Last year in this space, I wrote about House discharge petitions as “useful minority tools,” even though they seldom gain the requisite 218 signatures to force floor consideration of the targeted legislation. The subject of that column was the Democrats’ attempt to force consideration of a bill to raise the minimum wage to $10.10 an hour. That effort had stalled at 197 signatures (all Democrats) when the clock ran out on the 113th Congress.
In this Congress, a different phenomenon is unfolding: A discharge petition launched by 42 majority party members on Oct. 9 hit the 218 signature mark that same day, thanks to 176 Democratic co-signers. This year, the subject of the discharge petition is a five-year reauthorization of the Export-Import Bank. (On July 1, it lost its authority to make new loans to companies to finance the export of U.S. products abroad.)
The leader of the discharge effort is Rep. Stephen Fincher of Tennessee, a third-term Republican from Memphis who sits halfway down the roster of 34 Republicans on the Financial Services Committee to which his bill was referred. Fincher introduced his bill on Jan. 28, just 14 legislative days into the new Congress. He was joined by 61 co-sponsors — all but one of whom are Republicans, though only six sit on Financial Services. And therein lies the rub: The committee’s chairman, Rep. Jeb Hensarling of Texas vehemently opposes the bill, as does House Republican leadership.
Moreover, Senate Majority Leader Mitch McConnell opposes the bank. However, as part of a deal to pass Trade Promotion Authority, McConnell promised Ex-Im supporters a later floor vote on their issue. That promise was fulfilled when an amendment by Sen. Mark Kirk of Illinois extending the Ex-Im bank was added to the three-year highway funding reauthorization on July 27 by a vote of 64 to 29. The popular highway bill went on to pass by a comparable margin. Nevertheless, McConnell has since vowed he will not take up a separate Ex-Im bank bill, such as the Fincher measure.
What was especially adroit about the Fincher pincer was its orchestration to achieve victory on the same day the motion was filed. That precluded any attempts by GOP leaders to pressure Republican colleagues to remove their names from the petition. It was a done deal. But Fincher also had the foresight to file his motion on a special rule providing for consideration of his Ex-Im bill. That has two advantages. First, the effort cannot be halted if Financial Services subsequently reports the bill. You cannot discharge a bill from a committee once it has reported it.
Secondly, the special rule provides for tight consideration: It self-executes the adoption of language from a substitute bill Fincher introduced in September that brings it into line with the Senate-passed language. And the rule prohibits any amendments. An open rule could have subjected the measure to a filibuster by amendment. The rule does preserve the right to offer a motion to recommit, with or without instructions (a final amendment). Whether Democrats should qualify to offer a final amendment in a motion to recommit is a morally murky question given their support for the bill. However, they are still entitled under the rules to do so as the minority party so long as the person offering the motion affirms opposition to the measure.
Under the discharge rule, the motion is eligible for consideration on the second or fourth Monday of the month after it has been pending on the discharge calendar for seven legislative days. In this case, that date fell on Oct. 26. Suffice to say, the House Freedom Caucus, which opposes the Ex-Im Bank, is not happy about the quickie bank job pulled by another 40-something member rump group inside the GOP conference. Nevertheless, the development has sparked an interesting internal debate about the founders’ notion of majority rule in a democratic republic.
Correction 8:35 p.m. A previous version of this column misstated the day on which the discharge motion would be called up.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a congressional fellow at the Woodrow Wilson Center and former staff director of the House Rules Committee.