Irregular Constitutional Order

I’ve seldom agreed with Hugh Hewitt so strongly—and readers know I agree with him a lot—as I do on repealing the medical device tax through regular constitutional order and not the usual rendering of pig lips and cow parts.  Hewitt has a post today on the issue at his blogHere’s a key exchange from Hewitt’s interview yesterday with Rep. Kevin Brady, chairman of the Ways and Means health subcommittee, who agrees with Ways and Means chairman Dave Camp on refusing to pass a clean repeal bill through regular order:

HH: He’s [Camp] got more than enough votes to pass a clean repeal bill of the medical device tax. When’s it coming?

KB: Well, hopefully soon. There’s two, you talked with Erik, who’s doing an amazing job. And there’s strong bipartisan support. And the Senate vote was hugely, hugely helpful. You know, now we just need to get it to the President’s desk. And the way you do that, one of two ways. You do it through fundamental tax reform, which we hope is sooner rather than later, or the simpler, faster way would be to have the head of the Senate Democrats, Harry Reid, simply agree with Chairman Dave Camp that this needs to move, and can do so without the shenanigans, because my fear is we know if we send a tax bill to the Senate, what they’ll do with it, that that then kills the medical device tax, which is what we want to repeal. So what we really want to do is an agreement, a legislative agreement, to move the bill separately. That’s how I think we do it sooner.

HH: Now Mr. Chairman, with all due respect, all I can do is speak for me and the people listening to this show. Regular order is what we were expecting at the beginning of this session, which to me means that you guys pass good bills, and you send them to the Senate, and then you let the Senate do with them what they ought to do, and if they pass something different, you go to conference and you come to it. I do not like us waiting. In fact, I’ve got, I’m getting very exercised over the fact that we’re waiting to do a secret deal with Harry Reid.

KB: No, Hugh, it’s not a secret deal. It’s simply a recognition that we are not going to send over a tax bill that gets hijacked for a lot of politics, and at the end of the day doesn’t repeal the device tax, which is what our goal is. And so all this is, is a recognition that this issue, because of its impact on jobs and innovation, it’s important enough not to be played political games with.

. . . .

HH: I know you do, but, and God bless you if you can get it out of committee and get it over to the Senate. But if you can’t stop medical device tax from being hijacked, you can’t stop comprehensive tax reform from being hijacked. Mitch McConnell has said send me a clean bill. If you don’t, that means you don’t trust the Republicans to be able to run their own side in the Senate. And it’s a secret deal. Mr. Chairman, there’s no other way. What you’re outlining is a secret negotiation as opposed to regular order.

. . . .

KB: Well, and I will tell you what, I don’t see it, I just don’t see it that way. I wish things up here worked like they did in the textbook, but they don’t. And to me, it seems like having leaders in a bipartisan way, with bipartisan support saying this is so important, this is so important, and there is such agreement, that we will move it promptly and cleanly? It seems to me that’s how you solve this problem and help save those jobs, because again, too often good intentions and good ideas get hijacked for the opposite, so…

Look, if things aren’t working right, stop right there.  You’ve put your finger on the problem, now fix it.  If you truly believe that necessary and proper laws cannot be passed in the manner the constitution prescribes, then repealing medical devices taxes is just rearranging deck chairs.  Hewitt hits back hard with this: 

HH: But what makes me uncomfortable is I’m just done. I’m done with the NRCC. I’m done raising a dime for any of you folks, and I’m finally going to throw in with the Campaign For Primary Accountability and hope that they run people against you, because honestly, I did not work this hard for 13 years to send Republicans to do secret deals with lame duck Ways And Means chairmen with Max Baucus. I worked hard to send Republicans to Congress to pass tax repeal, send it over, and let us put pressure on the Senate, because it is everything I hate about the Beltway.

This is my feeling as well.  I care about good policy, but I care more—and I think conservatives in general care more—about the rule of law and enacting policy through regular constitutional order. 

I don’t know if it is fair to accuse, so let me ask the question instead:  Is this sort of thing—the deviation from regular constitutional order to achieve a particular policy—more or less likely to occur among establishment Republicans than among Tea Party Republicans?  My feeling is that, because the Tea Party is partly a populist movement by definition, and because they spend such great effort paying homage to the Constitution, they are more likely to adhere to its prescribed procedures even when they make it less likely to promulgate policies they like. 

