On January 21st the US Senate Committee on Health, Education, Labor and Pensions held a hearing on the long-delayed reauthorization of No Child Left Behind, The committee chair, Lamar Alexander is hopeful that the process will actually produce a reauthorized law,
“During the last six years, this committee has held 24 hearings and reported two bills to the Senate floor to fix the law’s problems. We should be able to finish our work within the first few weeks of 2015 so the full Senate can act.”
Unfortunately, or fortunately, depending on the outcome, the hearing is only one step in the long path from idea to bill to law.
A refresher minicourse: just in case you were daydreaming on that day that your teacher taught “how a bill becomes a law.”
The 435-member House of Representatives and the 100-member Senate must pass the same bill and the bill becomes a law when signed by the president. If the president vetoes a bill both houses must override the veto with a 2/3 vote in each house.
If the houses pass different bills, which is commonplace, a conference committee made up of members of both houses attempts to reconcile the bills, if they are able to agree on a single bill both houses must pass the reconciled bill and send along to the President for signature.
Republicans control both houses which allow them to set the agendas; they control the time frame of hearings and the text of any bill. Due to the procedural rules of the Senate a bill requires 60 votes to come to the floor for discussion and an eventual vote. On the Senate side any bill must be bipartisan enough to gain sufficient Democratic votes to reach the 60 vote threshold and the party members do not necessarily vote as a bloc. The required 60 votes, or the negative 41 votes, can contain members of both parties who, for totally different reasons support or object to the bill, or to some part of the bill.
Sometime later in the session the House committee will begin discussions. The Republicans have the largest majority since the end of World War 2 and can pass any bill they choose to pass; however, there are 30-40 members on the extreme right who may not agree with the mainstream Republicans. The Republican leadership will not bring a bill to the floor for a vote unless the bill has sufficient Republican votes, the Republican leadership would not look across the aisle for Democratic votes, to do so would alienate the right wing of the party.
If the House and the Senate pass reconciled bills and pass along to the President, he can veto the bill, in effect killing the bill. It is extremely difficult to override a presidential veto. The repercussions of a veto could impact well beyond the issue, if the bill was a bipartisan bill, vetoing the bill could alienate Democrats in the Senate, who the President needs to pass, or, to block passage of other legislation.
If all goes smoothly, which is unlikely, a bill could be on the President’s desk for signature within a few months. If the process leaks into the fall it will get caught up in the 2016 presidential primary season and may fall by the wayside. A number of senators, on both sides of the aisle are flirting with a presidential run and the reauthorization bill could easily get caught up in the primary politics. Party primaries attract core voters, on the Republican side, the Tea Party, the anti-government voters; on the Democratic side the most progressive wing. Republican candidates may choose to run on an “abolish the entire Department of Education” platform while a Democratic candidate might run on a “protect the civil rights of students at risk” platform, meaning no bill would emerge.
James Madison, in Federalist # 51 eloquently portrayed the roles of the branches of government,
To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. .
… it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.
But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
The 387-page discussion draft of the bill begins the political process in the Senate.
Alexander announced the committee’s first hearing this year on No Child Left Behind, and said he would hold additional hearings after conferring with Ranking Member Patty Murray (D-Wash.) He also announced beginning this week bipartisan meetings in the Senate education committee to discuss the chairman’s discussion draft, consider changes and improvements, identify areas of agreement, and discuss options to proceed.
The first hearing included two classroom teachers from New York City, an elementary school teacher who led a grassroots campaign against standardized testing (“Teachers of Conscience”) and a high school teacher from a school that uses a state-approved portfolio/roundtable exam waiver from the state as well as beginning a union contract approved peer review initiative. (Watch hearing here)
The American Federation of Teachers position supports a nuanced position on the use of tests,
We are calling on Congress to end the use of annual tests for high-stakes consequences. Let’s instead use annual assessments to give parents and teachers the information they need to help students grow, while providing the federal government with information to direct resources to the schools and districts that need extra support.
We’re calling for a robust accountability system that uses multiple measures—which could include factors like whether students have access to art, music and physical education, and whether they have support from specialists like school librarians, nurses and counselors. Such a system should allow for ideas like portfolios rather than bubble tests. We recommend a limited use of testing to measure progress—including what to do if there isn’t progress—through grade-span testing. That means instead of annual high-stakes tests, we’d have tests once between third and fifth grades, once between sixth and eighth grades, and once in high school.
Other groups will advocate for a range of approaches, John King, the former NYS Commissioner will be roaming the halls of Congress supporting the core principles of the Duncan waiver system and the continuation of annual testing that can be used for high stakes decision-making. Others will call for the elimination of any required testing leaving all decisions to the states, and, some will call for the prohibition of the Common Core and a few will call for the disbanding of the Department of Education.
Wade Henderson, who leads a civil rights organization, is wary of eliminating annual testing,
Stepping too far back from testing requirements could strand poor and minority students, said Wade Henderson, CEO of the Leadership Conference on Civil and Human Rights. “The bill, as a general matter, bends over backward to accommodate the interests of state and local government entities that have both failed our children and avoided any real accountability for their failures,” he said. “Congress must not pass any … bill that erodes the federal government’s power to enforce civil rights in education.”
Elizabeth Warren, although a liberal Democrat, also questions granting states wider powers over spending federal dollars,
“All a state would have to do to get federal dollars is submit a plan with a lot of promises,” with no guarantee of a follow through, she said. “If the only principle is the states should be able to do whatever they want, then they could raise their own tax dollars to pay for it.”
Republican chair Alexander entered a letter in the record from Carol Burris, a Long Island principal who is a sharp critic of high stakes testing, Burris wrote,
“The unintended, negative consequences that have arisen from mandated, annual testing and its high-stakes uses have proven testing not only to be an ineffective tool, but a destructive one as well,”
The Senate side has always be collegial, up to a point; the rules require cobbling together 60 votes, Republicans need Democrats.
It is likely that a bill will reach the floor with commitments for sixty votes.
In the House minority Democrats have no clout; House procedures allow the majority party to set the rules. The House Education and the Workforce Committee is holding its first organizational meeting on January 21st; there are over 200 bills that are sitting in the subcommittee on Elementary and Secondary Education that were introduced in the last session, the vast majority will die in committee.
James Madison captures the essence, the soul of our governmental process, “… what is government itself, but the greatest of all reflections on human nature. If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
The internal conflicts within the individual houses, the conflicts between the houses and the ultimate power of the executive, to quote Madison are a “reflection on human nature.” Legislators are bipartisan when it is in their self-interest, and, for the last few years legislators have resisted “coming together,” ideology is trumping pragmatism.
The passage of a reauthorization of the Elementary and Secondary Education Act (aka, NCLB) would be the crowning achievement of Alexander’s career.
I am optimistic.