The subject of today’s episode is, “What does the House rules committee do?”
My guest is Don Wolfensberger. He is a fellow at the Bipartisan Policy Center, and a scholar at the Woodrow Wilson International Center. He served as a staff member in the U.S. House of Representatives for 28 years and was the director of the Rules Committee. Don is the author of two books: Changing Cultures in Congress: From Fair Play to Power Plays, and Congress and the People: Deliberative Democracy on Trial.
Kevin Kosar:
Don, welcome to the program.
Don Wolfensberger:
Thank you, Kevin. It’s good to be with you today.
Kevin Kosar:
Now in simplest terms, what is the House Rules Committee and what does it do?
Don Wolfensberger:
Yeah, I think in simplest terms you could say it’s sort of the scheduling arm for the House majority leadership. What they do is to process bills that come from other committees and assign them what’s called a special rule, or a business resolution, which establishes the amount of debate time there’ll be on that bill, what kind of amendment process there will be, and whether it’s necessary to waive any points of order against the legislation that otherwise would lie. So it’s really, it’s a procedural committee, but it’s a very central committee to the leadership’s designs for scheduling major legislation on the House floor.
Kevin Kosar:
Right. So it stands in contrast to what might be called the policy type committees, like agriculture and such, who, they’re in charge of making agriculture policy.
Don Wolfensberger:
Truth. You know, the Rules Committee still has sort of an authorizing function in that it can bring up special rules that would change the standing rules of the House, or create a select committee or something of that nature. So it still has what we call original jurisdiction over certain things. But most of their time, I’d say 90, 95% of the time, is taken up with listening to members of other committees testify on what kind of a rule they want for their bill.
Kevin Kosar:
When did the House of Representatives first get a rules committee, and why was it created? The Senate, I should add, does not have a similar committee.
Don Wolfensberger:
Good question. Yeah, the first House was supposed to meet on March 4th, but because up in New York, because of the weather, they didn’t get a quorum until the 1st of April. I won’t make any jokes about that, but they elected the Speaker on that first day. And the second day, the House appointed an 11 member select committee on rules to come up with a body of rules by which the House could operate. And so that came out about two pages in the journal, but it’s about four different categories. The duties of the Speaker, disposition of legislation, things of that nature, the Committee of the Whole, where amendments are considered in the House and so on. So it was a very slight, didn’t take them but a week I think to come up with those rules, the 11 member select committee.
Don Wolfensberger:
And then after they were debated and amended and voted on the floor, the select committee went out of business. And that was pretty much the case for the first 90 years. It operated as a select committee. Some years, it wasn’t even appointed. They just carried forward the rules from the previous Congress and readopted them. But for the most part, that was its original purpose, was to look at the rules and decide whether they needed any changes from the previous Congress.
Kevin Kosar:
That’s fascinating. I mean, for Congress to have operated for so long with the Rules Committee not being this standing entity involved in day-to-day work. If I can ask a follow up, why? Why did we have that switch?
Don Wolfensberger:
The main reason it switched was things were getting a little clogged in terms of legislation. Ordinarily, you either take up legislation by unanimous consent or suspension of the rules, whatever, but then they decided that there had to be a better way to get at the leadership’s priority legislation. And so that was the Rules Committee’s function, was to say, okay, with this particular bill, we’re going to take it up out of order. It might be number 20 on the calendar, but when you adopt a special rule, that’s going to be bumped up to number one. So we could consider this thing tomorrow.
Don Wolfensberger:
That came about around 1789, when Thomas Brackett Reed, the Republican from Maine, became the Speaker, and he became very powerful, but he was the one that came up with the idea of these special rules to actually provide for the consideration of legislation out of other committees. So it had become a permanent committee about the same time. The Speaker was the chair of the Rules Committee for the next 20 years or so. In fact, Reed, and then his successor, Joe Cannon of Illinois, became known as czar speakers, because they really had a tight grip on the legislative process for major bills in the House, and they were resented even by some members of their own party.
