committee chairs were put in the position to fashion legislative details, often with close oversight exercised by the speaker and always with an obligation to advance the interests of their parties. As much as in the mid-20th century, committee chairs rule their committees, but they now do so not as independent operators but rather as agents of their parties.
This is visible in the institutional positions of bill sponsors whose bills make it the farthest through the legislative process. The “legislative production” score is based on how far through the process—committee action, floor action, approval in other house, enactment—for the bills sponsored by a legislator.[4] For each Congress since 1973, I have estimated equations for all representatives and all senators that yield a measure of the effect of being a full committee chair and subcommittee chair on their production score.[5] The results for House and Senate full committee chairs and subcommittee chairs are shown in Figure 2-2, in which the vertical axis is the statistical estimate of the importance of being a chair or subcommittee chair.
Figure 2-2 makes plain that successful bill sponsorship is greatly affected by institutional context. The highlights of Figure 2-2:
After the House Democrats instituted the “subcommittee bill of rights” in 1974 to increase the autonomy of subcommittees and reduce the power of full committee chairs, the production of full committee chairs declined and the production of subcommittee chairs increased modestly. A subcommittee, of course, has a small jurisdiction so its chair would not expected to generate as much legislation as full committee chairs.
Senate full committee chairs were never as distinctive as House full committee chairs in their domination of legislative authorship.
Because nearly all Senate majority party members are at least subcommittee chairs, compared with just less than half of House majority party members, Senate subcommittee chairs are not very different from other senators in their legislative production.
In the House, the arrival of a Republican majority in 1995 unraveled two decades of a Democratic regime in which the power of full committee chairs was limited by rules that guaranteed subcommittee chairs a hand in shepherding legislation through the process.
After full committee chairs took the reins of their committees in the party-oriented regime instituted by Gingrich and the Republicans, the net effect of being a full committee chair on successful authorship increased by more than 50 percent. The regime survived the return of Democratic majorities in 2007.
In recent Congresses, gridlock generated less legislative productivity overall, so much so that even the legislative production of full committee chairs fell measurably.
Budget Measures and the Diminished Role of Committees
A special case is the role of the House and Senate budget committees in shaping an annual budget. The 1974 Budget Act created the budget committees for the purpose of writing annual budget resolutions and, if necessary, reconciliation bills. Budget resolutions set the general parameters for spending and revenue policies that would be determined by other committees; they soon became a means for ordering other committees to write deficit-reducing legislation to be packaged in reconciliation bills. For many years, reconciliation bills typically packaged the recommendations of the various committees, which gave committees a means to push budget-related policies that might be more difficult to enact as free-standing measures.
The use of reconciliation measures to enact policy was particularly important to Senate committees and the majority parties that controlled them. The Budget Act limited debate on budget measures so that Senate minorities could not obstruction action on those measures by filibustering. In 2001 and 2003, and several times since then, reconciliation has been used by congressional majorities to push tax cuts, healthcare reform, climate change initiatives, and other policies through Congress.
While the reconciliation process was a boon to the committees writing the details of reconciliation bills, the spending and tax policies embodied in them were central to party interests. As inter-party conflict intensified in recent decades, party leaders were always deeply involved in setting strategies for the use of the reconciliation process, but they became deeply involved in supervising the construction of reconciliation bills and negotiating the content of the measures with party factions. For the most part, the formal process of budget resolutions providing instructions to committees, standing committees designing legislation to meet those instructions, and the budget committee packaging it all in a reconciliation was followed. But party leaders in both houses were always central to setting strategies for the process.
Things changed in the years since 2010. Reflecting the majority party leadership’s central role in designing the content of reconciliation bills and its desire to expedite floor action on the leadership package, the Senate budget committee often has been bypassed and a House-passed bill has been considered on the Senate floor, usually with a comprehensive Senate alternative, without committee recommendations or even a budget committee report. Senate Democrats skipped committee action in 2010, 2021, and 2022, years in which they controlled both houses of Congress. Republicans did so in 2015 and 2017 when they controlled both houses.
These developments represent the domination of party interests over committee interests. Top committee leaders on the majority party side continue to be involved, but their involvement is often more informal and facilitates the use of committee staff to draft legislative provisions. The role of other committee members is often minimal; the minority party committee members are excluded. Party leaders are the central leaders in designing spending and revenue provisions that will acquire the necessary majorities for passing the reconciliation bills on the floor.
Policy Making Beyond and Without Committee Action
In the House, the use of special rules to construct legislation outside of the “normal” hearings and markups is evident in other trends: The use of special rules to automatically alter the content of legislation after committee action and to bring legislation to the House floor without a committee report. “Self-executing” rules have been quite common for some time but have become ever-so-much more common as the number of closed rules has increased (Figure 2-3). These special rules providing for floor consideration of important bills provide that one or more amendments are considered adopted upon adoption of the rule—that is, without a separate debate or vote on the amendment. In many cases, these amendments represent the outcome of negotiations among majority party members just be floor action and after, or as a substitute for, committee action. When a rule includes self-executing provisions and bars other amendments, the rule effectively rewrites a bill on the floor before it receives a vote on final passage.
