The Committee on Rules is one of the most important standing committees in the House of Representatives. Not only does it have jurisdiction over the rules of the House; the panel is centrally involved in the scheduling function through its "rule-granting" authority. "Rules" are privileged simple resolutions that establish the procedural conditions for considering legislation on the floor. They are pivotal parliamentary devices for two fundamental reasons. First, they provide a convenient avenue to the House floor for many significant measures that lack access under traditional chamber procedures. Second, they establish the procedural ground-rules for debating and amending legislation. As former House GOP Leader Bob Michel, Ill. (1981-1995), once noted:
The Rules Committee [dictates] how a piece of legislation gets to the floor, how many amendments will be considered, and how much time will be allowed for debate. The Committee usually sets the conditions for debate and may also waive various points of order against a bill or an amendment which would otherwise prevent House action. Because [of] the Rules Committee's critical role in controlling the legislative process, the Committee has traditionally been held under the tight control of the Speaker, and that is as it should be.(1)
The panel's key role in agenda-setting, along with its substantive (or "original") jurisdiction over measures affecting institutional operations in their broadest sense, understandably promotes the Committee's close ties with the majority leadership. As four recent Speakers said:
"The Rules Committee is the political arm of the Speaker in enabling the House to consider and enact legislation reported by the other committees of the House."(2)
-Speaker John W. McCormack (1962-1971)
"The Rules Committee is the Speaker's committee, not merely a traffic-cop or staff function."(3)
-Speaker Carl Albert (1971-1977)
"What makes the Rules Committee so important is that it sets the agenda for the flow of legislation in the House and ensures that the place runs smoothly and doesn't get bogged down."(4)
-Speaker Thomas P. O'Neill (1977-1987)
"The Rules Committee is an agent of the leadership. It is what distinguishes us from the Senate, where the rules deliberately favor those who would delay. The rules of the House, if one understands how to employ them, permit a majority to work its will on legislation rather than allow it to be bottled up and stymied."(5)Speaker Newt Gingrich, R-Ga. (1995-1999), once said that the "rules of the House are designed for a Speaker with a strong personality and an agenda."(6) House Rules Chairman David Dreier, R-Calif., highlighted the panel's close ties to the speakership when, echoing former Speaker Albert, he said: "The Rules Committee is the Speaker's committee."(7)
-Speaker Jim Wright (1987-1989)
The objective of this report is to provide an overview of the early Rules Committee's role in House decision making. It will examine several of the more significant pre-twentieth century developments in the Committee's history. Among these developments are: the evolution of the panel from a select committee to a standing committee; the Speaker's leadership of the panel; and the rise of "rules" (called "special orders" during this period) which, if agreed to by majority vote of the House, establish the order of business on the House floor.
From a Select To a Standing Committee
On April 1, 1789, the House of Representatives finally achieved a quorum (the date fixed for the House to begin work was March 4, 1789) and commenced formal proceedings by electing its first Speaker (Frederick A. Muhlenberg) and Clerk (John Beckley). The next day, the House appointed a select committee "to prepare and report such standing rules and orders of proceeding as may be proper to be observed in the House."(8) This 11-person select rules committee included such important Members as James Madison of Virginia, Roger Sherman of Connecticut, Elbridge Gerry of Massachusetts, Richard Bland Lee of Virginia, and Elias Boudinot of New Jersey, who served as chairman. Five days later the Boudinot-led group submitted a plan of four rules (duties of the Speaker, decorum and debate, bill introduction, and the Committee of the Whole House), which the House adopted.(9) With its task completed, the Rules Committee went out of existence.
