Debating policy can be engaging, but noodling over parliamentary procedure is a snorer for most people. Suspension of the rules, cloture, previous questions: it’s all laid out in thousands of pages of rules, precedents and procedures, and for most people, it is boring. (Apologies to friends on the Rules Committee and in the Parliamentarians’ offices).
But we need to consider the wisdom of altering one House rule that may well have outlived its usefulness, at least in its current form. Instead of providing the minority a guaranteed opportunity to influence legislation on the floor, the Motion to Recommit (MTR) has morphed into a partisan weapon for punking vulnerable members of the majority and potentially cramming a poison pill into the clenched mouths of the bill’s supporters. That’s a bad way to legislate.
Granting the minority a role in the floor debate is understandable. (There are few restrictions on minority amendments in committees.) The majority decides which bills will be the subject of hearings and mark-ups, which bills will come to the floor, which amendments will be permitted and how long debate will occur. If the majority leadership can enforce discipline, the power of the minority is very constrained.
Except at the very end of the process, when clause 2 of Rule XIX (still with me?) “give[s] the minority one chance to fully express their views so long as they are germane,” in the words of former Speaker William Gillette. The MTR allows a member of the minority who opposes the bill “in its current form” to offer an amendment with no pre-clearance from the Rules Committee. The practice evolved out of a 1909 reform by Speaker Joe Cannon whose autocratic administration of the House was generating a bipartisan rebellion. (A good history of this issue was written by former Rules Committee staffer Don Wolfensberger, now at the Wilson Center’s Congress Project.)
Like so many features of congressional operations, the MTR took on an increasingly partisan coloration as the parties and voters sorted themselves in the post 1964 period. Instead of providing a good faith opportunity to shape the bill, the MTR was effectively weaponized by the increasingly combative Republican minority of the 1980s, under the provocation of Newt Gingrich and others. The MTR became a device for forcing marginal members of the majority to choose between party loyalty by supporting the MTR, and electoral vulnerability by opposing it.
As this partisan use of the MTR expanded in the 1980s, the majority clamped down, further legitimizing the argument of Gingrich’s conservatives that Democratic rule was tyrannical. After Republicans became the majority in 1995, the MTR guarantee was included in the GOP’s rules package and Democrats went on a tear, significantly expanding its use to target potentially vulnerable Republicans. When Democrats regained the majority in 2006, the number of Republican MTRs more than doubled in the 110thCongress. With little change, the practice has continued to the present day.
The Republican minority has exploited the MTR in the early weeks of the 116thCongress, offering successful motions decrying anti-Semitism and restricting gun purchases by undocumented people, both of which passed. In the 2007-2010 period of the Democratic majority, several GOP MTRs also passed, but then, because Democrats controlled the Senate, the majority knew they could drop out such a provision in a conference committee. Now, with a Republican Senate, getting rid of irksome amendments might prove trickier.
Although defense of the MTR is often wrapped up in lofty language about ensuring the rights of the minority, its main objective is mischief. I well remember during Democratic days in the minority a veritable bazaar to see who could conceptualize the MTR most likely to exasperate frontline Republicans. It is hardly surprising that Republicans are drawing from the same playbook now that they are back in the minority. Moreover, the debate over whether to allow vulnerable Democrats to vote for the MTR and spare themselves providing ammunition for their opponents is apparently splitting the Democratic leadership, with Nancy Pelosi opposed to granting “passes” in hopes of maintaining Caucus unity, and Majority Leader Steny Hoyer reportedly giving a wink to weaker Democrats (as Whip Jim Clyburn may be as well).
Promoting such intra-party tension among Democrats is a fortuitous secondary benefit for the GOP. Reports indicate many first-term Democrats, elected to districts that supported Donald Trump, are ignoring the Speaker’s entreaties for unity to preserve the majority. “You can’t be unified if you’re not here,” rationalized one Democrat who has supported some MTRs. “We’re not going to make somebody walk the plank for the sake of walking the plank.” New Jersey freshman Jeff Van Drew dismisses the appeals of Pelosi (whom he opposed for speaker) for unity as “nonsense.” Such a self-centered perspective (not entirely unknown among politicians) has provoked angry rebukes from more Caucus-centered freshmen like California’s Katie Hill who responded, “Clearly you’re doing this as a ploy and not because you actually give a shit about the issue,” noting votes like Van Drew’s make “it hard for those of us who do vote against” the MTRs.
It would reasonable to consider a re-examination of the MTR as part of the work of the new select committee on the modernization of the House. Ensuring the minority an opportunity to offer responsible amendments (and I recognize the ambiguity in the concept) is reasonable, but it is counterproductive to protect a process whose only purpose is to foment partisan bickering that exhausts voters and legislators alike. Rather than an MTR that is sprung on the House at the last minute, with no vetting, cost-assessment or consultation (as with other amendments), perhaps the guaranteed minority amendment should have to pass through the Rules Committee like all other amendments, with the burden being on the minority to shape a germane and substantive amendment that can be put in order.
A serious effort to reduce gratuitous partisanship in Congress is going to take time and significantly better relations than exist at present. At a minimum, the House can dispense with one bastardized practice, written into the rules, that achieves little other than inflaming greater conflict on the floor and in our politics.