Later this week the House of Representatives will do something it has not done since the 114th Congress – amend and debate a bill on the floor under a “modified-open” special rule. The special rule was part of the House rules package (Section 5(a) of H. Res. 5), and it will sets the terms of floor consideration for the Strategic Production Response Act (H.R. 21).
Under the rule, members need to publish any amendments they want to offer in the Congressional Record at least one day in advance of the bill’s floor consideration. But, for the first time in over six years, members will be allowed to offer amendments without having them approved in advance by the Rules Committee. This debate will be an interesting test case of how members use the additional freedom provided by this special rule, and it will begin to set the tone for how legislation is considered on the House floor this Congress.
This post provides a primer on special rules, the modified-open rule that will be used this week, and an overview of the procedural steps that the House will take to consider H.R. 21 on the floor.
Overview of Special Rules
Special rules are resolutions reported to the House by the Rules Committee that specify how a measure will be considered on the floor of the House1. Special rules are one of the essential parliamentary features of the House because they allow the Speaker and House Leadership – acting through the Rules Committee – to bring bills to the floor quickly and specifically tailor the procedures that will be used to consider legislation on the floor. This often entails limiting how members may offer amendments as well as suspending or waiving many of the House’s standing rules.
There are four general categories of special rules – “open,” “modified-open,” “structured” (sometimes called “modified-closed”), and “closed” rules. The name of each category reflects how many restrictions are placed on members’ ability to offer amendments.
- Open rules place no additional restrictions on amendments and members may offer any germane amendment they wish.
- Modified-open rules place minimal restrictions on amending, like requiring that amendments be pre-printed in the Congressional Record or by capping the total amount of time that specific amendments or the bill a whole may be considered on the floor.
- Structured rules make specific amendments in order and limit debate to only those amendments.
- Closed rules prohibit any amendments.
As the House has become increasingly polarized over the last 25 years, the use of structured and closed rules have become common.2
It is important to note, however, that there are different varieties of special rules within these general categories and debates over how to categorize special rules.3 It is always important to carefully read the text of each special rule to determine how it will set the terms of amendment and debate on the floor.
Key Features of H. Res. 5 Section 5(a)
In that spirit, here is a brief annotation of Section 5(a) of H. Res.5 that explains how the rule will affect the floor consideration of H.R. 21.
The House Versus the Committee of the Whole
The first 19 lines of the rule authorize the Speaker to resolve the House into the Committee of the Whole House on the State of the Union (commonly referred to as the Committee of the Whole (COW)). The COW is a parliamentary device that the House may use to amend legislation. When resolved into the COW, the House operates as a committee of which every member of the House is a member.4
The key difference between the House and the COW is how debate is structured. In the House, debate operates under “hour rule,” which states that a “Member, Delegate, or Resident Commissioner may not occupy more than one hour in debate on a question in the House” (Rule XVII, Clause 2). Under this rule, each member of the House could theoretically speak for up to an hour on the underlying bill and every amendment to it. In practice, however, the majority usually limits debate under the rule to a single hour.5
In the COW, debate is structured into two distinct phases 1) a period of general debate (typically one hour) and 2) amending the bill under the “five-minute” rule. The hour of general debate is equally divided between the majority and minority. Each side’s time is controlled by the majority and minority’s floor managers, who yield time to other members of their caucus. At the conclusion of general debate, the COW considers amendments under the five-minute rule. Under this rule, a member offering an amendment may speak for up to five minutes in favor of their amendment and one opponent may speak for five minutes in opposition. Additional members who wish to speak for or against an amendment may offer “pro forma” amendments and speak for up to five additional minutes (See below for additional information about these amendments). Under this rule, there is no restriction on the number of regular or pro forma amendments that may be offered, other than amendments must be germane and comply with any applicable rules of the House.
A “Blanket Waiver” and General Debate
Lines 20-21 contain a “blanket waiver” that waives all applicable points of order against the bill’s consideration under the House’s rules, which means that members cannot raise any parliamentary objections to the COW considering H.R. 21.
The next sentence in lines 21-24 designates Majority Leader Steve Scalise and Minority Leader Hakeem Jeffries (or their designees) as the majority and minority floor manages for general debate. Both Scalise and Jeffries (or their designees) will yield time to members of their caucus who wish to speak during general debate.
Restrictions on Amending – Pre-printing in the Record and a Limit on Pro Forma Amendments
The rule has two restrictions on amending H.R. 21 – a “pre-printing” requirement that amendments have to be published in the Congressional Record for at least one day before the bill is considered on the floor (page 51/ lines 3-7) and a cap on the number of pro forma amendments that can be offered (page 51/ lines 7-11).6
The special rule’s pre-printing requirement means that only amendments that have been submitted at least 24 hours in advance of the bill’s floor consideration can be offered from the floor.7 This type of pre-printing requirement appears to more restrictive than past modified open rules, which only prioritized the recognition of members offering pre-printed amendments but still allowed members to offer amendments that had not been pre-printed.8 This requirement allows members (and House Leadership) to have advance notice of what amendments might be offered from the floor, but there are no restrictions on what amendments may be submitted (other than they must be germane, comply with other applicable rules, and be drafted correctly). 9 Pre-printing amendments in the Record also guarantees that a member will be given an opportunity to offer the amendment (Rule XVIII, Clause 8). But members are under no requirement to offer amendments that they have submitted to the Record.
