The House Discharge Procedure and Majoritarian
Politics∗
John W. Patty
Department of Government
Harvard University
September 22, 2006
Abstract
This paper discusses the details of the discharge procedure in the House of Representatives and their implications for theories of legislative politics. While the discharge
procedure is frequently cited as the tool by which committee obstruction within the
House can be overcome, I argue that, under close examination, the procedure actually
is far from purely majoritarian. Specifically, I argue that the details of the discharge procedure imply that the support of either the Speaker of the House or a majority of the
Rules Committee is necessary to ensure floor consideration for a bill. Accordingly, in a
de jure sense, the House’s discharge procedure is irrelevant.
∗
I thank Jim Alt, Barry Burden, Sean Gailmard, Scott Moser, Maggie Penn, Eric Schickler, Ken Shepsle, three
anonymous reviewers, and the Editor for their insightful and very helpful comments.
1
1 Introduction
There is an active debate about the nature of Congressional institutions and their role in determining policy outcomes. Much of the recent theoretical debate has centered on whether
the House of Representatives is “majoritarian.” As defined by Keith Krehbiel, a majoritarian
institution is one in which
“objects of legislative choices in both the procedural and policy domains
must be chosen by a majority of the legislature.” (Krehbiel (1991), p.16)
The approval of the standing rules of the House of Representatives clearly comports with
Krehbiel’s definition: approval requires a majority of legislators voting, a quorum being
present. However, the true nature of day-to-day decision making within the House is not
so unambiguous. There are many reasons for the ambiguity, including the use of procedures such as suspension of the rules, the tying of committee memberships to party caucus
memberships,1 and the special ability of certain committees to report certain matters to the
floor at any time. However, the primary focus of the debate concerning the majoritarian nature of House decision making is the apparent power of standing committees to “bottle up”
legislation. This “gatekeeping” power serves as the basis for several theories of Congress,
including those within the distributive,2 partisan,3 or informational4 traditions. This paper
attempts to refine our theory of the institutional details of the US House of Representatives
by examining what appears to be the most potent neutralizer of gatekeeping: the House’s
discharge rule (House Rule XV, clause 2).
1
House Rule X, clause 5.
This strand of the Congressional literature includes Shepsle (1979) and Shepsle and Weingast (1982),
among many others.
3
Including, but not limited to, Rohde (1991, 1994), Cox and McCubbins (1993, 2005a), Aldrich (1994, 1995),
and Aldrich and Rohde (2000, 2004)
4
The seminal works in this literature include Gilligan and Krehbiel (1987) and Krehbiel (1991).
2
2
The discharge rule has recently attracted significant attention from Congressional scholars.5 This attention has been motivated by the role that discharge plays in distinguishing between several theories of Congress. In addition, the possibility of discharge is theoretically
central to legislative policymaking – and especially so for those who wish to link majority
preference with legislative policy outcomes. As Burden (2005) describes it, the possibility
of discharge “represents the opportunities” for majority preference to be expressed within
the House. Burden’s depiction is highly accurate: the discharge rule is the only procedure
within the standing rules of the House by which a majority can circumvent obstruction by
committee members and the House leadership.
In this paper, following recent work by Schickler and Rich (1997a,b), Cox and McCubbins
(1997), Krehbiel (1999), Schickler (2000), and Crombez et al. (2006), I relate the details of
the discharge process to the theoretical study of Congress. The main point of the paper’s
analysis is that the discharge process, as governed by the standing rules of the House, is not
purely majoritarian. In particular, the paper’s main result is that the rules of the discharge
process imply that securing floor consideration for a measure requires the consent of the
Speaker or a majority of the Rules Committee. In a de jure sense, then, the standing rules
of the House are not majoritarian. Accordingly, even without accounting for the costliness
of the discharge process,6 it is premature to conclude that a measure will be enacted simply
because it is supported by a majority of the members of the House.
The conclusion of the paper is that, in line with the argument of Schickler (2002), a complete theoretical explanation of institutional choice and policymaking within the House requires a combination of partisan, procedural, and policy-seeking approaches (Krehbiel et al.
(1987)). More specifically, at least in de jure terms, understanding what gets voted upon
5
Examples include Krehbiel (1995, 1998, 1999), Binder et al. (1999), Martin and Wolbrecht (2000), Lindstadt
and Martin (2003), Burden (2004, 2005), and Crombez et al. (2006).
