Immigration discharge petition approaches final showdown
© Greg Nash

With the House back in session this week, it’s crunch time for Discharge Petition No. 10 which sets up a “queen of the hill” process for considering four immigration alternatives at the end of the month. The showdown pits the Republican leadership against a handful of moderate Republicans who want to permanently resolve the DACA dilemma (Deferred Action for Childhood Arrivals) – an Obama administration order that was cancelled by President TrumpDonald John Trump20 weeks out from midterms, Dems and GOP brace for surprises Sessions responds to Nazi comparisons: 'They were keeping the Jews from leaving' Kim Jong Un to visit Beijing this week MORE and is currently before the courts.

The petition’s prime movers, Reps. Carlos CurbeloCarlos Luis CurbeloZeal, this time from the center The Hill's 12:30 Report Few voice support after House GOP releases 293-page DACA bill MORE (R-Fla.), Jeff DenhamJeffrey (Jeff) John DenhamGOP immigration compromise faces more hurdles in House Immigration compromise underlines right’s clout GOP centrists face decision day on Dreamer petition MORE (R-Calif.), and Will HurdWilliam Ballard HurdWhite House faces growing outcry over migrant family policies Dem lawmakers make surprise visit to ICE detention center Bannon on migrant family separation: Zero tolerance doesn't have to be justified MORE (R-Texas) currently have 213 of the requisite 218 signatures (a House majority) needed to bring a discharge motion to the floor. With 190 Democrats and 23 Republicans signed-on by the Memorial Day recess, Denham says his group has the additional five signators needed to put the petition over the top.

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However, he is holding-off until this Thursday, June 7, to give the majority leadership time to develop an acceptable compromise process. If none emerges, the GOP group is prepared to pull the final discharge trigger and force the special rule (H. Res. 774) onto the discharge calendar. After pending there for seven legislative days, a discharge motion is ripe for floor action on the second or fourth Monday of the month -- in this instance, on June 25.

The special rule subject to the discharge motion is not unlike other House resolutions that are drafted and reported by the Rules Committee to provide for consideration of legislation usually reported by a committee. In this case, though, the rule is unreported and would make in order an unreported bill (H.R. 4760) introduced by House Judiciary Committee Chairman Robert Goodlatte (R-Va).

Denham introduced the special discharge rule in March and Rep. Carlos Curbelo (R-FL) filed a discharge petition on it May 9. It provides for one hour of general debate on the Goodlatte bill, divided equally between the majority leader and minority whip, followed by consideration of four amendments in the nature of a substitute. The amendments must be “proper” amendments, that is, conform to House rules. They are debatable for 40-minutes each.

The four amendments, to be offered, in the order listed, are by: Chairman Goodlatte; Rep. Lucille Roybal-AllardLucille Roybal-AllardImmigration discharge petition approaches final showdown Working together on a permanent legislative solution for Dreamers In ICE detention, pregnant women face stress, trauma, and inadequate care MORE (D-Calif.); Speaker Paul RyanPaul Davis RyanTrump digs in amid uproar on zero tolerance policy Mark Sanford’s troubles did not begin with Trump NY Post blasts Trump, GOP over separating families at border MORE (R-Wis.), and Denham --or their designees.   If more than one amendment is adopted, the one with the most votes wins. In the case of a tie, the final substitute adopted prevails. It’s called “queen-of-the-hill” because it allows votes on all four substitutes whereas under the regular order if an amendment in the nature of a substitute is adopted, no further amendments are allowed.

As long as I can remember, the majority leadership, regardless of which party controls the House, has strongly urged their party colleagues not to sign discharge petitions. The argument made is, “Do you really want to turn the floor agenda over to the minority?”

As majority staff director for the Rules Committee in 1995-96, I prepared a report for our weekly Republican leadership meetings titled, “Discharge Account.” It contained an updated status on how many signatures were on each petition filed, highlighting the names of those Republicans who had signed-on. If things got close, the leadership would attempt to peel-off GOP signers by urging them to withdraw their names –something that can only be done before the number reaches 218.

Given such stiff majority leadership opposition, very few discharge petitions ever achieve the House majority threshold of signatures. Based on data compiled by the Congressional Research Service (through 2002) and subsequent records of the House Clerk, over the last 52 years (1967-2018), of the 321 discharge petitions filed in the House, only 13 (4 percent) have attained 218 signatures. Of those, only seven (2 percent) have been called up under the regular discharge process. Seven of the bills on the discharge calendar have passed, though four of them were considered under alternative procedures established by special rules from the Rules Committee.

It obviously makes a difference when the instigator of a discharge petition is a member of the majority party, as is presently the case with the immigration petition, since only a bipartisan effort can attract majority support.

While it is always possible for the majority leadership to undermine a discharge effort by using alternative procedures that block the signers’ preferred amendment or bill, from my experience the watchword has always been one of fairness to those who have gone out on a limb to fight for what they consider to be an important issue to their constituents. We will soon see whether that model still holds.  

Wolfensberger is a fellow at the Woodrow Wilson Center and Bipartisan Policy Center, former staff director of the House Rules Committee, and author of Changing Cultures in Congress: From Fair Play to Power Plays (forthcoming in October). The views expressed are solely his own.