Proposed Reform of House Rules Would Not Be Enforceable

by Sam Wice — Saturday, Sept. 1, 2018

With many Democrats already opposing Nancy Pelosi as speaker and many Republicans having already opposed Kevin McCarthy as speaker, whichever party wins the House of Representatives could struggle to get the 218 votes required to win a Speaker of the House election. Seeing an avenue to exchange their votes for reform, the bipartisan Problem Solvers Caucus has proposed a series of reforms to the House of Representatives’ rules. Members are generally upset that under both recent Democratic and Republican leadership, rank-and-file members have had limited ability to offer amendments or otherwise influence legislation (i.e., closed rules). As such, part of the proposed reforms would require supermajority support to pass legislation when rank-and-file members are prohibited from offering amendments. However, even if enacted into the House of Representatives’ rules, this proposed reform would not be enforceable.

In general, the House of Representatives’ rules are not enforceable if a majority votes to waive them, which regularly occurs. Before the House of Representatives directly considers most important legislation, the House Committee on Rules will consider a resolution to determine the procedures for considering a bill. The committee will consider which potential points of order to waive and any amendments that the House of Representatives will consider. After the resolution passes out of committee, the full House of Representatives will approve the rules resolution before beginning to consider the underlying bill.

Quite often, the House will waive all points of order and not allow any (or limited) amendments. Specifically, the House can waive points of order on rules that require a supermajority.

For instance, before considering the Tax Cuts and Jobs Act the House of Representatives passed a resolution on the rules that the House would use when considering the bill. The House of Representatives waived all points of order and prevented any amendments or motions except for a motion to recommit––by tradition, the House of Representatives will not waive the rule allowing the minority party to offer one amendment through a motion to recommit. Waiving all points of order on this legislation was important because House Rule XXI prevents any tax increases without supermajority support. Because of this waiver, the House of Representatives could pass the Individual Tax Cuts and Jobs Act without supermajority support even though the Joint Committee on Taxation estimated that the bill would lead to long-term tax increases.

Like how the House of Representatives waived the supermajority requirement for tax increases, a future House of Representatives could waive a supermajority requirement for prohibiting rank-and-file members from offering amendments.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Sam Wice

Sam Wice is a former analyst at the Congressional Budget Office and a former Council Member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He can be reached at sam.wice[at]outlook.com.

4 thoughts on “Proposed Reform of House Rules Would Not Be Enforceable

  1. Will Yeatman

    this is really cool.

    what if the rule change were codified in statute, like the Congressional Review Act? Would a statute trump each chamber’s constitutional authority to make their own rules by majority? i suspect not, but i don’t know.

    Reply
    1. Sam Wice Post author

      I agree that the constitutional authority for each house of Congress to set its own rules would make any rules codified in statutes unenforceable. However, the issue would only ever come up if the House violated the statute. The potential constitutional challenge would not directly prevent Congress from imposing the rule change by law. For instance, the Unfunded Mandates Reform Act imposes rules requirements on the House and Senate. I do not believe those restrictions have ever been challenged on constitutional grounds.

      Reply

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