CongressLine: The Committee Markup

Last week I listened in to the Senate Environment and Public Works Committee’s markup of the global warming bill (S. 2191). While the meeting droned on until the early evening, it got me thinking again of my favorite statement: that all the action that counts in Congress, takes place in committee. Is this true?

I have written about committee markups before. In fact, it is my favorite topic. As the committee took a break to eat some pizza they had delivered, it struck home again that this is the true essence of Congress.

The markup session of S. 2191, titled the America’s Climate Security Act of 2007, was billed as quite a historic session. [Editor’s note: Industry groups lobby against climate legislation.] The bill provides the mechanisms to get the U.S. into the game of preventing (or at least slowing) climate change by reducing greenhouse gasses. You may recall that the U.S. signed the Kyoto Treaty but that the Senate never ratified it. While the rest of the world became obsessed with climate change, the U.S. ignored it (and at times, even dismissed it). It was so bad that then President Clinton didn’t bother to send the treaty to the Senate for ratification. The Senate went on record in 1997 saying it opposed it, by a vote of 95-0 (see S.Res. 98 in the 105th Congress). So to see a Senate committee earnestly marking up a bill now that attempts to do the same thing as the Kyoto Treaty was significant. I also have to note that Washington, DC, was getting hit by it’s first snow storm of the season as they were meeting, something that has strangely happened before when Congress talks about global warming.

The bill was written by two stalwart members of the committee, the sometimes Democrat but technically Independent Sen. Joe Lieberman of Connecticut and the soon to be retiring Republican Senator John Warner of Virginia. While I will not go into the exact details of the bill, the measure provides for a “cap and trade” system for encouraging energy users and producers to produce and use less CO2 emitting energy, which causes global warming. This mechanism appears to be the most popular way of beginning to reduce greenhouse gasses, though the jury appears to be out on whether this is a successful concept. Both Canada and Europe have not had huge success with their systems. I yield on this point and will assume that the problem is in the program not the concept.

Democrats without a doubt have been the new proponents of addressing global warming, but there are very large fractures in their cause. There are traditional Democratic constituencies who are fiercely opposed to many elements of plans to cut greenhouse gasses, not because they like global warming, but because of the impact on the economy, particularly for jobs and the poor. Republicans have generally been skeptical of greenhouse gas reduction schemes as either ineffective or dangerous to the economy. The Democratic leadership however, such as the Chairperson of the committee, Senator Barbara Boxer of California, have been effusive proponents, with an almost Al Gore-like enthusiasm for the cause. The bill itself was not a long time in the making, at least on paper. It came to the fore in November, causing some to suggest that the Democrats needed something on the topic before the end of the year. Others opined that it was merely a publicity stunt, as some on the Committee were going to go to a U.N. global warming summit in Bali, Indonesia, right after the meeting and wanted to be hailed for their wise and comprehensive bill (they ended up not going). This is partially true. It was a late bill, but most things happen late in Congress; it was pushed in time for the U.N. summit, but there is also genuine concern on the topic.

For our discussion here, it is the markup that interests me. The bill went through a whole series of hearings leading up to this markup session. Every expert with anything to say on the topic weighed in the weeks beforehand. All culminated in the afternoon and evening of December 5 in the Senate Environment and Public Works Committee. Over a hundred amendments where poised to be offered and it was looking like it was going to be a long night. As I listened, most of the elements of the markup that make me think of it so highly of the markup process was there. Normally in a markup, the Chairman of the committee usually comes prepared with his or her “mark”, which is then usually offered first as a substitute amendment. This effectively hijacks the measure, no matter what the original bill stipulated. The chairman’s substitute often wipes out everything and replaces it with what the chairman wants. It doesn’t always happen, but if it is a major or controversial bill, you can expect it. In this case, the bill was spared this indignity. Senators Warner and Lieberman’s text was not substituted for Senator Boxer’s version although that does not mean she abdicated her influence. She proceeded throughout the whole markup session as this was her own bill, fiercely guarding the details and programs in the bill.

Then came the amendments. Both sides had a long list of amendments on every topic. They took turns, usually alternating between Democrat and Republican sides. I categorize committee amendments into three categories. First are the purely technical changes. Though the devil is often in these “technical” changes, they are normally seen as not particularly controversial. Second are genuine barnburners, the major controversial changes. Third are the parochial items which controversial or not, are very specific to the constituency of the member or Senator.

