Memorandum submitted by John Owens
My name is John Owens. I am Professor of United
States Government and Politics at the University of Westminster,
a Faculty Fellow in the Center for Congressional and Presidential
Studies at the American University in Washington DC, and an Associate
Fellow at the Institute of the Americas in the School of Advanced
Studies at the University of London. I have been a student of
the United States Congress for almost 35 years and have written
extensively on congressional politics, congressional-presidential
relations, and comparative legislative politics.
1. INTRODUCTION.
1.1. Let me start by pointing
to the important and obvious differences between the US "separated"
system and British parliamentary government, and to the much greater
strength of "party" as an organising force in the House
of Commons compared with the US House of Representatives Still,
as I argued in an article written with Professor Burdett Loomis
of the University of Kansas, which was published in the Journal
of Legislative Studies, there are growing similarities between
the two chambers, primarily as a result of the growing influence
of party in the US House.
1.2. Like the House of Commons,
the US House is increasingly a majoritarian institution in which
the majority party exercises tight control over the chamber's
agenda, most particularly the floor agenda. Increasingly, the
leaders of the majority party in the US House can shape and structure
the floor agenda through the Rules Committee (which is effectively
under their control), while the executive/the president and/or
the Senate may be controlled by the opposing party. This control
is exercised by the Rules Committee through the use of very often
elaborate and increasingly restrictive special rules that limit
which amendments, if any, will be considered on the House floor,
in what order they will be considered, for how long, whether they
will be subject to points of order, which will be the subject
of roll call votes, and so forth.
1.3. Typically, though not always,
these rules prohibit or limit amendments offered by the minority
party—which often seek to undermine majority party control
by designing amendments aimed at creating cross-party coalitions.
In recent congresses, over 70% of special rules are restrictive,
whereas 40 years ago about 10% were.
1.4. In the US House, the majority
party also exercises increased control over standing committees
through committee assignments, bill referrals, and legislative
access to the House floor. Gone are the days of committee government
when committees might write legislation that majority party leaders
felt obliged to accept. In the contemporary House, committees
now enjoy much less autonomy as parties have become the most significant
organisations on Capitol Hill.
1.5. Given increased majority
party control in the US House, and extant ministerial control
of the House of Commons agenda, it seems useful and legitimate
to ask what procedural opportunities exist for individual US House
members to influence the floor agenda that might be made available
to member of the House of Commons.
1.6. Several caveats need to be
entered in drawing such comparisons, however:
1.6.1. US House members
have much larger staffs (18 FTEs). Although most members' staff
concentrate on constituency-related tasks, members are nevertheless
able to direct considerable staff resources from within their
own offices to their legislative responsibilities, which usually
reflect their committee assignments. As a consequence, individual
House members are still able to write, recommend and influence
legislation, which is still largely written in committees.
1.6.2. Second, when
US House members make their legislative decisions, constituency
influence trumps party influence if the two sources of influence
conflicts.
2. THE DISCHARGE
PETITION
Given the extent of majority party leadership
control in the US House, one opportunity that is available to
House members that your Committee may want to consider is the
discharge petition. This is a mechanism by which ordinary backbenchers
may use either a) to prize a bill out of the committee to which
it has been referred and it has not reported to the House floor,
without the Rules Committee granting a special rule; or b) when
the Rules Committee/the majority party leadership refuses to grant
a rule on legislation that enjoys considerable support.
As Richard Beth, Legislative Specialist with
the Congressional Research Service, testified before the US Congress:
"[t]he discharge rule in practice today is the only form
of proceeding in the House by which you can get a measure on the
floor if it was over the opposition of the Speaker, the committee
of jurisdiction and the Committee on Rules" (US. Congress
1993: 63).
2.1. An early form of the discharge
petition was introduced in the US House in somewhat similar circumstances
to those in which your Committee is considering Commons reform.
In 1910, a coalition of minority Democrats and Progressive Republicans
combined in a famous revolt against "Cannonism". The
Republican Speaker "Uncle Joe" Cannon exercised autocratic
control of the House and would not allow floor consideration of
legislation demanded by their constituents. A new discharge rule
was introduced (Rule XV, clause 2), which allowed any House member
to submit a motion to discharge any bill from any committee when
the chair of a committee refuses to place a bill or resolution
on the committee's agenda; without such a procedure, a bill before
a committee might never be reported out thus preventing the full
House from considering it.