For much of the 19th Century, the Rules Committee had little to do and exercised no special authority over the legislative process. So minor a role did Rules play during the early decades that no appointments were made to it during the 6th (1799-1801), 15th (1817-1819), 16th (1819-1821), 18th (1823-1825), and 19th (1825-1827) Congresses. Most often, the panel was established by the Speaker as a select committee (usually to five to nine Members) at the beginning of each Congress to consider and report revisions to the House's code of rules. Customarily, the panel reported the Boudinot Rules with modifications, which the House then adopted. Needless to say, this pattern of action "left little to a Committee on Rules."(10) Most rule changes in the early period occurred when interested legislators sponsored procedural modifications "to fit the case at hand" and had the ability to get the House to agree with them.(11)
Over time the Rules Committee gradually assumed more influence in the legislative process. Illustrative of this trend are several noteworthy developments. The panel proposed several major revisions of House rules and gained the power in 1841 to report to the full House (a harbinger of its later heavy involvement in the scheduling function); in 1858 the Speaker became the chairman of the Committee; and Rules was established permanently as a standing committee under the 1880 revision of House rules. Each of these topics merits some discussion.
Revisions of House Rules
The small size and workload of the early Houses meant that Representatives could debate virtually all measures without establishing priorities among them. "To avoid favoritism," wrote a scholar-legislator of the House, "all bills were considered in the order of their introduction unless otherwise specially directed."(12) The "otherwise specially directed" usually referred to unanimous consent, custom and practice, use of the Speaker's recognition power, or majority vote of the membership. In 1803, the Speaker declared that under a new rule there was to be no debate on a motion "respecting the determining of the priority of business" of the House.(13)
With increases in size and workload, it became plain that greater order and predictability were needed to conduct the House's business. In 1811, the Rules Committee reported a rules revision which established, for the first time, a formal order of business for the House. Under its terms, the sequence of events was as follows: the opening prayer, the reading of the Journal, the call of states and territories for petitions (such as anti-slavery resolutions), unfinished business, and orders of the day. The latter were reports of standing or select committees that were assigned a future day for House consideration.
In subsequent years, the Committee recommended various rules changes to expedite legislative business, inhibit dilatory actions, or streamline the House's rules. In 1822, for example, the House agreed to a rule permitting motions to suspend the rules by two-thirds vote of the Members present.(14) To combat delays caused by adding "riders" (extraneous policy proposals) to appropriation bills, the House adopted a rule in 1837 that prohibited expenditures for purposes not previously authorized by law.(15) In 1842, the Members agreed to a permanent rule that limited debate in the House and in the Committee of the Whole to one hour.(16) (Until this change, Representatives enjoyed the right of unlimited debate.) Rules was actually made a standing committee for four years (1849-1853), but the conversion did not change its limited activity or role; hence, the panel soon reverted to its select committee status.
The Right to Report at Any Time
In 1841, the Committee proposed what seemed like a relatively minor change in House rules. Rules was authorized by the House to report at any time. This new authority laid the groundwork for the Committee's later role in opening a major alternative avenue (besides such devices as unanimous consent and suspension of the rules) for bringing important measures before the entire membership for consideration. Indeed, this change was the "first gleam of its [later rule-granting] power."(17)
The 1841 change came in the wake of a three-week struggle to adopt a code of rules for the 27th Congress. The House was stymied in this effort when Rep. John Quincy Adams proposed that the new rules should delete the controversial "gag" rule, which prohibited consideration of antislavery petitions. After much debate, the House approved the rules used during the previous Congress and directed the select rules panel "to revise and amend the rules hereby adopted, and that the [committee has] leave to report at any time."(18)
When the Committee exercised its new reporting authority for the first time, the panel found itself embroiled in controversy. Rulings by the Speaker ultimately buttressed the panel's reporting prerogative. The test came on June 18, 1841. Rules Chairman William Calhoun, Mass., submitted a report from the Committee that amended House Rule 127 by adding a new clause that circumscribed use of motions to suspend the rules. Rep. John Weller, Ohio, immediately criticized Calhoun's action. Weller declared that he "wanted to see a complete set of rules reported by the committee at once" and that Rules "was not authorized to report piecemeal" changes to the House rulebook. Another legislator, Francis Pickens of South Carolina, asked rhetorically whether the report of the Rules Committee required a two-thirds vote for adoption. He cited the very rule (127) that the Committee was seeking to amend as mandating both one day's notice before rules or orders of the House could be changed and a two-thirds vote on any motion or report that affected the House's prescribed order of business.