6
Examples of this costliness are numerous: retribution by party leaders (Cox and McCubbins (1993, 2005b)),
retribution by the Rules committee (Oleszek (2001), Peabody (1985)), and the potential loss of the informational advantages of the committee(s) being discharged (Gilligan and Krehbiel (1989b)).
3
in the House requires understanding the preferences and behaviors of membership of the
Rules Committee (Dion and Huber (1996, 1997), Krehbiel (1997)). An important implication of this paper’s analysis of the rules of the House is that any claim of formal gatekeeping
powers within the House must center its attention on the Speaker and Rules Committee:
the support of either the Speaker or a majority of the Rules Committee is required to ensure
floor consideration for a measure. Accordingly, while features such as the composition of
legislative committees,7 the rules granted to their proposals,8 and the assignment of members to various positions of power (e.g., committee and subcommittee chairs, party leaders
and whips)9 are clearly important, the composition of the House outside of the Speaker and
the Rules Committee can affect what reaches the House’s day-to-day legislative agenda only
through de facto forms of authority.10
The paper proceeds as follows. In the next section, I describe the details of the House’s
discharge process. Then I formally demonstrate the paper’s main result, after which I apply
the paper’s findings to a one-dimensional spatial model. In Section 5, I discuss an alternative justification for the paper’s main result, based on House precedent rather than on
the standing rules, per se. I then conclude with a discussion of the implications of the paper’s findings and a brief discussion of an illustrative and successful discharge attempt in
the 103rd Congress.
7
The literature on this topic is enormous. A few examples are Krehbiel (1990), Hall and Grofman (1990),
Groseclose (1994), Maltzman (1995, 1998), Adler and Lapinski (1997), Kollman (1997), Deering and Smith
(1997), Groseclose and Stewart III (1998), Overby and Kazee (2000), Frisch and Kelly (2004), and Parker et al.
(2004).
8
In addition to Dion and Huber (1996, 1997), and Krehbiel (1997), see, for example, Shepsle and Weingast
(1984), Gilligan and Krehbiel (1989a), Sinclair (1994), Evans (1999), and Hixon and Marshall (2002).
9
See, for example, Loomis (1984), Clausen and Wilcox (1987), Canon (1989), Rohde (1991), Sinclair (1995),
and Posler and Rhodes (1997).
10
For a formal discussion of the distinction between forms of authority in strategic situations, see Aghion
and Tirole (1997).
4
2 A Description of Discharge
With very few exceptions, every measure introduced in the House of Representatives is referred to at least one committee. After referral, a measure can be considered by the House
only after the committee(s) to which it has been referred have reported the measure back to
the floor or have been discharged from its consideration. Technically speaking, a committee can be discharged in a variety of ways, the most important of which are (1) unanimous
consent, (2) suspension of the rules, (3) enactment of a special rule reported from the Rules
Committee, (4) expiration of time limit imposed on the committee by the Speaker, or (5)
passage of a discharge motion.11
All methods of discharge except the last – a discharge motion – are controlled by the
House leadership. Both unanimous consent and suspension of the rules are limited in applicability, require supermajority approval, and are at the discretion of the Speaker. Use of a
special rule requires the consent of a majority of the Rules Committee. The right to impose
time limits on referral to a committee is absolute and held solely by the Speaker (Rule XII,
clause 2(c)(5)). Accordingly, if a measure that is opposed by both the Speaker and a majority of the Rules Committee membership is to receive floor action, it must be brought up
for consideration through the discharge procedure as set forth in House Rule XV. Given the
focus of this paper and in order to simplify exposition, I refer to application of this rule as
“the discharge process” for the remainder of the paper.
The Discharge Petition. The discharge process involves the filing of a discharge petition
by a member of the House.12 This petition can then be signed by House members at any
time during any legislative day until the end of Congress or until the petition is signed by
11
Rich descriptions of the discharge process are presented in Beth (2003a,b).
The motion to discharge a committee is always available, but is privileged only if the motion is placed
on the Calendar to Discharge Committees, which requires a successful discharge petition. In general, any
discharge motion “from the floor” is recognized only under unanimous consent.
12
5
218 members. Until 1993, signatures on the discharge petition were secret until the required
number had been reached, at which point the names were published in the Journal. This
secrecy was removed in 1993 by H.Res. 134, which amended clause 3 of Rule XXVII of the
House Rules to require that the Clerk “make the signatures a matter of public record.” This
change in the rules was itself effected by use of the discharge petition.13
There are (at least) three important features of the modern-day discharge process: (1)
how the procedure is applied to the Rules Committee versus how it is applied to legislative
committees, (2) limitations on what types of matters committees can be discharged from,
and (3) the scheduling of successful petitions for floor consideration. Below, I focus on the
first of these features and offer an abbreviated description of the second and third to the
degree that they play a role in the paper’s analysis.