2.2. The discharge petition procedure
provides that if a bill has been before a standing committee for
30 legislative days any members may introduce a motion to discharge
the committee from considering the measure further. The procedure
is as follows:
2.2.1. A member introduces
a motion to discharge a committee from considering the measure
further
2.2.2. One of the House
clerks then writes a discharge petition that is made available
for House members to sign when the House is in session.
2.2.3. If a majority
of House members (218) is willing to sign the petition, a bill
can be brought to the House floor for consideration regardless
of whether the relevant committee of jurisdiction or the majority
leadership (including the Speaker and the Rules Committee) opposes
the bill.[34]
2.2.4. Once at least
218 members have signed a petition, the motion to discharge a
bill is placed on the discharge calendar. Once it has been on
this calendar for seven legislative days, the measure becomes
privileged business on the second and fourth Mondays of the month,
except when these days are the final six days of a legislative
session.
2.2.5. Any petition
signatory may be recognised to offer the discharge motion. Once
the motion is called up, debate is limited to 20 minutes, divided
equally between supporters and opponents. If the discharge motion
fails, the bill cannot be considered again during that legislative
session. If it is approved, however, any petition signer may then
make a motion to call up the bill that is the subject of the petition
for immediate consideration. The bill is then considered under
normal procedure until it is disposed of. Even if the vote for
immediate consideration fails, the bill is nevertheless assigned
to the appropriate legislative calendar with the same rights of
any other bill reported by a committee.
3. THE DISCHARGE
PROCEDURE'S
LIMITATIONS
3.1. In reality, few discharge
petitions are successful in collecting the required number of
signatories and even less in prizing measures from committees.
Between 1931 and 2008, 615 petitions were submitted, but only
47 acquired the requisite number of signatures—less than
10% per (2-year) Congress. For example, after Republicans won
control of the House in 1994, no discharge petition gained 218
signatures before 2002 (on the campaign finance reform bill).
Over the same 1931-2008 period, no more than 26 bills were discharged,
only 19 ultimately passed the House, and only two became law (Beth
2003; 2009), the most recent being the 1960 Federal Pay Raise
Act. In the most recent example, in 2003, Congressman Brian Baird
successfully entered a discharge petition with the required 218
signatures but the measure (proposing an amendment to the US Constitution
of the United States regarding the appointment of individuals
to fill vacancies in the House in the event of a catastrophic
attack on the Capitol Buildings) failed to gain the necessary
two-thirds vote on the House floor.
3.2. The procedure is difficult
to implement for a number of reasons:
3.2.1. Most obviously,
party leaders—particularly those from the majority—often
discourage and pressure their party colleagues not to sign discharge
petitions. Before 1993, it was more difficult for party leaders
to exert pressure because House precedents required the names
of signatories of discharge petitions to be kept secret until
the required 218 signatures had been obtained. Following public
criticism—primarily from conservative House members—that
the process was not sufficiently open, the House changed the rules
in 1993 to require the names of those who had signed a petition
to be made public as soon as the discharge petition was introduced.
The argument they used was that previously House members introduced,
co-sponsored or publicly declared support for a bill but then
refused to sign a discharge petition that would allow it to come
to the floor for consideration. Without public disclosure, they
argued, committee and party leaders could press members not to
sign or to remove their names from the petition if they had signed
already. In 1995, the House revised its rules to require the Clerk's
office to make available on a daily basis lists of the names of
those members who had signed discharge petitions and to publish
such lists in the Congressional Record (the equivalent of Hansard)
every week.
Besides actively discouraging majority members from
signing any discharge petition, the Speaker working in consort
with a majority of the Rules Committee, may also circumvent a
discharge motion through deft interpretation and use of the House
rules (see Patty 2007: 683-4). However, as Cannon discovered in
1910, when the House revolted against his autocratic rule, if
support for a bill is very strong, a Speaker's attempts to deny
or subvert backbench pressures may provoke even greater hostility,
and ultimately threaten his/her position as party leader. As the
case of the 1993 rules change demonstrates, in the face of overwhelming
backbench support, House majority leaders felt compelled to support
the change.
