On the first legislative day of a new Congress, the House of Representatives operates virtually in a state of nature, governed only by the Constitution. The first order of business is electing a Speaker, and after the Speaker swears in the Members, they adopt the rules that govern the House. Until then, there are no committees, no officers of the House, nada. At that moment, it’s pure majority rule. The Rules of the House, adopted that day, set the tone and parameters for all that follows.
Recently, Bloomberg summarized a proposal from House Republicans on the Rules the House of Representatives for the 115th Congress should adopt, and I have copies of a draft that shows how these rules would differ from the 114th, so here’s what pops out as notable. (Warning: this is not comprehensive!)
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But first….
The proposal I’m describing can still change before January 3rd; the text usually is publicly available on the 2nd, although I’m not aware of rules that govern when it must be available, and the 3-legislative-day presentment rule technically is not in effect. It would be nice for Democrats and Republican to publicly release the final proposals farther in advance (but I’m glad these were shared comparatively earlier than usual!)
These are not the rules for the House Republican Conference and Democratic Caucus. House Republicans usually publish their rules; Democrats (sadly) do not. Republican rules likely will be published here. Update: the R rules for the 115th are here, but were pretty hard to find.
The Rules will be published as structured data. Last Congress, for the first time, the House published its rules as structured data. This is very helpful. Here’s how the rules have changed recently: 111-to-112th, 112–113th. (I haven’t published 113–114th.)
How should the House modernize its rules? Glad you asked. Here are recs for transparency/accountability the 114th, 113th, and 112th Congresses. Here are recs for modernizing congressional oversight of the intelligence community for the 115th, and elsewhere we’ve signed on (and helped identify) ethics reform recs and a letter in support of retaining the Office of Congressional Ethics.
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GOOD, GOOD
- The House will continue publishing House documents in machine-readable formats. This is a BFD.
- The ethics watchdog known as the Office of Congressional Ethics will continue in its current form. (We will have to watch to see if an amendment is offered to weaken OCE). We support strengthening the office by granting it subpoena power.
- The House will continue to require the use of parallel citations for non-codified laws, which is making it possible to build a tool (the Amendment Impact Program) that shows how a bill would change the law in real time, at the touch of a button.
- Members will (continue to be) able to more easily fund staffers at Congressional Member Organizations, which are congressional caucuses.
- Docs.House.Gov, run by the House Clerk, now is authorized by a provision in the House rules itself, not just an order.
CLICKBAIT
Likely in response to the Democratic sit-in on gun violence, the new rules allow the House to fine anyone who digitally records anything on the House floor, violating House rules or whatever the Speaker says is policy on electronic devices. It also underscores (or maybe grants further powers to?) the Ethics Committee to punish sit-ins on the floor when the House is in session.
This provision will get the most media attention and likely is intended as such. I suspect that it constitutes a pyrrhic victory, however, if adopted. Wealthy members of Congress can easily afford the fines, or may draw no salary and thus the mechanism created here would be ineffectual. The optics of punishing members who speak out on hot topic issues are awful, and serve to highlight the governance problems arising from the minority feeling so disempowered by the House under its rules. In addition, the way this rule it would be implemented — with the money coming out of member pay — mayviolate the 27th amendment, which prohibits altering member pay during the current congressional term, although I’d have to do homework to figure that one out.
I’VE GOT A BAD FEELING ABOUT THIS
The House must have a way to effectuate its subpoenas, but a new provision seems to make it a lot easier, and we’ve seen the House Science Committee abuse its subpoena authority against NGOs in its fight against climate science, using it as a political weapon instead of a fact finding tool. With a friendly administration, it’s much more likely people will go to jail for refusing to comply with (punitive) subpoenas. There’s real fear among NGOs that House committees will abuse their authority to punish political opponents, and that the new measures seem to weaken the checks on House committees and thereby makes it much easier to tie civil society up in knots. I haven’t worked through the implications of these new provisions but they make me really nervous.