2.1 Two Roads to the Floor
According to Rule XV, any member may file a petition to discharge
“(A) a committee from consideration of a public bill or public resolution that
has been referred to it for 30 legislative days; or (B) the Committee on Rules from
consideration of a resolution that has been referred to it for seven legislative
days and that proposes a special order of business for the consideration of a
public bill or public resolution that has been reported by a standing committee
or has been referred to a standing committee for 30 legislative days.” (Rule XV,
clause 2(b)(1))
Thus, there are two routes to the floor through the discharge process: a member may attempt to bring legislation to the floor either by discharging the committee of original jurisdiction from consideration of the measure or by discharging a resolution from the Rules
13
Discharge petition 103-2, filed by Rep. Inhofe on May 27, 1993, entered onto Discharge Calendar on September 8, 1993, called up and approved on September 28, 1993 (Roll no. 458: 384 Yeas, 40 Nays, 1 Present).
6
Committee calling for the consideration of the measure. There are two principal differences
between the two approaches. The first of these regards how the discharge petition itself is
dealt with when it is brought off the Discharge Calendar. The second (and most frequently
noted) difference concerns how the measure will be considered on the floor after the discharge motion is approved.
Discharge of a Legislative Committee. If a committee other than the Rules Committee is
discharged from consideration, then an immediate motion to consider the measure is privileged.14 After this motion is offered and agreed to, the measure is then “considered immediately under the general rules of the House.” In other words, a measure that is brought to the
floor by discharging the legislative committee to which it was referred is then considered by
the House under an open rule.
Discharge of the Rules Committee. If the Rules Committee is discharged from the consideration of a resolution, that resolution is immediately considered.15 After a successful
vote on the resolution, the House then proceeds under the order of business as described
in the resolution.16 Discharging the Rules Committee therefore allows the use of a closed or
hybrid rule for a bill’s consideration.
2.2 Other Details about Discharge
Since a discharge petition is intended to discharge a committee from consideration of a
measure, once a measure has been reported by a committee, any petition calling for the
14
This motion is privileged so long as the motion is the next one offered and is offered by a member whose
signature appears on the discharge petition. If such a motion is not immediately offered, then the measure is
referred by the Speaker to the appropriate calendar. (Deschler, Ch 18 § 4.7)
15
The only intervening motion allowed is a single motion to adjourn.
16
If the resolution fails, the House returns to normal business and the possibility of discharging a substantially similar measure is precluded for the remainder of the session.
7
discharge of that committee from the consideration of that measure is moot. Even if the discharge petition has already been signed by 218 members, the petition can be circumvented
by the committee simply by reporting the measure and having it referred to the appropriate calendar (Deschler, Ch 18 § 1.11). In addition, preemptive reporting by a committee is
always possible: a discharge motion is a privileged matter only on the second and fourth
Mondays of the month and only after it has been on the Discharge Calendar for at least
seven legislative days.17
There are a few restrictions on what can be discharged, including the maximum number of bills that may be covered by a single petition (one), the number of times a motion to
discharge may deal with any given policy issue (once per session), and what may be the subject of a discharge motion (essentially only public bills and germane amendments). These
points are discussed briefly below.18
One Bill At A Time. A single discharge petition can discharge a committee from consideration from exactly one measure (or, in the case of discharging the Rules Committee, a single
petition can discharge a resolution calling for the consideration of a single measure). Furthermore, a special rule is subject to discharge only if it does not make in order any nongermane amendments. These restrictions were added in the 105th Congress (House Rules and
Manual Ch 19 § 3).19
17
Furthermore, this privilege disappears during the final six days of a session (Deschler, Ch 18 § 3.3).
It should be noted that these seemingly minor details, which are not the focus of the remainder of the
paper, have all been changed at least once since the discharge rule’s inception in 1910, suggesting that they
have been perceived by at least some members as strategically relevant.
19
Additionally, a strict reading of subparagraph (2) of Rule XV, clause 2(b) (“Only one motion may be presented for a bill or resolution.”) implies that each bill or resolution may be the subject of at most one petition.
