Debate on Adopting Rules Offers Clues to Majority's Intentions

By

House debate over adopting its rules on the opening day of a new Congress is usually contentious — sometimes even heated. But, like the proverbial tree falling in the forest, no one is around to hear it.

After Members are sworn in, the House chamber and visitors' galleries empty in favor of celebratory receptions in Members' offices. The high-intensity TV lights in the chamber are turned off, and the few remaining Members and staff are left blinking and groping in the dark to find some meaning in the moment. And that's when the rules debate begins.

Thanks to C-SPAN, however, I can confirm that the rules debate did happen this year, that it made a noise and that it was a spirited exchange. Thomas Jefferson expressed the idealized notion in his "Manual of Parliamentary Practice" that rules "are the only weapons by which the minority can defend themselves against ... attempts from those in power" to carry out improper measures.

Anyone watching the House rules debate on Jan. 6, however, might have come away with the opposite notion, that rules are something the majority uses to disadvantage the minority. And indeed, that has sometimes been the majority's purpose and practice dating back 120 years. That's when the majority party caucus began dictating the rules for a new Congress behind closed doors and then bringing the package to the floor under a process allowing just one hour of debate and no amendments.

In 1890, Republican Speaker Thomas Brackett Reed (Maine) made no bones about his views that "the object of a parliamentary body is action and not the stoppage of action," that "the rules ... are not for the purpose of protecting the rights of the minority" and instead "ought to be arranged so as to facilitate the action of the majority." The Democrats revolted against "The Reed Rules" but eventually saw the utility in restoring them two years after they regained majority status.

The one-hour smack-down over House rules that now takes place on opening day reminds us of this ongoing struggle to maintain some balance between the competing interests of majority rule and minority rights. This year was no exception as House Democrats, emboldened by a 21-seat gain in November's elections, sought to increase their advantage over a weakened minority and thereby improve their chances of passing Barack Obama's legislative program.

While there was never a question that they already had ample powers under House standing rules (and special rules from the Rules Committee) to ram legislation through with minimal time, effort or resistance, there is always a temptation to further minimize any potential minority obstruction or political point-making.

Sure enough, as many had predicted, the majority went right to the heart of one of the minority's most sacred floor rights — the ability to offer a final amendment to legislation in a motion to recommit with instructions. However, instead of abolishing the right altogether, they curtailed it by prohibiting instructions to report back an amendment "promptly" — a move that physically sends a bill back to committee. The minority will still be able to offer a motion to report back an amendment "forthwith" — which instantly amends the bill. Ironically, in the 110th Congress, Republicans won 24 of their 77 "forthwith" motions, but none of their 41 "promptly" motions. In other words, the GOP retains its most potent and successful weapon.

The purpose of the rule change was to eliminate some of the political gamesmanship Republicans have engaged in as well as to avoid the delays that would occur if such motions succeed. Its effect, I suspect, will be to force the minority to get more serious about proposing real amendments that can be adopted. And there is already some indication that the GOP is working harder than in the previous Congress to develop substantive alternatives to the majority's bills.

I am therefore not as concerned about Democrats eliminating "promptly" motions as I am about other ways in which they continue to skew the legislative process by circumventing the regular order. The first five major bills brought up in the House in this Congress, for instance, were not reported by any committee, and four were closed to floor amendments.

To her credit, Speaker Nancy Pelosi (D-Calif.) subsequently acceded to Republican requests to bring the massive, $819 billion economic recovery bill through the regular committee process. Moreover, 11 floor amendments were allowed — five by Republicans (including an entire tax substitute). However, Republicans complained that was a mere 5 percent of the 206 amendments filed with the Rules Committee and that three GOP amendments adopted by one committee had been axed.

The ultimate test of whether Democrats are serious about being more fair and open, however, will be in whether they allow House-Senate differences to be ironed out in public, bipartisan conference committees, as they pledged to do back in 2006. Notwithstanding that promise, fewer major bills were sent to conference committees in the 110th Congress than at any time in recent memory. Instead, final legislative details were hammered out privately by a coterie of majority party leaders.

Debates over the adoption of rules and protests over procedural chicanery usually fall on deaf ears. However, their sound waves reverberate in the public subconscious and eventually erupt in revulsion against power abuses that violate all standards of democratic fairness and produce unrepresentative laws. That's exactly what happened in 1890, just two years after Speaker Reed and his Republican troops had taken over the House and imposed their new set of majority rules. They were once again out on the street, victims of their own "Czar Speaker."

EMAIL UPDATES

Experts & Staff