When it comes to Congressional dysfunction, the former referee of the House knows exactly what's to blame. "It's a win-at-all costs attitude, the win at every vote attitude," says Charles Johnson, the House parliamentarian from 1994 to 2004.
Usually talk of fixing Congress zooms in on the Senate and its notorious filibuster. But Johnson believes that abuse of House rules also has fueled the increase in partisanship and legislative gridlock that has stymied Congress. Once upon a time, "there was guaranteed minority participation on almost every bill," recounts Johnson. But over the last few decades, he says that House leaders have exerted increasing control over the bills that make it to the floor and the amendments that are allowed to be attached to them. By shutting out both the minority and dissenting voices within their own caucus, they could more easily quell political threats. And the place where those voices get shut out is the House Rules Committee.
"I saw this happen at three and four in the morning on a number of occasions," Johnson told the small audience of Congress geeks, Hill staffers and tourists attending his speech on Wednesday. "If, sight unseen, a majority whip…got wind of the fact that an amendment was in the works to be offered by a minority members, and they weren't sure what it was, but it was going to cause problems with members' voting records, it was going to be embarrassing, it was going to be uncertain," then the Rules Committee would decide at the 11th hour to keep it out, he explained.
It's hardly a new phenomenon: leadership began "tightening the screws in the House" to assert its authority in the mid- to late-1980s, says Sarah Binder, a scholar of Congressional procedure at George Washington University. "If they did have this exercise, then members were casting all sorts of votes on the floor, exposing difference in the majority party" or offering amendments that singled out individual members for political punishment.
But Johnson believes that the exploitation of the Rules Committee by both parties has exacerbated the ideological polarization, decreased bipartisanship and made it easier for party leadership to treat all votes as opportunities for political loss or gain. "The Speaker should not fear losing from time to time," Johnson says. To make the problem worse, Johnson believes that many new House members don't realize how party leaders are using (and abusing) the Rules Committee, which is controlled 9-4 by the majority and whose members are hand-picked by the House leadership. "There is no institutional memory," he says. "A lot of new members don't understand the tradition."
Binder agrees that the House leadership's "aggressive use of rules" tends to polarize and amplify the growing distance between the two parties. "We're excluding types of votes on the floor that moderates might want to vote for." At the same time, allowing more factions to allow amendments might not necessarily reduce gridlock, she points out. When parties are polarized and there's split control between the House and Senate, it can be harder for both chambers to come together to come up with a compromise. But opening up bills to amendments doesn't necessarily make Congress more productive. During the debt-ceiling debate, for instance, John Boehner gave into the right-wing of the GOP by allowing for a balanced budget amendment, "and that didn't make reaching an agreement any easier," Binder says.
But Johnson believes that if leaders committed to a more open legislative process, it would ultimately encourage the House to engage with bills in a more bipartisan way. One way to force their hand might be to amend the power structure of the Rules Committee itself, to give the leadership less direct control But unlike the Senate, the House could fix itself without having to pass a new bill if parties went back to the old rules for moving legislation forward. "Tomorrow, the leadership could return to the standing rules," Johnson says. "It's technically there in the House."
But that would mean party leaders were willing to return to a more open, conciliatory political process and ratchet down the political stakes for individual votes. And if that were the case, we would be already be a good ways towards solving the problem.