Washingtonians were flummoxed March 22 when Speaker Nancy Pelosi (D-Calif.) yanked a bill giving the District of Columbia a voting Representative in Congress — all because of a seemingly unrelated amendment repealing D.C.’s gun control laws. [IMGCAP(1)]
“How could this have happened?” the mystified Capitalites cried. Easily — when you concoct a procedural fix from a highly volatile mix of substances, the resulting cocktail can blow up in your face. In this case the resolution setting floor procedures for the bill combined a closed rule, prohibiting all minority-party amendments, with a self-executing rule, automatically adopting all majority-party amendments. Ka-boom!
Let’s start at the beginning. In a rare display of bipartisan cooperation, D.C. Del. Eleanor Holmes Norton (D) and Virginia Rep. Tom Davis (R) joined forces to sponsor a bill creating two new seats in the House of Representatives — one for Utah and one for D.C. The bill cleared the Judiciary and Oversight and Government Reform committees comfortably, though not without some controversy over its constitutionality.
The House Rules Committee announced Monday, March 19, that it expected to grant a rule on the bill that “may structure the amendment process” and asked Members to file their amendments with the committee by Wednesday morning. Nineteen amendments were dutifully filed, 15 by Republicans and four by the two Democratic chairmen reporting the bill.
A complicating factor intervened when the Congressional Budget Office estimated the cost of the bill over 10 years included $2.5 million in “direct spending” (mandatory or entitlement costs) for the salary and benefits of the new, at-large Member from Utah. This in turn triggered the “pay-as-you-go” budget rule Democrats had revived in January. The PAYGO rule requires that any new direct spending increases be offset by other direct spending reductions and/or tax increases.
The majority’s solution was to use the special rule to self-execute the adoption of an amendment increasing the amount of estimated taxes certain wealthy individuals must prepay, along with the chairmen’s three other amendments. In other words, when the House adopted the procedural rule it simultaneously would adopt four amendments to the bill, thereby obviating the need for future debate or votes on them. The Rules Committee also jettisoned all 15 Republican amendments filed.
Something had to give, and it did. Grafting the unrelated tax provision onto the D.C. vote bill expanded the scope of the measure so much that practically any amendment would have been germane. And Republicans still had the minority party right (which they had guaranteed back in 1995) to offer a motion to recommit the bill with instructions (a final amendment).
Enter Rep. Lamar Smith (R-Texas) with instructions to repeal the D.C. gun laws. In a departure from usual practice, however, Smith encased the amendment in a motion to send the bill back to committee with instructions to report it back “promptly,” rather than “forthwith.” That meant that instead of an instant vote on the amendment by the House, the motion actually would send the bill and instructions physically back to committee.
Proponents of the bill loudly protested that the motion would “shoot the bill dead.” However, they were mistaken in that claim. A straight motion to recommit, without instructions, is tantamount to killing a bill, just as a motion to table is. But House precedents make clear that a motion to physically recommit a bill with instructions merely sends the measure back in its introduced form, without any of the amendments already adopted. The committee then has the discretion to re-report the bill to the House so long as it confines itself to the instructions.
After the allotted 10 minutes of debate on Smith’s motion, Speaker Pro Tempore Ellen Tauscher (D-Calif.) announced that, pursuant to section 2 of the procedural ground rules, further proceedings on the bill would be postponed until a time designated by the Speaker — effectively pulling the bill from the floor and blocking the impending vote on the minority’s motion.
While House standing rules permit the Speaker to postpone votes on the final passage of bills, special rules and suspension motions for up to two legislative days, they do not allow postponements of the minority’s motion to recommit a bill. The Speaker Pro Tempore acknowledged that the section 2 authority of the special rule was indeed a departure from the regular order. In effect it gave the Speaker authority to postpone the vote on the minority’s recommit motion until, as the song goes, “the twelfth of never and that’s a long, long time.” As of today the vote on the minority motion has been delayed 432 hours. That makes the Republicans’ three-hour prescription drug vote in 2003 seem like a nanosecond.
The irony is that while adoption of the Smith motion would have delayed matters, its ultimate effect would have been to strip the gun law amendment. This is because without the tax provision attached, the gun amendment no longer would be germane to the bill and, when offered in committee, would be knocked out on a point of order. The committee would thus have done its duty and been back on the floor with the gun amendment no longer in play (assuming the PAYGO problem could be taken care of in another way, which it easily could).
Although some liberal commentators predictably painted Republicans as the heavies in the piece, the fact is the Democrats did this to themselves by going back on their campaign promise to be more fair and open with amendments than Republicans had been to them. It is a lesson Republicans belatedly came to recognize only after they lost control of the House. It is one their Democratic successors apparently have yet to learn and for which they will continue to PAY the further they GO.
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.