Few would argue against the assertion that democratic decision-making should be inclusive, and activists have been working for centuries for more inclusive political institutions. A major outcome of this activism is demonstrated by expanded voter enfranchisement guaranteed through legislation such as the 19th amendment and the Voting Rights Act—laws that ensure inclusion of marginalized groups during elections. While there has been progress on the enfranchisement front, one aspect of the American political process that remains extremely exclusive is the agenda-setting process in the United States Congress. Agenda-setting can be interpreted and applied to many aspects of the process of passing federal legislation; it can include the media, grassroots political organizations, political parties and their leadership, and elected officials, but this analysis will focus narrowly on the bill-scheduling stage of the federal legislation process in Congress. The few individuals who have historically held the power to set the Congressional agenda have been unrepresentative of the entire United States population. I will demonstrate how the current system of bill scheduling in the United States Congress undermines other institutions meant to ensure a democratic legislative process and leads to undemocratic outcomes, because of the institutionalized exclusivity and historical unrepresentativeness of the process, by using theories of descriptive representation derived from political theorists Iris Marion Young and Jane Mansbridge, and Robert Dahl’s theory of democratic agenda-setting,
The agenda-setting power in congress is exclusive, concentrated in two elected individuals—only the Speaker of the House and the majority leader of the Senate hold the power of legislative scheduling. They alone determine what bills will be put to a vote by the entirety of their respective chamber, and these powerful positions historically have been almost exclusively held by white men of high socioeconomic status. Democratic theorist Iris Marion Young argues that “questions of what gets on the agenda of political discussion and how seriously participants take positions put forward in a discussion are crucial for an inclusive democratic process” (2010, 67). These positions and their considerable powers of legislative scheduling were not designated by the United States Constitution, but rather were developed through Congressional rules throughout the twentieth century. Under our modern agenda-setting procedures, bills and policies with significant bipartisan support from American voters can stagnate in one or both houses of Congress, without debate or vote, simply as a result of the whim and political ambitions of one or both leaders of Congress.
As a consequence of these agenda-setting procedures, in the past decade the United States Congress has failed to pass legislation to address issues that receive massive amounts of public attention: gun violence, immigration reform, and climate change. Despite majority public support for common sense policies that tackle these generational challenges, increasing polarization in national politics has led to stagnant policy outcomes and political gridlock. There is no singular cause for these phenomena and our political system is rife with institutional problems that can be improved. I focus on the exclusivity and lack of descriptive representation in the agenda-setting stage of the formal process of passing a piece of national legislation and the impact of members of Congress voluntarily relinquishing the power of bill scheduling to a tiny minority of this country—a minority of two.
This agenda-setting process ensures that two people have the final say on what bills will be voted upon and what bills will die on the legislative calendar. In the House of Representatives, the Speaker of the House has the responsibility to determine what motions will be considered and voted on by the House. For simplicity, the general process of a bill in the House of Representatives is as follows: a bill is first introduced to the House by its sponsor, it is then assigned to its appropriate committee(s) to be debated, marked-up, and amended, and once released by the committee(s), the bill is placed on the House calendar. Even if a bill is placed on the House calendar, there is no guarantee that the Speaker will bring it to the floor for consideration. According to Valerie Haitshusen, a specialist on Congress and the legislative process, “the Speaker’s powers offer him or her considerable latitude to exercise discretion. . .the Speaker is able to assert control over what motions may be made and therefore what measures will be considered and the general flow of House floor proceedings” (2017, 4). The Speaker of the House, who is elected by the plurality of a single Congressional district, has nearly sole power to determine on what bills the House will vote.
The Senate agenda-setting rules operate in the same way; the majority leader of the Senate has the privilege to decide what legislation the Senate will consider. Haitshusen writes, “to promote predictability and order, Senators traditionally have agreed to give certain procedural privileges to the majority leader. . .only the majority leader (or a Senator acting at his behest) is able to successfully propose what bills and resolutions the Senate should consider” (2019, “Summary”). Again, once a bill is released by its Senate committee and placed on the Senate calendar, it is up to the majority leader to bring the bill up for debate and a vote on the Senate floor.
The implementation of a filibuster in the Senate is an additional obstacle to a bill being passed. Before the majority leader presents a bill for a vote, he “attempts to get all Senators to agree by unanimous consent to take up the bill he wishes to have debated” (Haitshusen 2017, 5). If a Senator does not give his or her consent, he or she is implicitly threatening to filibuster the motion to proceed on the bill; only 60 votes in the Senate can invoke cloture, which ends extended debate. Because cloture requires a three-fifths vote of the Senate, a bill almost always must have some level of bipartisan backing to invoke cloture (3). The filibuster gives all members of the Senate, particularly members of the minority party, the opportunity to delay and block a piece of legislation, but there is not an institutional rule that gives the minority party of either chamber the ability to advance legislation by bringing a bill to the floor of their respective Congressional chamber for a vote.
