House Executes Deliberation With Special Rules

Telling John Q. Public there is something in Congress called a "self-executing rule" likely would draw a blank stare or a shocked look. No, it is not a political suicide pact for corrupt politicians. (That's natural law.) Rather, it is a device used by the House Rules Committee to automatically attach amendments to bills on the floor without a separate debate or vote.

Here's how it works:

Almost every major bill must obtain a special rule, or resolution, from the Rules Committee permitting immediate floor consideration. The resolution also specifies the amount of general debate time and what amendments will be allowed. A special rule also may contain other bells, whistles, gizmos and gadgets. One of these optional attachments is a self-executing provision, which decrees a specified amendment to have been adopted upon the rule's passage. In other words, once the House adopts the special rule it effectively has adopted the amendment before the bill has even been called up for consideration.

Self-executing rules began innocently enough in the 1970s as a way of making technical corrections to bills. But, as the House became more partisan in the 1980s, the majority leadership was empowered by its caucus to take all necessary steps to pass the party's bills. This included a Rules Committee that was used more creatively to devise procedures to all but guarantee policy success. The self-executing rule was one such device to make substantive changes in legislation while ensuring majority passage.

When Republicans were in the minority, they railed against self-executing rules as being anti-deliberative because they undermined and perverted the work of committees and also prevented the House from having a separate debate and vote on the majority's preferred changes. From the 95th to 98th Congresses (1977-84), there were only eight self-executing rules making up just 1 percent of the 857 total rules granted. However, in Speaker Tip O'Neill's (D-Mass.) final term in the 99th Congress, there were 20 self-executing rules (12 percent). In Rep. Jim Wright's (D-Texas) only full term as Speaker, in the 100th Congress, there were 18 self-executing rules (17 percent). They reached a high point of 30 under Speaker Tom Foley (D-Wash.) during the final Democratic Congress, the 103rd, for 22 percent of all rules.

When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.). There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995-1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively). Thus far in the 109th Congress, self-executing rules make up about 16 percent of all rules.

On April 26, the Rules Committee served up the mother of all self-executing rules for the lobby/ethics reform bill. The committee hit the trifecta with not one, not two, but three self-executing provisions in the same special rule. The first trigger was a double whammy: "In lieu of the amendments recommended by the Committees on the Judiciary, Rules, and Government Reform now printed in the bill, the amendment in the nature of a substitute consisting of the text of the Rules Committee Print dated April 21, 2006, modified by the amendment printed in part A of the report of the Committee on Rules accompanying this resolution, shall be considered as adopted in the House and the Committee of the Whole."

The substitute submitted by the Rules Committee did not combine all the amendments adopted by the three reporting committees, as is customarily done. Instead, it deleted two amendments adopted by the Judiciary Committee that would have required disclosure of lobbyists' contacts with Members and staff, and lobbyists' solicitation and transmission of campaign contributions to candidates.

It then further amended its own substitute by automatically deleting a third Judiciary amendment requiring a Government Accountability Office study of lobbyist employment contracts.

The third self-executing provision occurs at the end of the special rule and states: "In the engrossment of H.R. 4975, the Clerk shall ... add the text of H.R. 513, as passed by the House, as new matter at the end of H.R. 4975." In other words, the Clerk was authorized to add as an amendment an entire separate bill, in this case, the House-passed legislation regulating Section 527 political committees, and thereby put that issue into conference with the Senate (which has no comparable provision in its bill).

The special rule had other problems since it allowed only nine amendments to be offered out of 74 submitted. Moreover, appropriators were unhappy with the earmark provisions included in the bill. This forced Rules Chairman David Dreier (R-Calif.) to pull the rule after 20 minutes of debate, followed by a five-hour recess and Republican Conference meeting before the House reconvened and the rule again was called up and narrowly adopted, 216-207.

The perils of forsaking bipartisanship and deliberation on such an important institutional issue forced the majority leadership to resort to procedural politics in hyper-drive. Even then their souped-up procedural machine nearly blew its engine. It may be time to reinvent the Model T, with the "T" standing for the tried and true "tradition" of deliberative lawmaking.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.