Such an interpretation of this provision – which was added to the standing rules at the beginning of the 105th
Congress – would imply that the various means of circumventing discharge petitions discussed below would
be final in the sense that, upon circumvention of the first discharge petition, no other discharge petitions relating to the measure in question would be in order. While this interpretation has not been tested empirically
to my knowledge, the explicit inclusion of this statement in the rules and its intended effects are intriguing.
18
8
No Repetition. Once a discharge petition has been dealt with by the House, consideration
of a discharge motion dealing with a matter that is “substantially the same” is not in order
for the remainder of the session (Rule XV, clause 2(f)).
What May Be The Subject Of Discharge. A small class of legislative business, such as executive communications and the resolution of inquiries, are considered to be so important
as to be subject to discharge at any time through a (privileged) motion to discharge offered
from the floor. Some matters that are (or eventually become) automatically subject to discharge without the filing of a discharge petition include
1. Propositions to discipline a member and impeachment resolutions (Deschler, Ch 18
§ 5),
2. Vetoed bills that have been returned to House (Deschler, Ch 18 § 5.1), and
3. Budget recissions and impoundment resolutions (2 USC § 688).
Finally, some measures may not be the subject of a discharge petition: for example, private
bills and resolutions appointing a committee to investigate are excluded from the provisions
of Rule XV (Deschler, Ch 18 § 2.6).
3 Toward A Strategic Calculus of the Discharge Process
In this section, I demonstrate that, under the standing rules of the House, opposition of the
Speaker and a majority of the Rules Committee can circumvent any discharge motion. In
order to clarify the following discussion, I denote the bill in question by x, any special rule
(i.e., a resolution) calling for the consideration of x by r , the membership of the House by
N , the legislative committee to which x is referred by C ⊂ N , the Rules Committee by R ⊂ N ,
and the Speaker of the House by S ∈ N .
9
Assume now that x is supported by a majority of N . If the Speaker supports x, he or
she can ensure it comes up for a floor vote. As Speaker Tip O’Neill famously observed, “the
power of the Speaker of the House is the power of scheduling.” Similarly, if a majority of
the Rules Committee supports x, they can also ensure that it receives a floor vote through
its ability to originate, and report at any time, measures dealing with the order of business
within the House.
The only case in question, then, is whether simultaneous opposition by a majority of the
Rules Committee and the Speaker is sufficient to stymie floor consideration of x. While there
are a number of ways in which such obstruction might be accomplished,20 the simplest
way involves the Speaker using his or her power to set time limits on committees, thereby
removing x (or any corresponding rule r ) from committee and, accordingly, making any
attempts to apply the discharge procedure to x (or r ) moot.
Using Time Limits to Avoid Discharge. If the Speaker opposes x, he or she can set a time
limit on the committee that is the subject of the discharge petition (either C or R) such that,
prior to the discharge motion becoming privileged, the committee in question is discharged
from the consideration of x (or r , if the discharge petition is aimed at R). The Speaker’s
power to set such time limits does not depend on whether the measure in question was referred primarily, initially, or sequentially, or the committee to which the measure is referred
(Brown and Johnson (2003) Ch 6 § 11). Consideration of a measure discharged by the expiration of a time limit is, in general, not a privileged matter, even if the measure’s consideration
would have been a privileged matter if reported from the committee in question. This is
because, in the typical sense of privileged business, measures inherit their privilege from
the committee’s report on the measure. If a committee is discharged by expiration of a time
limit, there is no report from the committee and, accordingly, no privilege for the measure
20
One of the most nefarious of these is discussed below in Section 5.
10
to inherit.
Given this fact, securing floor action on x after C (or R) is discharged from its consideration would require the filing of a privileged report by the Rules Committee calling for the
consideration of x, which requires the support of a majority of R. Accordingly, if the Speaker
and a majority of the Rules Committee oppose a measure, they can (ironically) circumvent
a discharge petition in favor of that measure by agreeing to place the measure (and any resolution(s) calling for its consideration) on the appropriate calendar.