Am I wrong?  Can someone make the case for David Camp and Kevin Brady? 

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. 1. If what’s going on is negotiations (“Do you have the votes to pass ‘X’? If not, what it were ‘Y’ instead?) I don’t see the problem. The conference on varying bills out of each body is as extraconstitutional as is “pre-conferencing”. If there is something formally incorrect going on with the procedure then that’s a bigger problem. But if that is what’s happening I don’t see it from the excerpts you quote.

    2. I don’t distinguish between Tea Party GOP’ers and mainstream GOP’ers on adherence to procedural formality. I see the Tea Party as pushing a substantive agenda and not as concerned with formality as adherence to its preferred policies. As far as procedure goes, they’re politicians, no more and no less, so my expectations for adherence to principle is the same as for any other kind of politician: righteous self-congratulation for sticking tto principle and procedure when they win and

    • …and righteous indignation at the other side’s procedural chicanery and cynical gamesmanship when they lose.

    • From what I hear, it’s not an issue of votes in the House, and the Senate already approved it in a preliminary vote (I forget it’s technical name). I should ask because I don’t know: is “pre-conferencing” as common as conferencing?

      Your points are well taken, so let me back up and explain my concern from a different angle. It’s true that the Senate and House rules and “regular order” prescribe a great many more numerous and complex procedures than is spelled out in the bare-bones bicameralism and presentment clauses in the Constitution. Justifiably so. But some processes are more in keeping with republicanism (small “r”) (e.g., transparency, accountability, checks and balances, separation of powers, rule of law, etc.) than others. A conference after both chambers have had an opportunity to review a bill makes intuitive sense. A pre-conference, however, seems to muddle the Constitutional line between the two chambers and diminishes accountability and transparency.

      Given that, then in addition to wondering (a) whether a “pre-conference” is part of approved regular order, I also wonder (b) whether it stinks even if it is.

      • Given that the Senate is quite capable of hollowing out a bill from the House — putting a different bill in its place, and then sending it back down… I dunno. I think the whole thing is a muddled hodgepodge, and I’m much less concerned with “who does what when” than transparency, in general.

        I want to be able to review all deals, because that’s part of me evaluating my elected representatives.

  2. KB: I wish things up here worked like they did in the textbook, but they don’t.

    Tim: Look, if things aren’t working right, stop right there.

    This assumes the textbook version is the “right” way. And that confusion is why I don’t teach the textbook version.

    Look, all the Constitution really requires is that both chambers have to agree on a bill, and that revenue bills have to get approved by the House first. Here’s the entire legislative process description in Article 1, section 7 of the Constitution.

    All bills for raising revenue shall originate in the house of representatives; but the senate may propose or concur with amendments as on other bills.

    Every bill which shall have passed the house of representatives and the senate, shall, before it become law, be presented to the president [and the rest is primarily about the veto and over-ride provisions]

    That’s it. So “regular constitutional order” is in fact just that the bill passes both the House and the Senate. And that provision that revenue bills pass the House first? That only applies to the final vote on a conference bill that reconciles differing House and Senate versions, so it doesn’t matter if the Senate actually moves first on a revenue bill, so long as the House votes first on final passage of the conference bill.

    Now let’s get bluntly practical. There’s some bill you want to pass, and it has to get through chamber A and chamber B. You can run it through chamber A without paying any attention to chamber B, then when chamber B does it’s own version, you have to create a conference committee to iron out the differences, and perhaps it turns out that there’s some things that are totally unacceptable to chamber B, so you have to cut them out.

    Or, you figure out what chamber B is likely to find totally unacceptable first hand, and you send them the bill from chamber A without those things. End result, same bill. That’s why your concerns about transparency and muddling of constitutional boundaries are not well placed.

    Now in the real world there’s all kinds of strategy involved in who moves first, what claims each side tries to stake for what’s supposedly (but perhaps not really) unacceptable, and so on. And all that is very interesting from a strategic analysis perspective, and suggests that there are times when you would want to negotiate before voting on the bill and times when you would want to negotiate after voting on the bill, and it takes a clever strategist to know which is the case at any given time–but that’s just about getting what you want out of the bill.

