by Aaron Swartz
Forstater, Ira B. November 1995. “House Legislative Counsel’s Manual on Drafting Style.” The Office of the Legislative Counsel, U.S. House of Representatives HLC 104-1.
In an act of (intentional?) self-parody, the style guide is written in the precise style it describes. An example:
SEC. 102. MAIN MESSAGE.
(a) ORGANIZATION.—
(1)EVERY DRAFT SHOULD BE ORGANIZED.—Every draft should be organized.
But the job does have one other big perk. The connections and experience built up from years of service in the halls of Congress are a valuable asset for lobbying firms—even a medium-level staffer can find themselves freed from the restrictions and low pay of public service into a lobbying job where they can help subvert or evade the regulations they once wrote. And their comrades congratulate them for such a promotion!
So how does a bill become a law? A member of Congress comes up with an idea—or is given it by a lobbyist—and sends it to Legislative Counsel for drafting. They produce a real bill, which gets dropped in “the hopper,” a box at the front of the House for new bills. The bill is picked up by the clerk and the Speaker of the House refers it to the appropriate committee for more detailed consideration.
That’s about as far as most bills get.
If the member wants to put some extra effort into it, they’ll send out a “Dear Colleague” letter explaining the bill and imploring their fellow members of Congress to “co-sponsor” it. Dear Colleague letters were once actual letters sent around to each office, but now they’re sent through an e–Dear Colleague mailing list system. Staffers sign up to receive e–Dear Colleague letters on the topic areas they work on, then when a new bill is introduced, a letter is sent to the list for that topic.
More ambitious staffers will contact their fellow staffers one-on-one, while more ambitious members will take the co-sponsorship papers to the floor of the House and buttonhole other members to talk up the bill and pressure them to sign. The average bill has around five co-sponsors—usually the original sponsor’s friends.
Co-sponsorship is a purely symbolic act, an official way of expressing strong support for a bill. Members can (and sometimes do) vote against bills they co-sponsor, but there are few other formal ways to express support for a bill before it comes to a vote. House Leadership often says that if a bill receives enough co-sponsors, they’ll bring it up for a vote, but this isn’t really true. Ron Paul’s Federal Reserve Transparency Act received 320 co-sponsors in the House (you only need 218 for a majority and 290 for 2/3) but even so it never came to a vote on the floor.
Instead, legislation typically gets passed by getting attached to larger bills pushed by congressional leadership. If your bill has enough co-sponsors on the floor, perhaps you can bring it up as an amendment to some bigger bill, or maybe the committee chair will even add it himself. (Finance Committee chairman Barney Frank [D-MA] said he’d attach the Federal Reserve Transparency Act to the massive financial reregulation bill, but he backed out at the last minute and denounced it as too extreme. Rep. Paul and Rep. Alan Grayson [D-FL] proposed it as an amendment in committee and got it attached that way; it was later watered down by the Senate.)
This is because passing a disputed bill through the Senate is so onerous that only two sorts of bills pass: totally undisputed bills, which can be passed through the Senate by unanimous consent, and the huge priority bills, which can absorb weeks of debate. If a bill isn’t uncontroversial enough to be passed unanimously but isn’t important enough to deserve weeks of debate, the Senate leadership is unlikely to spend the floor time required to move it. Most of Congress’s floor time is spent on the first sort of bill—hardly a day goes by without some member of Congress voting on a bill to rename a post office somewhere. Student loan reform, by contrast, was passed by being attached to the massive health care bill.
These massive bills are written largely by the relevant committees. The chair introduces a first draft, after holding hearings and talking to the “stakeholders.” Then the bill goes to a “markup” where they walk through the bill section by section and any member of the committee can propose changes.
In practice, of course, the members mostly skip these boring markups. Those who are proposing changes are given a time to drop by, where they passionately argue their cause to an empty committee room. (The committee meetings are filmed but the footage typically isn’t made available to the public.) The chairman can then decide which amendments pass or fail by scheduling the vote on the amendment for when the right mix of people are in the committee room. If the chairman wants the amendment to pass, he calls for a vote when the room is empty, and it passes unanimously. If he wants it to fail, he invites an opponent in to vote it down.
The big-deal votes are saved for marathon sessions when the whole committee drops by, although the chairman kindly provides them with a voting guide in advance telling them which amendments to support or oppose.
Once the markup concludes, there is a final vote on whether to send the revised bill to the full House for consideration. (If a bill touches on the topics of more than one committee, things get even more complicated and time-consuming. Let’s ignore that for now.) Once the bill is voted out of committee, it then goes not to the full House, but to the Rules Committee, which sets the rules under which “debate” on a bill can be held in the House.
In the same way that the chairman can ensure whether amendments succeed or fail through clever scheduling, the Speaker can do the same through controlling the Rules Committee. The Rules Committee decides how long debate will be, whether amendments will be considered on the floor, and if so, in which order they’ll be voted on and what those votes will mean.
