The House adopted its rules package for the 118th Congress on the evening of Monday, January 9. The rules package is the set of rules under which the House will operate for the next two years. Unlike the Senate, the House of Representatives passed its rules at the beginning of every Congress. Usually, the adoption of the rules is fairly routine. However, this year, the protracted election of a Speaker brought the rules package to the public’s attention. The most effective legislators get to know the rules and when they can be used with great effect on a piece of legislation. Here, we analyze the changes in the rules from the 117th Congress.
Typically, the House of Representatives adopts the rules from the previous Congress with several modifications. Some of the changes in the rules package are amendments to the standing rules. Others are known as “separate orders,” which function like rules but are not added to the standing rules. (The House uses separate orders for various reasons. For instance, if it wanted to create a temporary rule, establishing a special order makes more sense than amending the standing rules.) The rules package is a simple resolution, so it is adopted by a majority vote. As a simple House resolution, it does not go to the Senate or President for approval. The House voted 220-213 to agree to the rules package. The vote was largely party-line, with only one Republican voting against it and no Democrat voting for it.
Some of the rules and special orders may seem like dramatic changes, and, of course, the minority Democrats opposed the adoption of the rules due to the policy outcomes they could lead to. While the Republican House will certainly pass much legislation the minority Democrats oppose, the rules themselves will not necessarily be the reason for this. Furthermore, the House proposes, and the Senate disposes. Though House-passed legislation will reflect Republican priorities, many important bills, especially annual appropriations bills, will look very different once the Democratic-controlled Senate is done with them. So, though the rules package displeases the Democrats, their counterparts in the Senate will undoubtedly advance their party’s priorities when the two Chambers have resolved their differences before sending them to the President for his signature.
Rule Changes Affecting Budgeting, Government Spending, and Taxation
The House rules package incorporated several rules to make it easier for the House and individual Members to restrain government spending. Rules to promote fiscal responsibility include:
- Restoring CUT-GO: The Cut-As-You-Go (CUT-GO) rule prohibits the House from considering legislation that will increase mandatory spending for the current fiscal and calendar year and the next four or nine fiscal years unless there are comparable cuts to mandatory spending elsewhere in the budget. Requiring cuts in spending before increasing spending leads to the name Cut-As-You-Go, which is a play on “Pay-As-You-Go” and “PAY-GO,” a rule which requires either mandatory spending increases to be paid for by cuts in mandatory spending or tax increases. Republicans add CUT-GO when they are in the majority, and Democrats swap it out for PAY-GO when they are in charge. CUT-GO and PAY-GO both contain exceptions for emergency legislation.
- Repeal of the Gephardt rule: The Gephardt rule is a rule that attempts to minimize the number of votes House Members must take on lifting the debt limit. When in force, it directs the Clerk to engross (produce) a joint resolution suspending the debt limit automatically when the House adopts a budget blueprint (a budget resolution) for the fiscal year. The joint resolution goes to the Senate without further action on the part of the House. Repealing the Gephardt rule requires the House to vote on the debt limit apart from the budget resolution. Eliminating the Gephardt rule might seem like a significant change, but in recent years, the rule has not achieved its intended purpose, so it is a symbolic change more than anything. (For more on the Gephardt rule and the question of how effective it is at achieving its intended purpose, see “The Gephardt Rule: Does It Take the Political Sting Out of the Debt Limit?”)
- Limiting spending in amendments: Amendments to appropriations bills may not introduce a net increase in the amount of spending in the bill. Amendments that do so are subject to the point of order. (A point of order is a parliamentary objection that the House’s rules are being violated. If upheld, the offending amendment would not be allowed.) An amendment that does increase spending for a particular purpose must cut spending for another purpose. (Conservative Republicans have been pushing for greater opportunities to offer amendments on the Floor of the House. Depending on how open the amendment process is, Democrats could offer amendments to increase spending. This rule change would make it easier for conservatives to prevent the House from agreeing to Democratic amendments that would increase spending.)
- Limiting the use of reconciliation: The rules package prohibits consideration of a budget resolution that provides reconciliation directives that increase direct spending. Direct spending (usually entitlement programs) is outside the annual appropriations process and set by formulas in law rather than specific amounts included in annual appropriations bills. Over the years, the parties have used the reconciliation process to adjust direct spending, and this rule prevents Congress from increasing spending this way. However, during the 118th Congress, this rule will not have much of an effect since the Democrats control the Senate, and the two Chambers will probably not agree to reconciliation directions, which Congress uses when one party controls both Chambers (and the Presidency).
- The Holman Rule re-adopted: Members may offer amendments cutting the salaries of specific government officials or eliminating particular job positions or programs. When Democrats are in the majority, they eliminate the Holman Rule, and since 2017, Republicans have included it in the rules when they are in the majority. For a fuller description of the Holman Rule and its history, see “Here’s Why the Holman Rule Is Good (& It’s Not Because It Cuts Spending.”
