We recently ran an opinion piece by Robert Palmer arguing that the rules changes in the House of Representatives for the 118th Congress, which came about due to a change in party control and a tumultuous speaker election, would help Congress become more productive and accountable. To keep our content informative, interesting, and engaging, I’ve penned a good faith rebuttal (or, in Hamiltonian fashion… a series of rebuttals) to that opinion piece, arguing that the way the House of Representatives operated until this Congress is both practical and pragmatic, and that the further proposed changes would go against the best interests of both the chamber and the public. 

Don’t Credit McCarthy With the New House Rules | The Illusion of the “Empty” Congress | Members of Congress Have a Hard Job, Their Work Ethic is Just Fine

It’s accurate, if not quite fair,  to say that the House chamber and its committee rooms remain largely empty during the day. Champions for “actual” debate in the House and its committees come from a good place; it feels instinctive that, when there’s a debate in the House chamber, as many members as possible should be present and attuned to the nuances of the policy. There are a few counterpoints to this, but they boil down to two key reasons: it is unnecessary and inefficient.

The House Chamber is Empty Because It Saves Time

Let’s start with the chamber itself. On a good day, there are 435 members of the House of Representatives.1There are typically less due to resignations, retirements, or deaths. The 118th Congress only has 435 members starting on March 7 due to the death of Virginia Representative Donald McEachin after the November elections. Despite the fact that the nation’s population has tripled since 1910, the House’s size has not increased. That means congressmen have gone from representing around 200,000 people per district to nearly 800,000 in the last 100 years. This makes the United States a statistical anomaly among similar democracies, and it’s a simple policy choice (there is no constitutional limitation, it is a matter of politics). It also means members of Congress have a lot to do – meeting with their district’s interest groups, attending an array of several different committee meetings, conferencing with leadership, traveling to and from the Hill or their home districts, and an spending an uncomfortable amount of time fundraising just to run for reelection or to support the party every two years. 

To confine all 435 members of the House to the floor when only several are necessary to proceed through the routine course of business would grind the pace of Congress to an unbearable standstill. The schedule and routine of the House – in contrast with the Senate – is incredibly predictable, with clear communications delivered from leadership to the rank and file in order to maximize time across the Hill.

Procedure Makes the House Predictable, Routine, and “Empty” – for Good Reason

In order to move through legislation, most of it is considered under “suspension of the rules,” which typically limit debate to 40 minutes and limit amendments. This is usually reserved for noncontroversial, routine, or perfecting legislation and, accordingly, requires a two-thirds vote of members to pass. Occasionally, these bills even pass by voice vote, and members’ votes are not explicitly recorded. In the course of governing, there is a lot of legislation like this – renaming post offices and federal buildings, resolutions expressing sentiments of the chamber or Congress (like a resolution “Honoring the 60th anniversary of the commencement of the carving of the Crazy Horse Memorial”), and bills to make technical corrections (like a bill to clarify podiatrists should be paid the same as physicians in the Department of Veterans Affairs pay grade system). Being able to queue these up to pass with a simple voice vote is efficient – requiring members to engage in hours of debate or to engage in a performative vote on these bills is simply a waste of time; doubly so when you consider the fact that they do not elicit controversy.

But what about all the other business? Major legislation comes to the floor via the adoption of a rule that has been favorably reported by the Rules Committee. This opens up a whole other can of worms I won’t go into in great depth here, but this is a major distinction between the House and the Senate (which does not have a committee performing this function). Essentially, this very small committee (13 members at the moment), with a roughly 2-1 ratio in favor of the majority party and heavily stacked with friends of the speaker (though recall from the recent speaker drama that in order to win over votes to secure the gavel, Kevin McCarthy had to award some antagonists these extremely prestigious committee assignments). Because it would be unwieldy to allow unlimited debate on a measure in a chamber of 435 representatives, the Rules Committee decides under what “rule” a bill comes to the floor – that is, how much debate shall be allowed (usually an hour), who controls which members get to debate (typically the relevant committee chairs), and whether points of order or amendments are permitted. For those interested, here’s an example of a rule from earlier in the 118th Congress.

Now you can start to see why this feels a little forced and heavy-handed, given the rule is typically a construction of the leadership – or at least, those close to them – and the floor time is still pretty limited.2Even if it were four hours of debate, that’d only be about 30 seconds per member! But this system developed for a reason, and I encourage skepticism of any system that seems simpler on its face.

