Parliament and Congress in 2010

Parliament and Congress: Representation and Scrutiny in the Twenty-First Century offers an insiders’ comparative account of the procedures and practices of the British Parliament and the US Congress. In this original post, the authors – William McKay, who spent many years working at the House of Commons and is now an observer on the Council of the Law Society of Scotland, and Charles W. Johnson, who is a Consultant to the Parliamentarian of the US House of Representatives – discuss procedural and institutional developments in both countries over the last few months: in the UK, the new Parliament and coalition government, and in the US, the procedural complexities of the heath care reform bill.

Though the expenses scandal which dominated the parliamentary scene in the UK during 2009 is out of the headlines, it has not gone away.  Some of the consequences of the public’s loss of confidence in Parliament are still to be worked out. The new coalition government has brought forward fresh ideas, and parliamentary reform is one of them. Some of these notions are interesting, others more worrying.

The mainspring of the UK constitution is parliamentary democracy. Some recent suggestions seem to diminish the ‘parliamentary’ aspect. One of them, a hangover from the expenses affair, would permit 100 constituents to bring forward a petition which, if signed by 10 percent of a constituency electorate, would vacate the seat of a Member found guilty of wrongdoing, so precipitating a by-election. No one wishes corrupt legislators to retain their seats but existing law already provides that Members of the Commons who are imprisoned for more than a year – those guilty of really serious offences – lose their seats. Secondly, the appropriate way for a parliamentary democracy to deal with offending Members is not for their constituents to punish them but for the House in which the Member sits to do so. The Commons has ample power to expel a Member (the Lords is a more complex matter) though it would be wise to devise more even-handed machinery for doing so than presently exists. Finally, if such a change is to be made, the legislation will have to distinguish very clearly recall on grounds of proven misdoings from opportunist political attacks. It will not be easy.

A further diminution of the standing of Parliament is the proposal for fixed-term Parliaments. It is intended that a Prime Minister may seek a dissolution only when 55 percent of the Commons vote for one. Politically, such a provision would prevent a senior partner bolting a coalition to secure a mandate for itself alone. Constitutionally there are serious disadvantages. A successful vote of no-confidence where the majority against the government was less than 55 percent would not be enough to turn out a government. It might simply lead to frenzied coalition-building, out of sight of the electorate. Governments which had lost the confidence of the Commons could stagger on if they were skilful enough to build a new coalition – for which the country had not voted. During the latest election campaign, concern was expressed that every change of Prime Minister should trigger a General Election. The idea was not particularly well thought-out – how would Churchill have become Prime Minister in 1940? – but nothing could be more at odds with the proposed threshold. Untimely dissolutions happen in two circumstances – when a Prime Minister thinks he can improve his majority and when a government loses a vote of confidence. This proposal tries to restrict the first (which may be a good thing) but does so by interfering with the second, which certainly is not.

In America, the House Committee on Rules drew much attention during the prolonged health care debates in Congress. An understanding of its composition, authority and function is essential in discerning the House’s ability to expedite consideration of the initial House bill by waivers of points of order, by “self-executed” changes, and by limits on further amendments to be offered. The House did adopt an anti-abortion amendment made in order.  The House in the same special order also permitted “closed” consideration (no amendments) of a second health care related bill (adjusting doctors’ reimbursements) in order to narrow the germaneness of any minority recommittal motion on either bill, but then merged the two texts after separate passage.

“Reconciliation” under the Congressional Budget Act became the focus in both Houses. The Senate first invoked cloture by a partisan  60 (three-fifths) vote and passed a comprehensive non-reconciliation House revenue bill as amended  to include health care (eliminating, inter alia, the anti-abortion language). The House and Senate majority leaderships then agreed that the House would, pursuant to one special order, adopt that Senate amendment by a single subsequent motion, thereby tentatively enacting a comprehensive health care reform bill for presentment to the President, and would then immediately consider a separate House bill drafted and labeled as “reconciliation” which would make agreed-upon budgetary changes in the just-enacted law. The new bill was not amendable in the House except by recommittal, which became an unsuccessful minority attempt to reinsert anti-abortion language. This House action was  premised on the leaderships’ expectation that the new bill would  qualify, as it did, for expedited reconciliation procedures in the Senate, although subject to the Byrd rule prohibiting inclusion of extraneous matter in the bill or amendments  but avoiding three-fifths cloture votes and nongermane amendments.

In the Senate the Byrd rule was successfully employed against several floor amendments to the new House “reconciliation” bill and then against two “extraneous” provisions having no budgetary implications.in the bill itself. Under that rule, the bill was returned to the House without the offending provisions, and the House finally “hereby” agreed to that Senate amendment by “self-executing” adoption of another special order having that effect. Thus the two Houses contemporaneously passed two separate bills (the second amending the first) to accomplish health care reform by partisan majorities.