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House rules package offers compromise on members’ requests

New rules would defang the motion to recommit and limit pay-as-you-go; some members wanted full repeal of both

The House rules package for the 117th Congress, released Friday, would weaken a procedural tool of the minority, provide key exemptions to a budget rule requiring the cost of legislation to be offset and strengthen congressional oversight provisions.

All of those changes are designed to respond to members’ requests, although the new rules don’t go as far as some lawmakers would have preferred.

The rules package is expected to get a vote on Monday, the second day of the new Congress.

One of the main requests from Democrats across the caucus was that leadership either eliminate or defang the motion to recommit, or MTR, which is a vote afforded to the minority on most bills.

[House Democrats eye changes to minority’s main legislative tool]

The MTR has been used in the past as a procedural vote to kill legislation by sending it back to committee, but in recent years it has become a substantive vote that would actually amend the bill if adopted. In either scenario, it is mostly used as a political messaging vote in which the minority tries to trap the majority into going on the record on controversial policies.

The new rules would prevent MTRs from being used to alter bills on the floor. Instead, the minority would only be able to use the motion to send a bill back to committee.

The change makes it easier for Democrats — concerned about opposing whatever policy Republicans use the MTR to highlight — to vote against the motion as purely a procedural maneuver.

House Minority Leader Kevin McCarthy responded to the new MTR rule by accusing Speaker Nancy Pelosi of trying to consolidate power and silence minority viewpoints.

Progressives were also pushing for the rules package to eliminate a longstanding pay-as-you-go, or PAYGO, provision that requires legislation that would increase the deficit to be offset.

While the rules package does not get rid of PAYGO, it would provide the Budget Committee chairperson the authority to declare legislation providing economic and heath responses to the pandemic, as well as measures designed to combat climate change, as having no cost — effectively a PAYGO exemption.

[House rules would exempt coronavirus, climate bills from budget limits]

One of the main reasons progressives wanted to repeal PAYGO was to make it easier to pass measures to respond to the climate crisis, so the rule change may be enough to satisfy them.

Reupping proxy voting, select committees

Provisions added to the rules during the pandemic to allow committees to meet remotely and members to cast votes by proxy will be renewed for the 117th Congress under the package. But members have to appear in person to be sworn in before they can vote by proxy.

The rules leave the door open to adoption of additional remote voting procedures in the future by requiring the House Administration chairperson to submit to the speaker and the Rules Committee “specific operable and secure technology” that could be used for remote voting.

The package reauthorizes three select committees established in the 116 Congress related to the climate and coronavirus crises and modernizing Congress.

It also creates a new panel, the Select Committee on Economic Disparity and Fairness in Growth, which will have 15 members, nine Democrats and six Republicans.

That select committee is tasked with making policy recommendations to standing committees with relevant jurisdiction on issues related to economic fairness, access to education and workforce development.

New prohibitions

The package would bar former members and elected officers of the House from having access to the floor if they have been convicted of a crime related to their election or service. The provision seems to apply regardless of whether the individual was pardoned.

This means, for example, that former Rep. Duncan Hunter, who pleaded guilty to misusing campaign funds, would not be able to access the House floor. President Donald Trump pardoned him last month.

In an effort to limit the spread of disinformation, the rules would bar members, officers and employees of the House from electronically disseminating — which includes sharing on social media — distorted or manipulated images, videos or audio files through official accounts. This rule provides a safe harbor provision to let violators off the hook if they’ve made a reasonable effort to determine authenticity.

Oversight-related rules

The rules package contains several provisions designed to address oversight issues that arose this Congress. But it does not go as far as some members called for in clarifying Congress’ so-called inherent contempt authority by laying out a process for fining officials who refuse to comply with subpoenas.

The rules would prohibit members and staff from outing or retaliating against a whistleblower. While whistleblower laws are supposed to provide such protections, Republicans found a loophole this Congress in naming the person who filed the whistleblower complaint that led to Trump’s impeachment by citing reports in the media about the person’s identity.

The new rule would prohibit such disclosures but would provide exemptions for members to name whistleblowers if the individual provides written consent or has already voluntarily and publicly disclosed their identity. Another exemption would allow a committee chairperson to disclose a whistleblower’s identify if two-thirds of the committee has voted that the disclosure is in the public interest.

In a sign that Trump and Vice President Mike Pence may soon be targeted in the House’s oversight efforts, the rules would add explicit language clarifying that the House committees’ subpoena authority allows panels to subpoena current or former presidents and vice presidents in their personal or official capacities.

The language also clarifies that any current and former White House employees can be subpoenaed as well.

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Several Trump administration officials ignored congressional subpoenas during the 116th Congress, claiming executive privilege exempted them from testifying or turning over certain documents. The House said those claims had no merit, but adding explicit language to the rules clarifying its authority would help bolster their case if subpoenas end up litigated in the courts.

The rules also give the Intelligence Committee and every standing committee the authority to order its staff counsel or any member of the committee to take witness depositions. Member presence is not required, but they are allowed to participate.

Depositions were used in the early portion of the House’s impeachment inquiry last year to get information from witnesses, before some were later called back to testify in public hearings.

The rules also make it easier for some committees that started investigations in the 116th Congress to immediately continue their work by allowing chairs to issue subpoenas before their committees have held their organizational meetings for the the 117th Congress.

That rule only applies to two investigations: the Oversight Committee’s investigation into the 2020 census count, and the Coronavirus Crisis Subcommittee’s investigation into alleged political interference in the responses by the Health and Human Services Department and Centers for Disease Control and Prevention to the pandemic.

Other changes

The package would give some teeth to a rule adopted last Congress requiring most bills and joint resolutions to have had at least one committee hearing and markup before being brought to the floor under a rule by allowing for a point of order against a bill that has not satisfied those requirements.

The points of order, which do not apply to continuing resolutions or emergency appropriations, are not be effective until March 1 in each new Congress, allowing some legislation to be brought to the floor before committees have had time to get through hearings and markups. For the 117th Congress, the points of order won’t take effect until April 1 to give committees more flexibility because of the pandemic.

The package would codify the Office of Diversity and Inclusion and the Office of the Whistleblower Ombudsman established in the 116th Congress rules package into the standing rules of the House, making them permanent fixtures. It renames the latter the Office of the Whistleblower Ombuds, a gender-neutral term.

It also orders the Office of Diversity and Inclusion to recommend by July 1 a method for evaluating the diversity of witness panels at committee hearings and requiring the House Administration and Rules committees to implement the recommendation by July 31. This was pushed by the Tri-Caucus, the umbrella term for the Congressional Black, Hispanic and Asian Pacific American caucuses.

The rules package would also require committees in their oversight plans to discuss how their work will address “inequities on the basis of race, color, ethnicity, religion, sex, sexual orientation, gender identity, disability, age, or national origin.”

Speaker Nancy Pelosi in a statement described the rules package as “unprecedented, bold reforms, which will make the House more accountable, transparent and effective in our work to meet the needs of the American people.”

House Rules Chairman Jim McGovern said the package was developed after months of consultation from members and outside stakeholders.

“This proposal doesn’t tinker around the edges of ethics reform,” the Massachusetts Democrat said. “It contains historic ideas to protect whistleblowers and prevent everything from the undue influence of lawbreakers on the House Floor to the dissemination of deepfakes on government accounts. This proposal also shines a light on those struggling to get ahead in America today and ensures we remain focused on the most pressing issues facing our nation.”

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