Kevin Kosar:
Interesting, interesting. So since the late 19th century, in the time of Speaker Reed, we’ve had a Rules Committee that is a regular standing entity.
Don Wolfensberger:
Full time.
Kevin Kosar:
And its relationship with the Speaker has been tighter and looser at points. So that prompts the question, how does someone get chosen to be on the Rules Committee these days, and what are the rules for dividing its membership between the two parties?
Don Wolfensberger:
Good question. Usually they’re people that are chosen by the leadership. They are then elected by the respective caucuses, the House, the Republicans and the Democrats. But the ratio now is nine to four. 13 members, nine Democrats, four Republicans. For many years, this was after Joe Cannon was overthrown as chairman of the Rules Committee in 1910, you know, it was still a leadership committee, but they increased their size from five members, three majority, two minority, to eight and four, and then eventually it was increased to nine and four.
Don Wolfensberger:
And one of the reasons was that it wasn’t always the leadership committee. I mean, there were times when it acted independently. You had two conservative Democrats, Judge Smith of Virginia, this was is in the fifties and sixties, and Bill Colmer of Mississippi, and quite often they would team up with the four Republicans and you’d end up blocking legislation on six, six tie votes. So that became a very interesting phenomena. Speaker Rayburn decided in 1961 to put an end to that. So he increased the size of the committee to 15 members for several years, as a result. Smith retired around 1967, Bill Colmer became chairman, but he was more cooperative with the leadership. So eventually they came back into the leadership’s orbit as an arm of the leadership without any question.
Kevin Kosar:
So once upon a time, I met a person who worked on the Rules Committee and who advised the chairman, and this individual told me a story that helped me appreciate the Rules Committees’ power. He told me that a regular feature of his life involved legislators queuing up to meet with him, the staffer, to ask that committee craft a rule so that the legislators’ amendments would be eligible, which is fascinating. Is that part of the process?
Don Wolfensberger:
Well, it is. Members that have important amendments that didn’t make the cut in committee, weren’t adopted, they will write a letter to the chairman and the members of the Rules Committee and humbly request that their amendment or amendments be made in order. So it’s not unusual for them to lobby their colleagues on the floor, their Rules Committee colleagues on the floor, to try and have their amendments made in order, but that’s now pretty much under the control of the leadership.
Don Wolfensberger:
I mean, is called the Speaker’s committee, and there aren’t many amendments that are … In fact, we did it once when Jerry Solomon, my boss, was the chairman of the Rules Committee and we had made an order, an amendment, that had not been cleared by Newt Gingrich. And we got taken to the woodshed on that. So it’s very tightly controlled.
Kevin Kosar:
Yeah, just to kind of put a little more flesh on the bones so that our listeners can understand, when the Rules Committee is crafting a rule for a piece of legislation, how does it do that? Do they all meet in the hearing room and live stream television and open debates, or how does that work?
Don Wolfensberger:
These are all public, and members come and sort of petition the committee for what they want to have made in order. First of all, the Rules Committee will hear from the chair and the ranking minority member of the committee that’s bringing the bill, and they will indicate what type of rule they would like to see. And they are questioned by the 13 members of the Rules Committee. And then after that, any other member who has an amendment that they want to have made in order, they’re allowed to testify. And so this sometimes will take three or four hours out of the day, if it’s a major bill and you’ve got a lot of people that have submitted amendments, and these are all listed on the Rules Committee website as to which amendments are submitted.
Don Wolfensberger:
And so once they finish that hearing, then the Rules Committee goes into a markup of this resolution, this special rule, and the members of the committee, usually it’s the minority that either offers an open amendment process or asks that specific amendments be made in order. And most usually, those pleas go down on the party line votes. Usually the majority members are all on board with the type of rule that is put before them when they begin their markup of the rule.
Kevin Kosar:
In your book, Changing Cultures in Congress, you discuss open rules and closed rules and note that the House increasingly considers legislation under closed rules. What’s the difference between an open rule and a closed rule?
