Could there be a way in one simple resolution to increase the ability of Members of Congress to participate in the legislative process and cut spending? The House of Representatives voted to provide itself a way to do that on the very first day of the 115th Congress.
On the first day of each new Congress, the House adopts a set of rules (commonly called a “rules package”) that governs debate for the next two years. Earlier this month, the House voted to restore a version of the Holman Rule, which provides a way for Members to offer amendments cutting spending from appropriation bills on the Floor. This has caused controversy because opponents say it will be used to threaten the livelihood of government workers.
When reading about the Holman Rule in The Washington Post, one gets the sense that people think the House could not cut the pay of government workers or their salaries before it adopted the rules package on Tuesday, January 3. The problem with this understanding is that, even before the Holman rule was reinstated, in modern practice, there were few procedural hurdles to cutting salaries or positions to begin with. So we’ll try to explain what the rule is and actually how important it is. Generally, it is important less because of the potential for spending cuts and more because it is a sign that the House is serious about following processes as laid out in its standing rules.
What is the Holman Rule?
The Holman Rule, named for Rep. William Holman of Indiana (pictured above), permits Members to offer amendments cutting funds from spending bills under certain conditions. Since its adoption in 1876, it has been variously reformed or repealed. According to Deschler’s Precedents (a precedent in the House is a ruling from the Speaker or the Chair of the Committee of the Whole in a prior case that is binding or highly influential in determining the parliamentary ruling on similar procedural motions with similar facts), from 1911 until 1983, the Holman Rule was the bolded, second sentence of House rule XXI clause 2, which read:
No appropriation shall be reported in any general appropriation bill, or be in order as an amendment thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations for such public works and objects as are already in progress. Nor shall any provision in any such bill or amendment thereto changing existing law be in order, except such as being germane to the subject matter of the bill shall retrench expenditures by the reduction of the number and salary of the officers of the United States, by the reduction of the compensation of any person paid out of the Treasury of the United States, or by the reduction of amounts of money covered by the bill: Provided, That it shall be in order further to amend such bill upon the report of the committee or any joint commission authorized by law or the House Members of any such commission having jurisdiction of the subject matter of such amendment, which amendment being germane to the subject matter of the bill shall retrench expenditures.
It’s a complicated rule, so here is an explanation of it.
The House has long distinguished between authorization bills and appropriations bills. Authorization bills set policies for government programs and agencies. Appropriations bills provide funds to carry out the provisions of the authorization bills. According to a traditional analogy, an authorization bill is like a pitcher, and when Congress authorizes, it determines how big to make the pitcher and what shape it should be. When Congress appropriates, it determines how much water to pour into that pitcher.
In theory, all funds must be authorized before they are appropriated. To ensure that appropriations bills are not held up by contentious policy debates, “legislative” language, i.e., policy provisions, should not be included in appropriations bills, nor should an appropriation bill contain an appropriation that has not been previously authorized. (An appropriation that has not been authorized is known as an “unauthorized appropriation.”) The first part of Rule XXI clause 2 attempts to ensure that Congress maintains the authorization-appropriation distinction when it says that the House may not consider any “general” appropriation bill or amendment containing “for any expenditure not previously authorized by law”. (The first part of Rule XXI clause 2 is not part of the Holman Rule, even though they are listed together. The first part predates the Holman Rule.)
The Holman Rule itself comes after the general prohibition on unauthorized appropriations. It restates the general authorization-appropriation distinction by noting “any provision in any such [appropriation] bill or amendment thereto changing existing law” is impermissible. The rest of the Holman rule, however, permits provisions that would normally be considered “legislative” if they “retrench” spending (a retrenchment is a parliamentary term for cutting government spending). But such retrenchments must fall under one of a handful of categories. Permissible provisions are those that would cut:
- The numbers of “officers of the United States” and how much they are paid;
- Or the pay of “any person paid out of the Treasury” more generally;
- Or funds listed in the appropriation bill itself (“amounts of money covered by the bill”).
According to Deschler’s Precedents, in 1983, the House eliminated the provisions permitting cuts to the numbers and pay of those in the employ of the government. Left intact was the third point, that the House could cut funds from the bill.
