A Look at Waivers of the Rules of the House of Representatives—and How to Limit Them
Although the House of Representatives adopts rules on the first day of each new Congress, the Chamber frequently votes to waive the rules. This effectively circumvents “regular order”—the textbook description of the legislative process—and, in some cases, it perpetuates legislative dysfunction. Because of this, and because Members of Congress on both sides of the aisle have criticized waivers, the House should consider ways to limit their use. To limit waivers, the House could consider two ways to reform: simply returning to regular order or requiring a supermajority to waive rules.
And whether these forms [rules] be in all cases the most rational or not is really not of so great importance. It is much more material that there should be a rule to go by than what that rule is; that there may be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members. It is very material that order, decency, and regularity be preserved in a dignified public body.
Congress could have the greatest written rules to encourage respectful debate within the House of Representatives, the legislative body closest to the people, but if Members can systematically and routinely waive those rules by a simple majority, one might easily wonder whether those rules are worth the parchment they are printed on. Yet that is what the House does, and it’s true no matter which party is in power.
On the first day of each new Congress, the House of Representatives adopts the rules that will govern debate for the next two years. In addition to these rules, the House must also follow rules in certain statutes, like the Congressional Budget Act of 1974. However, the Committee on Rules often writes special rule resolutions waiving the Chamber’s rules. When a rule is waived, a Member can no longer raise a point of order if the rule is violated. Thus, waivers are powerful tools to determine how debate will proceed and its outcome. Waivers are one way the House departs from “regular order,” which is the theoretical “normal” legislative process where a bill moves through the committee system and is considered according to the Chamber’s rules. Although from time to time waivers might be necessary, their overuse is a sign of the breakdown of healthy legislative processes. The House could consider limiting any harmful effects of waivers by requiring a 2/3 or 3/5 supermajority to waive House rules. Additionally, faithful adherence to regular order would alleviate the need for waivers.
What’s a Waiver?
By a simple majority, the House may waive a point of order against a violation of a House Rule by adopting a special resolution, reported by the Rules Committee. According to Deschler’s Precedents:
The Committee on Rules may waive any rule which impedes the consideration of a bill or amendment thereto, and points of order do not lie against the consideration of such rules, as it is for the House to determine, by a majority vote on the adoption of the resolution, whether certain rules should be waived. Thus an objection that a report from the Committee on Rules changes the rules of the House and thus should require a two-thirds vote rather than a majority vote has no merit.
(An aside on the source of this quotation: Deschler’s Precedents is a collection of the decisions and precedents which the Speakers and Chairs of the Committee of the Whole set to interpret the Rules of the House made over the years. Lewis Deschler, the Parliamentarian of the House from 1927 to 1974, compiled the precedents over the course of his career, and they are updated every Congress. The precedents are absolutely essential to governing House debate. They are the equivalent to case law that courts have developed.)
The rationale for the simple majority to waive the Chamber’s rules is that the Constitution grants each body the right to make its own rules. Deschler’s Precedents notes that a Member may not raise a point of order against a rules resolution itself on the ground that the resolution waives House rules. While some might see this as a contradiction, House majorities over the years have found it convenient to allow for exceptions to the Rules, when it suits the majority. This is one of the reasons why the House is known as a majoritarian body. It is deliberately designed to allow a cohesive majority to work its will.
The House majority controls the process through the Rules Committee. One of the reasons the Rules Committee became the “most important committee no one has ever heard of”, is that in the late 19th century, Speaker Thomas “Czar” Reed wanted to find a way to block the Democratic minority from stalling and blocking progress on legislation by constantly calling for quorums and making motions to adjourn, which meant that the House was essentially under a procedural filibuster. By waiving “annoyance motions” the House was able to proceed with legislative business in an orderly way. Reed became chairman of the Rules Committee and used it to report special resolutions that determined how and under what circumstances a bill would be considered on the Floor of the House. His procedural philosophy was fiercely partisan: “The best system is to have one party govern and the other party watch”, he thought. Reed’s efforts to reform House practice were one of the most important episodes in the Chamber’s development since it squarely placed the majority party in control of the process.