- A point of order affecting long-term spending: The rules package creates a point of order against legislation that generates a net increase of more than $2.5 billion in direct spending 10 to 50 years in the future. This point of order forces Congress to look at the long-term effects of the policies it creates. The Budget Committees often draft budget resolutions with an eye towards the next 5 to 10 fiscal years, and the projections for the amount that will be spent in those windows are generally rosy. However, spending on these programs tends to balloon as the years go on.
- A point of order against unauthorized appropriations: A Member may raise a point of order against provisions of a general appropriations bill if it contains funding greater than the last level authorized by law. The Member who raises this point of order must inform the Chair what the last authorization level was. If the Chair sustains the point of order, an amendment reducing the appropriation to the last authorized level is automatically adopted. The objective of this rule is to encourage authorizing committees in Congress to complete their work so that the Appropriations Committee is not forced to be an ad hoc authorizing committee.
Along with the rules limiting spending increases, the House Republicans restored the 3/5 supermajority requirement for the passage of tax increases. That means if the House is considering a bill increasing income taxes and all the Representatives vote on the legislation, 261 are needed to pass the legislation. (If fewer Representatives than 435 vote on the bill, the threshold would be lowered accordingly.)
Strengthening the Authorization Process
During the authorization process, committees draft legislation creating or reforming various Federal programs under its jurisdiction. The best-known example of this is the National Defense Authorization Act (NDAA), which sets policy for the Department of Defense and which Congress passes every year. Other government activities do not receive nearly as much congressional scrutiny. The rules package strengthened the authorization process in a couple of ways.
First, it created a new point of order to address appropriations for activities with lapsed authorizations. A Member may raise a point of order against provisions of a general appropriations bill if it contains funding greater than the last level authorized by law. If sustained, the new point of order effectively limits the amount that can be spent on government programs to the amount that Congress permitted when the last authorization legislation passed (which in some cases may be more than ten years ago). The Member who raises this point of order must inform the Chair what the last authorization level was. If the Chair sustains the point of order, an amendment reducing the appropriation to the last authorized level is automatically adopted.
Second, the rules package requires House committees to develop oversight and authorization plans. Oversight plans are regular features of House rules. The last time the Republicans were in the majority, they required the plans to include detailed information on the authorization status of programs under their jurisdiction and plans for authorization. The Democratic majority of the 116th Congress amended the standing rules to omit the requirement to include authorizations in the oversight plans. The rules package for the 118th Congress restored the requirement for the committees to have authorization plans.
Restoration of the Motion to Vacate the Chair
The House may remove its Speaker via a motion to vacate the Chair, which is agreed to by a simple majority vote. Throughout most of the history of the House, any Member could force a vote on the Speakership since the question was privileged, meaning it takes precedence over other business. (However, the House has never removed a Speaker.) Under the previous Democratic majority, the House changed rules to afford the motion privilege only if a party caucus or conference voted for its leader to offer it. The rules package for the 118th Congress removed the provision conferring status on the motion only if offered by party leadership, meaning any Member may now offer a privileged motion to vacate the Chair.
In-Person Proceedings of the House Restored
During the 116th and 117th Congress, the House adopted proxy voting in response to the coronavirus pandemic. The House did not amend its standing rules to allow for proxy voting, and the rules package did not extend it to this Congress, so it has, in effect, been discontinued without any action on the part of the House (i.e., the House did not repeal a rule in the strict sense of the term).
During the last two Congresses, remote proceedings proliferated for committees. While the House will not continue these in general, the rules package provided for witnesses to testify before committees digitally, with some restrictions. First, the chairman of a particular committee must allow for it. Second, the chairmen, committees, and witnesses must follow regulations issued by the Rules Committee and submitted to the Congressional Record. Third, government officials testifying in their official capacities may not participate remotely. (For instance, a member of the President’s Cabinet testifying about an issue under his or her jurisdiction could not testify by Zoom—they would have to come in person.) While Republicans, in general, criticized the remote proceedings under the Democratic majority, some appreciated that virtual proceedings allowed members of the public to testify before committees even if they could not afford to travel to Washington, DC. This rule attempts to strike a balance between the benefits of both in-person and virtual committee proceedings.
Rule Changes Promoting Legislation on Single Subjects
In addition to rules changes affecting spending and budget matters, some rule changes affect the legislative process more generally. Responding to concerns that many laws are too big and unwieldy for proper consideration, concerns shared by rank-and-file Members and constituents alike, the House adopted rules to cut down on massive bills treating many different issues. To achieve this, a new rule requires that when a Member introduces a bill, he or she must submit a statement for the Congressional Record specifying which subject the bill covers.