MISSED OPPORTUNITIES
- Strengthen Congressional Oversight of the Intelligence Community. Congressional Oversight of the Intelligence Community is terribly broken. A bipartisan coalition of dozens of organizations put together common-sense, do-able recommendations to make it better, building on a nifty white paper. Those recommendations were not adopted here, which is particularly unfortunate in light of all the concerns about foreign influence in domestic elections, interference/surveillance by our own spy agencies in the domestic sphere, and impending shifts in US foreign policy.
- Committee on the Operations of Congress. Congress is badly malfunctioning and it has been decades since Congress itself looked at the causes. A coalition of organizations endorsed a recommendation spearheaded by the Congressional Institute that called for a Joint Committee on the Operations of Congress. We’ve already seen useful, related work in the Article 1 project, but it’s not enough. The House could have kicked off its own select committee.
- Improved Committee Transparency. We’ve seen real improvements with transparency on bills on the floor of the House, but committees still are quite opaque. The rules should be updated to release the text of amendments offered in committees and to modernize how votes are released to the public. This info is largely available through paid services, but is not available to the general public.
- Whistleblowing. This is partially covered elsewhere, but I wanted to reiterate that whistleblowing is so important that the House should establish an office of a Whistleblower Ombudsman to help Members and Committees protect whistleblowers who talk to Congress and facilitate their doing so.
- Nitpicky stuff. There’s a bunch of nitpicky stuff that would be useful. Witness disclosure forms, for example, could be put online at one central location, made searchable, and include a field to indicate whether the witness is a lobbyist. It’d be great for the House to have a Chief Transparency Officer, who helps people inside the institution better publish data and those outside find it. If you’re interested, I have a long list. 🙂
CONFUSING
- The House has reinstituted the seemingly archaic Holman rule, which is explained on p. 7 of this Appropriations Committee history but makes little sense to me. Based on the House’s explanation, I think it allows appropriations bills to be amended, but only when (1) the amount of money appropriated is cut; (2) federal employees salaries (or total number of positions) are cut; or (3) compensation to other people (contractors?) are cut. Drawing on news analyses, this seems like a incredibly powerful and fairly dangerous tool to cut pay or employees through amendments that are rammed through, instead of working through the slower but more deliberative processes.
- Another provision disallows amendments to appropriation bills that would increase budget authority. Also not sure what this means, although I suspect it is connected somehow to the sequester and would prevent efforts to increase money available for the different approps cardinals.
- There’s a further provision with prevents the committee of the whole from reporting a bill that’s funding goes beyond what’s allowed under the budget resolution. This is another way that weakens all Members of the House except the few who sit on appropriations.
- The Speaker Pro Tempore is given priority over the Clerk’s ability to restore order prior to the selection of a new Speaker, apparently after a Speaker has been deposed. I’m not sure what the consequences of this are, but it may be a response to what happened after Speaker Boehner was forced out in the middle of a session.
I’M NOT SURE WHAT TO MAKE OF THIS
- Why is Homeland Security allowed to hold closed hearing for 5 additional days without holding a public vote to continue those proceedings? The vote doesn’t take long, and secrecy is a bad habit in the people’s house.
- Adding the motion to postpone and the motion to recommit as postponable questions seems like it could have significant repercussions in circumstances where leadership is losing on a bill, i.e. when members would be willing to delay (kill) a measure but don’t want to outright vote against it.
- Looks like there’s a requirement to say how many rulemakings are being directed in a bill, but not listing the directed rules itself. This could be about the balance between agencies and Congress.
- I’m not sure what’s changing w/r/t the House Oversight Plans.
FAIR ENOUGH
- Reiterates that the documents in personal offices of Members belong to the Members and not the public. It’s probably worth rethinking, but not sure it’s a big deal. I wonder if there’s a way to help members preserve personal office documents that would be of public interest.
- Former members who lobby cannot go to the House gym.
- House Democracy Partnership will continue.
- Granting House Intel staff deposition authority without a member present seems reasonable.
— Written by Daniel Schuman