Because bill-scheduling is the sole responsibility of the Speaker in the House and the majority leader in the Senate, the potential for gridlock is worsened when the two chambers of Congress are controlled by opposing political parties. Party leaders may choose to pass over bipartisan legislation and, instead, pursue a partisan agenda that “helps build the party brand by pointing out differences between their own party and their opponents” (Harbridge 2015, 60). The current political climate of 2019 exemplifies this trend. In April, Majority Leader Mitch McConnell vowed to be a legislative “grim reaper” and has refused to bring up for a vote in the Senate any legislation passed by the Democratic House of Representatives (Montoya-Galvez 2019). Despite this promise, the House has passed 351 bills under Speaker Pelosi’s leadership during the 116th Congressional session that are currently waiting to be debated and voted on in the Senate as of January 10th, 2020 (GovTrack 2020). The bills cover a range of policy matters from preventing gun violence to campaign finance reform, and are meant to distinguish the Democratic Party from the Republican control of the Senate and White House. Despite the legislative activity in the House, Leader McConnell has used his agenda-setting power to avoid debate and voting on the Senate floor.
On February 27, 2019, the House—under Nancy Pelosi’s Speakership—passed the Bipartisan Background Check Act of 2019. H. R. 8 would require a criminal background check for every firearm transfer between private parties and would prohibit transfers from an unlicensed individual unless a licensed gun dealer, manufacturer, or importer temporarily takes the firearm while conducting a background check (Bipartisan Background Checks Act of 2019). An October 2015 poll from CBS/New York Times of 1,289 representative respondents found that 92% of Americans support a federal law requiring a background check on every firearm transfer (Dutton, et al). Despite this overwhelming level of public support for universal background checks, Leader McConnell has refused to even consider the bill. Pressure from interest groups, political party dynamics, personal ideology, and financial interests prevent Leader McConnell from advancing H.R. 8 for debate on the Senate floor.
One could argue the leader of each chamber is chosen by their Congressional peers; therefore, they have a mandate to determine the agenda in the manner in the way that Leader McConnell is doing. However, despite their positions as elected representatives by their constituents and as elected leaders by their colleagues, the drawback to the Speaker’s and majority leader’s exclusive authority in bill-scheduling is the limited perspectives and interests that are represented in the process to determine what bills will be considered. All but one Speaker of the House has been a white male, and every majority leader of the Senate has been a white male; there has been a not-so-shocking absence of diverse identities and perspectives in these positions. Jane Mansbridge, a former president of the American Political Science Association, discusses the benefits of descriptive representation in her piece “Should Blacks Represent Blacks and Women Represent Women? A Contingent ‘Yes.’” Mansbridge argues that when levels of mistrust in the government are high and there are historical imbalances in power and statues between groups, descriptive representation can improve communication between constituents and their representative because the understanding of shared experiences can generate trust between the two. This improved communication leads to constituents feeling better represented by their members of Congress, and the government enjoys a greater level of perceived democratic legitimacy from its citizens (1999). An empirical study of Black voters in America support Mansbridge’s theory of descriptive representation:
“In the United States, blacks are more likely to know the name of their representative when he or she is also black. Blacks are also more likely to report having contact with a black representative than with a representative who is not black. . .65% of blacks approve of their black representatives, while only 44% approve of representatives who are not black” (Banducci, Donovan, and Karp 2004, 544-546).
Theories of minority empowerment give political theorists reason to believe that descriptive representation provides benefits on both proceduralist and instrumental grounds. Despite an increasing number of members of Congress from historically marginalized communities in the past several decades, this change as not translated to more diversity in the highest levels of power in Congress. Black, Latinx, queer, and until very recently, women have not been formally included in the agenda-setting process in Congress.
The designers of political institutions should strive to maximize representation of marginalized identities, because of the high levels of participation, satisfaction, and legitimacy that result from higher levels of representation. In her book Inclusion and Democracy, Iris Marion Young argues against institutions that “keep some individuals or groups out of the fora of debate or processes of decision-making, or which allow some individuals or groups dominative control over what happens in them” (2010, 52). Because those that have “dominative control” over the agenda in Congress are from privileged communities, the interests of a select group of United States citizens are represented and prioritized by these powerful positions in Congress. The sweeping powers of the Speaker and majority leader to preclude formal debate on a radically popular piece of legislation demonstrates a deliberate arrangement of exclusion that privileges the politically, socially, and financially powerful over the interests of the average American voter.
