Are open amendment rules too unruly? 

Two of the concessions the Freedom Caucus wrung-out of Republican Speaker-designate Kevin McCarthy (Calif.), in return for his election to the post on the 15th ballot Jan. 7, were commitments to bring more major bills to the floor under open amendment rules, and to appoint more hardline conservatives to the Rules Committee with its nine-to-four majority/minority party ratio.   

McCarthy obliged last week by naming to the panel two Freedom Caucus members, Reps. Chip Roy (Texas) and Ralph Norman (S.C.), and Rep. Thomas Massie (Ky.), described by Politico as “a libertarian-leaning gadfly and thorn in leadership’s side.”  

The Rules Committee has long been called “the Speaker’s committee,” even though no Speaker has chaired it since “Uncle Joe” Cannon (R-Ill.) was dethroned as chairman in 1910. Nonetheless, the Rules Committee continues to serve as the scheduling arm of the majority leadership by issuing special rules that allow major legislation to be considered out of order and set the terms of debate and amendment on the House floor. 

The vow of the new Republican majority to restore the “regular order” in committees and on the floor under a more open and deliberative processes is a refrain that harks back to 1994 when the GOP minority, under its whip, Newt Gingrich (R-Ga.), captured control of the chamber for the first time in 40 years. As former Speaker Gingrich boasted, in a Washington Post online interview last week, during the four years he served as Speaker in the 104th and 105th congresses (1995-98), the House had the more open amendment rules than in recent congresses — 58 percent and 53 percent of all rules, respectively.   

Those percentages dropped considerably after Gingrich stepped down as Speaker at the end of 1998, declining under both Republican and Democratic majorities. There were no open rules in the 111th Congress (2009-10) under the Democrats. And, when the “tea-party” Republicans retook the House in 2011, only 18 percent of the rules were open, falling to 8 percent and 5 percent in the ensuing two congresses. On their way out the door in the 115th Congress, Republicans posted no open rules. Democrats matched that zero open rule mark in the succeeding two congresses — the 116th and 117th (2019-22).   

In other words, there have been no opportunities for an open amendment process for bills since 2016. Instead, the Rules Committee has reported increasing numbers of “structured” and “closed” rules, either specifying what amendments can be offered, or barring amendments altogether. And the trend has clearly been toward more closed rules versus structured rules — 60 percent to 40 percent in the 117th Congress just completed. 

Why have amendments and debate shifted so much from the mid-1990s to the early 2020s? The easy answer is the parties have become more hyper-partisan and polarized — rarely agreeing on anything. And the majority party is not inclined to give the minority party free rein on anything, especially when it comes to floor amendments.      

The phrase most frequently heard on the majority side of the aisle in defending the closed amendment process is: The minority will only offer “gotcha amendments” if given half the chance. “Gotcha” amendments are those designed specifically to embarrass the majority and provide juicy fodder for campaign ads to be run against majority party incumbents. 

Hence, the majority prefers to pick and choose which minority amendments are serious and should be allowed under a “structured rule.” Fewer and fewer amendments are deemed worthy to qualify even under that subjective criterion — thus, the big uptick in completely closed rules. Even under structured rules, the majority party gets the preponderance of amendments. In the just completed 117th Congress under the Democrats, Democratic amendments made in order were 59 percent of the total, Republican amendments were 20 percent, and bipartisan amendments were 21 percent. 

The lone exception to this increasingly constrictive approach were appropriations bills which tend to have more bipartisan support: that old, mutual back-scratching adage still has some staying power. It was not unusual, before both majorities began giving up on bringing all 12 of the annual money bills to the floor separately, that dozens of amendments were allowed under generous, structured rules. That too has faded with the new mantra of “om” — as in, packing everything onto an ‘omnibus’ appropriations bill at the end of a session. Republicans have promised to end that practice. 

It will be interesting to observe just how open the new “Freedom” House will be when it comes to floor amendments, and how long it will last. I suspect Republicans will quickly learn that the Democratic minority can be just as conniving and Machiavellian as their predecessor minority Republicans. It all comes down to that age-old metaphysical question, (relevantly updated here): How many “gotcha” amendments can you balance on the head of a pin before you prick yourself and go crying for a tourniquet? 

Don Wolfensberger is a Congress Scholar at the Woodrow Wilson International Center for Scholars, a fellow with the Center for Congressional and Presidential Studies, former staff director of the House Rules Committee, and author of, “Changing Cultures in Congress: From Fair Play to Power Plays.”