One of the recurring, puzzling paradoxes in the House of Representatives is why new majorities, coming to power on pledges to restore openness and regular order, quickly revert to the ways of their predecessors and become even more restrictive in closing down the floor amendment process on important bills.
Proponents of partisan power politics readily explain why this way: “Because they can.” Former House Rules Chairman David Dreier, R-Calif., gave a more nuanced justification on numerous occasions, suggesting Republicans never fully appreciated when in the minority just how difficult it is to govern. Majority status brings with it new responsibilities to pass the party’s priority legislation in a timely and successful fashion, and that often entails severely restricting the amendment process on major legislation to avoid minority party obstruction and weakening or politically embarrassing amendments.
Special rules (or, just rules), are simple House resolutions reported by the Rules Committee, subject to House approval, that give one or more bills privileged floor status and set the conditions for debate and amendment. Before the device was invented in the 1880s, the only way to consider legislation out of the order on which it appeared on the calendar was by unanimous consent or suspension of the rules requiring a two-thirds vote. Special rule resolutions, by contrast, only require a majority vote for adoption. That enables the majority leadership to schedule legislation it wants, when and how it wants it considered.
The Rules Committee became a standing committee in 1881 after 92 years as a select committee that recommended changes in the standing rules. The speaker served as chairman of the five-member standing committee, and, in the 1890s, Speaker Thomas Brackett Reed, R-Maine, made the committee a powerful leadership tool, both for reporting standing rules changes that abolished minority obstructionist tactics, and for devising special rules that sometimes limited debate and amendments.
For nearly a century after becoming a standing committee, the Rules Committee reported mostly open amendment rules. The exceptions were tax and tariff bills which were usually closed to most or all amendments. That was still the case in 1969 when this writer arrived on Capitol Hill as a staffer.
That began to change when amendments offered in the Committee of the Whole became subject to rollcall votes beginning in 1971. Minority Republicans seized on the new sunshine rule to offer politically sensitive amendments. But restrictive rules didn’t really ramp up until around 1981, as the Democrats became more sorted and cohesive and faced a popular Republican president, Ronald Reagan, aggressively pushing his agenda of tax cuts, increased defense spending, and balanced budgets (the elusive butterfly).
Restrictive amendment rules, including closed and structured rules that only allow specified amendments, shot-up from around 30 percent of all rules in 1980 to 56 percent in the Democratic 103rd Congress (1993-94). The new Republican majority in the 104th Congress (1995-96) temporarily brought the percentage of restrictive rules down slightly to 42 percent.
Yet, the percentage of restrictive amendment rules edged-up again with each succeeding Congress, whether under Republican or Democratic control. In the Democratic 110th Congress (2007-08), it stood at 86 percent of all rules, and, by the Republican 113th Congress (2013-14), restrictive rules were 91 percent of the total.
Closed amendment rules alone accounted for 48 percent of the total in the last Congress — up from just 14 percent two decades ago, and 32 percent 10 years ago. Open amendment rules have almost gone the way of the dodo, with percentages hovering in the teens or lower.
One explanation for this ratcheting effect is offered by political scientists John E. Owens and J. Mark Wrighton in a 2008 study. They attribute it to increasing polarization in the House and an “emulation effect” (based on Daniel Patrick Moynihan’s “iron law of emulation”), positing that, “when one political party acquires a technique enhancing its power, the other party will likely adopt it as well in order to carry out election promises and to prevent potential dissidents from within its ranks from forming winning bipartisan coalitions with the minority.” This is especially evident when the two parties are in intense conflict and competition. House Republican leaders’ recent crackdown on GOP members who voted against the trade rule is one manifestation of this phenomenon.
Whatever the precise motivation or explanation, the trend still leaves open the questions of how an increasingly restrictive legislature is viewed by the public and how the techniques being used affect the quality of the deliberative process and resulting policies. The issue of legitimacy, both of the legislature and its legislation, is not lightly dismissed.
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.
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