Don Wolfensberger:
Well, for one thing, we haven’t had an open rule for about three Congresses now. The last time we had open rules was back in the 114th Congress, 2015 and 16, and there were only eight open rules. In between open and closed rules, amendment rules, are what we call structured rules. So in that Congress that I was just mentioning, 2015, 2016, there were 82 structured rules. These are rules that make in order specified amendments that are printed, and the Rules Committee report on the rule. And there were 65 rules that were completely closed to amendment. So you have three categories, but nowadays you just have two, because they’re not providing for any open amendment rules any longer, because of I guess the games that are played and the fact that the leadership wants to have more control over the process.
Kevin Kosar:
Yeah. Just getting away from open rules, it was a clear strategic choice. Just to help our listeners understand, what is the problem that leadership is trying to avoid by not going with open rules and instead going with closed or structured rules?
Don Wolfensberger:
Yeah. I think the main problem is things have become so much more polarized and politicized and partisan and so on, they just don’t want to leave the door open for any kind of trick. So when they do have structured rules, the majority, the vast majority of the amendments that are made in order are by Democrats. So they had gotten clearance from the committee chairman, presumably, that brought the bill, and also the leadership.
Don Wolfensberger:
Then you have a category called bipartisan amendments, where you’ve had people from both parties that have sponsored certain amendments. And so some of those are made in order, and then you have the minority party amendments, and they get the least number of amendments made in order.
Kevin Kosar:
I mean, is it part and parcel of trying to get the bill passed that you want? You as a Speaker have what you think is a majority lined up for it, so you don’t want an amendment that is offered that is divisive, because if it’s accepted, maybe certain members will then not vote for the bill? I mean, is that really what it’s about?
Don Wolfensberger:
Yeah, I think that’s a big part of it. Many, many years ago, even before we got so tight on the type of rules we have, there was a book written by two political scientists. Well, one was back in your day, not in your day, but back before your day, at the Congressional Research Service, Stan Bach, and Steven Smith, but they co-wrote a book called Managing Uncertainty in the House, the Role of the House Rules Committee, and part of its role was to make sure that there wasn’t too much uncertainty to give the majority party, the majority leadership, a more certain path to passing the bill in the form that they want. So that’s really what happened. And it got increasingly restrictive as time went on.
Kevin Kosar:
Out of curiosity, is part of the uncertainty that they’re trying to manage driven by transparency? In short, if an amendment comes up, what’s the danger of voting on it? Well, the danger is you then have to go face the voters, you can be held accountable in your next campaign for casting a vote on an amendment.
Don Wolfensberger:
Yeah, that’s a very good point, because more and more, members who are either being primaried within their own party or being opposed by someone from the other party, their votes are trotted out, and if they’re controversial, they might not be popular in that particular district, well, those will be featured in ads and so on. So it’s partly to protect members, but at the same time, you have to keep in mind that a lot of Democratic amendments are being shut out, too. And so that’s very frustrating for them, because they like to claim credit for things that they are able to pass. So there’s a great deal of frustration in both parties, I think, for the extent to which things have been tightened up.
Kevin Kosar:
And I take it, being the 21st century, the possibility of Congress having unrecorded votes is very small.
Don Wolfensberger:
It’s nil to none in the House, I would say. Well, you know, you do have unrecorded votes on Monday, Tuesdays, and Wednesdays, when they’re considering what are called suspension bills, which don’t come through the Rules Committee, but they don’t allow for amendments, but they require a two thirds vote. So those are usually noncontroversial, minor bills. So you have a lot of those, especially now during the pandemic, a lot of those are passed on voice votes.
Kevin Kosar:
Got it. Another interesting Rules Committee topic that you discuss in your book is the so-called self executing rule. What is this thing? And why does the House have them?
Don Wolfensberger:
Basically, it started out as a pretty innocent thing, just to clean up the legislation. What it says is once you adopt a special rule from the Rules Committee, the amendment printed in part A of the Rules Committee report is considered as adopted. So when you adopt a rule, you’re actually adopting an amendment to the bill that hasn’t even been brought up yet. And so, as I say, that was originally done just to clean up bills, make minor technical changes, but more and more it’s being used for making substantive changes in the bill.
