The discharge petition doesn't have to be dead

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By Joshua Huder

The immigration discharge petition died last week. Essentially, leaders killed the discharge  effort by pulling the underlying bill (H.R. 4760) to the floor. That meant that even though the discharge resolution is still pending at the clerk’s desk (H.Res.774), the resolution is effectively moot because the bill it would have discharged had already been voted on and the motion to reconsider was laid on the table. So that was that.

But it actually wasn’t. There are at least a couple ways to get around it.

The more difficult route would be to secure the two signatures on the existing discharge bill, debate it under the one hour rule, vote down the previous question, amend the resolution to pull a different bill (read: not H.R.4760) out of committee, pass the amendment, pass the previous question, and then move to the new bill. That requires holding together a very flimsy voting coalition across multiple vote series.

The easier route would be to create a new discharge resolution. The discharge process can only pull a public bill or public resolution from committee if it’s been pending in that committee for 30 days. While that’s true, it’s also largely irrelevant. Here’s why.

In today’s House, serious discharge petitions do not discharge public bills (which would then be brought to committee under the one-hour rule). Serious discharge petitions pull resolutions out of the Rules Committee. This enables the dischargers to: 1) prevent amendments on the underlying bill; 2) waive points of order against the bill; 3) self-execute amendments (essentially changing the substance of the underlying bill upon adoption of the rule); and 4) limit debate. This route offers more control than the one-hour rule, which upon completion of an hour of debate would be open to amendment by the whole House, creating a free-for-all scenario where leaders could step in and hijack the process.

The reason this is relevant is because discharge rule on special orders (aka, rules from the Rules Committee) are not subject to the 30-day wait limit. Discharging a special order resolution from the Rules Committee only requires seven legislative days. That’s a much shorter time frame than 30-legislative days.

And even better, the rule can effectively discharge any bill from any committee offered by any member (so long as that bill has been in committee for 30-days). The rule attempting to be discharged could simply self-execute an amendment in the nature of a substitute, rewrite the underlying bill entirely, make it in order for consideration, prevent amendments, and waive all points of order against the bill.

Moral of the story: the underlying bill can be irrelevant to the discharge process if the petition discharges a special rule. This has the added advantage of a seven-day wait period rather than a 30-day wait period. So a member could technically discharge an unused bill introduced on the first day of the Congress bottled up in any committee, and simply rewrite the legislation with the resolution the discharge petition would make in order.

Once signatures are procured the petition still has a seven-day wait period. But 14-legislative days is much shorter than a minimum of 37.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute at Georgetown University.