LaHood's Lament Deserves Assent on Recommit Motion

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Rep. Ray LaHood (R-Ill.) has a point: Members should not lie, or even give the appearance of lying, to qualify for offering a motion to recommit a bill. Yet that's just what's been happening lately with increasing frequency — some 14 times so far in this Congress, compared to 11 times in all of the previous Congresses.

Under a 1909 House rule, the Speaker must give priority recognition to an opponent of a bill who wants to offer a motion to recommit. To make that determination, the chair asks, "Is the gentleman opposed to the bill?" The customary response is, "I am, in its current form."

The most commonly used type of such a motion is called "a motion to recommit with instructions" because it permits the proponent to direct that the bill be further amended. If the motion is adopted, the floor manager of the bill must report the amendments to the House "forthwith" for an immediate vote. All this occurs just before the vote on final passage of the bill.

The 1909 rule change shifted control of the motion from the majority party to the opponents of a bill. The reason for the change was to forestall an attempt to remove Speaker Joe Cannon (R-Ill.) as chairman and member of the Rules Committee. The price was to give the minority party a chance to offer a final amendment to every bill. However, in the 1980s and early 1990s, majority Democrats in the House used an obscure 1934 precedent to chip away at the minority's right to offer amendments in a motion to recommit. Ultimately, the precedent was used on major bills to bar any amendments from being offered in the motion. The last clause in such a special rule resolution would read, "one motion to recommit, which may not contain instructions."

Minority Republicans were so furious at this reversal that they raised points of order against every special rule that denied amendatory instructions and attempted to amend House rules to fully restore their right. Majority Democrats successfully rebuffed these attempts. Nevertheless, when Republicans took control of the House in 1995 they did not back away from their commitment. The resulting new rule prohibits the Rules Committee from denying a motion to recommit, with or without instructions, if it is offered by the Minority Leader or a designee.

Recently, LaHood raised parliamentary inquiries with the Speaker after Democrats claimed to oppose bills to qualify for the recommittal motion, then turned around and voted for the bills after their motions were defeated. LaHood asked the Speaker whether such behavior violates House rules. The chair responded: "The first element of priority in recognition for a motion to recommit is whether the Member seeking recognition is opposed to the measure. Under the practice of the House ... the chair accepts without question an assertion by a Member of the House that he is opposed to the measure in its current form."

House Minority Whip Steny Hoyer (D-Md.) had a different take on the situation than LaHood. In defending a Member's switch from opposing to supporting a bill, Hoyer said: "A Member's view of a bill does change in light of the action on a previous amendment or a motion to recommit. ... He or she then has to make a judgment, ‘Do I support or oppose this bill as it now is ... [even though] I have failed to perfect it with an amendment?'" Hoyer concluded that LaHood is "wrong on his premise, he is wrong under the rules," and that the Member who offered the motion "was fully within the rules and fully within his rights."

Both LaHood and Hoyer are solid institutionalists and raise good arguments in support of their positions. But LaHood seems to have the stronger case when it comes to the intent of the rule. Hoyer might be correct in saying Members occasionally change from opposition to support after losing their motion to recommit. But the acid test is whether the Member genuinely opposed the bill "in its current form" when questioned by the chair to qualify for the motion. If the form of the bill has not changed, then the Member should remain constant in opposing the bill. The purpose of the "in its current form" assurance is to protect the Member's right to vote for the bill if the motion to recommit is adopted, not to create a loophole for wiggling out of avowed opposition to the bill if the motion is not adopted. The rule is not a mood ring.

Secondly, Hoyer claims that a Member is within his or her rights to vote for the bill because Speakers' rulings have not mandated that a Member must vote against it. But that misconstrues what those rulings held. As "Deschler's Precedents" (a compilation of House precedents and practices) makes clear, "A Member making a motion to recommit must qualify as being opposed to the measure under consideration, and is expected to indicate his opposition by voting against the passage of the measure if the motion to recommit is rejected." Speakers have only conceded they cannot enforce the rule because they cannot read a Member's mind or dictate his or her vote.

LaHood is exploring ways to eliminate this appearance of hypocrisy. The rule could be amended to eliminate the preference given to an opponent of the bill. But that would give a more senior minority party supporter of a bill priority recognition over another minority Member genuinely opposed to it, thereby defeating the original purpose of the rule.

The easiest — and most accurate — way to deal with this is for the Speaker to reframe the qualifying question as follows: "Will the gentleman vote against the bill on final passage if in its current form?" A switch in position under such a clear condition could invite an immediate House reprimand for lying to Congress. And, as our grade school teachers used to remind us, "That will not look good on your permanent record."

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.

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