For example, under a king-of-the-hill rule, a number of different amendments (providing for different versions of a bill) can be voted on and whichever one is the last to receive a majority is the one that ultimately gets passed. Or under the deem-and-pass rule, the rule will state that the House automatically passes a bill by agreeing to debate it. The debate is then just on various amendments; whatever bill results from the amendment process is “deemed” to have passed the House, even without an explicit vote.
These rules are themselves voted on by the full floor, but voting against your party’s rule is seen as an incredibly reckless move, since without strong rules for debate the opposing party can take control of the floor and propose whatever amendments they like. (Given the chance, the opposing party will propose all sorts of “poison pill” amendments—things that it’s seen as politically suicidal to vote against, but which will torpedo support for the bill or neutralize its effect.)
As a result, most debates are tightly controlled by the Speaker, who gets to pick the members of the Rules Committee. If the Speaker doesn’t want a bill to come to the floor, she simply ensures the Rules Committee never votes on a rule for debating it.
If a bill survives both its initial committee and Rules, then it finally gets to go to the floor. There it gets voted on by the full House and, if it passes, sent on to the Senate.
The Senate is a whole other can of worms. Again, the bill has to pass through the appropriate committee. But instead of a rule, a bill typically comes to the floor under a “unanimous consent agreement” about the rules for debate. As the name suggests, such an agreement requires unanimous consent. It’s typically negotiated between the majority leader and the minority leader, but if a member of either party feels strongly about opposing the bill, they can object to their leader and ask him not to let it come to the floor. (This is known as “placing a hold” on the bill.)
If no unanimous consent agreement is adopted, the Senate must break a filibuster to pass the bill. Unlike how it’s depicted on TV, a real Senate filibuster doesn’t actually require anyone to talk on the floor. (The reasons why are so ridiculous that to include them here would strain my credibility.) The mere objection to unanimous consent requires t
he majority leader to go through onerous Senate processes that require days of waiting and a 3/5 vote before a bill can be considered.
After all of that, there is a final vote on passage and the bill can pass the Senate. But wait—there’s more! The bill was undoubtedly changed somewhat by the committee or by amendment on the floor. As a result, the Senate and the House have passed two different bills. To reconcile them, a team of negotiators from both the House and Senate are assigned to meet in a special “conference committee” to hammer out their differences. It’s in these typically closed-door meetings that the real bill is written, through a bizarre process of ping-pong between House and Senate negotiators. The House side goes through the bill and modifies it to come up with a proposal, then votes to send the proposal to the Senate side. The Senate side (seated on the other side of the table) goes through this new offer from the House and does the same. Eventually, theoretically, the two sides come to some agreement.
Once that’s done, the newly revised bill goes back to the House and Senate for one more vote. If both pass it, it (finally) goes off to the president for his signature.
Political scientists measure a legislative system by its number of veto points. The fewer veto points, the easier it is to get stuff done. By any measure, the U.S. Congress has a record number of veto points. Even in this simplified description, we can see a bill requires the approval of:
•a member willing to sponsor it
•the chairman of the relevant House committee
•a majority of that committee
•a majority of the House Rules Committee
•the Speaker of the House
•a majority of the House
•the chairman of the relevant Senate committee
•a majority of that committee
•either unanimity in the Senate or 3/5 and days of patience
•a majority of the House conference committee
•a majority of the Senate conference committee
•the president of the United States
And even then, the bill sometimes gets struck down by the Supreme Court.
Ask any lobbyist or member of Congress about the relationship between the two and they’ll always start off by saying the same thing: “It’s not a quid pro quo.” That’s because quid pro quo deals with members of Congress are illegal and they want to begin by making it clear that they are not confessing to a crime—however much the rest of their story may make it sound like that.
Lobbyists deal with Congress in a relationship that’s not quite quid pro quo, but about as close as you can get. No (well, not many) members of Congress say, “Make a hefty donation to my campaign and I’ll give you my vote.” That would be illegal. (Former Rep. Duke Cunningham [R-CA] is currently serving eight years in prison for sliding a “menu” of potential deals—e.g., a $50K contribution for a $1M government contract—across the table to defense contractor Mitchell Wade.) Instead they say, “I do him a favor, he does me a favor.” Call it “quid post quo.”
The difference is that there’s no formal contract. I give you something, then you give me something, but we never explicitly say that one is for the other. Quid post quo is an example of the generalized reciprocity that underlies most personal relationships, particularly in business: you do a fellow businessman a favor, not because you’re demanding anything in return at the moment (only the most crass would demand repayment for each favor) but because, in return, they will “owe you” and you can request a favor of your own at a later date. Think of The Godfather: “Someday, and that day may never come, I will call upon you to do a service for me.” People in real life rarely state the situation so baldly; the principle is just commonly assumed.
And if the favor is not returned, you can cut the person off—or even take small steps (or, in the case of the Godfather, big steps) to hurt them. This was Lyndon Johnson’s modus operandi: friends get anything they ask for, enemies get destroyed.