    But the idea that there’s some “regular constitutional order” that means the first chamber passes their bill without taking any prior cognizance of the other chamber? That’s just not so, and it really hasn’t been so since perhaps the first couple of congressional sessions. You’re worrying about a form that truly is no more pro forma.

    • This strikes me as basically the same point Burt made. Again, the problem with pre-conferencing is it subverts bicameralism. The Founders well understood that the legislative branch wielded the greatest power and it was therefore necessary to divide that power and impose restrictions on how that branch operated. The Founders sought to prevent the accumulation of power in a non-representative entity, and believed that one legislative body would create a tyranny antithetical to the purposes of the Constitution. Federalist No. 22. The division of the legislature effectively “[rendered the separate branches], by different modes of election and different principles of action, as little connected with each other as the nature of their common functions…will admit.” Federalist No. 51. The Senate was given more permanency to tend matters that required ongoing attention. Federalist No. 63. It was designed to proceed with greater caution and deliberation to prevent the promulgation of improvident or overly voluminous laws. Federalist No. 62. The House with its shorter terms and larger numbers was made closer to the people. Federalist No. 53. The bicameral requirement was imposed to provide “enduring checks on each Branch and to protect the people from the improvident exercise of power by mandating certain prescribed steps.” INS v. Chadha, 462 U.S. 919 (1983) If the authority granted to the Legislature is not restrained, “there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches.” *

      It seems to me that the idea of a pre-conference is designed to subvert many of the Framer’s intentions. It is designed to accelerate the lawmaking process. It is designed to diminish the checks of one chamber on the other. It is designed to distance the House from the people by subjecting the House to greater obligations to the Senate. It is designed to diminish the separate identities of the two chambers and tend to merge them into something resembling a single deliberative body, and thus increasing the power of Congress relative to its other co-equal branches.

      So again, my question is, even if pre-conferencing is proper according to House and Senate rules, it still stinks because it runs afoul of the Constitution’s design.

      [* Much of the above was adapted from the CCCJ’s amicus brief re the Origination Clause challenge to Obamacare, available here:

      • The fact that humans can talk to each other also runs afoul of pure bicameralism. 🙂

        C’mon, Tim, I realize ‘regular order’ is the conservative phrase of the week, but deals have been made between the House and Senate about bills since probably 1792. I’m sure, for example, that LBJ talked to Sam Rayburn (was he still speaker then?) about the CRA in 1965 and vice versa. The only difference is basically, the right-wing media-entertainment complex is acting like liberals and John Boehner are taking a leak on George Washington’s grave because a House and Senate leader might be in the same room talking.

      • Yeah, I’m not seeing how pre-conference politicking actually has anything to do with either the Constitution or the Federalist quotes.

        Both Chambers still have their own seperate goals, and nothing done in a pre-conference session overrides the will of either Chamber. All it does is — at best — simply remove a few back and forths by starting closer to a compromise between the House and Senate — a compromise they’d reach anyways.

        In any case, you’ve got a real problem in that no matter how many oddities of modern life (like say, the speed and easy of travel and communication) might lead to things the Framers simply couldn’t have forseen — the fact that the House and Senate members might get together and talk about something before submitting bills isn’t one of them.

        Up to and including things like “Yeah, that’ll never get enough votes in the House, what about…”. Which is all a preconference session is.

        The Founders weren’t some platonic debating society. They were politicians themselves — and just as prone to rhetorical excess, venom, hyperbole and dirty tricks as those today.

        I think you’re projecting onto Congress — and the Founding Fathers and the Constitution — how you’d prefer government to work here. Maybe your way is better, maybe even the perfect, storybook “How a bill becomes a law” method IS better. But the one you call “irregular” is legal, Constitutional, and if the Founding Fathers didn’t realize it was going to become a common occurance I’ll happily eat my hat.

        It’s flat out common-sense that if you have to get two seperate groups to agree on something, you get people together from both sides and try to figure out where the common ground is — and where it isn’t. You can pass it back and forth a million times, or you can hack out the rough outlines with a smaller group ahead of time.

        If the Founding Fathers didn’t want it, they should have firewalled the two in the Constitution. They didn’t. I can’t really buy something this obvious — as obvious then as now, especially to people embroiled in the politics of the day — was “unforseen”.

        • And the fact that it now requires 60% of votes to pass anything in the Senate (I don’t recall when that amendment was passed) makes consensus building ahead of time more important than ever.

