Still More on Bending the Rules

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The Slaughter Solution? Another name might be the Dreier Doctrine.

Don Wolfensberger, director of the Woodrow Wilson Center’s Congress Project (and former staff director of the House Rules Committee), took a look at this whole business of self-executing rules a few years back. He argues that it’s not at all unusual in these partisan times for the House majority to use this convoluted and heavy-handed parliamentary tactic to get a bill through.

But he doesn’t think it’s a good thing:

Self-executing rules began innocently enough in the 1970s as a way of making technical corrections to bills. But, as the House became more partisan in the 1980s, the majority leadership was empowered by its caucus to take all necessary steps to pass the party’s bills. This included a Rules Committee that was used more creatively to devise procedures to all but guarantee policy success. The self-executing rule was one such device to make substantive changes in legislation while ensuring majority passage.

When Republicans were in the minority, they railed against self-executing rules as being anti-deliberative because they undermined and perverted the work of committees and also prevented the House from having a separate debate and vote on the majority’s preferred changes. From the 95th to 98th Congresses (1977-84), there were only eight self-executing rules making up just 1 percent of the 857 total rules granted. However, in Speaker Tip O’Neill’s (D-Mass.) final term in the 99th Congress, there were 20 self-executing rules (12 percent). In Rep. Jim Wright’s (D-Texas) only full term as Speaker, in the 100th Congress, there were 18 self-executing rules (17 percent). They reached a high point of 30 under Speaker Tom Foley (D-Wash.) during the final Democratic Congress, the 103rd, for 22 percent of all rules.

When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.). There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995-1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively). Thus far in the 109th Congress, self-executing rules make up about 16 percent of all rules.

On April 26, the Rules Committee served up the mother of all self-executing rules for the lobby/ethics reform bill. The committee hit the trifecta with not one, not two, but three self-executing provisions in the same special rule. The first trigger was a double whammy: “In lieu of the amendments recommended by the Committees on the Judiciary, Rules, and Government Reform now printed in the bill, the amendment in the nature of a substitute consisting of the text of the Rules Committee Print dated April 21, 2006, modified by the amendment printed in part A of the report of the Committee on Rules accompanying this resolution, shall be considered as adopted in the House and the Committee of the Whole.”

That last one was so extreme that it nearly blew up the bill, which gets back to Wolfensberger’s point about why this is not a great way to do business:

The special rule had other problems since it allowed only nine amendments to be offered out of 74 submitted. Moreover, appropriators were unhappy with the earmark provisions included in the bill. This forced Rules Chairman David Dreier (R-Calif.) to pull the rule after 20 minutes of debate, followed by a five-hour recess and Republican Conference meeting before the House reconvened and the rule again was called up and narrowly adopted, 216-207.

The perils of forsaking bipartisanship and deliberation on such an important institutional issue forced the majority leadership to resort to procedural politics in hyper-drive. Even then their souped-up procedural machine nearly blew its engine. It may be time to reinvent the Model T, with the “T” standing for the tried and true “tradition” of deliberative lawmaking.