A call to regular order: Joe Manchin and the anomaly of the NDAA

Over the holidays, the Inside-the-Beltway class learned that Sen. Joe Manchin (D-W.Va.) really meant what he said all along about the Build Back Better Act. While he has consistently called into question the substance and magnitude of the bill, Manchin has been far more critical of the process used to try to enact it. In contrast, President Biden quietly signed into law the National Defense Authorization Act (NDAA). These two bills bookended what is wrong with the current legislative process, although not in the way that was initially reported.

The events are intertwined because the NDAA is the last bill in Congress that annually succeeds in proceeding through a semblance of what is known as regular order. For the past year, Manchin has consistently called for Congress to return to such regular legislative order. In April, he wrote in a Washington Post opinion piece: “I simply do not believe budget reconciliation should replace regular order in the Senate. … Senate Democrats must avoid the temptation to abandon our Republican colleagues on important national issues.” When he announced he couldn’t vote for Biden’s current social welfare bill, it was reported that Manchin “remains committed to working on those issues through more modest, focused legislation and through regular legislative order.”

What exactly is regular order? At its most basic level, it is what we were supposed to learn in grade school, or could at least hum along with while watching Schoolhouse Rock’s “I’m just a Bill on Capitol Hill.” This is the ability to debate and amend legislation as it moves from subcommittee to committee, to the floor and then to joint House and Senate conferences, back to the floor again, and then on to the president for signature or veto.

Attitude, relationships and trust are just as important as following this progression. To be successful, regular order requires an extraordinary amount of compromise and bipartisanship along each step of the way. It is not an easy, nor an immediate, process. For these reasons, it has increasingly become more of a fantasy aspiration, no matter who controls Congress. 

In the absence of regular order, the legislative process has become leadership driven and can barely keep up with passing three types of bills that are the antithesis of regular order: continuing resolutions, omnibus appropriations, and budget reconciliation bills. These end up being written by leadership and executive branch staffs with no input by the rank-and-file members, let alone committee jurisdictional chairs and ranking members. There is no time for hearings and little chance for amendment or debate. All of this is done on an ad-hoc basis, under emergency circumstances and procedures, controlled by party leadership and brokered with the administration of the day. 

The one annual exception to this sordid tale is the NDAA, now enacted into law for the 61st consecutive year. Senior members of the Senate and House Armed Services Committees (HASC and SASC) have a long tradition of bipartisanship and an understanding that the most important thing to do each year is to pass a bill to set and further oversee defense policy goals for the country. This has been done each year as close to regular order as possible, despite legislative obstacles, rising partisanship and the decline in civility in Congress and in the nation as a whole. The NDAA hasn’t always passed under Schoolhouse Rock rules, but it has been the closest thing to it. 

As a member of SASC, Manchin undoubtedly has seen how the NDAA process has worked, how painfully fragile it is every year, and how increasingly threatened it has become. The SASC may actually breed centrist mavericks because they have seen how regular order can consistently work — something with which most members of Congress no longer have experience. It might not be remembered that when the other maverick, John McCain, made his thumbs-down vote on the repeal of ObamaCare in 2017, he did so alongside a corresponding call for a return to regular order. The former SASC chairman understood that if policies and programs were to pass the test of time, there was a need for consensus that only came about with vigorous debate and eventual compromise.

Hopefully, the senior senator from West Virginia can use his current influence to not only maintain the defense authorization process as an alternative to current practices but, more importantly, to encourage a return to regular order in the rest of Congress. The late Sen. McCain (R-Ariz.) tried but failed to establish the momentum to do this; time unfortunately ran out for him. Perhaps Manchin and a few of his colleagues on each side of the aisle can use the leverage they have to continue down this path.

William C. Greenwalt is a nonresident senior fellow at the American Enterprise Institute, a former deputy undersecretary of defense for industrial policy, and a founder of the Silicon Valley Defense Group.