Speaker John White, Ky., quickly reaffirmed Rules' authority to report at any time "unless the resolution under which the committee was raised should be rescinded." Rep. John Floyd, N.Y., asked the Speaker if the "report could be adopted without" a two-thirds vote. Speaker White stated that "a majority vote only would be required." Floyd appealed the Speaker's ruling. Another legislator interjected and inquired about the one-day notice requirement. The Speaker declared that Rules had the right to report at any time and without one day's notice. The House then voted to affirm (123 to 70) the Speaker's majority vote ruling and then to adopt (124 to 80) the report of the Rules Committee.(19)
A few weeks later the House underscored Rule's authority to issue reports at any time and to propose discrete changes to House rules. When Rules Chairman Calhoun introduced a report that recommended further changes in House Rule 127 that would permit bills to be discharged from the Committee of the Whole by majority vote (instead of two-thirds) of the House, Rep. William Medill, Ohio, challenged the Rules Committee's right to "report in part." Under the guise of changing House rules, argued Medill, the Committee was actually recommending procedures to stifle the minority party's right of debate. "A committee, claiming to be perpetual in its duration, and decided to be always in order," he said, "is suffered to divert the deliberations of this body, and threaten to seal the mouths of the minority if they should manifest the least obstinacy or independence."(20) Speaker White ruled that the Committee's report could be acted upon by the House. Medill appealed the Speaker's decision, but the House voted to sustain it. The House then adopted the report of the Committee.
Significantly, with these precedents in place--permitting the Rules Committee to report "in part" and having its report adopted by majority vote--Representative Edward Stanly, N.C., offered the following resolution:
Resolved, That the debate in the Committee of the Whole House on the State of the Union on the bill "to appropriate the proceeds of the sales of public lands and to grant pre-emption rights," from and after seven o'clock this day, shall cease, unless the committee shall report the bill sooner; and that after that hour the committee shall vote on all amendments pending and which may be submitted.(21)
With a talkathon underway in the Committee of the Whole, the majority leadership backed Stanly's resolution as a way to stop debate and bring the bill to a vote in the House. The leader's strategy worked and the bill passed the House that day. Although several decades would pass before majority party leaders regularly utilized the Rules Committee to regulate floor activities, these 1841 decisions represented an important first step in the ability of the Committee to influence floor consideration of a specific bill.
The House again modestly added to Rule's reporting authority at the start of the 33rd Congress (1853). Rules was not only permitted to report at any time but to have its report on the code of rules "acted upon by the House until disposed of, to the exclusion of all other business, anything in the rules hereby temporarily adopted to the contrary notwithstanding."(22) Supporters of this change wanted the Rules Committee to revamp the House's rulebook and then to have the panel's report acted upon, without interruption, on a priority basis. However, this change produced few immediate results. Not until five years later did the Committee gain further prominence when the Speaker became a member and its leader.
The Speaker and the Rules Committee
On June 14, 1858, the final day of the first session of the 35th Congress, Rep. Warren Winslow, N.C., asked and received unanimous consent to introduce the following resolution:
Resolved, That a committee be appointed, consisting of the Speaker and four members, to be named by him, whose duty it shall be to digest the rules of order, to suggest such alterations and amendments as they may deem advisable, and to report the same back to the House for its action at an early day in the next session.(23)
Surprisingly, Speaker James Orr, S.C., appeared reluctant to assume this new responsibility. When Rep. Sherrard Clemens, Va., sought to amend the resolution by striking out references to the Speaker and his appointment power and substituting instead that members of Rules shall be named "by vote of the House," Representative Winslow argued that the amendment was not in order. Speaker Orr responded: "The Chair hopes the gentleman [Clemens] will be indulged in offering the amendment."(24) He was not indulged, however. Instead, the House adopted the unamended resolution by voice vote. The Speaker's initial reluctance to be on Rules seemed to involve "some embarrassment" at naming himself to the panel.(25)
The precise reasons for naming the Speaker to the Rules Committee are not completely known. Two scholars have written: "The only inferences that can fairly be drawn from the action taken at this time are that the House felt that the speaker's parliamentary experience would be valuable in the work of the committee and that such help was needed."(26) A related explanation is that some Members wanted to enhance the Committee's stature so it could initiate a recodification of the House rulebook.
