The congressional lawmaking process is remarkably changed from “Schoolhouse Rock” days, when that cloying cartoon and its singing/dancing bill caricatured the movement of legislation from committee to the floor of the House, action in the Senate, and then onto the president’s desk for a signature or veto. Beginning in the 1980s, as the Congress became more polarized along partisan lines and increasingly permeable to outside forces, committee autonomy substantially declined, party leadership activism grew at all stages of the legislative process, and in the Senate, especially, rampant obstructionism became the norm. Authored by distinguished scholars of American national politics, these two first-rate books contribute significantly to our knowledge of the newer and more idiosyncratic pathways that now characterize lawmaking on Capitol Hill, and along the way shed considerable light on what ails the contemporary Congress.
The impact of polarization has been particularly pronounced in the Senate, where strong incentives now exist for minority parties to routinely exploit the obstructionist potential in chamber rules and practice. In On Parliamentary War, James Wallner attempts to explain the persistence of dilatory practices in that chamber by integrating the two dominant theories of Senate obstructionism—the majoritarian perspective of Gregory Wawro and Eric Schickler and the path-dependence approach most closely associated with scholars like Sarah Binder and Steven Smith. According to the former, Senate operations are remotely majoritarian, and obstructionist opportunities like the filibuster exist because they serve the interests of most senators some of the time. Members of the minority party, for their part, recognize that if they push their procedural leverage too far, the partisan majority may simply clamp down, perhaps even “go nuclear” and significantly restrict use of the filibuster and related tactics. The path-dependence argument, in contrast, highlights the supermajority required by Senate rules to reform Rule 22, which in turn is what enables 60 members to bring debate to a close in the contemporary chamber. Moreover, a wide range of informal norms and practices within the Senate have evolved over time in response to the potential for extended debate. Scrapping the filibuster would require that the Senate revamp its operating procedures more generally. For these reasons, although significantly circumscribing the filibuster may be technically feasible for a Senate majority, it seldom will be politically attainable because of the costs that these path dependencies entail.
Drawing on insights from international relations scholars as diverse as von Clausewitz and Schelling, Wallner advances a bargaining synthesis to the aforementioned theories. Critical to his account are the considerable opportunities that minority party members have for retaliating against majorities attempting to centralize agenda control. Advocates of the majoritarian perspective, of course, fully recognize that minorities have the ability to make life difficult within the chamber if the partisan majority clamps down excessively on minority rights. Similarly, the “path dependence” studies all allow for significant procedural change within the body if the benefits from such reforms are large enough to countervail the costs. Still, Wallner’s book provides the most systematic and detailed delineation of such benefits and costs that we have, and thus can serve as a valuable foundation for the development of more rigorous models of procedural bargaining.
What really sets this book apart, however, is the richness of the treatment of procedural strategy. The author is a scholar, but he also is a practitioner who has held senior staff positions within the Senate, and it shows. Chapter 3 is a superb introduction to the Senate’s internal procedural architecture that would be a valuable addition to most courses about the Congress. Wallner’s careful case studies of the aborted attempt to end filibusters on district and appellate court nominations in 2005, and the successful effort to end such obstructionist potential on lower court and administrative nominees in 2013, are more nuanced than are existing narratives in the literature. Although the book appeared before the 2017 action by Senate Republicans to end filibusters on Supreme Court nominations, Wallner’s presentation of the costs and benefits of such restrictions can inform our understanding of that change as well.