The inability of Congress to pass a bill with over 90% support from the public is indicative of the troubling concentration of agenda-setting power consolidated in the positions of Speaker of the House and majority leader of the Senate. It is imperative to evaluate how inclusive and democratic this political system is with respect to agenda-setting and bill-scheduling. Robert Dahl, a democratic theorist and former president of the American Political Science Association, argues that control of the agenda is one of five standards for any democratic association. In his book On Democracy, Dahl writes, “by curtailing opportunities for discussing the proposals on the agenda, a tiny minority of members might, in effect, determine the policies of the association” (1961, 39). The leader of each Congressional chamber will strategically curtail discussion on a bill by refusing to bring it to the floor. Limiting the bill-scheduling authority to only one individual per chamber of Congress effectively allows a tiny minority of Congressional members and an even smaller minority of adults in the United States determine what pieces of federal legislation will be considered for a vote.
Theoretically, this exclusion in the agenda-setting stage of the federal legislating process requires a critical inquiry into how democratic that process is. Dahl puts forth a hypothetical scenario involving a small group of wealthy property owners to illustrate how an exclusive agenda-setting process can nullify other procedures and institutions meant to ensure a democratic association:
“They propose to require that at the general meetings the members can only discuss and vote on matters that have already been placed on the agenda by an executive committee; and membership on the executive committee will be open only to the largest property holders. By controlling the agenda, this tiny cabal can be fairly confident that the association will never act contrary to its interests, because it will never allow any proposal to be brought forward that would do so” (40).
There are parallels between this hypothetical group of wealthy landowners and the current agenda-setting rules in Congress. It is not an outlandish claim to assert that the Speaker of the House and the majority leader of the Senate are political, economic, and social elites of the United States. These select few elites have the ability to block any legislation that interferes with their personal financial or political interests. If either the Speaker or majority leader believes that holding a vote on a bill would diminish the probability of their reelection as either a member of Congress or as the party leader, they can use their agenda-setting power to prevent deliberation, even if the bill is supported by the majority of the public.
This institutional design is an obstacle to the American polity exercising their democratic agency. Democratic governments have to carefully balance majority rule and minority rights, and when the interests of hundreds of millions can be overrode by a single person, there is an undemocratic and unjust disconnect between the collective will of the people and the outcomes of the legislative process. The people who established the agenda-setting rules of the American legislative process gave too few people the ability to determine what those legislative outcomes would be and severely restricted whose interests would be included during the consideration of bills, regardless of their probability of passage. The exclusivity of this aspect of the American political system leads to unjust legislative outcomes, because those with political power are not acting according to the will of the voters in this country. Like Dahl’s hypothetical association, the Speaker and the majority leader can ensure any bill that would be political or financially disadvantageous would never pass by never scheduling the bill for a vote, regardless of the level of public support for the policy.
The failure of the Obama Administration’s 2013-2014 push for comprehensive immigration reform exemplifies the exceptional power of one elected representative in Congress (Speaker of the House John Boehner) to utilize the privilege of the Speakership to protect his own political position by controlling the legislative agenda. The Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744) was originally crafted by the “Gang of Eight”—a bipartisan cohort of four Democratic Senators and four Republican Senators—and introduced by Senator Chuck Schumer in April of 2013. The bill included provisions to increase funding for border security and a path to citizenship for undocumented immigrants living in the United States. Under the control of Majority Leader Harry Reid, the Senate passed S.744 with a veto-proof majority of 68 yeas to 32 nays (Kim 2013). Along with enjoying bipartisan support in the Senate, many aspects of the bill were favored by Americans. A Pew Research Center survey from June of 2013 found that 75% of Americans agreed with the statement that “most [undocumented immigrants] are hard workers who should have the opportunity to stay and improve their lives” and 71% believed “there should be a way for them to stay in the U.S. legally” (2013). Despite this level of support, the bill was not brought for a vote by the House, which was controlled by Speaker of the House John Boehner.
Nearly a year after S. 744 passed the Senate, President Barack Obama stated that Speaker Boehner would “continue to block a vote on immigration reform at least for the remainder of this year” (NBC News 2015). Speaker Boehner did not perceive a partisan or personal benefit to holding a vote on this popular piece of legislation, because of the primary dynamics of the Republican party. Laurel Harbridge, author of Is Bipartisanship Dead?: Policy Agreement and Agenda-Setting in the House of Representatives, finds that ‘members’ primary election interests also make them more likely to beneﬁt from a partisan legislative strategy” (2015, 56). Because of Speaker Boehner’s narrow short-term political interests, he obstructed the passage of a bill that had bipartisan support in the Senate and among the general public; therefore, he prioritized his own political power over the interests of the American public.
