Just when you thought it was dead and buried, the COW is baaaack!
For our purposes we will use the acronym COW as shorthand for the Committee of the Whole House on the state of the Union. It is a transplant from the British Parliament that our Forefathers brought with them on the Mayflower and then grafted onto the operations of every legislative body they created — from the colonial legislatures to the Continental Congress. It actually made considerable sense while we were still 13 colonies since its central purpose was to keep deliberations secret from the King until final decisions were made.
The COW was comprised of all the members of the House of Commons except the Speaker who was seen as the King’s snitch and therefore excluded from the Hall of the House during COW debates. The COW elected its own chairman to preside. When the House resolves itself into the Committee of the Whole, the Mace, a staff representing the Crown in Great Britain, and the federal government in the U.S., is moved to a lower platform on the dais. Today, the chair of the COW is appointed by the Speaker who is allowed to fully participate in its debates and vote on its amendments.
There is no longer need to keep proceedings of the COW secret, thanks to our separation of powers. The president, unlike the King, cannot retaliate against members who oppose administration policies. However, engrained traditions die hard, even if they are anachronistic practices executed by vestigial organs. Even after successfully separating from Great Britain and its King, the newly independent Congress of the United States clung to the COW because it allowed for more informal, free-wheeling debates
It was not until the congressional reforms of the “sunshine” 1970s that the House adopted a rule providing for recorded teller votes in the COW. Prior to that, members registered their positions by non-record, teller votes, by filing down the center aisle to be head-counted as either for or against the pending amendment.
The rules of the House today still provide for a Committee of the Whole to process all revenue measures and bills that directly or indirectly appropriate money. However, until last week the COW had not been used since the first session of the 116th Congress in 2019.
So why was it suddenly back the week of July 18 to process an omnibus appropriations measure that combined six of the 12 regular money bills into one? The most obvious answer is to lend stature to the six, non-member delegates from D.C., American Samoa, Guam, the Northern Marians, the Virgin Islands and Puerto Rico. Thanks to a rule change in 1993, they were allowed to vote in the COW, but not in the House, at least in those Congresses in which Democrats were in the majority and made the rules.
But, in 2020 they were shut out from any floor voting when the Democratic majority stopped using the Committee of the Whole. The delegates were obviously very upset and pressured for restoring their floor voting privileges in the COW. (They are still members of the standing committees and fully participate in those proceedings.)
Another likely factor in the switch-back to the COW last week was that some top Republicans had joined in criticism of the COW-less House, especially since a candidate of their party was elected as the Puerto Rico delegate in 2018. The revival of the COW might be seen as the Democrats’ bovine bluff to test just how serious Republicans were in trying to milk the issue.
One of the more recent practices in the House has been to make a multitude of amendments in order to major bills – 650 to the defense authorization bill the week of July 11, and 190 to last week’s omnibus appropriations measure. The way the House has managed this gargantuan challenge is to give the bills’ floor managers authority to bundle multiple amendments into single, en bloc amendments. On the appropriations bill, for instance, 639 amendments were filed with the Rules Committee which then made 190 of them in order for floor consideration. The appropriations’ floor managers for the six-part bill then proceeded to bundle 188 of those amendments into eight en bloc amendments, five of which were adopted, and three rejected. The number of amendments in each en bloc varied from two to 45, with most averaging around 30.
The use of these massive, en bloc amendments, whether in the House, as with the DoD authorization, or in the COW, as with the appropriations bill, is not a shining example of deliberative democracy, let alone of comprehensibility. Whether the House continues to use the Committee of the Whole in the future or not, en bloc amendments are here to stay on mega-amendment bills. The best that can be said of it is that it is a time-saving device; the worst is that it is a mockery of democracy.
Don Wolfensberger is a Congress Scholar at the Woodrow Wilson International Center for Scholars, former chief-of-staff of the House Rules Committee, and author of, “Changing Cultures in Congress: From Fair Play to Power Plays.” The views expressed are solely his own.