3.2.2. Second, members
are reluctant to challenge a committee's prerogative to consider
a bill. Because the discharge rule violates regular legislative
procedure, by definition, even those members who sponsored or
support the bill that is the subject of the discharge petition,
may not support the procedure. Committees themselves may also
vitiate discharge attempts by reporting a bill, possibly adversely,
so that they no longer have responsibility for it.
3.2.3. Third and relatedly,
legislators are typically reluctant to write legislation on the
House floor—particularly if it is complex legislation—without
the benefit of the committee of jurisdiction's expertise and information
provided it by witnesses in hearings.
3.2.4. Fourth, gathering
the necessary signatures without—and, indeed, likely in
contravention of the wishes of—the majority party whips
is time-consuming and requires political capital, which most backbench
Members will not possess. These costs frequently deter members
from resorting to the discharging procedure.
3.2.5. Finally, Members
are reluctant to use an irregular procedure that might one day
be used against committees they chair or on which they serve.
4. POTENTIAL
BENEFITS.
4.1. Just because its actual use
in the US House is rare, however, does not negate the potential
benefits of instituting such a procedure. Like the presidential
veto and the Senate filibusters, which are also rarely invoked,
discharge is a potential threat, a bargaining tool that can be
used to extract concessions from majority party leaders while
at the same time extending participation in the legislative process.
There are numerous examples from the US House to
support this contention. These range from the Equal Rights Amendment
to the US Constitution, flag burning, balancing the federal budget,
prayers in state schools, consumer protection, gun control, and
campaign finance. Although some of these efforts were not successful
and/or use of the discharge procedure did not lead directly to
legislation, the procedure nevertheless provided an avenue by
which these issues could reach the legislative agenda. As Beth
(1994:37) argues, "struggles to bring measures to the floor
over the opposition of the Committee presumably loomed larger
than the raw number of petitions filed (or of rules denied) would
suggest". The threat of a discharge petition may also prompt
a committee to hold hearings or report a bill or majority leaders
to allow a floor debate on an issue.
4.2. Second, although by definition,
the minority do not have the numbers to muster 218 signatures,
discharge is an important tool for the minority party. That is,
the discharge procedure provides minority party members with an
institutional incentive to identify issues on which they may seek
the support of majority party members willing to detect from their
party's position. Still, discharge can be a two-edged sword for
the minority. When the minority party seek to use the discharge
procedure to demonstrate wide House support for their proposals
and then they fail to garner the necessary 218 signatures, they
run the risk of appearing as a divided party.
References
US. Congress. 1993. House. Rules Committee. Subcommittee
on Rules. Hearings. 93rd Congress, Second Session.
Richard S. Beth, Control of the House Floor Agenda:
Implications from the Use of the Discharge Rule, 1931-1994. Paper
presented at the annual meeting of the American Political Science
Association, 1 September 1994.
Beth, Richard S. 2009. Personal communication with
the author.
Beth, Richard S. 2003. "The Discharge Rule in
the House: Principal Features and Uses CRS Report for Congress.
97-552 GOV. Washington, DC: Congressional Record Service: Government
and Finance Division.
Miller, Susan M. and L. Marvin Overby 2009. "Party
or Petition": Discharge Behavior in the Modern House".
Paper presented to the Midwest Political Science Association,
Chicago. April.
Patty, John W. 2007. "The House Discharge Procedure
and Majoritarian Politics", The Journal of Politics, 69/3:
678-88.
US. Congress. House. Rules Committee. Subcommittee
on Rules of the House. 1993. Discharge Petition Disclosure H.
Res 134. Hearings. 103rd Congress, Second Session, Washington,
DC: USGPO, 14 September.
October 2009
Two other successful petitions resulted in rules
changes rather than new laws (Beth 2003; 2009). The Bipartisan
Campaign Reform Act is sometimes cited as an example of the successful
use of the discharge procedure. In fact, although a discharge
petition was successfully entered, the measure passed was not
brought up for floor consideration through the discharge procedure;
rather, by Republican majority leadership in the House granting
a new rule for consideration, thereby pre-empting the discharge
process. The most recent successfully entered was in the 108th
House (2006).
34 Originally, only one-third of House members (145)
were required for a discharge petition to take effect. In 1935,
Speaker Rainey, who wanted to stop legislation awarding veterans
a cash bonus from being brought up in Congress, changed the number
to a majority. The increase in the number of required signatories,
of course, further strengthened the power of Rules Committee and
the Speaker in relation to rank and file members. Back
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