The economist Samuel Bowles calls this sort of system “contingent renewal” and he finds that it pops up wherever you have a trade that can’t be perfectly contracted. (In this case, you can’t write a contract for the trade because the trade is illegal.) Imagine you want to buy a nice bottle of wine. Well, you can’t write a contract for “a nice bottle of wine”—aside from extreme cases, it’s impractical to prove to a judge that the wine wasn’t actually very nice. As a result, the normal economic logic—pay the marginal cost for the product in a perfectly competitive market—breaks down.
But there’s another option: you can do the wine-making company a favor. You can pay them a premium for their bottle of wine and keep paying it as long as the wine is good. The stream of future surplus payments encourages the company not to cheat you on any individual bottle—if they did, they’d lose all that extra money.
Lobbyists work pretty much the same way. They contribute huge amounts to politicians and, as long as they keep doing so, politicians keep giving them favors. If either party breaks the informal relationship, the other party can stop as well: if he doesn’t get his favor, a lobbyist can stop contributing and encourage his friends not to contribute; if he doesn’t get his donation, a politician can stop helping a lobbyist’s clients and even move to hurt them. It’s a classic case of contingent renewal.
What are the favors that lobbyists get? The official story is that money merely buys “access.” Lobbyists give their donation to the chief of staff/campaign manager and then, when they want a meeting, call her up to ask for one. She knows what they gave and instructs the scheduler to add it to the schedule. This is on top of all the direct access lobbyists get by buying invitations to expensive Capitol Hill fund-raisers.
But everyone knows major donors get more than merely access. The average constituent gets a couple seconds on the computer screen of a bored staffer who hits a button to send them a form letter. The average activist group gets a couple minutes with a low-level staff member. And when, on occasion, they do get some time with an actual member or a top staffer, they get a polite smile and some nods and a couple minutes to briefly air their concerns.
Contrast this with a lobbyist who is owed a favor. The meeting is not about simply listening to, and then ignoring, their requests. It’s about strategizing together how to get things done, getting a commitment about a vote or a co-sponsorship or a phone call or one of the other myriad of favors a congressional office can give. It’s about making a deal.
Members of Congress owe these lobbyists a favor because they gave money. The dreaded call time doesn’t end with the end of the campaign. Instead it ramps up—now you’re expected to raise money like an incumbent. The members with the most difficult seats are put on the most lucrative committees (Financial Services is a key example). Here they’re all but required to demand large sums of money from the people they’re supposed to oversee.
Every spare moment, the chief of staff/campaign manager is going to try to spirit them out of Congress to one of the phone bank operations across the street to do some more call time. Anything else would be irresponsible. Amassing a huge war chest as an incumbent is the most important piece of reelection campaign strategy—raise enough money and everyone will think twice before daring to challenge you.
And aside from the call time, every morning and night there are the fund-raisers in the nearby Capitol Hill hotels. A few examples just from February 2nd: $1,000 for a fund-raising breakfast with Rep. Elijah Cummings (D-MD) at 8 a.m., $5,000 for dinner with Sen. Ben Cardin (D-MD) at 6:30 p.m. These fundraisers are a much more regular part of Capitol Hill life than debates, or even votes.
But sometimes even all the fund-raising in the world isn’t enough and a campaign starts again in earnest. Back to the old days of turnout and persuasion, of TV ads and debates. And sometimes even all the money in the world can’t win you reelection. The campaign party in the hotel ballroom isn’t filled with whoops and cheers but a quiet and sad feeling of dejection.
But it’s OK. The game isn’t over. You ca
n always show up back in town as a lobbyist. All the connections that you made during your career, all the access you had as a member, turn out to be worth something after all. And you can cash it in with one of those lobbyists who owe you a favor.
Part Three: Consequences
America often likes to think of itself as the greatest democracy in the world, but a clear-eyed evaluation of the consequences leaves great room for doubt. On every topic, ideas that meet with wide support from the public—as measured in a wide variety of ways—find themselves wrecked on the rocky shoals of Congress.
Take health care, for example. Polls consistently show that a majority of Americans support a Canadian-style single-payer system, which would save money and expand access. However, despite being popular among the public and a clear policy improvement, the idea is immediately derided as “politically impossible” in the American context. Why? Because it would destroy the business of wealthy insurance companies.
During the recent health care debate, even the moderate public option—supported by overwhelming majorities, including most Republican voters—was killed because it was too threatening to powerful corporate interests.
There are examples in every field. Most Americans support breaking up the big banks and putting the criminals who run them in jail, a position too extreme to even be proposed during the financial reregulation debate. Even commonsense measures, like accurate dietary guidelines or a reduction of economically harmful subsidies, face no chance in such a corporate Congress.
Even on that heated issue of the budget, the public’s preferences are almost the reverse of the proposed policy: the public wants military spending to go down, but it goes up; the public wants spending on education, job training, and energy reform to be increased, but it gets cut.*
