Democrats weaken House oversight with emergency pandemic procedures
© Getty Images

When House Republicans loudly protest that majority Democrats are abusing minority party rights, the seasoned cynic muses, “That’s what majority and minority parties do. So, tell me something new.”

Sometimes, though, it’s more complicated, and that’s when things start to get interesting, especially when the law of unintended consequences kicks-in. That’s exactly what was in play when a “CNN politics” story broke on Sept. 21 with the headline, “Democrats quietly limit House GOP effort to press for probes into Biden administration.” 

The article, by Melanie Zanona and Manu Raju, citing “publicly available documents,” lays-out how Democrats, last March “began slipping language into House rules that essentially block Republicans from using a resolution of inquiry.” That’s the device in House Rule 13 that allows members to formally request the president or a Cabinet secretary to provide the House with information held by the executive. Under the rule, after the resolution has been pending for 14-days in committee, if it is not reported (favorably or unfavorably), a motion to discharge the committee can be offered on the House floor as privileged. The article correctly points out that it is one of the few investigative tools available to the minority since the majority already has the power in committee to request information from the administration, by subpoena or otherwise, and to schedule oversight hearings and report its findings.

ADVERTISEMENT

One might think from the CNN report that the emergency procedures were somehow added to the special rule in the dead of night with no one’s knowledge. In fact, they were available in writing when the draft rule was offered by motion in the Rules Committee and read aloud in its entirety. It’s just that no one thought it was a big enough deal to make a fuss about. 

The same was the case when the rule was debated and adopted on the House floor. Members are acutely aware that resolutions of inquiry have little chance of passing the House if the majority opposes them. They can be tabled outright or defeated. Nevertheless, they are still a valuable mechanism for the minority to flag an issue it thinks is being ignored by the majority and being ducked by the administration.

The March resolution in question (H. Res. 188) was a special rule from the Rules Committee that provided for the consideration of three bills, one on labor-management relations and the other two tightening the background check laws for the sale and transfer of firearms. The provision relating to resolutions of inquiry was tucked-in at the end of the rule along with other procedures (sections 11-17) altering House procedures to counter to the negative impact the pandemic has on conducting business as usual.

The relevant language on resolutions of inquiry in the emergency procedure dispenses with the 14-days in which a committee has to report such resolutions or be discharged by a privileged motion from the floor. The related sections that do away with timelines for action apply to a certain war powers procedure and motions to instruct or discharge House members serving on House-Senate conference committees on legislation. 

The war powers provision being set aside by the special rule is one that requires that a concurrent resolution introduced to direct a president to terminate hostilities not authorized by a declaration of war or a use of force statute be reported within 15-days or be subject to a privileged discharge motion. 

The CNN story (since corrected, while retaining the same headline) of a stealth procedure being slipped into special rules in the dead-of-night was not only misleading, it was downright wrong. H. Res. 188 repeats similar emergency provisions contained previously in H. Res. 8, which in turn picked-up those provisions from the 116th Congress (see H. Res. 967, May 15, 2020) when Donald TrumpDonald TrumpNorth Korea conducts potential 6th missile test in a month Kemp leading Perdue in Georgia gubernatorial primary: poll US ranked 27th least corrupt country in the world MORE was president. In other words, it was not the majority party’s deceptive ploy to shield President BidenJoe BidenNorth Korea conducts potential 6th missile test in a month Clyburn predicts Supreme Court contender J. Michelle Childs would get GOP votes Overnight Defense & National Security — US delivers written response to Russia MORE from oversight inquiries but an attempt to enable the House and its committees to function under difficult circumstances with minimal complications.

Nevertheless, the downside to such emergency procedures is that they can have unintended consequences that can undermine the institution. By attempting to short-circuit and compress committee and floor workloads, Congress is losing both its deliberative capacity and its ability to provide a proper check on the executive branch. The longer-term danger is that such truncated procedures will be incorporated in House standing rules after the pandemic as a matter of convenience, at least for majority party members and their leadership, but to the detriment of the minority party and the institution’s constitutional prerogatives.

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.