Moreover, nearly a third of special rules have pulled legislation out of committee before a committee voted to report it to the floor. That is, before members of a committee—including the minority party members of the committee—acted on a measure, the majority party leadership decided to have the House act on the bill. It is not a stretch to say that the scheduling and political needs of the party are valued far more than the contributions of minority committee members that might be made during committee markups. A fair inference is that, on many important measures, a majority party’s committee contingent acts like a party task force, a task force supported by committee staff.
Committees in Conference
Traditionally, committee members, particularly senior committee members, exerted considerable influence over the content of enacted legislation by being appointed to conference committees to resolve House-Senate differences. Negotiations over minor matters usually were handled by committee staff, but important issues were addressed by the legislators themselves, typically in private meetings. For senior minority party committee members, these private meetings often gave them a role in the outcomes that was not visible to outsiders and may or may not have been reflected in subsequent floor votes on conference reports.
In the partisan era of recent decades, minority legislators often have been excluded from these private sessions, particularly when the same party controls both houses. Negotiations, when they occur, among majority party conferees from each house; minority party conferees are cut out of the discussion. While a majority of conferees from each house must approve the conference report before it is sent to the House and Senate, this is done on a strictly partisan basis. The result often yields party-line votes on conference reports when they are considered by the House and Senate.
That’s only half of the story. From the late 1970s to the early 1990s, in response to members who wanted a voice in conference negotiations, the Democrats appointed large conference delegations. This was most noticeable on large, multi-committee bills—reconciliation measures that often combined legislation from ten or twelve committees. These bills were usually among a handful of the most important measures and were among the few bills that represented party and presidential priorities. A reconciliation conference delegation from the House typically involved all members of the Budget Committee and dozens of members of the other committees that were responsible for the components of the legislation. That changed when the Republicans took over in 1995. Under Speaker Gingrich’s direction, the number of conferees from the other committees was cut to a bare minimum of three, two Republicans and a Democrat. Budget Committee Republicans, working closely with the speaker, conducted the negotiations. Bipartisanship was dead on these measures, among the most important considered. That has not changed much in the last quarter century.
However, the context of House-Senate negotiations has changed—and this is a big deal. In the Senate, the desire to exclude the minority and avoid filibusters has motivated efforts by the majority to avoid conference committees altogether. Primarily because of these considerations in the Senate, the use of conference committees to resolve House-Senate differences has plummeted (Figure 2-4). In the place of conference committees have come more frequent use of informal negotiations and alternative paths to the floor. These include adding the products of informal negotiations to more minor and non-controversial bills and creating and introducing new legislation that is brought directly to the floor for approval. To be sure, committee members and staffs are called upon to provide legislative details and they often lead the negotiations, but the process is always conducted with the approval of, and usually supervision from, majority party leadership.
In some cases, particularly when the two houses suffer from divided party control, conference committees simply have not been replaced—bills die when one house simply does not pass a bill to match the action by the other house. When the two houses do act, they often use a “ping-pong” process of taking turns adopting amendments to the other chamber’s version, a process usually negotiated and supervised by top majority party leaders. In other situations, party leaders arrange to have informally negotiated outcomes attached to more minor and non-controversial bills or to create new legislation that is brought directly to the floor of each house for approval. All of these methods reduce the opportunities for minority party participation.
The Shrinking Space of Bipartisan Policy Making
It is true that committee involvement has not disappeared; creativity by legislators has not evaporated. Committees remain important locations of involvement in policy making for legislators. It also is true that bipartisan activity can be found in many committees and among many groups of legislators. Furthermore, it is true that bipartisan support for major legislation has been generated to address issues of universal concern.
Bipartisanship in Congress is squeezed into a shrinking space of committee activity and bottom-up legislating. Bipartisanship emerges more rarely than it did in the mid-20th century and, when it does, it often does not represent active collaboration between the parties over the details of legislation. Bipartisan outcomes often are a by-product of the priorities of the majority party; on major issues, they are seldom the product of meaningful cross-party collaboration in designing legislation. So we should not be misled by a few examples of popular legislation, often enacted in response to crises, that attracts bipartisan support. Nor should votes on final passage be treated as a measure of the degree to which bipartisanship characterizes the agenda-setting and design of legislation. When it comes to the major issues of the day—taxes and spending, climate change, social justice, education and social programs, and others—genuine bipartisanship is seldom seen.
[1] Barbara Sinclair, Unorthodox Lawmaking: New Legislative Processes in the U.S. Congress, 1st ed. (New York: Sage, 1997).
[2] Laurel Harbridge, Is Bipartisanship Dead? (Cambridge University Press, 2015).
[3] James M. Curry and Francis E. Lee, Limits of Party (University of Chicago Press, 2020).
[4] I use the “legislative effectiveness score” produced by Craig Volden and Alan Wiseman, available at https://thelawmakers.org/data-download [accessed May 15, 2021]. I consider the score to be a measure of “progression through the legislative process”—more a measure of legislative production than personal effectiveness, as it is often considered. Productivity is heavily influenced by the institutional setting, including the power allocated to committee and subcommittee leaders, the party leadership, and procedures for considering legislation on the floor.
[5] OLS estimates are calculated for the House and Senate separately. For each Congress, the estimated equation for productivity includes independent variables for being in the majority party, seniority, a full committee chair, and a subcommittee chair. Figure 2-2 reports the coefficients for being a full committee chair and for being a subcommittee chair, controlling for being in the majority party and seniority.