After a nearly seven-year drought, the House this week considered a bill under an open rule, allowing any member to offer an amendment on the floor. BPC’s Healthy Congress Index has charted the decline of open deliberation in the House and Senate since its launch in 2015. One of the most concerning trends we noted then was that opportunities for members to offer amendments had become nearly non-existent. The situation only worsened, and the House would see it’s last open amendment process about a year later on May 26, 2016. In a welcome development, H.R. 21, a bill to limit the drawdown of petroleum in the Strategic Petroleum Reserve, came to the House floor this week under a modified open rule. Should the proponents of regular order declare victory? In short, not yet.
In 2014, BPC’s Commission on Political Reform recommended that, “The majority leadership in the House of Representatives should allow the Rules Committee to report more modified open rules,” warning of the increasingly restrictive amendment process. Such a return to a more open amendment process will improve deliberation and debate, engage more members in the legislative process, and foster bipartisan consensus building.
The amendment process in the House is typically governed by predetermined rules specific to each bill: open rules allow all members to offer amendments on the floor; closed rules allow none; structured rules allow only those specified by the Rules Committee. A form of open rule, a modified open rule, allows any member to offer an amendment, but requires the pre-printing of amendments in the Congressional Record, sets an overall time cap on the amendment process, or both. In recent history, the Rules Committee, and thus House floor debate, has been controlled by the Speaker, with his or her party making up a supermajority of the committee’s members.
Whether the consideration of H.R. 21 under an open rule is cause for celebration is another question. It is important to consider why and how H.R. 21 came to the floor in this manner. The modified open rule for the bill was not the result of Rules Committee action, as most bills would be. It was provided for in the resolution adopting the overall rules of the House for the 118th Congress, which were adopted on January 9th, 2023. That resolution, H.Res. 5, was the product of negotiations related to the Speaker election, making it difficult to assess whether this represents the beginning of a longer term shift in House leadership’s approach to the amendment process or a shorter term compromise to bring the Speaker election to a close.
Pledges to open up the legislative process and return to “regular order” have become common for those seeking the speakership. Speaker Newt Gingrich (R-GA) made these promises central to his bid for the job. Speaker Paul Ryan (R-WI) likewise planned to restore a more open amendment process, though, it was to limited success. When Speaker Nancy Pelosi (D-CA) returned to the job in 2019, she highlighted her intent to prioritize debate and deliberation, but open rules never materialized. The deliberation created by regular order can create difficulties for leadership, who either want to spare vulnerable members difficult votes that could be used against them in reelection bids or who are managing disputes within their own parties about the direction of policy.
It is too early to judge the new Republican majority on their iteration of these commitments. Speaker Kevin McCarthy (R-CA), for his part, expressed his intent to bring appropriations bills to the floor under an open amendment process. He also tapped Rep. Tom Cole (R-OK) to be chairman of the Rules Committee. Rep. Cole is a vocal proponent of regular order. In appointing Rep. Cole, Speaker McCarthy said he was, “…boldly leading the shift from the centralized power of the past and returning to regular order that empowers the American public. Republicans are keeping our commitment to make Congress more open, accountable, and responsive.” Speaker McCarthy likewise appointed three members to the Rules Committee who pushed for more amendments when bills come to the floor, among a longer list of changes to House practices.
Restricted rules will continue to be a part of Republican floor strategy. H.Res. 5, which creates the celebrated modified open rule the House considered this week, is not a consistent endorsement of an open amendment process. In fact, it provides more for the consideration of measures under closed rules than it does for ones under open. Eleven other measures specified in H.Res. 5 will come to the floor under a closed rule, compared with just the one modified open rule for the Strategic Petroleum Reserve bill.
The true test of the future of the amendment process will come when the House Rules Committee begins to shape the legislative process. The Rules Committee has yet to meet during the 118th Congress or report any rules for the consideration of bills, as the House is still in a typical organizing period at the start of a new Congress. The committee’s first meeting is scheduled for Monday, January 30. Those concerned with debate and deliberation in Congress should withhold judgment for now and keep an eye on the Rules Committee over the next two years.
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