Special House Rules Explained
In teaching introductory legislative procedure, the House Rules Committee is justifiably given a fair amount of attention given its outsized role in determining policy consideration for the chamber. The committee has been given a few nicknames that speak to its primary authorities: it is often referred to as an ‘arm of the Speaker' because of the Speaker's appointment power of the majority’s committee members and because of its weighted membership favoring the majority party—9 majority members to 4 minority. The committee is also colloquially known as the ‘traffic cop' of the chamber due to its scheduling authority and power over how bills are considered on the floor.
And that’s typically where the conversation stops when it comes to the Rules Committee, even among those of us who study it closely. We know the committee matters, we know it structures floor proceedings typically (read, always) to favor the majority party, and we know it sets the agenda. But, how does the Rules Committee actually do these things? What are the specific rules put forth by the committee?
Unbeknownst to some, nearly every piece of legislation brought before the House comes with a partner resolution that needs to be adopted before the underlying bill. The partner legislation is known as a "special rule." It is almost always referred to as a bill's "rule." Rules set the terms of consideration for the underlying piece of legislation, including the length of time granted to each party for floor debate and specifies limits, if any, on amendment opportunities. Put simply, a rule establishes the ground rules for the consideration of the legislation the House wants to debate and pass. The House adopts such rules before it begins debate on the underlying bill. These rules require a simple-majority vote to be adopted. Once approved, they only apply to the legislation specified in the rule (see below for an example).
(Because there are exceptions to almost everything in Congress, there are exceptions to what types of bills require special rules—budget resolutions and conference reports are exempt, for example. Uncontroversial bills are usually adopted under ‘suspension of the rules’ and do not require special rules.)
Four Types of Special Rules
Traditionally, special rules can be one of four types. These types differ based on the level of amendment activity they allow. Each type is outlined below.
Under an open rule, members can offer any germane amendment to the underlying bill so long as the amendment complies with the House’s general rules (adopted at the beginning of every Congress). Individual amendments are debated under the five-minute rule. An open rule offers members the greatest opportunity to amend legislation on the House floor. Consequently, their effects on the bill are predictable. First, legislation considered pursuant to an open rule takes longer to complete as amendments are introduced, debated, and voted on. Second, members, primarily of the minority party, take advantage of the amendment opportunity to offer what the majority usually calls ‘poison pill’ amendments. Their goal, according to the legislation’s proponents, is to defeat the bill. Minority-party members may also offer such amendments to force their opponents to take what they hope will be tough votes that will hurt them politically. Finally, by allowing unlimited amendments, open rules increase the likelihood of unpredictable outcomes emerging from the process. This is something that party leaders try to avoid.
Modified Open Rules
These rules function much like an open rule but specify certain portions of the bill that are closed to an amendment. Modified open rules often place restrictions on amendments, such as the requirement that amendments must be pre-printed to be eligible for debate or limitations on the amount of time available for consideration of amendments.
Structured Rules (also known as ‘modified closed’)
Structured rules specify certain amendments as eligible within the rule itself. They indicate how long each is to be debated, may identify the members who are allowed to offer the amendment, and/or explicitly state sections of the bill that are open for amendments.
Closed rules are exactly what they sound like—they close the underlying bill to being amended on the House floor. Such rules expedite consideration of the bill and are a considerable source of leadership power in that they squelch any unpredictable influence on the bill via amendments.
An example of a closed rule is the rule associated with the Republican tax cut legislation (see below). It specifies: a closed rule (no amendments); four hours of debate, and specifications as to who controlled debate time; multiple waivers of points of order which set aside House procedures that further expedited consideration of the legislation; and other important provisions not discussed in this post (see this handy explainer for information).
Closed Rules and Leader Power
Finally, it is important to discuss the evolution in the House’s use of each of these rule types and how their changing use has impacted leadership power within the chamber. Over the past 25 years, the House has dramatically increased their use of closed and modified closed rules at the direct expense of open rules.
In the 103rd Congress (1993-1994), for example, 44 percent of bills came with an open rule while only 9 percent of legislation carried a closed rule. In the 115th Congress, 55 percent of bills were debated under a closed rule while not a single piece of legislation came with an open rule.
Party leaders from both sides argue that while they wish they could open the process to members, even the minority, the reality is that closed legislating is the best way to avoid caucus-dividing votes and thus the easiest way to move legislation along. If the process were open, amendments would expose differences in each party. Moreover, important legislation could be subject to bill-killing amendments and embarrassing defeats for the majority party on the House floor. From this perspective, closing debate is the only way to protect the majority’s interest and move legislation forward in the process.
Notwithstanding such concerns, the resulting increase in closed-rule legislating has precipitated growing frustration with the party leaders among rank-and-file members on both sides of the aisle. Rank-and-file members, even within the majority party, routinely complain that they have too minimal of an impact on legislation as its being developed and zero opportunities to affect it once it reaches the House floor.
They are not wrong, of course. But they usually neglect to discuss the protection they enjoy when their leaders ban amendments via closed rules. Until members, leaders, and parties are willing to subject themselves to tough, even losing, votes on the House floor, the number of closed rules are likely to increase.