      • I have a hard time buying this argument. Under this argument, it would be unconstitutional to repeal any House or Senate rule that had the effect of slowing legislation down; in effect, it would turn any House or Senate rule – each of which must inherently have been adopted after the Constitution, and in many cases decades or centuries thereafter – that has such an effect into an outright Constitutional requirement.

        While it may well be true that the Constitution is set up to make the legislature slow-moving and deliberate (and, while I generally find this persuasive, I also think we attach far too much weight to the Federalist Papers in reaching conclusions about the Framers’ intentions), it is also very clear about how that goal should be achieved – separate bodies with separate term lengths and separate modes of election. Obviously direct election of senators undermines this goal and, to be fair, is supposed to, meaning that there are two relevant Constitutional provisions that have diametrically opposed purposes.

        But what’s more, the tool for creating deliberate legislation that remains – separate term lengths – should not be pooh-poohed because of pre-conferencing. That tool remains important, because it ensures that legislators in the two houses continue to have vastly different sets of incentives; these incentives do not disappear at the pre-conference negotiating table. Instead, the effect of the pre-conference is to force legislators to negotiate legislation that satisfies both sets of incentives. Because the pre-conference negotiated legislation still needs to satisfy each house’s unique set of incentives, its effect is thus absolutely not to enable legislators to negotiate legislation that could only pass in a unicameral legislature.

        I just have a really difficult time seeing how pre-conferencing undermines bicameralism.

        • And now I see Morat largely beat me to the punch.

          I will just add one thing really quickly, though – to the extent they were genuinely concerned about the tyranny of the legislature (and I’m not at all convinced that was true of Hamilton, at least), and viewed it as the most dangerous branch, the reality is that history has proven them wrong – the Executive has become by far the most powerful and dangerous branch, in no small part because Congress’ inability to act often creates a vacuum that the Executive gladly sweeps in to fill.

          • Can’t discuss the increase in executive power without a reference at least to the Administrative Procedure Act.

          • Well, to be fair that’s because Congress ended up being so slow and — well, flat out keen to avoid being taken to task by the public — that they ceded much of their power.

            Quite a number of the massive excessives of Executive power can be traced to a handful of bills wherein Congress just tripped all over itself to hand the power over to the President.

        • Without pre-conferencing, the House would pass a clean repeal bill. The Senate would then lard it up with other provisions and send it back to the House. The House would go into histrionics about how the Senate just said they’d pass the thing and now they’ve gone back on their word and made their approval conditional. This much is predictable. What is unpredictable is the level of public backlash. If the public deems this an important issue and cries out, then the Senate will yield more. If the public yawns, the House will yield more. They work the thing out and the bill becomes law. The House has played its role, the Senate has played its role, and the public has played its role, and as a result some politicians may come out with some lumps.

          Pre-conferencing is designed to diminish the unknown quantity at play – the public’s response. Instead of the bill moving from the House to the Senate and then seeing what the public has to say about their differences, pre-conferencing involves members of both houses guessing as to what they think the public’s response will be. The Senate will lard up the bill a little less, and the House will push back a little less. They come out with a proposed bill with both houses in agreement, it passes, and becomes law.

          If the politicians were basically right about what the public response was to be, then the end result is the same. Of course, we don’t know if the result is the same because the public has largely been cut out of the picture. Obviously, in many cases the politicians misjudge the level of public support for or opposition to a particular bill.

          • A few things, very very quickly since I have to go, but:
            1. Preconferencing seems little different than talking to lobbyists in order to frame legislation. I have a hard time seeing how it’s ok for a member of Congress to negotiate and confer with basically anyone on the planet in drafting legislation (and this much certainly should be the case, and is a big reason why I have problems with most anti-lobbying arguments) EXCEPT FOR members of the other house of Congress.
            2. I’ll try more on this later, but I have a really difficult time seeing how this takes the guesswork out of what the public response will be; what’s more, the incentives for the Senate are such that the immediate public response is less a concern than the public response several years down the line, which remains unknowable.