3.1 Decisive Coalitions and the Discharge Process
A decisive coalition is any subset of the membership, D ⊆ N , such that, for any pair of policies x and y, x ºi y for all i ∈ D implies that x will be chosen over y by the House. Let D
denote the set of decisive coalitions in the House. According to Krehbiel’s definition, the
House is majoritarian only if D contains all subsets with at least 218 members.21
Clearly, in order to be decisive for x, a coalition must be able to obtain a floor vote on
x. Accordingly, the analysis above implies that a coalition of legislators, D, is a decisive
coalition (D ∈ D) under the standing rules of the House only if
1. D is a majority coalition and
2. D contains either the Speaker or a majority of the Rules Committee.
Since there are majority coalitions that do not satisfy condition (2), the standing rules of
the House are not majoritarian. The ultimate effect of a discharge motion for a majority
supported bill x, as a function of the Speaker’s preferences, the majority preference of the
21
For any set D, |D| denotes the cardinality of (i.e., number of elements in) D. The definition of decisive
coalitions when members may be absent or abstain is slightly cumbersome and adds no additional insight for
the point of this paper. This leads to the requirement that D contain the set of all coalitions with at least 218
members. If we assume that all members always vote, then the standing rules of the House satisfy Krehbiel’s
definition of a majoritarian institution if and only if D = {D ⊆ N : |D| ≥ 218}.
11
legislative committee to which x is referred, and the majority preference of the Rules Committee, is displayed in Table 1. (All cells in Table 1 would contain “Bill is Approved” if the
standing rules of the House were majoritarian.)
[Table 1 Here.]
Before continuing, it is useful to recall the three key facts on which the analysis is based:
1. a discharge motion is moot if no committee has jurisdiction over the measure when
the motion is offered,
2. through his or her power to set time limits, the Speaker can effectively discharge any
measure from any committee, and
3. a resolution calling for the consideration of a measure (i.e., a “special order”) is privileged only if it is reported by the Rules Committee.
4 The Discharge Petition and Policy Outcomes
Given the fact that policy change requires obtaining a floor vote, the realities of the discharge
process described above change the calculation of the pivotal member of the House. Let X
be a set of policies, with q ∈ X denoting the status quo policy, and denote the (complete and
transitive) preference relation of each member i by ºi . Then, for any member i and any
policy z ∈ X , the set of policies (weakly) preferred by i to z is denoted by
Wi (z) = {x ∈ X : x ºi z},
and
¡
¢
W (q) = ∪µ∈{d ⊂N :|d |≥218} ∩i ∈µWi (q)
12
denotes the usual majority rule “winset” of q: the set of policies that at least 218 of the
members weakly prefer to q.
In a pure majoritarian world, policy change is predicted to occur whenever W (q) is nonempty. However, in order for a bill x to defeat the status quo, q, it must be preferred by
the Speaker, S, or a majority of the Rules Committee, R. The set of policies that satisfy this
requirement, given the status quo q, is denoted by D(q), which is formally defined as
D(q) ≡ WS (q) ∪
o
n
ρ∈ d ⊆R:|d |> |R|
2
£
¤
∩i ∈ρ Wi (q) .
(1)
For any policy x 6∈ D(q) as defined in (1), the Speaker and R will keep x from being considered on the floor. Accordingly, the standing rules of the House imply that the set of policies
that will receive a floor vote and defeat the status quo q is defined as follows:
DW(q) = D(q) ∩ W (q).
(2)
Before continuing, it is interesting to note that the legislative committee, C , plays no
role in (2). This presentation assumes for simplicity that the discharge petition calls for the
discharge of the Rules Committee from consideration of a special rule for the consideration
of the bill in question, rather than directly discharging C from the bill itself. In addition,
while the presentation seems to imply that a majority of the members of C oppose the bill,
the calculation of D(q) is not conditional upon (i.e., does not require) this assumption: if
a majority of the members of C support reporting the bill to the floor, then as described
above, the Speaker can simply discharge C from the bill’s consideration. In other words, the
Speaker’s opposition to a bill is sufficient to ensure that the bill is not under the jurisdiction
of a committee in which the bill has majority support.22
22
This is also consistent with the predictions presented in Table 1.
13
The Unidimensional Spatial Model. Now consider a unidimensional spatial model of the
House with symmetric, single-peaked policy preferences, as utilized by Krehbiel (1998) and
many others. Let f denote the location of the median members of the House’s ideal point,
R m denote the location of the median member of the Rules Committee’s ideal point,23 and
S denote the Speaker’s ideal point. The above definition of DW(q) implies that the pivotal
member of the House is the player with the median ideal point among f , R m , and S. In
effect, the decision about whether to allow floor action on a measure is a majority rule game
between f , R m , and S in which f always votes “yes,” because the floor median realizes that
he or she can not be made worse off by having a measure be considered on the floor. In this
unidimensional world, successful obstruction of floor action occurs if the ideal points of the
median member of the Rules Committee and the Speaker are on the same side of the status
quo policy and the floor’s median ideal point is on the opposite side of the status quo policy,
q. The set of policies that defeat the status quo, DW (q), is illustrated for several preference
profiles in Figure 1.