For one, you may think that the Rules Committee wields too much power here (and it is very powerful!), but the reality is that the rule still has to be approved by the House before moving on to consideration of the measure. So, the party in power is deciding of its own volition that an hour of debate is right for a given measure. Do they go with what leadership says? Yes, but that’s because the debate, at this point, is pointless. That’s not to say there isn’t a final debate. There is, and each side on a bill, generally managed by the relevant committee’s chair and ranking member, trades their points back and forth before the entire chamber gets the up or down vote. Yes, the chamber is often empty here too (other than the members lining up at the chair and ranking member’s discretion to speak on the measure), but at this point the bill has usually been through the ringer – it’s not a secret how any particular member feels, what’s in it, and what the result of the vote will be. That’s because most of the necessary steps happen before a bill reaches the floor, and most of what you see on the floor is procedure, formality, or pure performance. Which brings us to what takes up most of the actual “floor time”…

Speaking to an Empty Chamber Beats the Appearance of Doing Nothing

In the late 20th century, Newt Gingrich – then just a savvy Republican member of Congress from Georgia – realized that the House rules only permitted C-SPAN cameras to show the individual speaking before the chamber. Because the chamber is usually empty during periods of time reserved for “special order” speeches (which typically occur during the evening after the House has concluded its daily business) or “morning-hour” speeches (in the morning, before the House begins its legislative business for the day), Gingrich would make speeches blasting the Democratic majority with no rebuttal by the other side – even though it looked like he was speaking before the entire chamber. Astutely aware that these periods were concurrent with when many Americans who don’t live in the Eastern time zone are marginally more likely to be tuned into C-SPAN (there are dozens of us!), this proved effective.

It gave birth to a largely superfluous, gratuitous, and constituent-pleasing industry of special order and morning-hour speeches that serve few-if-any legislative purposes. It’s not so much that anything was lost, it’s more that nothing was gained by this other than offering an opportunity for rank-and-file House members to get their face in front of a camera for the purposes of self-promotion, giving them a cheap way to claim they “went to the House floor” to fight for their cause. These speeches are often well-humored, reverential, serious, or personal – but rarely a debate in any sense of the word. California Representative Adam Schiff singing “Meet the Mets” because he “lost a bet” is a jocular example, New York Representative Alexandria Ocasio-Cortez honoring a constituent’s 100th birthday is a reverential one, and Tennessee Representative Steve Cohen taking to the floor to discuss the killing of Tyre Nichols by Memphis police officers and urging peace by protesters was more existential. These all serve an appropriate purpose: to recognize important people, issues, and national occasions. But it’s no more fair to consider the House empty for debate purposes when member after member is getting up throughout the evening than it is to consider the chamber “empty” when a member is posting a video to Twitter.

So the House floor, which often is empty, isn’t really failing to accomplish its goal. There’s a process – one approved by the majority party –  for management, debate, and final consideration of the bill. It’s just that the hardest part has already happened, mostly at the subcommittee and committee level. So why are those “empty” too?

The Committees are Empty Because Members Are Bouncing Between Them

But what about the committees? There’s criticism regarding the absenteeism of members at committee hearings as well for the same reasons – but it merits a similar response. There are a lot of committees and subcommittees on the House side: about 20 standing committees, three non-standing committees, and around 110 subcommittees among them. Even if you divided the number of members by subcommittees (as all subcommittee members are also members of the full committee), you’d only end up with four per subcommittee. In reality, subcommittees often have around 20 members and full committees around 50 – a bit more pragmatic for actually breaking up the work. However, that also necessitates that members serve on multiple committees and subcommittees and, indeed, House rules allow a member to serve on up to two standing committees and four subcommittees – with some allowance for waivers and certain committees permitting a member to serve on even more.

On a particularly busy legislative day, such as those during appropriations season, there are often more than 20 or 25 scheduled committee and subcommittee hearings or markups. Just take Wednesday, March 24, 2021 as a random example – 27 different hearings or markups in the House. Take it from someone who used to cover the goings on in congressional committees – this is an insane amount of work, and members are constantly running from one to another, or making their statement and asking their questions before ducking out to a constituent meeting, if not another committee. 

The fact of the matter is that the staff do the bulk of the work here. A member who wants to ask relevant witnesses questions gets to do so in their time slot, and the staff (who are not required to be at three meetings at the same time, and who each cover respective areas for a member) can keep an eye on an important hearing to flag anything that may come up. Members are also allowed to submit questions for the record, which require written responses from witnesses who are before the committee, so it’s not like the member (or their staff) are actually missing much when they have to forgo one hearing for another.

From a legislative perspective, it’s the markup meetings that matter. These are the sessions in which all of the relevant subcommittee or committee members are participating in the actual debate and amendment of a bill before them. These meetings are better attended,3Just take a look at the room-shots in these markups compared to these hearings (and take note of the line of staffers sitting in the back). and there are stricter quorum requirements to meet and ultimately report legislation before the committee than there are in the higher-profile yet largely inconsequential hearings. These are the meetings where the work gets done, where members go through line after line and amendment after amendment to fine-tune a bill before it reaches the next stage. 

Conflating hearings, floor activity, and markups tends to miss the tree for the forest, and gives an incomplete characterization of the work the House is doing. They’re there, working, they’re just working on ten different things at once. Because the Congress must move forward, but each member can only be in one place at a time, that tends to make things look emptier than they are.