Moderate House Republicans are close to winning a victory on immigration reform by using a rarely successful legislative tool called a discharge petition. If they prevail, they will have the opportunity to vote on an immigration reform bill, and in the process, the will have confounded their more conservative counterparts and displeased party leaders. Plus—and perhaps most importantly—they will have illustrated, once again, that the House is a majoritarian institution, where a determined majority, whether or not it is a partisan majority, can use the rules skillfully to advance their priorities.
Typically, before a bill comes to the Floor, a committee has held hearings, drafted amendments, and reported it favorably to the House. After this committee work, the Rules Committee drafts a special rule resolution that determines how the House will debate the legislation (i.e., how long it will be debated, whether Members can amend, etc.). A successful discharge petition allows the House to skip one or more of these steps if enough Members feel that the majority leadership or a committee Chairman are blocking an important issue. As we explained in 2015, the last time a discharge petition was successful:
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.
Discharge petitions rarely succeed. Before the 2015 Export-Import Bank discharge petition, the last successful one was in 2002, on campaign finance reform. In 2003, the Congressional Research Service reported that between 1931 and 2002, Members had filed 563 discharge petitions and voted in favor of 26 motions, but only 2 became law. Since 2002, we calculated that there were 100 more discharge petitions filed, but the House only voted on one of them, relating to the 2015 Export-Import Bank reauthorization. The House voted in favor of the October 2015 motion to discharge, and then for special rule and legislation that were brought to the Floor in its wake, but that particular bill was not enacted as a stand-alone measure. The Export-Import Bank was reauthorized since former Senator Mark Kirk of Illinois offered an amendment during debate on the FAST Act, a highway bill, in July 2015. About a week after the discharge petition succeeded, the House passed the Senate’s transportation bill without changing the Export-Import Bank provisions. This means that while the Export-Import Bank was reauthorized, it was not directly because of the discharge petition.
Discharge petitions are extraordinary because they almost always require majority-party Members to work with the minority on what is usually a divisive issue—a no-no in a partisan Washington. But even more to the point, the majority party leadership normally controls the flow of legislation on the Floor, so if the House hasn’t considered legislation on an important issue, chances are very good that the leadership does not support the bill in question. Since a successful discharge petition undermines party leaders’ control of the Floor, some consider using the strategy “going rogue” (although the discharge petition effort to reauthorize the Export-Import Bank in 2015 had the tacit support of then-Speaker Boehner). To avoid losing control of the Floor, leaders often bring up a bill that is more in line with their policy preferences but still satisfactory to those Members of their party who are leading the discharge effort.
Today the discharge petition is back in the news because moderate Republicans have spearheaded a new effort to bring immigration squarely before the House. They and their colleagues have struggled to find consensus among themselves on immigration-related issues like how to secure the border, how to grant a legal residency status to those—nicknamed “Dreamers”—who were brought to the country as children, and how to normalize the situations of those who entered the country illegally as adults.
Supporters of the discharge petition have said they decided to move forward with the strategy because of their frustration that the House has not already addressed the issue. “We feel very importantly that this has got to happen now, and we’re going to be willing to drive that vote,” said Representative Jeff Denham, a Republican from California, at a press conference to announce the discharge petition. Representative David Valadao, also a Republican from California, echoed the theme. “It’s simple. The House wants to do its job, and a lot of us have been talking about it for a long time,” he said.
The moderates are not the only groups that has wanted a vote on immigration legislation. Members of the House Freedom Caucus have long sought a vote on an immigration bill sponsored by retiring Judiciary Committee Chairman Bob Goodlatte. That bill is more conservative, for sure, but part of the reason they wanted to vote on it was to supersede the discharge petition. If the House were to have voted on the Freedom Caucus-favored bill, there would be little incentive to bring up another one on the same subject. The Freedom Caucus recently blocked a popular agriculture bill with major reforms to entitlement programs to protest the failure of the House to vote on Chairman Goodlatte’s bill. (Because of certain parliamentary technicalities, however, this particular agriculture bill may be reconsidered in the future.)
Immigration reform has been a long-running issue, but the discharge petition has given the House a new impetus to pass some kind of legislation. Republican leaders have facilitated conversations among Members to find an alternative to the discharge petition, although the Conference has not agreed to a specific plan yet. Reports are that moderates have the last few signatures needed to reach 218. According to House rules, the next day that the House could consider a discharge petition is June 25, the fourth Monday of this month. However, since at least seven legislative days must elapse between the addition of the 218th signature and a vote on the motion to discharge, the last three Members must sign soon to qualify for June 25.
The way the discharge petition has been drafted suggests that the Republicans advancing it have thought carefully about how to manage the process. The immigration discharge petition does not actually target a bill; instead, it is for a special rule resolution, authored by Representative Denham. This resolution makes in order H.R. 4760, an immigration reform bill sponsored by Representative Bob Goodlatte of Virginia, the Chairman of the Judiciary Committee. It also makes in order four specific amendments in the nature of a substitute, which would replace the entire text of the bill if adopted. The resolution is a “queen of the hill” rule, meaning that if multiple amendments in the nature of the substitute are adopted, the one with the most votes in favor of it wins out. The resolution stipulates that only Chairman Goodlatte, Representative Lucille Roybal-Allard, Speaker Ryan and Representative Denham, in that order. The order is critical because, if two or more amendments are tied for most votes, the last one to be adopted wins. Plus, providing Speaker Ryan the opportunity to offer an amendment in the nature of a substitute—and giving it precedence over all but Representative Denham’s—could be construed as an olive branch both leadership and their Republican colleagues in general. If the Speaker offers an amendment, especially one that reflects a consensus among Republicans, it would be another opportunity to influence the outcome, even if all other options have failed. Even if the Speaker does not offer an amendment that Republicans can broadly support and win out over the others, the effect of the resolution is to guarantee that the most popular proposal would succeed, and in the event that multiple are equally popular, the Republicans who signed the petition would likely be satisfied with the result.
Although the moderate Republicans would probably be satisfied with whatever comes from this process, it is highly probable that we won’t actually see anything implemented in law, for several reasons. First, it’s an election year, and there has been a fair bit of commentary on how the campaigns will influence this legislative contest. It would be a great victory for the moderate Republicans to see something enacted; perhaps not entirely coincidentally, a number of them are also in swing districts. Will the minority party want to cooperate with them in accomplishing a goal that will perhaps help get them reelected? Second, there’s always the Senate. It’s well-nigh guaranteed that there will be some kind of filibuster of immigration legislation, so anything that passes the House will need much bipartisan support to get through the Senate. Senate Majority Leader Mitch McConnell has already said that he would only bring up a bill that the President would approve and that immigration is “not on the agenda” this year.
Even though the prospects are poor for the enactment of an immigration reform bill, the moderates can still claim a victory, since they will have forced the House to vote on an issue that is very important to them and their constituents. If their constituents show their approval by returning them to office, it could also help the Republicans keep their majority in the House—no insignificant feat in a very close election. If that’s the case, the bipartisan majority that signs the discharge petition will serve the long-term purposes of the partisan majority that controls it. Ironically, the moderates might be upsetting the majority to save it.
Mark Strand is the President of the Congressional Institute and Timothy Lang is a research director. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues pertaining to the Legislative Branch.