Waivers of House rules do in fact have a place in the legislative process. “The standing rules of the House impose various limitations on the consideration of legislation. It is not always in the interest of the House to observe these limitations, however.” For example, rule XIII requires that once the Rules Committee reports a resolution, the Chamber must wait a day before considering it. Waiving this rule and other similar “layover requirements” means legislation can be brought to the Floor quickly, which is useful in an emergency, or, more usually, Congress wants to head out of town for a recess. More generally, waivers make House business more efficient. Deschler’s Precedents notes that the waivers can remove obstacles to and speed up consideration of legislation. For instance, a “blanket waiver”, which waives all House rules, essentially allows the Speaker or Chair of the Committee of the Whole to ignore specious points of order that are raised solely as dilatory tactics. Without any waivers at all, it is unlikely that the House could conduct its business. Or as one House Member put it, “I am sure this body would have a very difficult time operating”, if it did not waive its rules sometimes.
The Effects of Waivers on the Legislative Process
Although waivers of points of order may be legitimate if circumstances require them (like when the minority make them to simply obstruct legislation), they can nonetheless become problematic when they undermine regular order. For instance, one of the House’s longest-standing rules, dating to 1822, is that amendments must be germane to the legislation being considered. This prevents Members from bringing up amendments on unrelated subjects during consideration of a bill on the House Floor. Thus, waivers of the germaneness rule can undermine the ability of the House to focus on one subject at a time. Another example is the Federal budget process. Laws to promote fiscal discipline, like the Congressional Budget and Impoundment Act of 1974 and the Budget Enforcement Act of 1990, contain procedures governing financial legislation, such as the rule that allows Members to raise points of order against amendments that would cause spending to exceed limits established by the budget resolution. Waivers of these rules can undermine the entire budget process and any semblance of fiscal discipline. The rules also promote vigorous debate. For instance, rule XIII generally requires the House to wait for three days before it acts on a committee report. Thus rule XIII allows Members to become familiar with pending legislation, so it provides the opportunity for Members to engage in a thoughtful debate and consideration of a bill. Problems could arise when the House passes a waiver in order to shorten the delay. As much as waivers aid the legislative process, they can also harm it.
In some cases, waivers are a result of the failure to observe regular order, and, in other ways, they perpetuate dysfunction. Waivers of rule XXI illustrate this phenomenon well. Among other things, rule XXI prohibits appropriations for government functions that have not been authorized by Congress. By rule, various committees should review government agencies and programs and draft bills, known as authorizations, to set policy and recommend funding levels. However, Congress routinely fails to pass authorization bills. Today, about $310 billion – or between 1/3 and 1/4 of the discretionary Federal budget – goes to agencies and programs that do not have proper congressional authorization. If the House enforced the rule against unauthorized appropriations, it would have to strike funding for any programs that did not receive a proper authorization, forcing them to shut down. In other words, rather than compel the appropriate committees to fulfill their obligations and authorize various programs and agencies, the House usually resorts to waivers to remedy this failure to observe regular order. As much as waivers could be called the result of the failure to observe regular order, some might argue that they actually help perpetuate it, since they protect Congress from the most immediate negative consequences—government shutdowns—even while they allow it to fulfill its constitutional duty to originate all appropriations for Federal spending. This can create a norm and expectation among Members that the rules will be waived. (Granted, those in leadership might see this as a form of regular order, since they have a particular duty to keep the government open for business.) The regular use of waivers to circumvent House Rules, while efficient from the viewpoint of the majority, can be merely a symptom, often enables the breakdown in regular order that has seemingly made the House dysfunctional.
In fact, it sets up a vicious cycle that has made passing a budget resolution, authorization bills and appropriations on time and in accordance with the law, nearly impossible. The passage of an authorization bill, requiring tough votes on politically controversial programs, is difficult, so a committee fails to produce a bill. To keep the government open, however, those programs require appropriations passed by Congress. Since no authorization bill is passed, the only way Congress can bring up an appropriations bill to fund the program, is by first considering a special rule that waives rule XXI prohibiting the appropriation of money for unauthorized programs. However, since the agency receives its appropriation without having the authorization committee conducting oversight hearings and passing legislation to determine how it should proceed and under what constraints, accountability for the appropriated money is lacking. If the program is controversial enough, the authorization process begins to atrophy and the regular course of doing business is to waive the requirement for an authorization bill.
