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January 22, 2013 4:35 PM Can the “Discharge Rule” Save Congress?

By Sarah Binder

Ezra Klein offers a provocative argument: Perhaps the House discharge rule could save Congress.  He argues:

“…[T]here is an alternative to the Hastert rule that doesn’t require Boehner’s assent. Under the rules of a “discharge petition,” an absolute majority of the House can bring a bill to the floor whether or not the speaker of the House wants it there. Democrats have 200 votes already, so all they would need are 18 Republicans who support that bill to agree that it should come up for a vote.”

Ezra acknowledges the high hurdle of convincing Republicans to buck their party’s procedural control of the chamber, and recognizes the reasons why it is unlikely to happen.  Still, he also notes the potential impact of the discharge rule: “If even 20 House Republicans decided they were fed up with the partisanship and the effective veto wielded by the conservative wing, they could break the lower chamber wide open.”  As he observes, a successful discharge of a bill that passed on Democratic votes would keep rank and file conservatives’ finger prints off the bill: The bill would have reached the floor on the backs of dissenting GOP from swing districts.  The discharge rule, Ezra concludes, might be an easier route to putting bills on the floor—to be passed with Democratic support—than expecting Boehner to break the Hastert Rule and thus condone consideration of such bills on the floor.

I thought I’d offer a few observations about the discharge rule in light of Ezra’s post. (Plus, every House rule deserves its day in the sun!)

First, why does the House even have a discharge rule?  The rule dates from the 1910 revolt against Speaker Joe Cannon.  (That’s Uncle Joe above, in a 1908 Clifford Berryman cartoon drawn from the minority party’s point of view: Cannon is addressing a whole chamber of Cannon look-alikes, Republicans unwilling to challenge their autocratic leader.)  After breaking the Speaker’s hold on power in 1910, a cross-party coalition of insurgents crafted a discharge rule to allow a simple majority to pull a bill from committee and to secure a vote on the House floor.  Altered a few times along the way, the discharge rule was last changed in 1993, after Ross Perot’s successful campaign to make public the names of discharge petition signers.  (Uncle Joe, Ross Perot … Ain’t House procedural history fun?!)  In short, the discharge rule emerged from an old battle against the Speaker and provides a tool for launching new ones.

Second, recent studies of discharge politics confirm the steep barrier to recruiting Republicans to cast their lot with Democrats to circumvent party leaders.  Miller and Overby (ungated), for example, highlight the reluctance of majority party members to signing contemporary discharge petitions, even when they’ve co-sponsored the underlying bill.  In dragging their feet to sign petitions, majority party legislators’ policy priorities take a back seat to their procedural commitments to party leaders.  Signing a discharge petition in today’s House—and voting on the floor to discharge the bill—would signal a full frontal attack on the majority party’s procedural majority.

My hunch is that (at this point at least) even a small group of Republicans would be unlikely to join Democrats in any discharge drives.  Given that nearly every rank and file GOP agreed to rules that allowed the fiscal cliff and Sandy relief bills to go to the floor,  Republicans don’t seem like candidates for challenging their leaders’ procedural control of the floor.   Nor does this strike me as a tactic Boehner could tacitly endorse.  In fact, the closer rebels got to 18, the more likely Boehner would be to craft a party alternative to bring to the floor (as leaders’ attempted in 2002 when faced with a discharge drive to put a bipartisan campaign finance bill on the floor).  Moreover, the legislators most likely to find common cause with Democrats—the few GOP moderates from swing districts—seem to be the most loyal to Boehner.  The least loyal are the conservatives on the right flank, including the dozen whose coup against the Speaker quickly fizzled on opening day.  The deck is so strongly stacked against a successful discharge drive that the absence of such petition efforts might not tell us very much about Boehner’s hold on power within his conference.

Third, Pearson and Schickler (gated) offer some counter evidence to the contemporary pattern.  Analyzing mid-century discharge petitions uncovered in congressional archives, Pearson and Schickler show that when issues in the past (such as civil rights or fair labor) have been sufficiently salient, dissident majority party members have been willing to buck their leaders and sign discharge petitions.  Still, the fit to today’s Congress is uneven.  On most issues, the Speaker’s problem isn’t that a cross-party coalition wants action on a popular policy proposal opposed by his or her majority.  There just aren’t very many issues on which moderate Republicans see eye to eye with Democrats.  The closest such issue is probably immigration.  If a discharge drive were to occur, immigration strikes me as a prime candidate for fitting the pattern Ezra suggests.

Still, even on immigration reform, Republicans favoring action might prefer to keep choices over the range of floor votes in Republican hands.  Discharge petitions are blunt instruments; legislators probably prefer surgical strikes.  Regardless, Ezra is ultimately on the mark: Rank and file GOP will make or break their party’s procedural cartel.

[Cross-posted at The Monkey Cage]

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Sarah Binder is a professor of political science at George Washington University and a senior fellow at the Brookings Institution.