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Politics Foreign Affairs Culture Fellows Program

Should Conservatives Play By The Rules?

A Pennsylvania state representative shows that parliamentarianism is a tool, not a hindrance.

Us,Capitol,Building,From,Low,Vantage,Point,With,Manhole,Cover
Credit: Alan Ochieng

As Kentucky Senator Mitch McConnell continues to show his advanced age by freezing in front of cameras, political chatterers are already speculating about a replacement (though of course in recent days this replacement has taken a back seat to the frenzied fallout of Kevin McCarthy’s deposition from the House Speakership, but let’s stick with the Republican minority leader for now). Last month, Henry Olsen wrote a great piece summarizing both the pros and cons of McConnell’s legacy in the Senate. As party leader, McConnell was overly cautious and centralized too much power so that no serious legislation made it to the Senate floor without being heavily influenced by his office. Republicans can and should demand a more aggressive conservative agenda, as well as less central control from their leader.

But McConnell the tactician, the parliamentarian, was excellent. He understood how to use the rules of procedure to accomplish political ends. His tactical prowess stopped President Barack Obama’s 2016 nomination of Merrick Garland to the Supreme Court. His masterful ability to read individual senators, whip votes, and shepherd judicial nominees through the confirmation process is the reason Trump was able to nominate three conservative Supreme Court justices and hundreds of other federal judges.

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In an age where populists rage against the institutionalized “establishment”—often understandably so—there is a danger in failing to appreciate the proper use of process. Yes, we want and need bold conservative leadership. We need statesmen who will get things done for the common good. We certainly do not need those who will use the filibuster, the referral of a bill to committee, the various parliamentary rules and points of order, to stall and prevent the important work of saving the nation.

But if elements of the populist right are fed up because “nothing is getting done in Congress,” will throwing out proper procedure in order to simply fight dirty solve any problems? Or will this instinct only make things worse, make conservatives less effective as they descend into a chaotic legislature where no rules means no accomplishments? When a war is being fought, a nation wants officers who will fight valiantly and heroically to achieve glory. That is not done by throwing out the rules of military engagement and tactical doctrine. Rather, a masterful use of strategy and of every tactical tool available is what attains victory.

So what should we be looking for in our politicians? Do we need careful masters of the rules? Or do we need fighters who will take the gloves off, stop playing parliamentary games, and battle to get things done? The answer is, of course, both. But can we find such people? How do we find a combination of real conservative goals and values, a willingness to fight hard for the common good, and a mastery of the technical rules and procedures that can really get things done within an institution planted thick with rules and procedures?

Representative Bryan Cutler has been a member of the Pennsylvania House of Representatives since 2006. He served as Speaker of the House from 2020 to 2022 and is now House Minority Leader. I met him at a religious liberty legal conference, where he gave an excellent presentation on the importance of mastering legislative procedure. Cutler has a reputation for being a fiery, no-nonsense conservative, so I was fascinated to know more about a representative who is both serious enough to take on real conservative issues and knowledgeable enough to give a lecture on parliamentary procedure. 

As a threshold question, I wanted to know what Rep. Cutler was doing in the House, where he has served for about fifteen years. It is usually easy to spot someone who simply stays in the public sector because they want an easy job or a nice retirement. But Rep. Cutler doesn’t seem the type. Plus he is a very sharp and well-connected lawyer; he could clearly be making more money elsewhere. So, why is he here?

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First of all, I grew up in this area. When I was in high school, both of my parents were diagnosed with Lou Gehrig’s disease, which is incredibly rare. My dad passed away my senior year of high school, my mom was still sick at the time and lived several years longer. Despite that, we had a really good community. They stepped up in amazing ways. They would come and bring us food. They would help cut firewood, because we heated our house with firewood. I was able to have a fairly normal childhood.

I was able to go to law school because of the investment that our community made in me and my younger sister at the time. So I decided to run for office in my third year of law school and that was really a way for me to thank everyone for giving me these opportunities.

Now, everyone who holds elected office says that they do so as an act of public service, to give back, etc. It is refreshing to see someone who has consistently run on a platform trying to curb the self-serving excesses of politicians, and who has actually taken personal action to back up his conviction. 

Rep. Cutler got into office right after the state legislature had given itself a controversial pay raise. He ran a populist campaign opposed to the excessive benefits being given to public servants, and he walks the walk: he has opted out of the House pension system, doesn’t take mileage reimbursement for his travel between his home district and the capitol, and does not accept the “per diem” payment for lodging and food, which is about $180-200 per day. It is rather annoying to see politicians sign empty pledges to support term limits and pay decreases; it is quite heartening to see someone in office put his money where his mouth is.

The above anecdote about legislative salary and benefits sets the ideological stage: Rep. Cutler is not an establishment type who is unsympathetic to populism. In fact, he says that he ran a populist-style campaign and remains sympathetic to populist concerns. 

I asked him what he thinks about voices on the new populist right who think (understandably) that the situation is pretty dire, that the left has usurped all our institutions, and that therefore we should take the gloves off and just fight dirty like they do. To many in the populist camp who have recently gotten involved in politics, parliamentary formalities and legislative procedure just get in the way of “getting things done.” 

TAC: What is the response of a populist-sympathetic legislator who also happens to be a master of legislative procedure?

Cutler: One, if the observation is “the other side does it, so should we,” that means we are no better than they are.