Circumventing the requirement that programs be authorized can be problematic. The Department of Homeland Security, for instance, is charged with protecting Americans from attack within our borders and includes agencies such as U.S. Custom and Border Protection, Immigration and Customs Enforcement (ICE), the Transportation Security Administration (TSA), the Secret Service, the Coast Guard, the Federal Emergency Management Agency (FEMA), and other vital programs. Yet Congress has not passed an authorization bill for this Cabinet department since the original legislation creating it after the September 11 attacks. And yet, every year when considering a general appropriations bill, Congress passes a special rule that waives the prohibition of unauthorized appropriations, and proceeds to appropriate the money required to keep the Department up and running.
Waivers: The New Norm?
So waivers of House rules can be used to facilitate the breakdown of regular order. The question is whether it is done only occasionally to expedite the flow of essential legislation, or has it become the modus operandi of the House? The evidence seems to suggest the latter. For instance, conflicts over the Federal budget and fiscal policy dominated the 112th and 113th Congresses. Not surprisingly, the there was an unusually high number of waivers for budget-related rules. According to our calculations (based on the House Rules Committee’s Survey of Activities), in the 113th Congress, there were 58 waivers related to the Congressional Budget Act or the Budget Enforcement Act. In the 112th Congress, 63 waivers related to those laws. By contrast, in previous Congresses—both those controlled by Republicans and Democrats—there were few or no waivers of the same laws. On the other hand, a lack of specific waivers does not necessarily mean Congress is observing the rules. The Rules Committee often reports rules waiving all points of order against a bill—a “blanket waiver”. Some blanket waivers are what the Committee calls “prophylactic” and are included to fend off specious points of order. In such a case, the Committee will note that it is not aware of any violations of the rules. However, a violation of the rules is sometimes in the eye of the beholder. During one debate on a special order, one minority Member noted, “I should also point out that the Rules Committee reports that, although the resolution waives all points of order…the committee is not aware of any point of order. Well, one of the points of order is the 3-day layover, which is being violated, so the committee is waiving a point of order with regard to that.”
Although excessive waivers suggest that Congress is failing to observe regular order, whether we will always see an increase in waivers during periods of dysfunction is more difficult to determine. For instance, over time, there has been a general increase in the number of closed rules (limits on the ability of Members to offer amendments) and a decrease in the number of open rules (procedures that freely allow amendments) in the House. In the Senate, successive Majority Leaders from both parties have filled the amendment tree to limit amendments more frequently. Waivers, on the other hand, do not necessarily follow the same general upward trend. Instead, assuming the Rules Committee’s Surveys of Activities are accurate, since 1995, the overall number of waivers granted has fallen, remained relatively stable for a few Congresses, and then risen again. The number of waivers of some rules, like the one prohibiting non-germane amendments, follows this trend more closely than others. Other rules, like the one prohibiting appropriations in legislative bills or unauthorized appropriations and legislative provisions in appropriations bills, have been waived rarely or not at all in recent Congresses—a rather surprising finding, seeing that hundreds of billions of dollars are unauthorized each year. The waiver of the rule prohibiting the House from considering a rules resolution the same day it is reported except by a 2/3 majority (often referred to as “martial law” by the political minority) has been waived more frequently than others. It was waived least frequently in the 113th Congress (8 times) and most in the 108th Congress (29 times). Within that range, the number of times it has been waived has risen and fallen, and each party has waived it on numerous occasions while in the majority. Assuming that normal congressional procedure is, in fact, deteriorating, we cannot infer that the number of waivers granted will simply increase as regular order erodes. This could be because departures from regular order in one part of the legislative process might make waivers unnecessary in another part. For instance, a closed rule would make waivers of the germaneness rule unnecessary. Likewise, rule XXI, which prohibits unauthorized appropriations, does not apply to continuing resolutions (CRs), so the frequent use of CRs might decrease the frequency of waivers of rule XXI.
Whatever the explanation, not following the Rules of the House has become the Chamber’s de facto operating procedure.