The substantive focus of Politics Over Process may be more arcane than the bells and whistles of filibuster reform, but it is no less important if we are to understand how legislation is crafted within a polarized Congress. Here, the subject is postpassage politics—how the chambers resolve differences in the content of House- and Senate- passed legislation. Perhaps no other stage in the lawmaking process has been more transformed by the recent rise of partisan polarization and activist party leadership on Capitol Hill. Previously, bicameral accommodations on major legislation typically occurred via conference committees, where each chamber appointed delegates (called conferees) to meet and forge compromise language capable of passing in identical form on the House and Senate floors. Earlier scholarship by Steiner, Van Beek, Longley, Oleszek, and others described the internal operations of such panels and the nature of the bargaining process within them (e.g., which chamber tends to win and why). Many additional articles have used the incidence and makeup of conference panels to adjudicate scholarly disputes about the foundations of committee power and the relative importance of distributive and partisan imperatives for explaining congressional organization. But, as Hong Min Park, Steven Smith, and Ryan Vander Wielen document, this established and highly researched feature of the congressional legislative process has all but evaporated.
The change, they point out, has come in two waves. The first occurred from the 1970s to the mid 1990s, and reflected broader alterations in the standing committee and budget processes. The majority Democratic caucuses of that era were often large, but also deeply factionalized by region, seniority, member ideology, and so on. One result was significant reforms to the House and Senate committee systems that also served to broaden member participation during the conference stage, which in turn produced larger conferences on somewhat fewer measures. Even more consequential were the new legislative vehicles established by the 1974 Budget Act, especially budget resolutions and reconciliation bills. The wide scope of these omnibus measures produced large and unwieldy conferences, to be sure, and also helped reduce somewhat their overall incidence.
The second wave of change followed the 1994 midterm elections and the emergance of GOP majorities in the House and Senate. Since then, partisan polarization has stepped up significantly, and majority control in both chambers regularly has been up for grabs. To facilitate centralized control by majority party leaders over bicameral bargaining and—this is key—to avoid the kinds of obstructionist tactics described by Wallner, formal conference committees mostly went by the wayside, and the resolution of cross-chamber legislative differences increasingly was accomplished via other, more informal mechanisms. Now, either party leaders meet privately (assisted by leaders of the committees of jurisdiction) and cut the necessary deals, one chamber simply acquiesces, or the House and Senate consider revised versions via a sequential process commonly called “ping pong.” If the same party controls both houses, members of the minority party are largely shut out of the interchamber bargaining process.
In their sophisticated, systematic, and comprehensive study of postpassage legislating, Park, Smith, and Vander Wielen synthesize and extend existing scholarship in important ways. Among other topics, they explore in great detail the presence of ideological bias within conference delegations (when they occur) and how such biases vary by chamber, delegation size, and the bargaining scope of the conference. Chapter 4 is an excellent description of the changes that have taken place in postpassage bargaining by legislative context, focusing on appropriations bills, tax legislation, budgets, farm bills, and defense. The authors conclude by considering the normative consequences of their findings. Among other results, the decline of conference procedures means reduced reliance on the subject-matter expertise available from standing-committee members (who typically dominate conference panels) and less transparency and openness in the legislative process. Such changes, needless to say, are unlikely to increase public trust in Congress or the quality of legislation it produces.
Given its rigor and depth, Politics Over Process should be the standard scholarly treatment of postpassage politics in Congress for years to come. Many readers will wish that the authors had allocated more attention to the relationships that may exist between postpassage procedures and the nature of the bargaining between parties and chambers. Conference committees, one chamber acquiescence, the exchange of amendments, and related approaches to bicameral accommodation are associated with structurally different bargaining sequences. How does such variation affect which chamber or party tends to win and by how much, the ideological content of legislation, and the role played by the president? Clearly, the structure of the interchamber bargaining game may affect legislative outcomes, but how and why? Such questions are largely left to future research, but scholarly attempts to explore them will necessarily start with this fine book.
In short, both On Parliamentary War and Politics Over Process add a great deal to scholarship about lawmaking and bargaining in the highly polarized congresses of the 2010s. Both books should be required reading for specialists in legislative studies, and they would each be constructive additions to reading lists for advanced undergraduate- and graduate-level courses about the Congress. Assuming any doubts remain, the dancing bill of Schoolhouse Rock days needs to be retired, and these remarkable new books help explain precisely why.
