The Erosion of “Regular Order” in the U.S. House: A Historical Examination of Special Rules Michael S. Lynch University of Georgia [email protected] Anthony J. Madonna University of Georgia [email protected] Allison S. Vick University of Georgia [email protected] May 11, 2020 The Rules Committee in the U.S. House of Representatives is responsible for drafting special rules for most bills considered on the floor of the House. These “special rules” set the guidelines for floor consideration including rules of debate and the structure of the amending process. In this chapter we assess how the majority party uses special rules and the Rules Committee to further their policy and electoral goals. We explain the work of the Rules Committee and assess how the use of rules has changed over time. Using a dataset of “important” legislation from 1905-2018, we examine the number of enactments considered under restrictive rules and the rise of these types of rules in recent Congresses. Additionally, we use amendment data from the 109th-115th Congresses to analyze the amending process under structured rules. Introduction In October of 2015, Rep. Paul Ryan (R-WI) was elected Speaker of the House. Among other promises, Ryan pledged to allow more floor amendments through open processes and to return the House to “regular order” (DeBonis 2015). Ryan’s predecessor, former-Speaker John Boehner (R-OH), had been aggressively criticized by members of both parties for his usage of special rules to bar amendments. Despite his optimism, many were skeptical Ryan would be able to deliver on his open rule promises.1 This skepticism appeared to be warranted. By May of 2018, Speaker Ryan and the 115th Congress had broken the record for the most closed rules in congressional history (McPherson 2018). Ryan’s promise reflected the important role played by rules in legislative bodies. By allowing consideration of certain policy proposals, and barring others, rules can substantially alter policy output. Members want to be able to offer floor amendments to satisfy both their policy and electoral goals, and rules are the tools that party leadership use to allow selected members access to the agenda. Rules can also be used to keep issues off the floor, giving the majority party the ability to protect vulnerable members from taking difficult votes. The majority party’s use of restrictive rules frustrates members that are denied the ability to have their legislation and amendments considered on the House floor. As Rep. Rose DeLauro (D-CT) recently argued, restrictive rules block members “from fully debating or amending legislation, prohibiting [us] from fully giving our constituents a voice in this Congress (Congressional Record, 115th Congress, May 22, 2018, H297).” Ryan’s abdication of his promise for more open rules was not surprising given the difficulties inherent in contemporary lawmaking. Indeed, both Boehner and his predecessor, Rep. 1 See e.g. Reynolds (2015). 2 Nancy Pelosi (D-CA) made similar “regular order” pledges on which they subsequently failed to deliver (DeBonis 2015).2 Legislation is getting longer and more complex (Curry 2015), interest group involvement has increased substantially over the past few decades (Drutman 2015), polarization has increased, and partisan control of Congress is highly competitive (Lee 2016). This has led leadership to seek tighter control over the House floor in an effort to promote both their party’s policy goals and protect their electoral interests. In the House, this tighter control has been exerted through the use of special rules. In this chapter, we examine what special rules are, why they are employed, and how their usage has changed throughout the history of the House. Specifically, we document the increased likelihood major legislation will be considered on the House floor under a special rule and the dramatic rise in the percentage of special rules that restrict amending opportunities. We then examine the increased use of “structured rules”, using a new dataset to evaluate amending opportunities under them. First, we demonstrate the potential impact of special rules on policy. Special Rules and Policy Output Before legislation can be considered on the floor of the House, the rules under which the bill can be considered must be established.3 Most pieces of legislation that come to the floor are first given a “special rule” by the House Rules Committee. Special rules determine when (or if) a bill will be considered, the length it will be debated, and what amendments (if any) will be in order. Legislation reported by most House committees are placed in order on one of the House 2 Pelosi, upon regaining the speakership in 2019, would continue this, pledging more open processes under her leadership (Willis 2019). 3 A common alternative to the special rules process is when the House “suspends” its rules. Suspension of the rules requires a two-thirds vote and is frequently used to consider non-controversial legislation. See Bussing (2019) for a thorough discussion of the suspension of the rules process and the majority party’s use of this procedure to further their electoral goals. 