One important requirement of the Holman Rule is that the retrenchment amendment must be germane. The rule of germaneness—one of the House’s oldest parliamentary principles—requires that amendments be related to the bill. It allows the House to remain focused on one topic at a time. For the Holman Rule, it would mean, in a simplified example, that a Member could not offer an amendment cutting spending for the Department of Education when the House is debating its Department of Defense appropriations bill.
Furthermore, rule XXI applies to “any general appropriation bill”. “General” is a critical qualifier. Not every law that appropriates money is a “general appropriation bill”. The 12 appropriations bills that the Congress should pass as part of the budget process are examples of general appropriations bills. Continuing resolutions are examples of bills that are not general appropriations. In theory, continuing resolutions should only be temporary, stopgap spending measures Congress passes as it tries to pass the normal full-year appropriations bills, but in recent years, Congress has simply used these instead. This distinction is critical because rule XXI, which includes the Holman rule, does not apply to non-general appropriations bills, including continuing resolutions.
The newest version of the Holman rule resembles the form as it existed before 1983. Earlier this week, the House basically readopted the rules from the 114th Congress, with some modifications. One modification was that, anytime clause 2 of rule XXI speaks of permitting retrenchment amendments, it specifically includes amendments that cut spending, the number of Federal Government officers and their salaries, or pay drawn from the Treasury in general.
One noteworthy aspect of this rule change is that it is only in force for the first session of the 115th Congress. This suggests that the House is going to test how it works, and then revisit the issue in a year. If the House finds that the rule is worth keeping, extending it for the rest of the Congress is a simple task and could be done by a simple majority vote. If the House does not find the rule useful, it can simply let it expire.
Did adopting the Holman Rule provide the House a power it hasn’t had since 1983?
Article I section V of the U.S. Constitution grants each Chamber “may determine the Rules of its Proceedings”. This is a wide grant of authority for either Chamber to do business as it sees fit. The practice of the modern House is such that if a majority wants to pass almost any kind of legislation, it can do so quite easily. The House can adopt what is known as a special rule, which lays out the terms of debate for a bill. For instance, a special rule can determine how long the House will debate a bill or whether Members can offer amendments. A special rule is a simple resolution that the House Rules Committee reports, and it is adopted if a simple majority of Members vote in favor of it. If a majority of Members votes for a special rule, there are remarkably few restrictions on how the House can organize its debate.
Since there are few procedural mechanisms to limit special rules, theoretically speaking, in the recent past, the Chamber could easily have adopted legislation slashing salaries and eliminating positions, regardless of other House rules. One way the House could have done that is by waiving rule XXI. As mentioned above, rule XXI prohibits legislative provisions in general appropriations bills, and the Holman Rule presents several exceptions to rule XXI. If the House had wanted to cut salaries or positions in an appropriations bill, it could waive rule XXI through a special rule. Additionally, a special rule could specifically permit—“make in order”—amendments that cut spending and government employees, notwithstanding any other rules of the House. In truth, because of its wide rule-making authority, if the House had wanted to, it could have “holmaned-up” the entire Federal Government several times over already. This is not to say the Senate would have passed such legislation or that the President would have signed it; it is unlikely the Senate or President would accept deep spending cuts. But in terms of parliamentary procedure, there were few obstacles to legislation cutting spending or positions before the House re-adopted the Holman Rule.
If the House has could cut spending all along, why was there the Holman Rule to begin with and why did it last so long?
When adopted, the Holman Rule would have been an efficient way for cutting spending. As a reminder, in theory, appropriations bills should not contain provisions making policy, and Congress has a rule to ensure this; the Holman Rule is an exception to the rule against policy provisions in appropriations. This exception was procedurally expedient since the House then didn’t use modern special rules to set the terms of the debate, waive rules of the House, provide for the consideration of amendments, etc.
The modern Rules Committee, which drafts special rules to govern debate, was not established as a permanent panel until 1880, four years after the Holman Rule was adopted. According to Hinds’ Precedents, which contain rulings of the presiding officer from 1789 through 1907, the first simple-majority special rule was adopted in 1883. Prior to that, waiving rules was more difficult, and adopting the Holman Rule as part of the standing rules would have made it easier to cut spending. Even after special rules became a feature of the legislative process, leaving the Holman Rule in place would have still permitted Members to offer amendments cutting spending and positions if a special rule did not affect how rule XXI operates.
Since the House can use special rules to set how the House debates, is the Holman Rule is a meaningless redundancy?