Two, the truth is you can follow the rules and still be very successful. In fact, the rules provide the benchmark, the framework within which we work. In the 2019-2020 session, the first term that I was majority leader, we passed a record number of bills. 650 bills passed through the House, 311 were sent to the governor’s desk... This idea that you have to not follow the rules in order to “get things done,” I just don’t buy into that. One, I believe we are above that, that the rule of law matters. Not just because we are supposed to do things in an orderly way, but the truth is if you don’t follow the rules, you open yourself up to legal challenges down the road. Then things we get done can quickly be undone on a technicality and we shouldn’t ever put ourselves in a position like that.

TAC: But is there a downside? Do the populists have a point that, at least sometimes, insiders are abusing parliamentary rules and procedural tricks to stall and prevent legitimate things from getting done?

Cutler: My own experience is that parliamentary procedure can be abused by inconsistent rulings from the chair, even within the same session. I can tell you, having been Speaker previously, if you look far enough and wide enough, you can always find an example to support the outcome you want and say “see, this is the past precedent we are going to follow.” But when you do that, you have to look forward and ask yourself so that you know “what will the impact be under a different scenario?” We see a similar thing from our very politicized state supreme court: it issues results-oriented opinions. The court knows where it wants to go and then figures out how to weave its way there. And that is no way, to your point, to run a republic. You have to have law and order; you have to have a consistent process to follow... If you don’t believe in the process, you’ll never believe in the product.

TAC: It makes sense that we need an impartially-applied legislative process, both so that the legislature has an environment of order where bills can actually be passed and so there is an appearance of a law-making process that people can trust. But what is the answer to the problem of unfair, partisan decisions regarding the application of legislative procedure? Other than “we need better, more impartial leadership,” is there a remedy to the uneven, results-oriented abuse of parliamentary procedure that tries to apply one standard of procedure for the majority party and another for the opposition?

Cutler: Well, there are two things. Procedurally, you can always challenge the ruling of the chair [when rules are applied unfairly], but that always ends up being a straight party-line vote because obviously the majority party will always support their Speaker.

The hard part is, you have to pick a Speaker who is the chief strategist and implementer...[but] the job is quasi-judicial. When you bring partisanship to that position, it is readily apparent. You might win a vote, but you lose the respect of your colleagues when your rulings are not consistent.

These are important insights. The rules are in place for a reason: there is merit in the process of sending bills to committee, having them reviewed and debated through the proper (if long and sometimes laborious) channels, taking objections and amendments, etc. Of course we want to get things done and we want our legislators to be strategic, bold, and tactical in getting good legislation passed. But the rules of legislative procedure ought to be considered a tool that we can wield to achieve that aim more perfectly, not a barrier that gets in the way. 

Populists and many on the right in general have become cynical about our institutions, and for good reason. From universities to media companies to legislatures, many institutions are occupied by elites that don’t have the people’s interests at heart. But the reality is we still need institutions. Some need to be restarted with parallel structures (it probably makes sense to start small, sane colleges rather than to try to reform the Ivies, to build new media companies rather than try to fix the New York Times), but others need to be restored rather than replaced. Clearly legislatures fall into the latter category. 

We cannot do without laws and so we cannot do without legislatures. Since we can’t throw the institution out, neither can we simply operate the institution without any of the forms it carries with it. The processes of parliamentary procedure that bring a bill from initial introduction to the executive’s desk are there for a reason. Without them, the number of bills being introduced by every legislator, the number of objections and amendments, would be so high that the legislature would be a big, chaotic pile of bills that nobody could make sense of. So it seems clear that we can’t simply throw away the institutional rules that govern the legislative process. Further, there is a good argument that the rules, used properly, don’t even get in the way of “getting things done.” Cutler’s example shows that, even while he adhered strictly to every parliamentary procedure and rule of order, the legislature was able to pass bills, make changes, and “get things done.” 

It is cliche to observe that we live in a hyper-partisan era. Yet it is worth considering that perhaps the Speaker of the House, a powerful role where a single person makes rulings on the proper introduction of bills and amendments, on the order of debate on the floor, and a number of other “quasi-judicial” matters, should not be a hyper-partisan position. Perhaps there is reason to consider that there are particular positions within a party’s legislative caucus where clever, bold, extreme, tactical partisanship is proper and even necessary, such as the party leaders who unite the party around platforms and policy priorities, and the “whips” who coordinate and unify members for a vote. But have we ever considered that perhaps the speaker ought to be separated out a bit, that he should be a master of parliamentary procedure, a shrewd lawyer, but one who operates on the House floor more like an impartial judge than a lawyer representing his client?

Cutler’s insights provide an important nuance: We are not split into the meme-like divides of political characters that many casual observers have come to believe are reality. There are not simply “RINO/establishment swamp creatures” and “true conservatives.” There are not “those obsessed with parliamentary tricks and rules that prevent anything from getting done” and “fighters who want to go in and actually do something.” These are often false dichotomies and people are more complex than that. Cutler provides a good example: He is clearly a public servant; he actually backs up his talk of populist reform by refusing many of the financial perks available to him; he has a real conservative agenda and record, but is unwilling to bend and break the parliamentary rules that are in place to make the legislature function properly.

Besides being an example of sincerity, he presents a good model for populists, the “new right,” those new to politics who want to implement bold policy solutions and actually get things done. Those who want to affect legislation ought not to disparage and ignore parliamentary procedures, but to master them. Knowing the rules, when to object, how to introduce a bill that won’t die in committee, how to propose an amendment in the most productive way possible, are assets—if we want effective conservatives who can pass good bills, rather than just attract cameras and social media followers. Parliamentary procedure is not a barrier but a weapon, if one learns how to wield it well. 

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