DACA Debate the Latest to Bypass Senate Committee Process

Decline and fall of regular order has been building for years

President Donald Trump talks with Senate Majority Leader Mitch McConnell and Majority Whip John Cornyn after his State of the Union address Tuesday night. McConnell has said he would like to have an open debate on immigration legislation on the floor. But it would still bypass the committee process. (Tom Williams/CQ Roll Call)

For an institution renowned worldwide for its historically open debate of contentious issues, the Senate has done little public deliberation under unified Republican government. The reason could be simple: the decline and fall of the committee process.

The ongoing negotiations on an immigration deal is the latest legislative package to bypass committee deliberation, but it follows a year in which so-called regular order fell by the wayside.

“The dysfunction of the overall institution creates this situation with these ad hoc groups … doing the work of what the committees should be doing,” said Bill Hoagland, senior vice president at the Bipartisan Policy Center and a veteran Senate staffer. “You undercut the professionalism of the [committee] staff that’s been there, that know how to get things done and you are concentrating your decision-making in the leadership staff.”

While members from both sides of the aisle have complained, little has been done to stop or change the slow demise of the committee process. Most of the responsibility resides with Senate Majority Leader Mitch McConnell, who has unilateral authority to allow bills to bypass committees and a significant say in how a specific measure reaches the chamber floor.

Critics attribute the decay of regular order to the GOP’s decision to pursue a partisan agenda in 2017. The Republican attempts to overhaul the U.S. health care system and tax code occurred almost entirely behind closed doors with virtually no input from Democrats.

Watch: Schumer, Pelosi Slam GOP Tax Bill

A markup of the tax legislation in the Senate Finance Committee became little more than a public spectacle as Republican-only negotiations on the package occurred simultaneously.

GOP lawmakers, however, did attribute the success of the measure to the leadership of Finance Chairman Orrin G. Hatch and members of the committee.

But even smaller bills — like the health care legislation from Senate Health, Education, Labor and Pensions Chairman Lamar Alexander and ranking Democrat Patty Murray — have had no hearings or markups. Instead, members have lobbied leadership to get the measures added to must-pass spending bills with little to no public deliberation.

The Senate Appropriations Committee also abandoned its work on advancing the 12 annual spending bills.

The panel only passed eight of them last year, and the other four measures didn’t even make it past their respective subcommittees. Now, Congress is expected to try to pass, at some point, a massive spending bill to fund the government for the remainder of fiscal 2018.

“I had somebody in the House say the other day, ‘We need to get back to regular order, we need an omnibus,’” Arizona GOP Sen. Jeff Flake said. “If the omnibus is the default position for regular order, then we’re in trouble.”

Private debates

The discussions over how to address the pending expiration of the Deferred Action for Childhood Arrivals, or DACA, program represent the latest casualty of the seemingly defunct committee process.

Negotiations are split among a litany of working groups, with no apparent ringleader — usually reserved for the respective committee head — or agreed-upon process for how the eventual package will come together.

Lawmakers say any and all input on the issue is welcome, and members are quick to tout the bipartisan spirit under which the chamber is approaching the negotiations.

“People have got to talk about this. I think for a while there’s been an assumption somebody else is going to work on this and a lot of members have sat back and not done the work,” Oklahoma GOP Sen. James Lankford said. 

Even the senator who would have been poised to lead the negotiations has given his blessing for others to take charge.

“If this ended up being something that went through the committee, we could end up with a comprehensive immigration bill and we’d get nothing done,” Senate Judiciary Chairman Charles E. Grassley of Iowa said.

A GOP senator, speaking on background to discuss internal conversations, said one reason Grassley is not leading the discussions is because of the chamber’s continued focus on advancing judicial nominations, which go through the Judiciary panel.

Senate Majority Whip John Cornyn and Minority Whip Richard J. Durbin have instead been appointed as each party’s de facto heads of the DACA negotiations. The GOP senator said Cornyn provides updates for each of the various working groups at the weekly Republican leadership meeting.

Durbin defended the lack of committee deliberation on President Donald Trump’s decision to terminate DACA on a six-month delay.

“I’m a regular order person,” the Illinois Democrat said. “That isn’t what the president dealt us.”

Watch: Immigration, Budget Talks on Hill Could Be Just That — A Lot of Talk

Stumbling blocks

But the ongoing “committee of the whole” negotiations could stymie any possibility of Republicans and Democrats agreeing on a compromise bill that has a chance of reaching the president’s desk.

Some GOP senators privately blamed the failure to repeal and replace the 2010 health law on the decision to bypass the committee process and instead hold conference-wide negotiations. Even so, divisions between opposing factions already threaten to undermine any final legislation.

There’s the bipartisan group, known as the Common Sense Coalition, that appears to be at least partially working off a framework produced by Durbin and South Carolina Republican Sen. Lindsey Graham.

Graham said Grassley’s eventual sign-off, as well as the approval of Senate Homeland Security and Governmental Affairs Chairman Ron Johnson, would be necessary.

“I can’t imagine something being agreed to that they are not part of,” Graham said. “We don’t have time to run them through committees, so we’re trying to create a process where if you get a bipartisan proposal, you can give it to people in the leadership who are trying to get an answer.”

There is also the coalition of the respective No. 2 leaders in each chamber that includes Durbin and Cornyn, along with House Majority Whip Kevin McCarthy  and Minority Whip Steny H. Hoyer

On top of that, there is a group of conservative GOP lawmakers who have been meeting regularly. Members involved in those meetings — such as Sens. David Perdue of Georgia and Tom Cotton of Arkansas — appear to be more aligned with a framework released last week by the White House that Democrats, and even some House Republicans, have proclaimed unworkable.

One bright spot that Democrats point to is the opportunity promised by McConnell for an open debate on a DACA bill on the Senate floor. Should that promise pan out, it would be the first chance members of either party have to offer or vote on amendments in regular order in years.

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