Don Wolfensberger:
Ordinarily, it has the sign off by the committee chairman that is bringing the bill to the floor. You know, they have second thoughts after the committee has reported the bill, and so they self execute. But more and more now we’re seeing a lot of unreported bills being brought to the Rules Committee. So the only way that the chair can affect that, since they didn’t have a markup on it, is to self execute sometimes an entire substitute that makes changes that otherwise would have been made if the committee had bothered to mark up the bill.
Kevin Kosar:
Yeah, if memory serves, in your book I think you described a very major piece of legislation, perhaps Obamacare, where the self executing rule was critical.
Don Wolfensberger:
Correct. Yes. Very critical. So, yeah, we’ve seen this more and more on major legislation, where the leadership is knowing they’re going to have to hustle for votes because it’ll probably be a party line vote. So they’ve got to hold all their own people intact, so they can go to them and say, “Look, we heard your concerns, and we are in this self executing rule. We are doing a whole amendment substitute that addresses the concerns that you have expressed,” because that’s when they really need to pull off a victory, especially now that the margin party ratios have gotten so razor thin.
Kevin Kosar:
Wow. And for anybody who is willing to look at the House and then look at what is happening, just trying to follow the action and to figure out what exactly is being voted on, can sometimes be really confounding, which raises the question of the Rules Committee and how it operates. It’s got this storied history, going back more than a hundred years. Has it changed much in the past 10 or 20 years, or is it basically the same beast?
Don Wolfensberger:
I’d say it’s the same beast, but it’s changed to the extent, as you will see from the tables, both in my book, and I also have these current through the last Congress, at least, on the Bipartisan Policy Center’s website, but the major change, yes, has been the extent to which they have clamped down on amendments.
Don Wolfensberger:
Now, recently that’s changed slightly in that Jim McGovern of Massachusetts, who’s now the chairman of the Rules Committee, has been more generous in allowing at least a lot more Democratic amendments that can be bundled, shall we say. They’re offered on block on the floor and the rule will allow for that to happen. So a chairman can decide, okay, here are 10 amendments that I can accept, so we’ll bundle them. And sometimes they’re even passed by voice vote, because they’re not controversial. So there has been a slight increase in some amendments in the last Congress or two, but it’s not dramatic. It’s still, in the last two Congresses I think we’ve had 54% of the rules were closed in the 115th. In the 116th, the last Congress, 56% of the rules were closed to all amendments. So it’s gotten increasingly tighter over the years.
Kevin Kosar:
So since we still have a minute left, I wanted to ask you, would you anticipate in the next 10 or 20 years any changes to the way the Rules Committee operates? Do you imagine it’ll still remain very tightly tethered to the Speaker’s office and keep doing basically what it’s doing?
Don Wolfensberger:
Yeah, I think so. I think once the leadership has gained this kind of control, unless you have a major revolt, as you did against Cannon way back in 1910, things are going to stay pretty much the same. But you’re also seeing a lot more members retiring after two or three Congresses, even, because they say, you know, I’m just expected to be a voting machine now. I have no real input, committees have fewer and fewer powers, less responsibilities. They’re being taken over by the leadership that is superimposing their will. So that’s one thing that you’re seeing happen, but I don’t think it’s going to result in revolt, but you can never tell.
Kevin Kosar:
Well, Don, thank you for being on the show and explaining what the House Rules Committee does and why it is so important.
Don Wolfensberger:
It’s been a pleasure, Kevin. Thank you.
Kevin Kosar:
Thank you for listening to Understanding Congress, a podcast of the American Enterprise Institute. This program was produced by Elayne Allen and hosted by Kevin Kosar. You can subscribe to Understanding Congress via Stitcher, iTunes, Google Podcasts, and TuneIn. We hope you will share this podcast with others and tell us what you think about it by posting your thoughts and questions on Twitter and tagging @AEI. We hope you have a great day.
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