The rule’s second limitation on pro forma amendments is designed to limit the ability of members from speaking for or against amendments offered by their colleagues. Pro forma amendments – sometimes referred to as “amendments to strike the last word” – do not actually amend the text of a pending amendment. They are a parliamentary device members use to gain recognition and speak for up to five minutes for or against another amendment. Under the five-minute rule, each member could offer a pro forma amendment to every amendment, which could theoretically allow for over 36 hours of additional debate on each amendment (437 members, delegates, and resident commissioners * five minutes). In practice, this requirement gives the leadership of each caucus a tool to manage the course of the floor debate, by limiting the total amount of pro forma amendments and controlling which members offer the amendments.
Rising and Reporting the Amended Bill to the House
The other important thing to remember about the COW is that it is a committee voting on amendments to the underlying bill, not the bill itself. Once the COW finishes its consideration of amendments, a motion is made to “rise and report” the Committee’s suggested amendments to the House. If the motion is approved, the Committee rises (the equivalent to adjourning) and the House immediately considers the COW’s recommendations. Typically, the House takes a single vote to agree to all the amendments favorably reported by the COW (but any member can demand separate votes on each amendment).10 Although very rare, it is possible for the House to reject an amendment that was approved by the COW, but it is not possible for the House to agree to an amendment that was not favorably reported by the Committee.
It is also very rare for the House to defeat the amended bill recommended by the COW. But, given the current narrow majority in the House, it is not hard to imagine how bipartisan coalitions could agree to amendments that could threaten the viability of the amended legislation.
This exact scenario is one of the main reasons that the House moved away from modified-open rules seven years ago. In 2016, the House considered the annual Energy and Water appropriations bill under a modified-open rule. 43 Republicans joined with 180 Democrats in the COW to agree to an amendment prohibiting the federal government from discriminating on the basis of sexual orientation. This amendment subsequently split the Republican caucus, and 130 Republicans voted with 175 Democrats to kill the amended bill – one of the very few times that an appropriations bill failed to pass on the House floor.
It is going to be fascinating to see how the amending process will play out this week. It is easy to take the cynical view that members may use modified-open rules to offer poison-pill amendments to derail the passage of legislation. But that kind of outcome is not guaranteed. It is also possible that bipartisan coalitions may be able to use modified-open rules to win adoption of amendments that would not have been allowed under structured rules. I am hopeful that members will be able to figure out ways to do this and use the amending process under modified-open rules to make substantive bipartisan changes to legislation on the floor.
The amending of H.R. 21 will be the first test case of whether this will be possible or not. If it results in disruptions like the 2016 Energy and Water bill, the House may end up quickly reverting to structured rules. In either case, the debate over H.R. 21 begin to set the tone in the House for the 118th Congress and will have implications for how the House considers legislation for the rest of the Congress.
Procedural Steps on the House Floor
The process the House uses to resolve into and out of the COW is complicated. Here is a simplified explanation of the different procedural steps that the House will take consider H.R. 21 under the terms of H. Res. 5, Section 5(a).
Resolving into the Committee of the Whole
Section 5(a) authorizes the Speaker to, “at any time after the adoption of [H. Res. 5],” resolve the House into the COW to consider H.R. 21. Once the Speaker makes this deceleration, he will leave the chair and appoint a chair of the COW, who will preside over the Committee’s debate. Typically, the chair of the COW is a senior member of the majority party who does not serve on the committee with jurisdiction over the bill being considered.
General Debate
Section 5(a) authorizes up to one hour of general debate, equally divided and controlled by the Majority Leader Steve Scalise and Minority Leader Hakeem Jeffries (or their designees). Each Leader will yield specified amounts of time to members of their own caucus. General debate will end when the full hour of time is used or any remaining time is yielded back.
Amending Under the Five-Minute Rule
As discussed above, each member offering an amendment may speak for up to five minutes in favor of it and one member may speak for up to five minutes in opposition. (The five-minute limit can be extended by unanimous consent). Section 5(a) modifies the five-minute in two ways. Members will only be able to offer amendments printed in the Congressional Record 24 hours in advance of the bill’s consideration, and it caps the number of pro forma amendments to a maximum of 20, equally divided and controlled between the majority and minority.
Committee of the Whole Rises and Reports
Once debate has finished, the COW will rise (adjourn) and report the bill and its recommended amendments back to the House. At this point, the Speaker will return to the chair of the House and preside over the remaining proceedings.
House Votes on Amendments
Under the terms of Section 5(a), the House will immediately vote on the amended bill reported by the COW (page 51/ lines 14-19). This is typically done via a single voice vote, but members may request a recorded vote as well as separate votes on each amendment. It is not possible, however, for the House to reconsider an amendment that was favorably reported by the COW.
Motion to Recommit
After the House approves the COW’s amendments, the bill is “engrossed” and read a final time. At this point, the minority floor manager can make a motion to recommit the bill to its committee of jurisdiction (Rule XIX, Clause 2). This is the minority’s final opportunity to prevent the bill from passing. The motion is debatable for 10 minutes, equally divided between the minority and majority. If approved, the House’s consideration of the measure effectively ends.
Vote on Final Passage
The House then votes on final passage of the bill. After the vote, the Speaker will table a motion to reconsider, which forecloses any possibility that the House will reverse its decision.