If I let you write the substance and you let me write the procedure, I’ll [beat] you every time.
Former Representative John Dingell
The rules and procedures in the Senate and House are akin to the keys to your house. They aren’t designed to lock you out, but that’s exactly what they do if you don’t take the time to learn how they operate.
Surviving Inside Congress, 4th edition
At this point, the House conservatives might be regretting their push to oust Speaker John Boehner. Even though he announced his resignation, until they elect someone else as Speaker, he isn’t going anywhere—much to their mutual chagrin. And now they got locked out of the House last Friday, October 9, when approximately 20 percent of the Republican Conference joined with the Democrats to pass a rarely used parliamentary maneuver called a discharge petition, to force a vote on a bill reauthorizing the Export-Import Bank of the United States.
The Export-Import Bank (Ex-Im Bank) is—was? will once again be?—an independent agency created by the Federal Government to provide loans to businesses that wish to sell goods overseas but which could not secure credit elsewhere. Supporters say the Ex-Im Bank helps small businesses; opponents say it is a form of “crony capitalism”. The Federal Government charters the Bank, but it was only authorized through June 30, 2015. Since conservatives in Congress have refused to reissue the charter, the Bank has ceased operations. Bank supporters have been attempting to secure a new charter ever since the expiration date passed.
As of October 9, Bank supporters are one step closer to victory, since 218 House Republicans and Democrats signed what is called a discharge petition. A discharge petition is an often threatened, but rarely successful, means of forcing legislation to the floor of the House of Representatives without going through a committee. Most frequently, it is a legislative tool used by the minority with a handful of representatives from the majority party.
Any Member may file a discharge petition with the Clerk of the House if a committee has failed to act on a bill after 30 legislative days. If a majority of House Members (218) sign a discharge petition, the House may consider a discharge motion to relieve the committee of its duties on the legislation in question. Once 218 Members sign the petition, a discharge motion is placed on the Discharge Calendar. It then must wait there for seven days. On the second or fourth Monday of each month, the House may consider discharge motions that have been on the Discharge Calendar for seven legislative days or more. If that motion is successful, the House essentially says to the committee, “Thanks for the help, but we’ll take it from here.” A Member who signed the petition may then request that the House debate the matter that was discharged. The House will then debate the bill in question under the regular order rules approved at the beginning of each Congress.
The petition itself is a piece of paper kept at the desk in front of the Speaker’s podium. A Member must go to the desk and ask the clerk for the petition in order to sign it. The names of that day’s signers are published in the Congressional Record each week. This was not always so – prior to a rules change passed in 1993, these signatures on a discharge petition were kept secret until it reached 218 signatures. Ironically, it took a successful discharge petition sponsored by then-Representative James Inhofe (R-OK) to force the rules change ending the secrecy.
The last successful discharge petition was the Shays-Meehan/McCain-Feingold Campaign Finance Reform Act in 2002 while Dennis Hastert was the Speaker. It was the only successful discharge petition during the Republican majority from 1995-2007.
In practice, a successful discharge petition is a rare occurrence. According to the Congressional Research Service (CRS), between 1967 and 2003, of the 221 petitions, the House has considered only 22 on the Floor. But this can be misleading. As the number of signatures approach 218, pressure mounts on the leadership to bring the bill to the floor on their own terms, thus maintaining some control over the outcome.
A discharge petition does not only apply to a specific bill. A Member can also start a discharge petition for a House Rules Committee special rule, which sets the terms of the debate for a piece of legislation, allowing the bill to come to the House Floor (even if that bill has not yet been approved by a committee). However, a Member need only wait 7 legislative days for a special rule on a bill, provided a committee has already approved the bill the special rule concerns, or if a committee has not approved the bill in question in 30 legislative days.
The discharge petition for the Ex-Im Bank was actually a rather clever use of the rules. According to The Hill, in late July, Democratic Whip Steny Hoyer of Maryland, asked Republican Representative Stephen Fincher of Tennessee to work together to revive the Bank. Fincher was a reasonable choice, since he introduced a bill reauthorizing the Bank in January, and 60 Republicans co-sponsored it. However, the discharge petition was not aimed at that bill; it was for a special rule resolution that was on the House Rules Committee’s docket. The resolution was to provide for the consideration of H.R. 597, the bill that Fincher had introduced in January, but which has been stuck in the Financial Services Committee under Chairman Jeb Hensarling of Texas who opposes the legislation. However, one of the stipulations of the resolution was that an “amendment in the nature of a substitute” was deemed to have been adopted—i.e., if the House agreed to that resolution, it automatically agreed to that amendment. This is known as a self-executing rule. The amendment in the nature of a substitute was H.R. 3611, a bill to reopen the Ex-Im Bank that Fincher introduced on September 25—the very day Boehner announced his resignation. If Fincher introduced it on that day because of Boehner’s announcement, one can only admire the preparedness and quick thinking; if it was a matter of coincidence, it’s another example of how much of the process is a matter of seeming chance. Either way, H.R. 3611 itself would not be eligible for a discharge petition since Fincher introduced it fewer than 30 legislative days ago. However, since it was worked into a special rule as an amendment in the nature of a substitute for a bill that had been in committee for months, they effectively discharged H.R. 3611 before it would typically be in order to do so.
Perhaps only parliamentary procedures geeks will appreciate the deft use of the rules in this case. However, this discharge petition’s is important because it shows how difficult it will be for the House GOP to unify in the days ahead.
Since discharge petitions require majority Members to side with the minority, they are typically seen as a rebuke to the majority party leadership—hence, few succeed. However, the Republicans who signed this petition don’t really have to fear retribution from the leadership since the party is trying to figure out, who, exactly, will lead it. By signing the petition, 47 Republicans—a larger segment of the party than the House Freedom Caucus, which has often bucked the leadership for being insufficiently conservative—indicated that they are more than willing to break ranks with their own party chairman in order to ensure their own constituent priority succeeds. So even if the party moves rightward once Speaker Boehner (successfully) resigns, the far right will have to consider that their more moderate Republican colleagues know a thing or two about hardball politics themselves.
If the Freedom Caucus members become too obstinate, they may find their fellow Republican increasingly including persuadable Members of the Democratic minority to join with them to pass legislation. The ironic effect of no-compromise tactics by the Freedom Caucus may very well be to result in moderating legislation to attract bipartisan support.
In a statement released by his office, Hensarling criticized the move last week, saying, “Signing a discharge petition puts the minority in charge and effectively makes Nancy Pelosi the Speaker of the House.” That’s slightly overwrought in this case, but points in the general direction of the truth: Discharge petitions do give the minority party greater say in the legislative process, if they can win the cooperation of a portion of the majority. If conservative Republicans don’t want Nancy Pelosi and Steny Hoyer to lock them out of the House again, then they had best learn to negotiate with their more moderate colleagues.
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Mark Strand is the President of the Congressional Institute and Timothy Lang is a research assistant. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the legislative branch.
Brown, Wm. Holmes, Charles Johnson and John Sullivan. House Practice: A Guide to the Rules, Precedents, and Procedures of the House. Washington: U.S. Government Printing Office, 2011.
U.S. House of Representatives Floor Procedures Manual: 114th Congress.
Alexandria: Congressional Institute, 2015.
Photo via Wikimedia Commons