Normally, the House majority leadership determines what legislation the House will consider and when they will consider it. This means that the minority party or even factions within the majority party usually have very little say in the House’s agenda. A successful discharge petition, however, is one way for a majority of the Members (218 out of 435) to control the legislative agenda and bring a piece of legislation to the Floor, despite what the committee of jurisdiction or the majority leadership might wish. The discharge petition is important today because Republicans have started one to bring to the Floor a bill that would provide aid to small businesses suffering due to the coronavirus pandemic.
How does a discharge petition work?
House rule XV, clause 2, governs the discharge petition process. In essence, successful completion of the process says to a committee “your time for working on this legislation is up.” Hence, a committee is said to have been “discharged” from continued consideration of the legislation.
The petition is properly called a “motion to discharge,” but since Members must sign it, it’s colloquially called a “petition,” and we will refer to it both as a petition and a motion. (The House rules do, in fact, refer to petitions, but these are very different from a motion to discharge. In fact, they are what people usually think of when using the word petition: A document signed by members of the public asking the government to take a particular action. Though the rules permit public petitions, they aren’t really used today.)
A Member may start a discharge petition to provide for the consideration of a public bill or public resolution or a special rule. If the petition is to provide for consideration of a public bill or public resolution, 30 legislative days must have passed before a Member may start the process. If the petition is for a special rule from the Rules Committee, the bill that the special rule would make in order must have been pending for 30 legislative days before the committee of jurisdiction and the special rule must have been before the Rules Committee for 7 legislative days. These waiting periods show due deference to the committee system and gives committees of jurisdiction at least some time to consider legislation.
When a Member would like to start a discharge petition, they present it to the Clerk, who must keep it in a place where other Members may sign it. The names of signatories are a matter of public record throughout the process. (Previously, they were made public only after 218 Members had signed.) When 218 Members have signed the petition, the petition is added to the Calendar of Motions to Discharge Committees, a list of all the successful discharge petitions. (Spoiler: It’s usually completely empty.)
After a discharge petition has been on the Calendar for seven legislative days, it achieves a “privileged” status, meaning it can take priority over non-privileged business. (This seven-day layover period is waived for the last six days in a congressional session.) One caveat to this privileged status is the Speaker determines when it shall be privileged, which simply means, she gets a say in when it will be scheduled. The Speaker’s power to determine when the discharge petition is privileged was added to the rules at the beginning of this the 116th Congress. That rule certainly benefits the Speaker, and allows her greater control over the Floor, but if a signatory announces that they intend to make the motion to discharge, the Speaker must schedule a time for the motion to be made within two legislative days.
When a motion to discharge is called up before the House, the supporting and opposing sides each have 10 minutes to debate it. As with other motions, the House must vote to either agree to it or reject it. This means that even if the petition gains 218 signatures, the House could still reject the motion when it votes.
If the motion is agreed to, the next steps depend on whether the motion was for a bill or a special rule. If the discharge petition is for a special rule, the House considers the special rule; then, if the House adopts the special rule, then it considers the underlying legislation. If the petition is for a bill, the House then considers a privileged and non-debatable motion to proceed to consider the legislation; if that motion to proceed is agreed to, then the House debate the legislation itself. Don’t let the procedural jargon confuse you. In either case, the vote on the motion to discharge is simply a vote on whether to move forwards with the debate the underlying legislation.
If the House acts on a particular discharge petition, for the rest of that session, it may not act on another discharge petition for a piece of legislation that is “substantially the same” as the one previously acted on.
How successful are discharge petitions?
Discharge petitions usually do not go very far. The last successful discharge petition was started five years ago, in fall 2015. They rarely succeed since at least some Members of the majority party must join their minority party colleagues in signing them. Siding with the opposing party on procedural issues is a big no-no in Congress and doing so on a discharge petition is one of the worst offenses you can commit against your own party’s committee chair – which, unless a Member repairs the damage later, any legislation they might have before the Committee may never see the light of day. At the same time, it can be considered a direct challenge to the agenda-setting power of the Speaker, though the last successful discharge petition on the Export-Import Bank had the tacit consent of Speaker Boehner. (Technically, you could have a discharge petition that succeeds with only majority-party Members, but this doesn’t happen since leadership would not hesitate to bring to the Floor a bill, even against the wishes of a reluctant committee chair, with such strong support among its membership.)
