CHAPTER IX

THE COURSE OF BUSINESS

ACTION on bills accompanying committee reports constitutes by far the larger part of the work of an American lawmaking body. Manifestly it is desirable that these bills shall be taken up with some sort of system. Members ought to be protected against surprise, and so it is customary to provide that bills shall not be considered on the day when they are reported. Any respectable Legislature will require that they be printed, and printing takes some time. Also it is reasonable that members particularly interested shall have opportunity to study a bill against occasion for amendment or debate. Whenever more than one bill is in hand, some method of choice is necessary. With many bills awaiting action, as is often the case, the need of such method becomes insistent.

These considerations all point to the desirability of a predetermined order of business. The Legislatures for the most part secure this by what is commonly known as a "calendar," a printed list of bills, orders, and resolutions, which are to be taken up consecutively unless otherwise provided by rules or by action of the House in any particular instance. The National House of Representatives classifies its bills in calendars, but these are only lists that, with certain minor exceptions, give no indication of the order in which bills will be considered. Hence sprang one of the cardinal defects of congressional practice. Members rarely knew in the morning what was to be the business of the day, much less what was to be the business of the next day. Even the little assurance that might be supposed to come from the rules adopted at the beginning of the session proved of slight worth, because the days they set aside for certain classes of business are ruthlessly taken for other matters whenever the leaders think best. The program is really in the hands of the Steering Committee (an unofficial committee of the majority party), of the majority floor leader, and of the Committee on Rules. For many years custom did not encourage frequent announcement in advance. When complaint of the situation was made by R. Walton Moore of Virginia, supported by former Speaker Champ Clark

(May 11, 1920), he was answered by James R. Mann, of long experience in the House, who argued that we could not in this matter follow the example of parliamentary bodies in other countries, because we lack centralized authority such as is found in the cabinet form of government. He recalled the outcry against "Cannonism," when Speaker Cannon had in operation under him, "not an autocratic organization at all, but the smoothest working legislative machinery that had ever been known in this House." Mr. Mann thought that in the absence of such organization, it was impossible to tell very far in advance what would come out of the constant struggle between committees for a chance to get their bills considered.

With all due respect for Mr. Mann's conclusion, it may be pointed out that he did not meet Mr. Moore's statement that in the extra session (May-November, 1919) the House had acted, he thought, on twenty-one matters under special rules brought in by the Committee on Rules, and that with a single exception these matters were taken up immediately on the adoption of the rules. Speaking to those familiar with such special rules, it was not necessary for Mr. Moore to explain that matters so brought in are among the most important the House considers. They are the proposals picked out from the mass because of such consequence as to deserve the right of way, and they include most of the fighting matters. No valid reason suggests itself why there should not be at least a day's notice of the intention to bring in these special rules. They are in essence nothing but the program of the leaders. Such a program ought not to be allowed to take a House by surprise.

The force of this argument led Frank W. Mondell, the Republican floor leader, to begin, late in 1921, the experiment of a bulletin, at first posted in the lobby, and then sent round to the members once a week, announcing "a tentative plan of business." This proved so great a convenience to everybody that at this writing it looks as if any lengthy relapse into secrecy and mystery would not be endured. Surely it is to be hoped that the experiment will lead to more orderly preparation for handling the nation's business and to a system that will permit better work.

In this matter Congress has been far behind at least some of the national assemblies in other lands. For example, in France the President at the end of each sitting presents the Order of the Day that he has prepared for the next sitting. This may be de

bated by the Chamber, and so kept within its control. In England statesmen have long appreciated the importance of thoughtful and timely preparation for the conduct of parliamentary affairs. In 1854, when a select committee of the House of Commons was considering means for improvement in regularity and dispatch, the Speaker of the House testified: "In all the improvements we have yet made in the conduct of the public business, we have endeavored, as much as possible, to let the House understand exactly what questions they will have to discuss, and to prevent surprises, and also to give some certainty to our proceedings." Before a like committee in 1861 another Speaker strongly corroborated this, and said that the most important thing to which the attention of the committee could be directed was "certainty day by day, so far as it is possible, as to the business to be transacted; and that, for despatch, for the convenience of the members, and for decorum of proceedings, certainty is to be regarded as the primary object."