No Fair! Protesting Waivers
Although the number waivers has risen and fallen, one thing that is predictable is that they can irk or enrage the minority. The minority party, regardless of whether it is Republican or Democrat, criticizes waivers in their section of the Rules Committee’s Survey of Activities. The minority especially despises “martial law” waivers, which suspend the rule prohibiting same-day consideration of Rules Committee resolutions. “We believe the Rules Committee should seriously limit the use of unrestricted ‘martial law’ rather than empowering the House to abuse these procedures”, one minority wrote. Naturally, the minority also criticizes how waivers are used for partisan advantage. For instance, one minority claimed that the Committee waivers benefited the majority 97 percent of the time. Plus, if a majority institutes a new rule, the minority criticizes them for waiving it. For instance, in the 110th Congress, the Republicans wrote, “the new Majority decided that the PAYGO rule is only necessary when furthering their tax and spend agenda, but can be waived for political expediency.” In the 112th Congress, the Democrats lamented, “They went on to waive their own cutgo rule 11 times, brushing aside even their own restrictions on increasing spending whenever it conflicted with their right-wing agenda.” If waivers are an unavoidable part of the legislative process, they will also invariably annoy the minority.
It is standard practice for the minority to complain about the majority, especially when it comes to the actions of the Rules Committee, but on occasion, even Members of the majority party criticize the use of waivers. For instance, Representative Tom McClintock of California has criticized how waivers have permitted violations of the budget process. So, to promote fiscal discipline, he has proposed a number of rules changes that limit or prohibit waivers. Another Representative, a Member of the House Freedom Caucus, once said, “From Day One it’s drilled into your head that you must waive the rules every time we bring one of these resolutions to the Floor or else you’re not part of the team.” A third majority Member once pointed out that the Rules Committee Chair criticized an authorizing committee for reporting a bill in violation of the House Rules, but then the Rules Committee went ahead and reported a resolution that waived the rule that the bill violated. Majority party criticisms of waivers, like these, are not common, so when they are voiced, they are all the more striking.
Playing by the Rules Again
Since some Members are discontented with waivers, and since they can contribute to the breakdown of regular order, the House should examine whether to limit them. One way to reduce the number of waivers is to eliminate their need to begin with. This can be done by returning to regular order: working legislation through committees, authorizing Federal programs, adhering to the House rules, and the like. This way of reform would be cautious in form, if not in practice, since it leaves intact the rules as they are today. Changing the rules could lead to any number of unintended consequences, and new rules could be manipulated, so returning to regular order would maintain continuity with the traditions of the House. Of course, this is the most difficult solution, since the House uses waivers precisely because it strays from regular order. It requires Members – leadership in particular – to reform their behavior, rather than the rules, and go through the arduous process of legislating. Plus, the House uses waivers precisely because it has deviated from regular order, so why should we expect it to simply return of its own accord? A reform that relies on the good graces of all the Members is not really a reform but more an aspirational goal or statement of good intentions – and good intentions tend to disappear as budget deadlines and recesses become more pressing.
A second way to reduce the number of waivers is to limit them by the House’s standing rules. Although the House operates on the general principle that a simple majority can waive its rules, it has also limited that authority. Clause 6(c) of rule XIII, for instance, prohibits the Rules Committee from writing a rule that precludes a minority-party motion to recommit with or without instructions (except if House legislation is being substituted for a Senate bill or joint resolution). The House could implement a similar provision limiting the Rules Committee’s authority to report waivers of House rules. One option to limit the Rules Committee’s waiver authority is a rule requiring a supermajority for a waiver. A 2/3 majority is currently required to pass a bill under the suspension of the rules process, so a 2/3 majority could be required for a waiver as well. Such a rule would provide the House the flexibility to waive the rules as necessary, but would still require the Chamber to feel the consequences of not following regular order.
A consequence—some would say a benefit, some a flaw—of a supermajority rule for waivers is that it would likely promote a more inclusive legislative process. To waive a point of order the majority party would likely have to work for the votes of a handful of minority Members, unless it had the kind of supermajorities not seen since the 1970s. Realistically, if the House adopted a supermajority requirement for waivers, the minority party and individual Members would be empowered. Even a lower 3/5 majority—60 percent—would be beyond what majority parties usually could attain on their own strength. During the 111th Congress (2009-2010), when so many Democrats were elected on the coattails of the tremendously popular Barack Obama, the majority was just shy of 60 percent. The last time a party controlled more than 60 percent of House seats was in the 102nd Congress (1992-1993). So leadership would have to win the support of some minority Members to pass the rule, especially if any majority Members declared their intention to vote against the waiver. The minority party could agree to vote for the rule only under certain conditions (e.g., that they be allowed to offer certain amendments). Since each vote is all the more necessary for passage, majority-party Members could also make similar demands upon leadership. In short, a supermajority rule for waivers promotes consensus in the House’s rule-making function.
