As a denizen of the minority party during my first 26 years as a staffer in the House, I came to be quite an expert on majority party moves to counter minority party provocations. At one point, I even coined a bastardization of Newton’s third law of motion to characterize these moves: “For every minority action, there’s an unequal and opposite overreaction.”
That came to mind last week when the House Rules Committee gave the majority leader the authority to bundle bills considered under a suspension of the rules and move for a single, en bloc vote. The special authority was tucked into a rule that provided for the consideration of three major bills, including D.C. statehood and two border immigration issues (all under no-amendment rules).
On Tuesday, April 20, the same day the special rule was reported to the House and adopted, Majority Leader Steny Hoyer (D-Md.) exercised his new authority by moving to pass by a single, en bloc vote, ten relatively non-controversial bills that had previously been debated under suspension by the House (40-minutes of debate, no amendments and a two-thirds vote for passage) but on which there had been a demand for a rollcall vote. Ordinarily, such bills are passed by voice vote. In this instance, a small minority of Republicans, aka the Freedom Caucus, had decided, for whatever reason, to use the opportunity to slow things down.
Hoyer estimated that his new authority saved the House at least seven hours of voting time since votes take much longer now under the pandemic protocols of social distancing of members in the chamber when voting (only seven at a time). The same small group of members had previously thrown a wrench into the gears by offering motions that the House adjourn shortly after it came into session.
None of these disruptive tactics had the blessing of the Republican leadership, as far as I can tell, though that has not prevented rogue rump groups from acting independently in the past: just ask former Speaker John Boehner (R-Ohio) who recalls in his memoir, “On the House,” how, in his freshman year, he and his “gang of seven” raised all kinds of ruckus on the floor over ethics issues.
But even when the minority acts with the blessing and even at the instigation of its leadership, the majority is quick to push back, making the penalty disproportionate to the minority’s alleged crimes.
At the beginning of this Congress the Democrats included in their House rules package a provision that forbade the minority’s right to offer an amendment in its motion to recommit at the end of a bill’s consideration — a right dating back to 1909. The reason: the minority was using far too many of its motions to score political points rather than to improve the legislation. Moreover, the majority pointed out, even in those instances in which the minority’s motion prevailed, minority members still voted against the underlying bill.
One would think that by eviscerating the minority’s right to offer a final amendment to a bill in its motion to recommit, the majority would be more generous in allowing the minority to offer amendments during the course of the normal amendment process.
The problem is, there is no longer a “normal” or “regular” amendment process. The old, open amendment rules have gone the way of the dodo, last seen in the 114th Congress (2015-16) when just eight bills (5 percent) with special rules were considered under open rules. Since then, only structured and closed rules have been granted by the Rules Committee, the former allowing only those amendments specified in the Rules Committee’s report on the rule.
How has the minority fared there? In the 116th Congress (2019-2020), the first time Democrats have been back in the majority, 46 percent of the special rules were structured and the other 54 percent were closed to all amendments. In the current 117th Congress so far, only 38 percent of the special rules were structured and the other 62 percent have been closed.
Even under structured rules, the minority gets the short end of the stick — in the previous Congress just 17 percent of the amendments allowed, and in this Congress so far, just 19 percent.
The point is, to the extent the majority thinks that its game plan and political messaging efforts might be thrown-off by allowing greater minority participation in the process, the more it limits and even denies such activity. Increasingly, the majority is pitching shut outs to team minority.
The use of the rules by the majority to advantage itself is certainly nothing new, and, in fact, was pioneered by Republicans back in the 1890s under Speaker Thomas Brackett Reed (Maine), aka “Czar Speaker.” As he put it, “If the majority do not govern, the minority will; and if the tyranny of the majority is hard, the tyranny of the minority is simply unendurable.” And he concluded, “The rules, then, ought to be so arranged as to facilitate the action of the majority.”
However, even Speaker Reed would be taken aback today to witness just how his axiom has been taken to the maximum by modern-day Republican and Democratic majorities.
Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of, “Changing Cultures in Congress: From Fair Play to Power Plays.” The views expressed are solely his own.