(Editor's note: This article originally appeared in the Legislative Procedure blog on August 8, 2018.)
By Daniel Schuman
At the beginning of the 115th Congress, members of the House of Representatives disagreed over whether the Office of Congressional Ethics should be abolished. I won’t get into the merits of the disagreement here (although I’ve written about it elsewhere). But how it occurred is interesting.
The Office of Congressional Ethics is one of the many offices and agencies created by the House rules, which are adopted on the first day of every new Congress. Members vote on a simple resolution that includes all of the rules. The resolution’s text is usually released to the public 24 hours before the vote. But sometimes there is even less notice. In 2017, the Republicans did not finalize the text until the night before the full House was scheduled to consider it. The text wasn’t available to the public until the day of the vote. And it’s not just the Republicans. House Democrats follow this practice as well. That both parties adopt the House rules in this manner isn’t transparent and it undermines deliberation.
72 HOURS DOESN'T MEAN THREE DAYS
In contrast to the rules, bills and joint resolutions must be publicly available and online for at least three days prior to receiving a vote on the House floor. And House Republicans proposed a 72-hour rule that requires legislation to be available to the public before a final vote on the floor. Here is then-Speaker Boehner making the case for its adoption. And the Republican “A Pledge To America” committed to giving “all Representatives and citizens at least three days to read the bill before a vote.”
There are several three-day rules applying to different types of documents: reported bills and resolutions (Rule XIII, Clause 4(a)); unreported bills and joint resolutions (Rule XXI, clause 11); conference reports (Rule XXII, clause 8(a)); and Special Rules (Rule XIII, Clause 6(a)). (This Congressional Research Service report offers a good overview of the three-day rule). Significantly, each requires that text be available for three legislative days, not 72 hours. In the extreme, that means that bills and joint resolutions may be available for just over 24 hours.
ADVANCE NOTICE REQUIRED
How could the three day rule require that legislation be publicly available prior to a vote at the beginning of a Congress given that the prior Congress's rules have expired and that the House has not yet adopted new rules? According to House Rule XXIX, clause 1.
“The provisions of law that constituted the Rules of the House at the end of the previous Congress shall govern the House in all cases to which they are applicable, and the rules of parliamentary practice comprised by Jefferson’s Manual shall govern the House in all cases to which they are applicable and in which they are not inconsistent with the Rules and orders of the House.”
In other words, the House has, in effect, an underlying set of parliamentary practices that constitute a common law of sorts. These practices apply in situations where its members have not yet adopted new rules. That explains why some bills and joint resolutions were published three days before the beginning of the new Congress.
House Rule XXIX, clause 3 explains why those bills and joint resolutions were available online.
“If a measure or matter is publicly available in electronic form at a location designated by the Committee on House Administration, it shall be considered as having been available to Members, Delegates, and the Resident Commissioner for purposes of these rules.”
SIMPLE RESOLUTIONS DON’T COUNT
The House rules do not require simple resolutions to be available to the public prior to a vote. Simple resolutions include things like a statement honoring someone’s life, but they are also the legislative vehicle used to elect (i.e appoint) members to congressional committees, control debate on the House floor (including how legislation may be considered and what amendments, if any, might be offered), allot money to committees, and … establish the Rules of the House of Representatives.
Still, not making the text available prior to the day of the vote violates the pledge made by House Republicans. This is significant because the House rules don’t just concern administrative matters. They also establish policy. For example, the effort to abolish the Office of Congressional Ethics was a major undertaking. By any standard, it should have received more notice and debate.
At least in the case of the House rules, the resolution that puts them into effect should be available to all members, and to the public, three days prior to a vote. That is, they should be treated like other bills and joint resolutions and be publicly available before the beginning of the new Congress. While the rules cannot themselves require the text to be available online for 72 hours -- that would be bootstrapping – Democrats and Republicans could easily include such a requirement in their caucus and conference rules.
Daniel Schuman is the policy director at Demand Progress.