A benefit to a supermajority requirement is that, at least on its face, it is difficult to bypass—it becomes entrenched. It insulates itself against resolutions that would waive the waiver rule. The House would likely try to waive the waiver rule, since it already does so with a similar rule, the one that says the House can consider a rules resolution on the same day it is reported only by a 2/3 majority vote. To work around that, the majority will adopt, by a simple majority, a resolution waiving that rule and then consider a separate resolution on the day it comes out. By extension, to evade the waiver rule, the House could try to pass a resolution waiving it, but that resolution would also need to pass by a 2/3 majority. Additionally, since a supermajority requirement would discourage waivers of the waiver rule, it would also protect other reforms for the rules, like a supermajority requirement for a completely closed rule or for a waiver of the germaneness rule. It should also inhibit the “martial law” rules described above. Even under contemporary House practice, it would be difficult for the majority to skirt a supermajority rule for waivers.
One objection to this reform of the rules is procedural. As mentioned above, the Chamber’s precedent is that “it is for the House to determine, by a majority vote on the adoption of the resolution, whether certain rules should be waived”. The objection is that the supermajority requirement for waivers overturns or at least undermines that principle. However, the House has already limited the Rules Committee in prohibiting special rules that restrict the minority’s right to the motion to recommit. Furthermore, if need be, the Rules Committee could report a privileged resolution to change the House rules, so the House could eliminate the supermajority requirement—or any other rule—at any point the Chamber determines it to be disadvantageous.* Similarly, the House already has a procedure to suspend all the rules, rather than only certain specified rules. Since debate is limited to 40 minutes and only a manager’s amendment is in order, the majority leadership has extensive control over the process. Because of the high threshold for passage, it is usually used only for noncontroversial legislation. If the House were to institute a rule requiring a supermajority to waive any rules, it is conceivable that the Chamber would simply conduct more business via the suspension of the rules process already in place. It is also possible that the House would find the rule too onerous and find another way around it.
We’re Ready to Rethink Waivers. What Now?
Reexamining the use of waivers will be a controversial discussion, so it will have to be handled appropriately. The best venue to consider limits on the use of waivers is by a new Joint Committee on the Organization of Congress. In the past century, Congress has created three bipartisan Joint Committees on the Organization of Congress (1945-1946, 1965-1966, 1992-1993) to consider ways to modernize, strengthen and reform the Legislature. Each of these Joint Committees studied the entirety of the legislative process and made recommendations, some of which were adopted. Today, Congress needs a thorough overhaul and is beset by systemic dysfunctions similar to those when it created the previous Joint Committees. Using a new Joint Committee as the vehicle to consider limiting waivers makes the most sense because waivers both result from and perpetuate wider dysfunction, which the panel would be charged with fixing. Considering the role waivers play in the process would not be novel, since the minority Republican Members of the last Joint Committee recommended prohibiting “generic waivers of points of order” in 1993. In fact, Representative Gerald B. Solomon of New York noted, “One of the greatest contributions the Joint Committee could make would be to reaffirm the importance of adhering to the established rules and order so that the House can focus its full energies on producing the best laws possible for the country, rather than dissipating those energies on fights over procedural abuses that generate enmity rather than comity.” His comments are as true today as they were then.
Adopting limitations on waivers through a Joint Committee on the Organization of Congress would be a first step towards restoring regular order to the House. The public is demanding more from Congress, and having the House follow its own rules is a natural place to start, as part of a return to regular order. A supermajority rule for waivers will introduce some difficulties since it would require Members to develop more of a consensus for legislation than they have been accustomed to and would prevent the use of legislative short cuts. But the difficulties do not mean it should be avoided. To the contrary, the challenges should be met head on and overcome—regular order is well worth it.
* This point actually seems to present a way around the entrenchment of a supermajority rule for waivers, discussed above. In theory, the House could repeal the supermajority rule, pass a special rule resolution waiving a rule, and then reinstate the supermajority rule. Technically, it would not be a waiver of the waiver rule, but the effect would be the same. Hopefully congressional leaders would not use this tactic since it would further erode the remaining sense of comity in the House. If the House leaders were to attempt it, it would be better simply to do away with the rule permanently rather than repeatedly instituting and repealing it.
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