Many legislators were frustrated with the cumbersomeness and ineffectiveness of House rules, which had grown over the years to number more than 150. For example, three months prior to the House's June 14 decision naming the Speaker to Rules, Rep. Thomas Clingman, N.C., observed: "I find, on inquiry this morning, that [the House has] neglected to appoint a committee on rules. I think that, by the amendment of the rules, a little business might be facilitated."(27) Clingman tried, unsuccessfully, to reconstitute the panel. Nonetheless, the formal bond between the Speaker and Rules Committee, which was not severed until the 1910 "revolt" against Speaker Joseph Cannon, R-Ill., inextricably linked the powers of the Committee and the influence of the Speaker. This linkage augmented the authority of both and led to the panel's later establishment as a standing committee under House rules.
Rules Becomes A Standing Committee
Two years after the House named the Speaker to the Rules Committee, the panel reported a major revision of the chamber's rules. This 1860 revision, which the House adopted, largely reorganized the House rulebook by combining related rules, conforming others to established practices, and correcting contradictory provisions.(28) Subsequently, other procedural practices evolved that strengthened Rules' place in the House.
Whereas, in the past, Members had felt free to propose rules changes directly from the floor, they now politely requested that their resolution be reviewed by the Rules Committee. When Members did not follow this procedure, the leadership saw to it that such resolutions were referred to the Committee. It also became commonplace for Members of Rules Committees when presenting committee reports to begin by saying, "I rise to make a privileged report."(29)
Finally, on March 2, 1880, an important change occurred in Rules' status: it became a permanent standing committee. Nine months earlier, the House had directed the Rules Committee (then a select panel) to revise, codify, and simplify the rules of the House. Despite the 1860 general revision, the House's code of rules continued to expand in ad hoc and piecemeal fashion, accommodating Civil War and Reconstruction pressures as well as workload and membership increases. For example, between 1860 and 1880, the number of bills introduced jumped from 400 to 7000.(30) The House's rules, said a Rules member, "are so voluminous , so conflicting, even so crude, as to render it almost impossible for any one to arrive at a clear comprehension of their purpose and scope."(31) As a result the five-member Rules panel, led by Speaker Samuel J. Randall of Pennsylvania, consolidated the 166 House rules into 45 and reorganized them into logical groupings.
The unanimous report of the Committee was submitted to the House on December 19, 1879 where it was made a special order for consideration in the Committee of the Whole commencing on January 6, 1880 and "from day to day thereafter until disposed of." Debated at intervals over a two month period, the House finally adopted the new code in March largely as reported by the Rules members. Importantly, under new Rule X, which addressed the name and size of the standing committees, the Speaker was directed at the start of each Congress to appoint the following standing committee: "On Rules, to consist of five members." Rule XI, which defined the jurisdictional mandate of the various standing committees, stated: "All proposed actions touching the rules and joint rules shall be referred to the Committee on Rules."
An examination of the floor debate on the 1880 general revision reveals that scant attention was paid to Rules' elevation as a standing committee. Perhaps because the select rules panel was composed of experienced and esteemed House leaders, its recommendation "that Rules become a standing committee aroused little discussion."(32) In any event, the change from select to standing committee status underscored that the chamber required a permanent mechanism to ensure that its rules kept "pace with the growing responsibilities of a 'modern' House."(33) Rules' permanence did not instantly transform it into a political- procedural force but the change did significantly contribute to the panel's emergence as one of the House's "power" committees.
Access to the Floor
During this era, the potency of various dilatory tactics loomed large in legislative decision making. One result: the House might never consider legislation even when it wanted to. Access to the floor was largely governed by four procedures or practices: unanimous consent, suspension of the rules, the regular order of business prescribed in the House rulebook, and measures deemed "privileged" under House rules. Problems inhered in each approach, however.