The practice of our Legislatures varies much. Typical of those that like and get the benefits of what might be called automatic sequence is the Massachusetts General Court. There the House (and the same is true of the Senate) has but one calendar, on which matters are placed in the order in which they come to the Clerk, from committees or otherwise. At the opening of a sitting the Speaker begins at the top and calls consecutively. If any member wishes to debate a matter, he shouts "Pass," whereupon the Speaker goes on to the next, thus disposing of the routine on all uncontested numbers. Then returning to those that have been "passed," he takes them up again in order. The Speaker himself never exercises any option. The individual member can hurry action only if he can induce the House to suspend the rules and discharge a matter from the Orders of the Day, either for immediate consideration or by assignment to a time certain which may be earlier than it would normally be reached. Although not uncommon, this recourse is not habitual. Neither is delay often successfully attempted. With the prestige of an early adjournment in mind, the Speaker is likely to frown on motions to lay matters on the table, and sometimes he will succeed in getting through a session without use of the table at all. In the other branch "senatorial courtesy" prevents strict adherence to this righteous policy, and the table sometimes gets heavily loaded, yet most of the business is handled in sequence.

Illinois may illustrate the other extreme of practice. A bulletin prepared in 1919 to aid its Constitutional Convention tells us that in its General Assembly the rules do not force a consideration of bills in the order in which they are presented; and the degree of promptness with which a bill is urged for consideration depends to a very great extent upon the individual member who presented a bill or who has it in charge. Because of lack of interest or because of fear of the result, he may not urge it to second reading or to third reading and vote. Many members think it easier to get a bill through in the rush at the end of the session and so they deliberately hold up bills until the closing days. This was one reason why, for example, in the enactment of legislation the amount of business from June 4 to June 16, 1917, was much greater than that between January 3 and June 4. As to the treatment of the calendar the record of June 5 is cited, when with 147 bills on the House calendar for second reading, the first twenty-two were not taken up at all, and none of the others were called up in the order in which they appeared on the calendar.

Such of our Legislatures as permit the presiding officer to determine the order in which bills shall be taken up expose him to undue temptation. He may present at the opportune moment those he favors, and may hold those he dislikes for a time when the House is in a mood for slaughter. The fair and prudent course is to compel everything to take its turn unless the House sees fit by an exceptional vote, say three quarters or four fifths, to advance or postpone a particular measure.

In this, however, as in all other matters parliamentary, it is unreasonable, it is absurd, it is dangerous, to put the power of prevention within reach of any single member. The lower branch of Congress illustrates the folly of this every day. Its clumsy machinery is at the mercy of "unanimous consent." Analyze its processes and you will find that the chief source of its inefficiency is the power to waste time, to delay, or to block, which is at the command of any one captious, opinionated, impatient, angry, resentful, or notoriety-seeking member.

THE READINGS

THAT Somewhat intricate matter, the reading of bills, may best be handled by separating the three purposes (1) deliberate action, (2) adequate information, and (3) orderly discussion.

In Sir Thomas More's "Utopia" "one rule observed in their council, is, never to debate a thing on the same day in which it is first proposed; for that is always referred to the next meeting, that so men may not rashly, and in the heat of discourse, engage themselves too soon, which might bias them so much, that instead of consulting the good of the public, they might rather study to support their first opinions, and by a perverse and preposterous sort of shame, hazard their country rather than endanger their own reputation, or venture the being suspected to have wanted foresight in the expedients that they at first proposed. And therefore to prevent this, they take care that they may rather be deliberate than sudden in their motions."

The description of Sir Thomas More's ideal commonwealth was published in 1516. We may infer in this particular that Parliament had not then protected itself against hasty action by the system with which we are familiar to-day. However, a beginning had probably been made. Proofs are scanty, but there are traces of requiring three readings for bills as soon as bills themselves became the fashion, when under Henry VI the Commons began accompanying their petitions with drafts of the enactments they desired. Precisely when the practice took its present form is not known, but evidently it had become well established when the Journals of the House of Lords began, in the time of Henry VIII, and those of the Commons, with Edward VI, in 1547.

That quaint book, "The Commonwealth of England and manner of government thereof; compiled by the honourable Sir Thomas Smith, knight," published in 1589, a dozen years after the author's death, discloses with gratifying detail how our ancestors handled their work. "Beside the chancellor," said Sir Thomas, "there is one in the upper House who is called the clerk of the parliament, who readeth the bills. For all that cometh in consultation either in the upper house or in the nether house is put in writing first in paper; which being once read, he that will riseth up and speaketh with it or against it; and so one after another so long as they shall think good. That done they go to another, and so another bill. After it hath been once or twice read, and doth appear that it is somewhat liked as reasonable, with such amendment in words and peradventure some sentences as by disputation seemeth to be amended; in the upper house the chancellor asketh if they will have it ingrossed, that is