Technical amendments are just that. They parse the wording either to make a specific provision clearer or on occasion to correct innocuous errors in the text. These can be maddening to a researcher as they are not easy to figure out at face value. They usually read something like this:

Page 36, strike line 19 and all that follows before “there is authorized” on line 23.

Of course, if you were there, the member’s description may describe what he or she is trying to do. If you were not, you have to go back to the original text and find what is specifically being changed. Searching by words for such things is useless. You have to look at the amendment, and then look back to the antecedent documents to see what is going on. Welcome to my world.

In a previous era, perhaps when no one was paying attention, such technical amendments could be pretty significant. Today, there is a whole city watching and parsing every word. I doubt on such a major bill that something would be sneaked in, but it could happen. Often these technical amendments are mercifully lumped together into “en bloc” amendments. They tell the Chairman, “I have 5 amendments”, and ask for permission to lump them all into a block of amendments. The committee then votes once on them all.

My second type of amendment – controversial amendments and is why all the media show up to the markup. This is where the fireworks happen and tempers can get testy. In the case of this bill, one big controversy was nuclear power. When Senator James Inhofe of Oklahoma, the former chairman of the committee, proposed an amendment to add nuclear power to the mix, things got animated. This is an interesting example of controversy in Congress. Most agree that nuclear power is going to be necessary, since it doesn’t produce much greenhouse gas and produces power quite efficiently. Republicans pointed out that the word “nuclear” didn’t appear in the bill. The reason it was not in the bill is because nuclear power is not popular so the amendment failed as the majority of the committee wasn’t ready to deal with the political fallout of supporting more nuclear power. Congress doesn’t take on controversy unless necessary. All appeared to agree that when the bill came to the floor of the Senate, they would debate the nuclear provision then, maybe.

The third amendment type, purely parochial amendments, always make me laugh. Often it is approval to build a new program at a local university (in the Senator’s state) to study the issue, or to exempt some type of industry unique to the state from some odious requirement in the bill. =The local university usually wins, while exemptions often do not (though it can depend on who is proposing the amendment). If it is the chairman, it wins. Even Senator Hillary Clinton failed in one attempt. Senator John Barrasso of Wyoming, which is rich in coal, offered all kinds of parochial amendments. Some Barrasso amendments passed, (the University of Wyoming may get the designation: Rocky Mountain Centers for the Study of Coal Utilization); however, most failed.

When a member presents an amendment, the Chairperson usually will say whether he or she will accept it or not, which normally is a cue to his or her partisans to vote for it or not. Sometimes, of course, the vote can go against the chairperson, but don’t count on it. The banter between members of the committee is also frequently interesting. Sometimes humorous, often it is quite mundane talk either about bill provisions, procedure and can frequently include such lines as, “the people of Idaho are concerned about…” The tone is usually very collegial and follows much the same format as a well-run meeting. Everyone gets their say, even though they may not get the votes they wanted.

The outcome is usually not in doubt in committees in Congress. The Senate Energy and Public Works Committee features 10 Democrats on the committee and 9 Republicans. Since Republican Senator Warner was one of the authors of the bill, his vote and the 10 Democrats usually won most of the votes, 11-8.

These markup sessions are critically important. In the House, where floor amendments can be strictly regulated, they are the only place a member can propose a change. In some cases, the actual bill is written completely in a markup. This usually happens for appropriations bills, but is done increasingly for other really big bills. The chairman comes with his mark and there is no original bill; they just work off of his or her mark. They add amendments and debate a bill that doesn’t exist yet (providing another popular point of confusion to researchers). The committee is meeting but where is the bill? They will be writing it (or amending the chairman’s mark) in the meeting itself.

The committee markup is one step you do not want to ignore. It is where the controversial items come up first in the process, and either are incorporated into the bill or receive their first legislative debate. The details of the specific amendments can be maddening; computer searches for words can be useless. You have to read the amendments. The personalities, the banter, the egos are all on display at the markup. They provide a great way to view all the elements in play all at the same time. When people visit and I send them to the Capitol, I tell them skip the tour, skip the floor debate, and skip the committee hearing. Go to a markup session; that is where the real work of Congress takes place.

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