Lobbying unorthodox lawmaking.

Introduction

When the 107th Congress (2001-02) passed the largest tax cut in American history, no hearings were held to consider the proposed bill. Observers of the legislative process might have expected an outcry over the failure of the committees to exercise due consideration of such costly provisions. Interest-group scholars might have expected protest from lobbyists accustomed to being heard on such bills. Instead, the silence was deafening.

Congressional scholars point to this and many similar cases as exemplifying unorthodox lawmaking. While deviations from the regular legislative process have always been possible and were sometimes used by strong congressional leaders in the past, they have now become the norm. Capitol Hill observers dispute whether the phenomenon is functional, how it arose, and what it means for Congress' legitimacy. Does it mean that government is less representative and less democratic? Or, perhaps, that Congress works better if lobbyists are confined to the lobby rather than invited to committee hearings to offer testimony. But even if that hypothesis is accepted, important questions remain: How do those interests that have lobbied the regular legislative process react to its absence? How have they adapted? How do these adaptations compare to their former access, input, and outcomes? In short, how does interest representation work in unorthodox lawmaking?

Specifying the Question

Congressional scholars Roger H. Davidson, Walter J. Oleszek, Barbara Sinclair and others portray the contemporary Congress as struggling to remain relevant under difficult conditions of budget deficits, intense partisanship, narrow majorities, and divided government. Specific strategies employed by congressional leaders to achieve that goal include using task forces to draft legislation or drafting it in the leader's office to by-pass committees, using no or only pro forma hearings, making post-committee changes to the language of a bill, making use of special rules in the House to shape bills, bringing bills directly to the floor, attaching language to omnibus bills or budget resolutions, and inserting new provisions to bills in conference reports. These strategies have become known as unorthodox, or irregular, lawmaking. Congressional scholars agree that use of these strategies began in 1981 but became significantly more common beginning with the 104th Congress (1995-96), and were accompanied by other changes that weakened the power and autonomy of standing committees and strengthened party leaders. (1)

Interest groups, one part of the legislative environment, are said to contribute to these more difficult circumstances in that their increased numbers and activities add to the pressure on Congress and make decision-making more difficult. (2) This suggests that shutting out organized voices may facilitate better deliberation and greater success in avoiding gridlock. In other words, Congress may improve its process and more effectively meet its legislative responsibilities by closing out the din of interest groups.

The dramatic growth of organized interest representation in Washington has been widely recognized. Every available measure indicates that the number of interests and their lobbyists plying national decision-makers has increased since the 1970s. More registered lobbyists, consultants, trade associations, corporations, public-interest groups, campaign contributions, issue advertising, and use of the Internet have elevated the volume of interested input. (3)