[Figure 1 Here.]
Figure 1 presumes that q < f and R m < S. The top scenario in Figure 1, Line (1), represents the baseline of a majoritarian institution by omitting S and R m . The shaded region,
W (q), represents the set of policies that will defeat the status quo if proposed. Lines (2)-(6)
display the modified winset, DW (q), as the ideal points of the median member of the Rules
Committee and the Speaker are moved closer to the status quo. On Lines (2) and (3), at least
one of these members desires policy change in the same direction as, and by a larger magnitude than, the floor’s median voter, implying that DQ(q) = W (q). On Lines (4) and (5), at
least one of those members desire policy change in the same direction as, but by a smaller
23
For simplicitly, I will assume that the Rules Committee has an odd number of members, so that R m is
unique.
14
amount than, the floor’s median voter. Accordingly, DW (q) ⊂ W (q), so that some proposals
in W (q) would not reach the floor, but some form of policy change will occur. Finally, Line
(6) displays a situation in which no proposal will reach the floor: the floor’s median voter
disagrees with both the Speaker and the median member of the Rules committee about the
direction of policy change, so that DW (q) = q.
The prerogatives of the Speaker and Rules Committee utilized in the above analysis are
explicitly stated in the standing rules of the House. Because of its theoretical and historical
interest, the next section discusses an alternative means – based on House precedent rather
than the standing rules, per se, by which the Rules Committee could stymie an attempt to
discharge it from the consideration of a resolution.
5 Another Way to Sidestep Discharge
In theory, the Rules Committee and Speaker could nullify a discharge petition using an alternative route. In particular, House precedent states that a discharge petition is attached
to the number and title of the bill as referred to in the petition, not the text of the bill at
the time the discharge petition is filed (Deschler, Ch 18 § 1.13). This precedent was set by
Speaker Rainey in the 78th Congress. The ruling followed a strange sequence of events surrounding a piece of banking legislation. The matter, H.R. 7908, had been reported by the
Committee on Banking and Currency on April 12, 1934. The discharge petition received the
requisite number of signatures the next day, April 13. However, on April 20, Speaker Rainey
ruled that the measure had not been validly reported by the committee because the motion
to report had been approved by the committee while the House was in session. Following
this decision, the committee substituted the text of H.R. 9175 for the text of H.R. 7908 and
reported the amended measure – again, numbered as H.R. 7908 – to the floor on April 23.
On that same day, Speaker Rainey ruled an attempt to discharge the Committee on Banking
15
and Currency from consideration of H.R. 7908 out of order. Furthermore, he ruled that the
discharge motion was tied to the number and title of the bill rather than the substance of
the measure.
“. . . The only thing the Chair knows is that the McLeod bill, bearing the number it has always borne and with the same title, and with some amendments
in which the Chair is not interested, has been reported out, is on the calendar,
and can be taken up under the general rules of the House when an opportunity
presents itself. The Chair overrules the point of order.”
Thus, in theory, the precedent set by Speaker Rainey in 1934 implies that the Rules Committee could amend the special rule, r , so that it no longer calls for the consideration of x
(nullifying the desired effect of r ) and then report the amended rule to the floor with the
same title and number as when it was referred to the Rules Committee. The analysis presented earlier does not rely on this maneuver because it is based on a precedent set in a
Congress in which the discharge petition required less than a majority (the required number in the 78th Congress was 145). Accordingly, it is plausible that this tactic (if challenged
through a point of order) would not now be upheld by a majority vote of the membership of
the House.
6 What Does Discharge Do?
This paper has offered a direct and succinct theory of the discharge process in the US House
of Representatives. The motivation of this examination is to provide a more solid procedural
basis for distinction between the various theories of Congressional organization and behavior. Several scholars have argued that the rules of the House are fundamentally majoritarian
in the sense that any majority of the House membership is decisive in determining pol-
16
icy outcomes. Recognizing the supermajoritarian features of the normal process by which
legislation flows through the House, these scholars tend to point to the discharge process
as the safety valve through which any majority-supported piece legislation may flow. The
result presented here implies that, at least in de jure terms, this conclusion is suspect. Moreover, far from being a majoritarian safety valve, the discharge process itself is superfluous:
a successful discharge petition must obtain (at least implicit) endorsement from either the
Speaker or a majority of the Rules Committee. As pointed out in Section 2, such endorsement is sufficient to secure floor access through one of several more commonly observed
routes to the floor, such as a special order reported from the Rules Committee or through
suspension of the rules as recognized by the Speaker of the House.
