Minority motion to recommit targeted by some Democrats

When the House Rules Committee convened its biennial “Members’ Day” hearing on Oct. 1 to take testimony on proposed rules changes for the next Congress, the range of recommendations was predictably far-reaching and telling. One suggestion, in particular, jumped-out at me, and that was to proscribe or eliminate the motion to recommit legislation with amendatory instructions — a right guaranteed to minority party opponents for well over a century.

Four of the Democratic witnesses (one in written testimony) proposed that the rule be changed to raise the threshold for adoption to a two-thirds vote, as opposed to the existing majority vote requirement. A fourth Democratic witness, Rep. Ted Lieu (Calif.) proposed in strong language to abolish altogether the minority’s last chance to amend a bill just prior to the final passage vote.

What has brought this sudden attention to one of the few rights left to the minority party in the House? More and more bills are brought to the floor under no or limited amendment opportunities for the minority. Ordinarily, the motion to recommit is rejected on near party-line votes. The difference in this Congress is that a handful of recommit motions were actually adopted, much to the chagrin of Democratic leaders and members alike. Thus far in the Democratically-controlled 116th Congress (2019-20), there have been 72 Republican motions to recommit with instructions offered, of which seven (9.7%) have been adopted, obviously with some bipartisan support. By contrast, in the previous Republican-controlled 115th Congress (2017-18), 79 Democratic motions to recommit were offered, all of which were rejected on near party-line votes.

The main complaint of Democrats is that the motion has morphed into trivialized trickery. As Rules Committee member Ed Perlmutter (D-Colo.) put it, the motion to recommit has become “a gotcha gimmick,” and “not a substantive” policy amendment. As the House has become more partisan and polarized, both parties have evolved from a culture of legislating and governance to one of campaigning and confrontation.

Bills and amendments pushed by each party’s leadership tend to have at least one-eye on the next election horizon and how particular bills will appeal to the party’s base and interest group allies.  With any majority threatened with rejection at the polls in the next election (there have been four changes of party control of the House in the last 25 years), legislation takes on a campaign caste — a phenomenon I have said produces “bumper-sticker bills” instead of national problem-solving plans.

Looking at the seven minority party motions to recommit adopted in this Congress, the “gotcha amendment” charge seems justified. On a joint resolution directing the removal of U.S. armed forces from the hostilities in Yemen, a motion to recommit stating that it is in national interest to combat antisemitism around the world was adopted on Feb. 19, 2019, 424 to 0. In a similar vein, on Sept. 16, 2020, on an Equity and Inclusion Enforcement bill, a motion to recommit to include antisemitism to be considered as discrimination on the basis of race, color or national origin was adopted, 255 to164, with 66 Democrats joining 189 Republicans voting in favor of the motion.

On March 5, 2020, on a bill relating to Transportation Security Officers’ Rights, a motion to recommit to prohibit hiring by the TSA of any candidate with a history of sexual misconduct was adopted, 227 to 175, with 42 Democrats joining 185 Republicans in favor of the motion.

This is not the first time majority Democrats have suggested limiting the minority’s right. Beginning in the 95th Congress (1977-78), the Democratic majority, through special rules from the Rules Committee, began limiting in three instances what the minority motion to recommit could contain. By the 100th Congress (1987-89), there were nine such limitations plus another 15 outright denials of the minority’s right to offer the motion with instructions, plus five limiting and 16 denials in the following Congress.

Republicans became so incensed over this growing chipping-away at the minority’s right that in their 1994 Contract with America they vowed that if they retook majority control of the House (for the first time in 40 years), they would fully restore the minority’s right to recommit bills with amendatory instructions. And that’s exactly what they did on the opening day of 104th Congress (1995-96) when the new Republican majority’s rules package was adopted.

Should anything be done to alter the trivial nature of motions to recommit in the next Congress if Democrats retain majority control? Neither abolition of the right nor a super-majority adoption threshold would be acceptable if some semblance of civility and fairness is to be maintained. One might take an originalist approach to discern the original intent of the motion when a rule change was adopted in 1909 giving the motion to opponents of a bill.

As Speaker Frederick Gillett (R-Mass.) explained it ten years later, “The whole purpose of this motion to recommit is to have a record vote on the program of the minority.” That might suggest that an entire amendment in the nature of a substitute should be offered; or at least a major policy alternative amendment. But terms like “major” and “substantive” and “policy alternative” are in the eyes of the beholder — certainly nothing a Speaker should have to arbitrate on a point of order.

Moreover, when you consider that 40 of 140 bills (35 percent) bills that have been brought through the Rules Committee in this Congress were in violation of the new House rule that such bills shall have been reported and been the subject of at least one hearing, there is some reason to believe these are more “bumper sticker” than serious policy bills. So, why should the minority party be held to a higher standard of seriousness and substance in its motion to recommit?

In the final analysis, whichever party is in the majority and minority should be able to determine how serious it wants to be taken by the bills it brings and the motions to recommit it offers. Party discipline and common sense should be the determining factors in how members vote on such measures.

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.