When Americans learn about Congress in civics classes, they’re taught that passing legislation can be a lengthy, multi-stage process. Bills are introduced by a member of either the House or the Senate, then sent to committee for mark-up and deliberation, from there proceeding to the floor for amendments and a final vote. Bills passed by one chamber generally go to the other chamber for approval and, if it’s granted, to the president for their signature or veto. This is not rocket science; it’s Schoolhouse Rock.
The Covid-19 relief bill that now awaits President Donald Trump’s signature, however, went through a process that is almost unrecognizable to students of these legislative arts. This much needed relief package was the product of lengthy negotiations between House Democratic leaders, Senate Republican leaders, and the Trump administration. Rank-and-file lawmakers—the ones that most Americans actually elected—had limited opportunities to directly weigh in on the bill’s provisions during those negotiations. They had even less time to actually read the legislation before voting on it; the final text of the bill went online just hours before the House and Senate votes were scheduled on Monday.
The 5,593-page omnibus bill served multiple purposes. It doubled as a continuing resolution for the federal government’s operations, averting yet another government shutdown for now. (Congress hasn’t actually passed a real budget in almost a decade.) It also bundled together a series of relief measures for the ongoing coronavirus pandemic, including $600 direct payments for most Americans and a short-term boost to unemployment insurance. As my colleague Nick Martin noted, even these aid efforts fall woefully short of what the American people need right now.
And then there’s a truckload of random stuff. Some of the measures slapped onto the final bill are unobjectionable; others are not. None of them will be deliberated or considered by Congress to any great effect before becoming law later this week. This slapdash approach to writing the nation’s laws drew bipartisan criticism on Monday night from representatives and senators on both the left and the right. But until those legislators actually back steps to fix the legislative process, their complaints ring hollow.
What sorts of things found their way into the final bill? One provision in the bill would make illegal streaming of copyrighted material into a felony offense punishable by three to ten years in prison. Another measure, the Horseracing Safety and Integrity Act, establishes national standards for horse races and imposes anti-doping measures. The omnibus package includes a lengthy piece of legislation on pipeline safety requirements right before a shorter one on a Smithsonian museum for the history of American women. It even incorporates the “Clean Up the Code Act of 2019,” which removes criminal penalties for the misuse of certain copyrighted symbols like Smokey the Bear, the 4-H logo, and the coat of arms of the Swiss Confederation. The bill even finds the space to ban federal funding for ACORN, an organization that has not existed for years but remains a perennial cause for conservative lawmakers all the same.
“This is why Congress needs time to actually read this package before voting on it,” New York Representative Alexandria Ocasio-Cortez wrote on Twitter, referring to the streaming provisions. “Members of Congress have not read this bill. It’s over 5000 pages, arrived at 2pm today, and we are told to expect a vote on it in 2 hours. This isn’t governance. It’s hostage-taking.” Other progressive Democrats were also sharply critical. “I refuse to normalize an anti-democratic process where a few rich, predominantly white individuals negotiate behind closed doors for most of 2020 and give the rest of us a few hours to consider the 5,593 page result of their secret negotiations,” Cori Bush, a Black Lives Matter activist from Missouri who will join the House in January, wrote on Twitter.
Some conservatives also spoke up in frustration. “It’s ABSURD to have a $2.5 trillion spending bill negotiated in secret and then—hours later—demand an up-or-down vote on a bill nobody has had time to read,” Texas Senator Ted Cruz wrote on Twitter while concurring with Ocasio-Cortez’s criticism of how the bill was crafted. “Early this afternoon, we were finally provided the text of the combined $1.4 trillion omnibus spending bill and $900 billion COVID relief bill,” Florida Senator Rick Scott said in a statement. “It is almost 5,600 pages long and we’re expected to vote on it tonight. Who in their right mind thinks that this is a responsible way of governing?”
Since legislative coercion is a bipartisan habit, it makes sense that it would draw bipartisan criticism. Earlier this year, I dove into how some congressional experts, think tanks, and ex-lawmakers have pushed harder in recent years for major internal reforms in how Congress operates. None of them agree completely on every aspect of what should and can be reformed. But the broad outline is familiar: Party leadership has centralized too much of the power once held by committees and their chairs, and it now wields too much control over which bills reach (or don’t reach) the floor. Thanks to a variety of formal and informal tools, those leaders also wield enough influence over rank-and-file lawmakers to quell most internal dissent over these power arrangements.
The result, as we saw on Monday, is a system where most legislators don’t actually get to play a productive role in crafting the bills that are most likely to pass. And if one party doesn’t control both chambers and the White House, there’s even less incentive for lawmakers to put their energies into making substantive contributions to American life. The path to sustained power instead lies through symbolic, performative efforts like high-profile hearings or social-media virality that please donors and fire up partisan blocs of voters. Why throw your time and energy into complex policy matters when a viral clip of your questions for Twitter’s CEO is far more likely to help you get reelected?
Unless Congress reasserts itself as a functional branch of government, it will continue to see itself become a satellite feature of the judicial-executive policy-industrial complex. “I’ve spent ten years warning about the erosion of representative democracy resulting from increasingly centralized power, but even I didn’t imagine a Congress that would be handed a 5,593-page bill at 1:46 p.m., vote on it at 7:35 p.m., and then brag about the good job they did,” Michigan Representative Justin Amash wrote on Twitter. Amash is leaving Congress in January, so he won’t be able to rally his soon-to-be-former colleagues around reforms in the legislative rules. What excuse do his colleagues have?