Viewed broadly, the paper’s result suggests that the relative rarity of discharge petitions
is not necessarily indicative of an equilibrium effect in which the credible possibility of discharge is sufficient to eliminate obstruction by the House leadership. Rather, the analysis
suggests that the discharge process may be effective on occasion precisely because its use is
costly and the act of signing a discharge petition is thereby possibly informative. This raises
interesting questions about the effect of the 1993 rule change that led to petition signatures
being made public. It is not clear what effect the publication of signatures has on the informativeness of the act of signing. For example, while removing one’s signature is now
presumably more costly, the act of signing itself may now be driven by perceived electoral
rewards instead oa sincere desire to have the measure enacted by the House. As both opponents and proponents of the rule change pointed out during the debate in 1993, publishing
the discharge signatures makes the act of signing a discharge petition essentially equivalent
to cosponsoring a measure. The exact effect of this rule change in the 103rd Congress represents an interesting avenue for future work on the agenda-setting process within the House.
In addition, the process by which the rule change was effected in some sense an illustration
of the main point of this paper. Before concluding, I briefly describe the fight preceding,
17
and final roll call vote concerning, the rule change.
An Example: Making The Discharge Petition Public. As described earlier, the House Rules
now provide that the signatures on discharge petitions are to be made public each week.
The proposal for this rule change in the 103rd Congress was contained in H.Res. 134, introduced by Rep. Jim Inhofe (R, OK) and referred to the Rules Committee on March 18,
1993. Rep. Porter Goss (R, FL), a minority member of the Rules Committee, added himself as a cosponsor on March 29, 1993.The rhetoric surrounding H.Res. 134 was heated and
partisan: the proposal was opposed by the Democratic leadership and Rep. Inhofe filed a
discharge petition on May 27, 1993. The 218th signature was recorded on September 8, 1993
and the Rules Committee was discharged by unanimous consent on September 24th. Every
Republican member of the Rules Committee (Reps. Dreier, Goss, Quillen, and Solomon)
signed the petition. The resolution was voted upon on Sept 28th, and passed by a vote of
384-40. Not surprisingly, all 40 members who opposed the measure were Democrats. Interestingly, however, only one member of the Rules Committee voted against the resolution
(Rep. Moakley, the chair of the committee): every other member of the Rules Committee
and Democratic leadership voted in favor of the rule change, including Rep. Gephardt and
Rep. Bonior (D. MI), the majority leader and whip, respectively. Including Moakley, eight of
the members who voted against the resolution were committee chairmen.
Even though the final vote in September 1993 was quite lopsided, the fight leading up to
the resolution’s passage was protracted: at least six members removed their names from the
petition as the result of pressure from Rep. Moakley. One of these members, Rep. Tony Hall
(D, OH), was a member of the Rules Committee (Jacoby (1993f)). All six of these members
eventually voted in favor of the resolution. In addition to direct lobbying by Rep. Moakley,
there was active bargaining prior to enactment of H.Res. 134, ranging from a compromise
proposal, offered by Rep. Moakley, that would give committees 30 days to consider legis-
18
lation after the 218 signatures had been collected (Jacoby (1993d)) to more minute details,
such as whether it would be applied retroactively to two other discharge petitions – concerning term limits and the line-item veto – that were active at the time Inhofe’s petition
obtained 218 signatures.24 Throughout this process, Moakley and other critics of the proposal argued that H.Res. 134 was unnecessary, as the Joint Committee on the Organization
of Congress was considering the issue within a broader reform agenda at the time (Pinkus
(1993)). Indeed, even after the petition obtained 218 signatures, the Rules Committee held
hearings on the issue and at least briefly considered procedural means of thwarting (or at
least modifying) the proposal (Jacoby (1993a)).
Ultimately, Democratic leaders conceded in early September that the rule change would
pass, with Rep. Moakley ultimately encouraging Democratic freshmen, whom Inhofe had
been especially active in recruiting for signatures, to sign the petition if doing so would help
them in their home districts (Jacoby (1993e)). Providing electoral cover for members who
did not sign Inhofe’s petition was also the Democratic leadership’s justification for recording
a vote on the resolution (Cooper (1993)). In the end, since every member of the Rules Committee, save Chairman Moakley, voted in favor of the resolution, it is highly unlikely that
an attempt to circumvent the discharge petition, as described above, would have ultimately
had the support of a majority of the Rules Committee’s members. Furthermore, if the Rules
Committee members’ votes were not sincere, the experience surrounding H.Res 134 in the
103rd Congress serves as a useful illustration of the distinction between de jure and de facto
majoritarianism, a distinction that I now turn to in an attempt to place the paper’s findings
within broader debates concerning political institutions and behavior.