Absolutely not. As indicated above, if a special rule does nothing to affect rule XXI, the Holman Rule is still in force and Members can use it as they please. But more importantly, readopting this rule is a sign that the legislative process is evolving. Including this reform suggests that the House Republican leadership is serious about respecting House rules and procedure. Many have criticized how the House regularly waives its rules. If leadership intended to use special rules to achieve the same effects as the Holman rule, there would be no need to adopt it in the first place. And if it intended to ignore the rule in the first place, there would have been no need to make it a year-long trial-run. So, its inclusion in the rules package for the 115th Congress is a sign that the House is working to adhere more closely to its rules and that Floor processes will be more “open”, allowing Members to participate more fully in shaping legislation when it is debated in the House or in the Committee of the Whole. Appropriations bills have traditionally been considered under an open special rule (i.e., one that allows amendments)– and restoring the Holman rule suggests Speaker Ryan intends to follow that tradition. Adopting this rule is a step towards a more inclusive, more robust legislative process.
How will the Holman Rule affect the authorization process?
We need more time to see, but it will be interesting.
In theory, the House should set policy in the authorization process, not through appropriations. The Holman Rule is an exception to the general principle that there should be no legislative provisions in appropriations bills. This has led some to suggest reviving the Holman Rule will undercut the authorization process. As Rep. Tom Cole pointed out in April 2016, Holman-rule amendments could affect “how agencies and programs are staffed, structured and compensated—things that are directly under the jurisdiction of the authorizing committees and involve permanent changes in law.”
Maybe the Holman Rule will weaken the authorization process, but there is perhaps another way that it could help. Approximately a third of the money Congress appropriates is unauthorized. Since the Holman Rule permits Members to offer amendments cutting spending, the House can use this rule to eliminate unauthorized spending (and even spending that is authorized, for that matter). This, however, would be an incidental side effect of the Holman Rule and not its primary purpose, as it was not adopted as a way of fighting unauthorized appropriations. In fact, if Members used the Holman Rule to offer amendments stripping unauthorized funds from bills it would be ironic, since, on the face of it, the Rule tends to weaken the procedural distinction between the authorization and appropriations processes.
(At this point, however, it must be noted that the principal way of eliminating unauthorized appropriations is by raising a point of order on the Floor, per the first part of rule XXI clause 2. If rule XXI is not waived, when debating a bill with unauthorized appropriations, a Member could raise an objection against such funds.)
Although the Holman Rule may not help the authorization process much, the House did adopt another less-remarked upon reform as part of the rules package. For some time now, the standing rules have required committees to submit oversight plans to the Committee on House Administration and the Committee on Government and Oversight Reform. The House added to this requirement by requiring committees to draft authorization plans. A committee’s authorization plan should identify which programs or agencies in its jurisdiction received unauthorized appropriations in the previous fiscal year, which of these entities will the committee intends to authorize in the current and next Congress, and other details. Approximately a third of the money Congress appropriates is unauthorized, so systematically authorizing the Federal Government will challenge Congress, but requiring authorization plans indicates that the House is ready to take on that task.
Will the Holman Rule have any other effects?
As much as progressives have complained about the reinstatement of the Holman Rule, there could be a way to use it to their advantage. Democrats will undoubtedly oppose Trump Administration initiatives, so they can use the Holman Rule to offer amendments that would try to prevent him from carrying out his plans. Conservatives can also benefit. Some on the right have asked for greater opportunities to cut spending and shape legislation on the Floor. This rule provides another means for them to amend legislation and leaves the decisions on these matters to the House as a whole, rather than congressional leaders.
The new rules about authorization plans and the Holman Rule should be seen as part of a regularly needed exercise in evaluating what rules and procedures are necessary or expedient to conduct the country’s business. Reviewing, removing, and adopting rules are important for the evolution and reform of the Congress. With the re-instituted Holman Rule and new authorization plans, let’s see how House develops in the 115th Congress.
Asher Hinds. Hinds’ Precedents, vol. 4. (Washington, D.C.: GPO, 1907).
Deschler’s Precedents, vol. 8. (Washington, D.C.: GPO, 1994).
Wm. Holmes Brown, Charles W. Johnson, John V. Sullivan. House Practice: A Guide to the Rules, Precedents, and Procedures of the House. (Washington, D.C.: GPO, 2011).
Image source: Library of Congress