A Modified open question

The terms “open rule,” “structured rule” and “modified open-rule” don’t mean much to people who don’t toil on Capitol Hill.

But those phrases speak volumes if you want to understand how House Speaker Kevin McCarthy, R-Calif., finally ascended to the Speaker’s suite after a raucous five days of balloting in the Speaker’s race.

Most major pieces of legislation to hit the House floor require a “rule.” The powerful House Rules Committee establishes how the House will debate any given piece of legislation. The Rules Committee sets time limits for debate on the bill and if any amendments are in order.

For years, under both Republican and Democratic control, the House Rules Committee often locked down bills which came to the House floor. Very few bills hit the House floor with the opportunity for rank-and-file members to offer amendments.

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But most lawmakers prefer a more “open” process. That allows them to have their say on the House floor.

However, if the Rules Committee – usually under the direction of the Speaker – says no amendments or only a few, that’s it. Lawmakers have a take it or leave it proposition. Leaders from both parties often designed the bills in such a way that they were streamlined to pass. Former House Speaker Nancy Pelosi, D-Calif., and former House Speaker Paul Ryan, R-Wisc., tailored legislation to block “poison pills.” They knew that certain ideas were popular. But they also knew those ideas – if adopted as an amendment – would detonate the bill.

That’s why they battened down the hatches on “must pass” bills.” Measures to fund the government. Lift the debt ceiling. Tax reform.

McCarthy promised something different.

That’s why the House considered 140 proposed amendments and alterations to a bill in January dealing with the Strategic Petroleum Reserve. Republicans also allowed amendments to a bill setting a federal “parents bill of rights” for education. The same with an energy package to expedite drilling.

A “closed rule” crafted by the Rules Committee forbids any amendments. A “structured rule” permits a few, pre-ordained amendments. A “modified open rule” usually grants lawmakers the right to prep any amendment – so long as it’s done ahead of time. Some forms of “open rules” means pretty much anything goes.

So, while lawmakers may embrace a more open amendment process, the gambit could also pose headaches for McCarthy.

“Ultimately the job of the majority leadership is to pass its agenda,” said Tom Kahn, a longtime former House Budget Committee Staff Director and now a professor at American University. “But you’ve got critical bills like the debt ceiling. Like spending bills. Like the defense bill. And if they get so bogged down (with amendments) then ultimately the agenda won’t pass.”

In fact, one of the objectives of House leaders to lock down bills wasn’t so much to prevent the minority party from offering amendments – but to block some of the more exigent proposals by the majority.

In essence, the Rules Committee functioned like a computer firewall. The goal was to keep the “spyware” and “worms” out of the bill.

Abortion was a great case study when it came to crafting a closed rule for floor debate.

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When in the majority, House Republicans always wanted to vote on an abortion-related bill around the anniversary of the Roe v. Wade decision. Pro-choice members and liberals took a dim view of these pro-life bills. But the House Republican leadership always made sure that the bill was something which could pass. The brass might lock down a rule to prevent what even some pro-life Republicans would interpret as “too extreme.” Say an amendment to outright ban all abortions.

The key was greasing the skids so a bill would pass.

House Republicans feature a big agenda on energy policy and social issues. But there are really only a few “must pass” bills this year. There’s a bill to reauthorize the Federal Aviation Administration. There’s the farm bill. Then, the annual defense policy bill. A measure to fund the government and avoid a shutdown is due this fall. Finally, there will be legislation to lift the debt ceiling. So, if a bill isn’t going to make it through the Senate let alone earn President Biden’s signature, the House can pass any bill it wants. That makes good on the Republican agenda.

But it’s another story when you have to craft a bill which can make it through the Senate and score the President’s signature.

House Republicans touted their “Commitment to America” to voters while campaigning in the fall of 2022.

One plank of that policy platform was the “parents bill of rights.” The measure would mandate that parents have the right to be heard at school board meetings, understand the curriculum taught in the classroom and require schools release reading lists from libraries. The House approved that measure 213-208. Five GOPers voted nay: Reps. Andy Biggs, R-Ariz., Ken Buck, R-Colo., Matt Gaetz, R-Fla, Mike Lawler, R-N.Y., and Matt Rosendale, R-Mont. No Democrats voted yea. Had all Democrats been present and voting, the roll call tally would have been 213-212. One more GOP defection would have killed the bill.

Fast forward to last month. The House approved the marquee of their legislative agenda – an energy package – 225-204. Only one Republican voted nay. But four Democrats crossed party lines to vote aye: Reps. Henry Cuellar, D-Tex., Vicente Gonzalez, D-Tex., Marie Gluesenkamp Perez, D-Wash., and Jared Golden, D-Maine.

The House considered several dozen amendments. One senior source in the House GOP leadership structure remarked that it was hard to track who was for or against the bill. With so many amendments in play, the bill is organic. Its contents morphs in real time on the floor. That’s because someone’s vote could hinge on whether an amendment they liked or disliked made it into the bill or was euthanized.

“It’s like ‘Whac-A-Mole,’” said the source. “You just don’t know until the end.”

Gonzalez explained why he supported the package.

“We should be leading the world in energy production,” said Gonzalez. “We shouldn’t rely on the Middle East and other countries to produce energy.”

But Democratic leaders said their defectors should explain themselves.

“Every member who either votes for or against a bill that, in my view, puts polluters over people, will articulate their perspective to the constituents that they represent back home,” said House Minority Leader Hakeem Jeffries, D-N.Y.

McCarthy dismissed questions about if it was harder to pass bills with an open amendment process. 

“I think you’re overthinking it,” said McCarthy. “You might analyze a lot and worry about what you think we’re doing. We don’t do that. We just focus on policy. Make good policy.”

Still some GOPers believe more amendments inhibits the viability of legislation.

“The downside is that some of these rules become more partisan through the amendments,” said Rep. Don Bacon, R-Neb. “I’m looking to pass things that have a chance to go through the Senate.”

So what happens on a bill which could spark a financial crash like the debt ceiling? Or prompt a potential government shutdown this fall?

Those remain unanswered questions.

The concepts of “open rules” and “modified open-rules” boosted McCarthy to the Speakership in January.

But on a must pass bill?

Like an open rule, that remains an “open question” for McCarthy.

Or, at the very least, a “modified open question.”