Adopting House Rules in a New Congress: From Democratic Deliberation to Partisan Monopoly Donald R. Wolfensberger Director, The Congress Project The Woodrow Wilson International Center for Scholars Paper prepared for presentation at a Congress Project program on the opening day of the 110th Congress, Thursday, January 4, 2007 at the Woodrow Wilson Center. This paper is adapted in part from a paper by the author published in the Congressional Record of Jan. 7, 1997 (page H-16)--the opening day of the 105th Congress. 1 Introduction: For more than a century now, on the opening day of each new Congress the House of Representatives considers a resolution reported by the majority party caucus (usually designated as House Resolution 5), adopting the standing rules for that Congress. The resolution ordinarily states that the rules of the previous Congress are adopted as the rules of the new Congress, together with certain additional amendments recommended by the majority party caucus. The resolution is usually called up by the House majority leader, in the case of Republicans, or, in the case of the Democrats, the likely chairman of the Rules Committee (which does not come into existence until the rules are adopted). The majority manager of the resolution is recognized for one hour of debate, half of which is yielded to the minority leader (or a designee) as a matter of courtesy and tradition. At the end of the hour, the majority manager moves the previous question to bring the resolution to a final vote. If the previous question is defeated, then the minority is recognized for an additional hour and may offer its own substitute amendment or individual amendments. Since 1981, the minority has also been offering a motion to commit the rules resolution to a select committee (to be appointed by the Speaker) with instructions to report back immediately certain amendments specified in the resolution (a practice resurrected from the early 20th Century). However, neither the previous question motion nor the motion to commit receives any additional debate time, and both attempts by the minority to open the resolution to amendment are usually defeated along party lines.1 It seems ironic that the House of Representatives spends just one hour of debate on one of the most important decisions for that Congress--the rules that will govern the House and its committees for the next two years, and that the resolution establishing those rules is not subject to floor amendments by Members who must abide by those rules over the ensuing two years. An examination of House history, however, reveals that the adoption of House Rules has not always been such a closed and partisan affair. The Early Years: Under the Constitution, “each house may determine the rules of its proceedings.” By the time the First Congress convened in 1789, most Members were well steeped in parliamentary procedure based on experiences in the Continental Congress, its successor Congress of the Confederation following independence, and colonial legislatures. All drew heavily on precedents from the British Parliament. Thomas Jefferson, in his Manual of Parliamentary Practice which he wrote for the Senate as Vice President (and thus the President of the Senate) from 1787 to 1801, draws heavily on British precedents, beginning with its very first lines in section regarding the “Importance of Adhering to Rules:” Mr. Onslow, the ablest among the Speakers of the House of Commons, used to say, “it was a maxim he had often heard when he was a young man, from old and experienced Members that nothing tended more to throw power into the hands of administration, and those who acted with the majority of the House of Commons, than a neglect of, or departure from, the rules of proceeding; that these forms are instituted by our ancestors, operated as a check and control on the actions of the 2 majority, and that they were in so many instances, a shelter and protection to the minority against the attempts of power.”2 The House of Representatives in the first Congress was supposed to convene on March 4, 1789, but it wasn’t until April 1 that it achieved a quorum to do business. On that day the House elected Frederick Muhlenberg of Pennsylvania as Speaker. On April 2 the House authorized and appointed an eleven-member select committee “to prepare and report such standing rules and orders of proceeding as may be proper to be observed in the House.”3 Five days later Representative Elias Boudinot of New Jersey, chair of the select committee, reported a set of four rules to the House dealing with the duties of the Speaker; the duties of members relating to bill introduction, speaking and voting; bill preparation by committees and consideration by the House; and the composition and procedures for considering legislation in the Committee of the Whole House. According to the Journal, after the proposed rules were read, the question was put and the rules were “agreed to by the House.” 4 Six days later the select committee reported an additional eight rules to the House, five of which were adopted after the resolution had been read and debated by paragraph. The rules dealt with Members’ service on committees, leaves of absence, the creation of a Committee on Elections, and a requirement that the Clerk take an oath of office. The other three rules, relating to the duties of the Sergeant at Arms, were committed to the Rules committee for further consideration, and then reported back the following day and adopted by the House without further amendment.5 The precedent had been set for a select committee on rules to be appointed in each Congress to report any additional changes in the rules from the previous Congress. Its recommendations would then be subject to debate and amendment by the House. Following disposition of the rules amendments, the select committee would go out of business. Beginning in 1797, the House adopted the rules of the previous Congress before even appointing the select rules committee. In the Congresses between 1811 and 1822, no rules changes were made, and in two of those Congresses the House didn’t even bother to create a rules committee. In 1822, on the other hand, the rules committee reported 14 amendments to the rules, dealing mostly with parliamentary procedure, and these were adopted with only modest changes made by the House.6 Although a standing committee system had evolved by the 1830s, the rules committee remained a select committee well beyond that. It wasn’t until 1841 that House rules gave the select committee authority to report at any time, meaning it would continue in existence for the duration of a Congress. As the history of the rules committee indicates, it was sporadically active, reporting major revisions in House rules in 1837, 1860, and 1880. It was even briefly made a permanent committee in two Congresses (1849-53), but did so little that it was demoted to a select committee for another 28 years. It wasn’t until the massive revision of House rules in 1880 that the committee was finally made a permanent standing committee. Prior to that, the Speaker had been made a member of the committee in 1859, and its chairman beginning in 1860. 3 George Galloway, in his History of the United States House of Representatives, gives us a good description of how the reports of the select committee on rules were handled by the House in the years following the Civil War. “The customary practice in post bellum days,” he writes, “when a new House met, was to proceed under general parliamentary law, often for several days, with unlimited debate, until a satisfactory revision of former rules had been effected.” He goes on to cite examples of such extended debate on the rules for a new Congress. For instance, after the general rules revision of 1880 (which included making the Rules Committee a permanent standing committee of the House), “Two days were consumed at the beginning of the 48th Congress (1883), 4 days at the 49th (1885), 6 days at the 51st (1889), 9 days at the 52d (1891), and 6 days at the opening of the 53rd Congress (1893).” “On three of these occasions,” Galloway concludes, “two months or more elapsed before the amended code was finally adopted, in striking contrast to the celerity with which the old rules have been rushed through in recent times.”7 The Modern Rules Committee is Born: When Rules Committee became a standing House committee in 1880, it soon took on an additional responsibility to that of recommending changes in the standing House rules. It became the scheduling arm of the majority leadership by reporting special rules which were resolutions that allowed specified bills to be considered immediately, as opposed to having to await their turn on the Calendar. This development also marked the beginning of stronger party governance in the House though it did not immediately affect the open treatment for adopting House Rules at the beginning of each Congress. The person who recognized the full potential of the Rules Committee under the chairmanship of the Speaker and as an arm of the majority leadership was Congressman Thomas Brackett Reed (R-Maine). First elected to the House in 1876, he became a Member of the powerful new standing Committee on Rules in 1881. Republicans lost control of the House in 1882 but were back in power briefly in 1889-90 and elected Reed as Speaker. By this time, Speaker Reed had developed his own ideas about why House rules existed. To him, “the object of a parliamentary body is action, and not stoppage of action,”8 the role of the majority party was to pass its legislation, and the function of the rules was “to facilitate the action of the majority.”9 During debate in January 1889 on a resolution to dispense with the time- consuming call of the states and territories during the final days of the 50th Congress, Reed, the author and manager of the resolution (even though still a minority member of the Rules Committee), offered his views on the purpose of House rules: The rules of this House are not for the purpose of protecting the rights of the minority, but to promote the orderly conduct of the business of the House.