3 calendars.4 A bill is unlikely to be considered on the House floor, unless it receives a special rule allowing it to bypass other bills ahead of it on the calendar. By determining which bills receive consideration and which do not, the Rules Committee holds a great deal of agenda-setting power.5 This importance is not lost on the majority party – the majority party claims nine of the thirteen seats on the Rules Committee, giving them a supermajority that can ensure that special rules are crafted in a way that supports the goals of the majority party.6 The process begins with the Rules Committee crafting a special rule that establishes the guidelines for the consideration of a specific bill. According to the Rules Committee website, the special rule must be filed while the House is in session and there should be a one-day “layover” before its consideration.7 Following the reporting of a special rule, the House must debate and approve the special rule. During debate on a rule, members discuss the type of rule that the Rules Committee has presented and argue either for or against the various requirements in the rule. A previous question motion is typically made and voted on, bringing an end to the debate over the special rule. The rule must receive a final approval vote, clearing the way for the bill to be considered on the House floor. As the criticism of former Speaker Ryan detailed in the introduction suggests, perhaps the most controversial power held by the Rules Committee is its ability to restrict floor amendments from bills. Throughout its history, the Rules Committee has reported a number of different types 4 In addition to the House Rules Committee, four standing committees (Appropriations, Budget, Ethics, Administration) may report certain types of legislation directly to the House floor (Oleszek et al. 2016). Despite the authority to report privileged legislation, in the contemporary Congress, nearly all of these bills still receive special rules governing their consideration. 5 The House has several legislative calendars. Without a special rule, most major bills would end up on the House Calendar. If a bill involves revenue it is placed on the Union Calendar (Oleszek et al. 2016). 6 The percentage of committee seats held by the majority party is typically determined by the percentage of the chamber controlled by the majority party. If 55% of House seats are held by the majority party, then approximately 55% of each committees’ seats will be held by the majority party. 7 Layover is avoided if there is a two-thirds votes to consider it within this first day or, as we detail later, it is waived by the adoption of another special rule. 4 of special rules that govern floor amendments. Rules that allow all germane amendments are referred to as open rules. Rules that bar amendments completely are called closed rules. Rules can allow only a limited set of amendments the opportunity to be considered – such amendments are called structured or modified rules and will be discussed later in the chapter. By restricting amendments, special rules can drastically impact policy output. Consider the following example. Assume Figure 1 represents a nine-member legislature. These nine members are ordered on a left (liberal) – right (conservative) ideological spectrum, with M1 being the most liberal, and M9 being the most conservative. These members hold preferences on the federal minimum wage that vary from $14 dollars per hour (M1) to $6 dollars (M9). In this example, the dashed line labelled SQ represents the existing status quo policy of $7.50. Finally, assume a committee reported a bill that proposes to set the federal minimum wage at M3’s ideal policy of $12 per hour. What happens if this bill is considered under an open rule? Under an open rule, anyone is allowed to offer an amendment. Accordingly, under the median voter theorem, the median member of the group, M5, would be able to propose an amendment moving the minimum wage to M5’s ideal policy of $10. Theoretically, a proposal made at the median voter’s ideal policy position would pass under open amending and become the final policy outcome. Any attempt to move the policy to the right of $10 would be voted down by members M1 to M5. Similarly, any attempt to move policy to the left of $10 would be voted down by members M5 to M9. This basic logic supports the theory that open rules will lead to outcomes at a legislature’s median member (Black 1948). Figure 1: Special Rules and Policy Outcomes, an Example 5 M1 M2 M3 M4 M5 M6 M7 SQ M8 M9 ($14) ($13) ($12) ($11) ($10) ($9) ($8) ($7) ($6) However, if the committee’s bill is reported to the floor under a closed rule that bars any amendments, the floor is forced to choose between M3’s ideal policy of $12 or the existing status quo of $7.50.