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House Majority Leader Steny Hoyer (D-Md.) told the Select Committee on Voting Irregularities on May 13 that the new rule against holding a floor vote open “for the sole purpose of reversing the outcome” should be repealed because it is “unenforceable.”

[IMGCAP(1)]Hoyer should be commended on his candor and recommendation even if it does invite Republican derision for backpedaling on a major Democratic reform. The GOP jab is fair play but can’t trump the fact it was a silly rule to begin with. It was designed primarily to highlight and counter the Republicans’ outrageous three-hour vote on the Medicare prescription drug conference report in November 2003. (The normal voting time is 15 to 17 minutes.)

During that interminable late-night vote, Republican leaders figuratively twisted arms, broke legs, dangled carrots and wielded sticks to change enough votes to win. The controversy landed in the House ethics committee, which issued a “public admonishment” of three GOP Members for improper behavior.

When then-Minority Leader Nancy Pelosi (D-Calif.) first introduced the Democrats’ Honest Leadership and Open Government Act in February 2006, their extended vote “reform” looked considerably different than it does today. It proposed a 20-minute maximum vote period, which could only be extended by consent of the majority and minority floor managers or the Majority and Minority Leaders. The Democrats were apparently thinking more about blocking any future majority GOP vote shenanigans than about the possibility they might soon be in the majority.

In the Democrats’ June 2006 “New Direction for America” campaign platform, the proposed rule took new form: “Floor votes should be completed within 15 minutes, with the customary 2-minute extension to accommodate Members’ ability to reach the House Chamber to cast their votes. No vote shall be held open in order to manipulate the outcome.” And when the Democrats actually took majority control of the House on Jan. 4, 2007, the evolving rule read as follows: “A record vote by electronic device shall not be held open for the sole purpose of reversing the outcome of such vote.”

During debate on that opening day rules package, former Rules Chairman David Dreier (R-Calif.) pressed the majority debate manager as to why Democrats had changed their voting rule from the previous year: “The notion of not keeping votes open for a long period of time is an admirable one. It is a great one. But guess what, Mr. Speaker. There is not one single item in this package that guarantees enforcement.” No one responded to Dreier’s critique, which would later prove to be prophetic.

Just eight months into the new Democratic majority’s rule, Dreier’s prophecy was realized when Democrats became ensnared in their own voting controversy. It erupted on Aug. 2, 2007, when Rep. Jerry Lewis (R-Calif.) offered a motion to recommit the Agriculture appropriations bill to committee with instructions to “promptly” report back an amendment barring the use of funds to employ illegal immigrants or provide them with rural housing assistance.

Republicans claim they were winning the vote on the motion, 215-213, as the Speaker pro temp, Rep. Mike McNulty (D-N.Y.), gaveled the vote closed. But McNulty announced the motion had lost on a 214-214 tie. He had not waited to be handed the official vote result slip from the tally clerk. Moreover, some Members were still trying to change their votes in the well.

In the ensuing uproar, McNulty said he had “prematurely” announced the vote before all vote changes were recorded, and that the motion had actually lost, 212-216. Republicans staged a chamber walkout in protest as Hoyer moved a reconsideration of the recommit vote. This time the recommit motion lost by voice vote.

The next day both Hoyer and Minority Leader John Boehner (R-Ohio) offered privileged resolutions calling for an investigation. Hoyer deferred to Boehner’s resolution, which called for a select committee to conduct the inquiry (instead of the ethics committee).

When the Select Committee to Investigate the Voting Irregularities of August 2, 2007 held two days of hearings in May, there was some question about whether McNulty ended the vote on his own accord, as he claimed, or was taking directions from the Majority Leader or an aide to Pelosi. Hoyer testified he had asked McNulty to end the vote but that he hadn’t heard him.

Ironically, just five days before that hearing, McNulty was involved in another incident, this time as acting chairman of the Committee of the Whole. Rep. Lynn Westmoreland (R-Ga.) attempted to raise a point of order that a vote had been held open beyond 15 minutes. McNulty ruled that a point of order cannot be raised during or even after a disputed vote (the chairman can’t rule on whether the chairman violated the rule): The new rule, explained McNulty, “does not establish a point of order having an immediate procedural remedy,” but “should be understood to establish a standard of behavior for presiding officers that might be enforced on collateral bases,” such as later raising a question of House privileges.

Whether the rule was intentionally designed to be as unenforceable as it has since proved to be is water over the dam. While the six-member Select Committee to Investigate the Voting Irregularities of August 2, 2007 announced Thursday it will not meet today’s deadline for filing its report and any recommendations, it hopes to do so before the end of this month.

The option of repealing the rule can work if, in the alternative, the Speaker, as neutral presiding officer, uniformly and fairly enforces a reasonable maximum voting period and relies on the tally clerk’s sheet to announce the final result. One needn’t outlaw vote-whipping operations to preserve the integrity and fairness of House floor votes. Any whipping must simply be kept away from the Speaker’s rostrum.

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.

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