          • Mark, although I do feel that pre-conferencing undermines bicameralism, I am not suggesting a hardline rule that it is unconstitutional or should be made otherwise illegal. Same with talking with lobbyists, but that gets right to the point: when influence bends to lobbyists, or to another independent governing body, the possibility of political mischief increases. That’s not to say that House members privately conferencing with lobbyists or Senators is per se wrong. But it tends to undermine the public’s faith in their government.

          • Wow. That’s…hypotheticals piled upon assumptions.

            I’m not terribly sure how to respond to that, because it’s basically “if things were different, things might be different”. You offer a very hypothetical example in which a better result might be obtained.

            It’s a pretty easy game to play: By preconfercing, Congress prevents lobbyists from having time to gin up astroturf support, and kill popular bills by decieving the public or Congress itself on it’s popularity.

            Obviously, the current setup is more in tune with the Founding Fathers, who despised lobbyists.

            I’m fairly sure the Founding Fathers were pretty happy with the “cooling off” setup of the Senate — what you’re basically saying here is that they really wanted as much sand in the gears as possible. Like..everywhere. To the point where really, a Senator and a Representative talking about where the House and Senate might have agreement on a subject is a bad thing because it might increase the efficiency of government.

            The Founding Fathers also wanted a functioning government. One that ran smoothly. Deliberately, yes. But smoothly as well. Which is probably why the idea of, basically, forbidding interactions between the House and Senate other than the narrow communication of passed bills never occured to them. They expected both Houses to work together.

            Otherwise they’d have set up one of them in another state or something, not next door, where they’d see each other all the time and frequent the same resteraunts, bars, and whatnot.

          • Now, stick a CSPAN camera in all of these conferencing sessions (along the lines of what Obama previously promised but failed to do re health care deliberations) and these issues are largely moot.

            Even here, I’m not saying I’d advocate for that. Private meetings aren’t per se bad, but again, they engender distrust, and so you want to cabin the frequency and influence of such meetings where reasonably possible. In this case regarding the medical device tax, the Senate voted its approval 79-20, and then Sen. McConnell told the House leadership to pass it and send it back to him. Reports are that the failure to do that is because Camp is negotiating a secret deal with Max Baucus on tax reform. From the Hewitt piece linked in the OP: “Sources have told me that Eric Cantor will eventually overrule Camp and oblige the MDT to come to the floor, but the GOP is losing momentum and support every day it indulges its aging do-nothing-but-dine-with-lobbyist chairmen like Camp.”

            Look, constitutional arguments resonate with me, the Founders resonate with me, but even putting those arguments aside, I think Hewitt’s right: “if they cannot get their act together on something this simple, that has a 79-20 vote in the United States Senate, that they truly do deserve the stupid party label.” If the claim is that pre-conferencing is legitimate because it’s efficient and smart, I think that’s no answer, but I also fail to see how it is efficient or smart in this instance.

          • And another thing: What the heck is going on here? I can’t even criticize Republicans without getting a lot of grief? 🙂

          • On the one hand you’re criticizing Republicans, but on the other you’re agreeing with Hewitt, so I’m really torn 🙂

      • the problem with pre-conferencing is it subverts bicameralism

        Wait….what? One chamber negotiating with the other chamber subverts bicameralism? Making sure the other chamber is on board limits it’s checking power? Talking before they act instead of after reduces deliberation?

        even if pre-conferencing is proper according to House and Senate rules, it still stinks because it runs afoul of the Constitution’s design.

        No, it doesn’t, because the bill still has to pass both houses–which means more than the leadership has to be involved–and be presented to the public, which is 100% of what the Constitution requires.

        If I sound a bit aggressive here, it’s because I’m not at all I pressed by these romantical notions of some ideal political order, when the Constitution itself was the product of clever and not entirely licit political maneuvering, and us chock full of politically motivated compromises, some rather ugly. And as valuable as the Federalist Papers are, they are a post hoc generalization written by just a couple of men (setting aside poor Jay), as an exercise in political persuasion, not an exercise in political philosophy. And Hamilton would have said anything, however false, to create a stronger union (his Fed 84 argument on the danger of a Bill of Rights is an outrageous fraud, intended solely to override the last objections to the Constitution).

        So an objection to political maneuvering on grounds of it being in violation of the spirit of the Constitution? It’s a bit ironic, and strikes me as based on wishful romanticism–the type of thing taught in K-12 civics, where we deify the Founders, those amazing demigods–rather than drawing on serious history and political science.

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