First Test of the New Majority: Choosing Rules Wisely

The new majority faces its first big test on the opening day of the 110th Congress when Democrats put forward their package of House rules to govern the body for the next two years. In his "A Manual of Parliamentary Practice for the Use of the Senate of the United States," Thomas Jefferson noted, "It is much more material that there should be a rule to go by, than what that rule is; that there may be a uniformity of proceeding in business, not subject to the caprice of the Speaker, or the captiousness of the members."

Of course Jefferson wrote this during his years as vice president (1797-1801) — long before there was an entrenched two-party system in Congress in which the majority party set the rules, and long before the 1880 creation of the House Rules Committee with its authority to report special rules that supersede the standing rules relative to bill priority, debate time and amendments.

Nevertheless, the standing rules remain the institutional foundation and framework on which the processes, procedures and operations of the House are built. They are a product of both precedent and the wishes of the latest governing party. To the extent that they are further modified at the beginning of a new Congress, they also can be a statement of what kind of House the new majority envisions.

On the matter of legislative process, the Democrats' "New Direction" platform has promised to restore "regular order" for legislation. In committee this would include open hearings and markups and at least 24-hour advance availability of bills at the subcommittee level. On the House floor this would include procedures that allow for "open, full, and fair debate" with an amendment process "that grants the Minority the right to offer its alternatives," and no more than 17-minute floor votes. For conference committees it means at least weekly meetings with ample opportunity for all conferees to debate and participate in all decisions.

To help restore civility, the Democrats' platform calls for bipartisan consultation on scheduling, administration and operations of the House; a predictable, family-friendly schedule that ensures timely and deliberate dispensation of the work of Congress; regular meetings between committee chairmen and ranking members; and minority-party control of at least one-third of committee budgets and office space.

The overall thrust of the Democrats' process reforms is, "We don't want to be like them." Democrats are committed to ending the kind of procedural abuses they say Republicans heaped on them. They would do this by erecting new rules to prevent the recurrence of such abuses. However, now that Democrats are in the majority, they don't need new rules to prevent Republican abuses.

Once they shift from a "minority mentality" to "majority rule" mode they will discover there already are plenty of existing rules that provide for openness, fairness and, yes, even minority rights, so long as they are followed and enforced instead of being ignored or waived. They don't need to load down the rule book with all manner of picayune and symbolic gestures that aren't necessary and yet could end up tying the majority in knots if they're not careful.

Let me give just one example. The Democratic platform's Honest Leadership and Open Government Act, introduced by Minority Leader Nancy Pelosi (D-Calif.) and 162 of her colleagues in February, contains a provision aimed at "ending 2-day work weeks." It would amend House rules to prohibit consideration of a resolution providing for the adjournment of the House at the end of a session "unless during at least 20 weeks of the session, a quorum call or recorded vote was taken on at least 4 of the weekdays (excluding legal public holidays)."

The Democrats are to be commended on committing to four- and five-day workweeks to allow more time for committees and the House to do their work. However, do they really want to tie themselves down, Gulliver-like, to rigid restrictions when they already control the floor schedule as the majority? What if they flunk the 20-week test? Will they have to stay after school or will they simply waive the rule and go home? My guess is the latter, albeit with some embarrassment.

The second challenge facing Democrats on opening day is over which Republican-originated rules changes they will keep and which they will jettison. Pelosi already has indicated, for instance, that the opening-day rules package will restore the right of the Delegate from the District of Columbia to vote in the Committee of the Whole (in which the entire membership of the House considers amendments and reports those adopted back to the full House for final adoption before the final vote on passing the bill). Will she also extend that to the other Delegates and Resident Commissioner as the Democrats had done in 1993? Will she retain the escape clause that an amendment will immediately be revoted back in the House if the votes of the Delegates are decisive in the Committee of the Whole?

More important, though, are the questions of whether the Democrats will: retain the three-consecutive-term limit on committee and subcommittee chairmen; keep the bans on proxy voting and "rolling quorums" on votes to report bills; retain the guarantee of the minority's right to offer a motion to recommit with instructions (a final amendment to a bill); reconstitute the now-defunct committees on the District of Columbia, Merchant Marine and Fisheries, and Post Office and Civil Service; retain the required publication of roll call votes in committee reports; and continue to require votes on committee oversight agendas. This partial list does not include numerous committee jurisdictional changes made by Republicans over the past 12 years.

The majority may well decide that, rather than tackling all imaginable changes in its opening-day rules package, it would be better for the Rules Committee first to hold hearings on various options before putting them to a House vote. That would at least ensure greater minority-party consultation and participation in line with the Democrats' professed commitment to comity and civility.

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.