24
Initially, the rule change was not to be applied retroactively (Jacoby (1993b)). However, Reps. Moakley and
Inhofe agreed to reverse this position the night before the vote (Jacoby (1993c)). It is unclear why they agreed
to make this change.
19
De Facto vs. De Jure Gatekeeping and Institutional Analysis. Clearly, the analysis here
challenges strict majoritarian interpretations of House policymaking. A reasonable counterargument in favor of House policymaking being majoritarian would rely upon a de facto
justification. According to such an argument, the Speaker and Rules Committee would not
oppose a majority supported discharge petition with the procedural maneuvers described
here. Indeed, one could attempt to fashion such an argument based upon the fact that the
Speaker serves at the pleasure of the House and, according to a precedent set by Speaker
Cannon, the motion to replace the Speaker carries the highest privilege. Similarly, the House
could reassign memberships on the Rules Committee, change the jurisdictions of standing
committees, or even revise or reject the standing rules of the House. However, such arguments are not without their own risks. In particular, the last three decades of Congressional
scholarship has produced great progress within an institutional/game theoretic framework.
A basic supposition of this framework is that, at the end of the day, the “rules of the game”
are indeed the rules of the game. The analysis presented here has taken the standing rules
of the House as exactly that and shown that, under these (majority-approved) rules, the
Speaker and the Rules Committee possess negative agenda control in a de jure sense. Arguing that the standing rules of the House are not themselves binding on the membership
is a slippery slope. Essentially, disregarding the possibility for circumventing discharge as
described in this paper based on the supposition that the membership of the House will,
for example, replace the Speaker or Rules Committee if the procedures described here are
utilized, should force one to also deal explicitly with other theoretically inconvenient but,
strictly speaking, purely majoritarian possibilities, such as the ability of the floor to overrule
the House’s famous requirement that amendments be germane.
Of course, as mentioned in the introduction of the paper, the practice of the House is
that the membership chooses its standing rules at the beginning of each Congress. This
choice is governed by simple majority rule. Indeed, aside from the Speaker, the only true
20
leadership positions that exist prior to the adoption of the standing rules are those of the
two parties: no committees exist prior to the adoption of the standing rules. Accordingly,
the non-majoritarian nature of bill scheduling under the standing rules has received explicit
majority approval at the beginning of each Congress since 1910. Perhaps more of our focus
should be placed on the reasons that the majority of the House membership consistently
chooses standing rules that apparently restrict the later ability of a majority to influence the
legislative agenda and, accordingly, policy outcomes.
In conclusion, the description by Krehbiel (1991) and Crombez et al. (2006) of the House
as a majoritarian institution is undoubtedly correct in at least one sense: when the House
first convenes, any majority of its membership can dictate the standing rules. Nevertheless,
since 1910, a majority of the House membership have consistently approved standing rules
that restrict the set of majority coalitions that can control the legislative agenda. Thus, a
complete understanding of the US House of Representatives must include an explanation
for majority preference for seemingly non-majoritarian procedures.
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25
Table 1: Scenarios & Outcomes for A Majority Supported Bill
S Opposes
Majority of
C Opposes
Majority of R Opposes
S Supports
Majority of
C Supports
Bill Dies
Majority of R Supports
Majority of
C Opposes
Bill is Approved
Bill is Approved
C : Legislative Committee, R: Rules Committee, S: Speaker
26
Majority of
C Supports
Figure 1: Unidimensional Discharge Scenarios
Majoritarian Institution
W(q)
(1)
q
f
Gates Opened: Roll Call Vote Observed
DW(q)=W(q)
(2)
q
f
Rm
S
DW(q)=W(q)
(3)
q
Rm
f
S
DW(q) ⊂ W(q)
(4)
q
Rm
S
f
DW(q) ⊂ W(q)
(5)
Rm
q
S
f
Gates Closed: No Roll Call Vote
DW(q)=q
(6)
Rm
S
q
f
Legend
q :
f :
Rm:
S :
Status Quo Policy
Median Ideal Point of the Floor
Median Ideal Point of the Rules Committee
Speaker’s Ideal Point
27