Similarly, the House majority adopted a rule to make adding unrelated amendments to a bill more difficult. The “germaneness” rule is one of the House’s oldest rules. It prohibits the House from considering an amendment to the bill that differs from the subject of the bill itself. For instance, if the House is considering legislation on education policy, a Member couldn’t offer an unrelated amendment on agriculture policy. The rules package strengthens the germaneness rule by prohibiting the House from considering a resolution waiving the germaneness rule. So if the Rules Committee reports a special rule waiving the germaneness rule for amendments it makes in order, a Member may raise a point of order against that special rule. This must be done before the debate on the special rule begins. Typically, if a Member makes a point of order, the Chair, upon the advice of the Parliamentarian, will rule on whether to sustain the point of order. Instead, with this point of order, the Chair resolves the objection by referring the matter to the House by what is known as the question of consideration, which amounts to the House voting on whether to consider the resolution despite any violation of the rules. Before voting on the question, the House debates for 20 minutes, with the Member who moved the point of order controlling 10 minutes of debate time. Once the debate concludes, the House votes on whether to consider the resolution. If the House votes in favor of considering the resolution, it then debates the resolution itself and votes on it. So, if the Rules Committee wants to report a special rule waiving the germaneness requirement and a Member raises a point of order against it, the majority leadership must muster a majority twice: once for the question of consideration and another for the resolution itself. The majority generally votes together on procedural issues like this, so they are likely to amass enough votes to ensure the House agrees to their special rules.
The rules package requires the Speaker to create a bipartisan task force on ethics reform. The rules package provides no directions on the number of Members who will serve. Presumably, members of the minority party will be named upon the recommendation of the House Democratic Leader. From time to time, the House has reformed its ethics rules following a review by a panel of Members, such as the Obey Commission in the 95th Congress or the 1997 Ethics Reform Task Force.
The rules package also directs the House Ethics Committee to devise a system by which members of the public can submit complaints directly to the Committee. For a public member to submit a complaint, they must contact a House Member, who must certify “in writing that he or she believes the information is submitted in good faith and warrants review and consideration from the Committee,” according to the House Ethics Manual. It also requires that the Ethics Committee create a subcommittee to investigate a Member if the Member has been charged with a Federal or state crime. The Ethics Committee must create this investigatory subcommittee within 30 days of the Member being charged with a crime. Alternatively, if the Ethics Committee decides against establishing such a subcommittee, it must report to the House on its reasons for not investigating the Member at the time.
The rules package also continues the existence of the Office of Congressional Ethics, with some modifications. One modification changes the manner of appointment: The House resolution creating the Office allowed the Speaker and Minority Leader each to name members to the board of the Office, but the Speaker had to concur with the Minority Leader’s picks and vice versa. The rules package changes the concurrence requirement to that of “consultation,” which weakens each party leader’s control over the other’s picks. Additionally, the rules package affirms that the Office may not violate any Member’s constitutional rights and that Members have the right to be represented by a lawyer in the Office’s proceedings. Furthermore, the rules package automatically removes any board member currently serving beyond the established term limits (four consecutive Congresses, which amounts to eight years).
How Significant Are the 118th Congress House Rule Changes?
Some rule changes are routinely implemented when the control of the Chamber flips. For instance, when Republicans win the majority, they institute the CUT-GO rule, and when Democrats retake the Chamber, they institute PAY-GO. So such rules are not new (though they may still be important).
Additionally, some rule changes may not be especially significant since the House will not likely find itself in a situation where the rules would be relevant. For instance, as indicated above, the Republican-controlled House and Democrat-controlled Senate will probably not work on reconciliation legislation together, so the rule prohibiting consideration of a budget resolution that includes reconciliation instructions allowing for increases in direct spending will have little effect. It might prevent the consideration of a Democrat amendment to a budget resolution providing for reconciliation instructions increasing direct spending, but the Republicans would vote down such an amendment anyways. For the most part, such rules changes should be seen as primarily symbolic gestures of how they intend to govern, though they, do of course, have the full force of any other rule.
While some rules will have little practical effect, others will if the House provides much freedom for spontaneous debate on the Floor. For many years, the House has considered legislation under special rules that limit the opportunity for amendments, points of order, and the like. Some Members, however, have pushed for more opportunities to participate in proceedings on the Floor. Unless the House Republican majority votes on special rules that limit the chance for Democrats to amend legislation, minority Members could use that new-found freedom to offer amendments increasing spending, particularly through amendments that might find favor with more moderate Republicans. The rule providing a point of order against amendments that increase the net spending in an appropriations bill arms Members with a tool to combat such amendments. Unless the House waives that point of order, Members could use a rule like that effectively.
Much freedom to participate in Floor debates implies less predictability of policy outcomes and what amendments the House will vote on. If the majority party Members grow weary of this, the House may start to debate legislation under more restrictive special rules, which could blunt the effect of some of the rules the House has adopted. Additionally, Members must enforce some rules by raising points of order at the appropriate time, making it essential for them to know what’s in a bill and participate in Floor proceedings. This forces them to evaluate whether participating on the Floor or some other activity (like a committee mark up) is the best use of their time. The rules provide freedom to influence legislation on the Floor, but in the end, the House majority and individual Members might not very often use the rules in ways the minority Democrats might fear.
For the entire text of the House rules package for the 118th Congress, click here.
For a section-by-section analysis produced by the House Rules Committee majority staff, click here.
Mark Strand is the President of the Congressional Institute and Timothy Lang is the research director. The Sausage Factory blog is a Congressional Institute project dedicated to explaining parliamentary procedure, Congressional politics, and other issues about the Legislative Branch.
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