The United States Congress is meant to be a deliberative forum; constituents expect their elected representatives to thoughtfully and meaningfully engage in policy discussions and determine the best outcomes for their district and the nation. When the Speaker or the majority leader obstructs a bill in their respective chamber, this deliberation may never happen. In Inclusion and Democracy, Young describes deliberation as “open discussion and the exchange of views leading to agreed-upon policies” (2010, 22). For deliberation to be democratic and produce just outcomes, all people must have the opportunity to express their interests and give justification for their policy preferences. Young writes, “public deliberation under these ideal conditions provides both the motivation to take all needs and interests into account and knowledge of what they are. The conditions of equal opportunity to speak and freedom from domination encourage all to express their needs and interests” (30). The leaders of the two Congressional chambers can obstruct the ability of other members of Congress to express the needs and interests of their constituents in a deliberative manner by preventing any debate at all. Without deliberation, members of Congress will not hear the justification and arguments for policies they may currently oppose, exacerbating partisan divides and polarization.
There are improvements that could be made to agenda-setting procedures in the United States Congress to ensure the process is more inclusive and democratic, and to improve the quality of deliberation. Creating an inclusive agenda-setting process requires a balance between ensuring all salient identities are considered, while also respecting the mandate of a majority party or ruling coalition. Including every member of a legislature in the agenda-setting stage of the legislative process would be a costly and time-consuming process—one that would not be an efficient or effective use of representatives’ time. One simple change that would improve the U.S. legislative system would be to extend the power to propose a bill for vote to the leader of the minority party of the House and Senate. Currently, there are levers of power that give the minority party the ability to prevent the passage of legislation (e.g. the filibuster), but this proposal would give the minority party the ability to advance legislation. If the minority leader in the House or Senate brings a bill to the floor for a vote that is truly only supported by the minority of members on Congress, it is very likely to fail, preventing a small minority from dominating legislative outcomes.
One potential problem with this reform is the possibility of the minority party in a chamber to “overheat” the legislative system—relentlessly proposing and voting on bill after bill, regardless of the feasibility of the bills’ passage, in order to crowd out the majority party leaders from bringing legislation to the floor of their chamber. If the majority party is not able and the minority party is not willing to propose substantive, bipartisan policy for a vote, it would create the same sort of gridlock that is often lamented as a problem with the current U.S. Congress. A similar, but alternative, solution that may remedy this potential problem would be to require any bill that has been passed by one house to be brought up for a vote in the other chamber within an established time period. Both the House and Senate would be obligated to deliberate the bill, and the established time frame would prevent either the Speaker or majority leader from refusing to hold a debate. This proposal may become particularly useful at advancing debate on a piece of legislation when the two chambers of congress are controlled by different parties.
Alternatively, a form of random selection could be introduced into the agenda-setting process to expand the inclusiveness of the process. The British Parliament utilizes a lottery system to give non-Cabinet members the ability to propose bills for a debate. Most bills introduced to the floor of the UK Parliament for a vote originate within the government (the Prime Minister and his Cabinet Ministers), but there is the opportunity for members of the British Parliament who are not Cabinet Ministers to introduce a Private Members’ Bill for debate, if they are one of 20 Members of Parliament randomly selected to present his or her chosen piece of legislation (Patrick, Sandford 2012). This system opens the floor to deliberation on bills proposed by individuals with a potentially wider range of interests than the select few Cabinet members. The power to propose a bill and initiate deliberation on said bill is not as exclusively concentrated in this system as in the United States. Non-cabinet members who are selected through the lottery have the chance to advance their preferred bill in Parliament and to publicly and formally express their support and justification for a policy that may not otherwise receive formal attention in the legislature.
However, there is evidence that lottery systems do not truly challenge the existing agenda-setting systems in democratic parliaments. A report by the UK House of Commons finds that about 100 Private Members’ Bills are introduced each year, but only about 5 become Acts of Parliament (Patrick, Sandford 2012, 4). Due the low success rate of Private Members’ Bills—particularly those introduced by MPs of the minority party—the MPs randomly chosen to present a bill will use the opportunity to raise awareness about a chosen issue (14). When an MP proposes and initiates deliberation on a policy that may not otherwise be considered if not for the lottery system—regardless of the bill’s likelihood of passage—Parliament and the general public are exposed to an expanded range of perspectives on an issue, potentially leading to a stronger collective understanding of the issue. However, it is rare that Private Members’ Bills pass through Parliament without the support of the Government which maintains effective control over what becomes an Act of Parliament.
Similarly, the power to determine what bills get brought to a vote in the U.S. Congress remains in the hands of a very select few, and without the ability to advance floor debate of a bill, members of Congress are left without recourse to ensure a bill is given adequate attention. The Speaker of the House and the majority leader of the Senate can prevent deliberation on a bill if they believe doing so would expand their personal power or financial resources, even if that obstruction goes against the expressed preferences of their constituents and the majority of American people. Members of Congress should reform the agenda-setting process to make it inclusive of a wider set of interests and perspectives and reject the ability of a single elected representative from impeding the passage of popular national legislation. The demographics of Congressional leadership remain overwhelmingly unrepresentative of the American public, and, without reform, the question of whether the process for creating federal policy is truly democratic will remain in contention.
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