To the majority party leadership and chairmen, agreeing to a discharge motion gives the minority party control of the Floor, so they strongly discourage their Members from signing on. If it looks like a discharge petition will gain 218 signatures, leadership will try to head off a successful petition and assert control over the agenda by bringing a bill to the Floor on the subject that attempts to satisfy their wayward Members.
Why is the discharge petition important today?
Today, the discharge petition is in the news because on Friday, September 25, Rep. Jaime Herrera Beutler filed a discharge petition to bring to the Floor a special rule that she introduced, H.Res. 1116, which was referred to the Rules Committee. The special rule makes in order H.R. 7664, and it provides that the text of that bill would be swapped out in favor of the text of H.R. 8265. Rep. Steve Chabot, the Republican Ranking Member of the House Small Business Committee, introduced H.R. 8265 on September 16, so, by itself, it is not technically eligible for a discharge petition, since 30 legislative days have not passed. So, when Rep. Herrera Beutler drafted her special rule, it had to provide for consideration of a bill that had been introduced earlier, not Rep. Chabot’s. H.R. 7664 was introduced in July, meaning more than 30 legislative days have passed, making it eligible for a discharge petition. Parliamentary tacticians can usually find ways around rules that initially look like roadblocks, and this is an example of how to get around the 30 legislative day requirement.
Earlier this year, Congress created the Paycheck Protection Program to provide assistance to small business struggling during the coronavirus pandemic. Per the law that created it, it closed on August 8, with $138 billion left in its coffers. Rep. Chabot’s bill would allow the Small Business Administration to spend this money and provide a second loan to qualifying businesses.
Doubtless, Rep. Chabot’s bill is not really controversial in itself. However, this discharge effort is a problem for the Democrats since a break down in party unity on this issue would undermine Speaker Nancy Pelosi’s efforts to enact a coronavirus relief bill larger than one that the White House wants and significantly larger than the majority Senate Republicans think is appropriate.
Earlier this year, the House passed a coronavirus relief bill with the hefty price tag of $3.4 trillion. (As a point of comparison, the Congressional Budget Office reported that for fiscal year 2019, the government spent $1.3 trillion for discretionary spending, $2.7 trillion for mandatory spending, and $0.4 trillion for interest payments on the national debt.) The White House originally wanted to spend no more than $1 trillion in additional coronavirus aid. On September 30, Treasury Secretary Steven Mnuchin floated the possibility of a $1.5 trillion proposal similar in size to one the Problem Solvers Caucus introduced, and expressed support for a new round of negotiations. On October 1, Pelosi persuaded the House to enact a $2.2 trillion bill.
As of October 2, 185 Members, all Republicans, had signed on to the discharge petition. Eyes are on moderate Democrats to see whether they will join the effort. On the eve of Rep. Herrera Beutler filing the petition, some moderate Democrats like Rep. Jared Golden of Maine, Rep. Anthony Brindisi of New York, and Rep. Abigail Spanberger of Virginia were reportedly considering signing a discharge petition. With renewed negotiations, the moderate Democrats will most likely take a wait-and-see approach – which is perhaps exactly why the Speaker offered her new legislation. On a good day, signing a discharge petition is a blow to leadership, so they are not likely to strike as Pelosi and Mnuchin try to work things out. However, if this latest round of negotiations falters as the previous attempts did, the incentive to sign increases, since the discharge petition offers a way to produce some kind of additional coronavirus aid. Keep in mind that if the Congress goes into recess before legislation can be considered, the current discharge petition will still be alive during the lame-duck session.
Mark Strand is the President of the Congressional Institute and Timothy Lang is the Institute’s 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.