With unanimous consent, a single objection blocked floor consideration of legislation. To suspend the rules and make a certain bill a "special order" required a two-thirds vote. Needless to say, this sort of supermajority is not easy to attract. The regular order, set forth in House rules and precedents, outlined the daily agenda of floor activities; for instance, it designated specific days of the month for the consideration of certain business, such as measures dealing with the District of Columbia.(34)
However, the regular order provided no guarantee that important bills would reach the floor. For instance, measures reported from the various standing committees were assigned in their chronological order to the appropriate calendar of business. They had to await their turn for possible floor action. Significant measures might never reach the floor before Congress's final adjournment because of their place on the calendar behind many earlier-reported bills. In short, the usual routes to the floor did not insure consideration of priority legislation deemed important to either a partisan or bipartisan majority.
A narrow category of legislation was deemed "privileged" under House rules, such as revenue and appropriation bills. They enjoyed a right-of-way to the floor because of their critical role in supporting governmental operations. Some things, wrote Speaker Thomas Reed of Maine, simply have to be done.
[U]nder the rules of the House, the Committee on Ways and Means having charge of bills raising revenue, and the Committee on Appropriations obliged to provide for the expenditure of revenue, have a right of way which is...complete. Whenever the House desires to take up such bills there is neither let nor hindrance. The country, therefore, can be sure that its necessities are provided for.(35)
Bills granted privileged status remain few in number because the House resists broad application of this special designation.
"Besides these pressing necessities [revenue and appropriation bills] which cannot he denied [floor consideration]," said Speaker Reed, "there are others which ought not to be denied."(36) The dilemma for a time was how to get the "ought" bills (unprivileged general interest legislation) to the floor in a timely fashion. Here is where the Speaker-led Rules Committee exercised its creative procedural capacities by devising special orders or rules.
Special orders or rules (the terms may be used interchangeably) are reports from the Committee on Rules that, if adopted by the House, provide for the consideration of a given bill at a specific time.(37) Previously, special orders for the consideration of a bill were often made by unanimous consent or suspension of the rules. The Rules Committee, however, simply assumed the right to report special orders, a change that represents a major milestone in the panel's development.
The Rise of Special Orders
In 1883, the House "first began the practice of making a special order by majority vote on a report from the Committee on Rules."(38) The groundwork for this major development was laid the previous year. The specific case involved a contested election contest to be decided in a chamber narrowly controlled by Republicans. The Democrats, anticipating the rejection of their candidate's claims, launched a filibuster to prevent the Republican from being seated. (In the period from 1800 to 1907, "only 3 of the 382 'contests' were resolved in favor of the candidates of the minority party.")(39)
On May 20, 1882, the battle between the parties was joined. For the next several days, Democrats employed numerous dilatory tactics, especially the "disappearing quorum," to prevent House action. The disappearing quorum meant that Members refused to vote even though they were physically present in the chamber. The legitimacy of this tactic rested on Article I, Section 5 of the Constitution. It states that a "majority of the House shall constitute a quorum to do business." Early Speakers determined that a quorum in the House is half the membership plus one. They further determined that quorums were established by Members' roll call votes on issues rather than simply their presence on the floor. As one Speaker said in 1875: "The moment you clothe your Speaker with the power to go behind your roll call and assume that there is a quorum in the Hall, why gentlemen, you stand on the very brink of a volcano."(40) Thus, if a roll call showed 126 yeas, 7 nays, and 152 not voting, there was no quorum to conduct official business. Silence, in short, insured stalemate.
Absent a quorum, two motions were then in order: to adjourn or to have a call of the House. Often, a call of the House would demonstrate the presence of a quorum. Then another roll call vote on the issue revealed the lack of a quorum. Another call of the House showed the presence of a quorum; then another roll call vote showed the absence of a quorum; and on and on and on in this manner. Sometimes the disappearing quorum produced humorous results, as this exchange on another topic reveals.
Mr. Schleicher moved that all further proceedings under the call be dispensed with.
The Speaker Pro Tempore. The Chair is informed by the Clerk that the gentleman from Texas [Mr. Schleicher] is "not present" according to the rollcall. [Great laughter.]
Mr. Schleicher. I was present, although my name may not appear upon the list.
The Speaker Pro Tempore. The Chair knows nothing except the official record, which shows that the gentleman is "not present."
Mr. Springer. I ask unanimous consent that the gentleman be considered as present.
Mr. Page . I object. [Laughter](41)
GOP frustration mounted in the House. Unable to attract a voting quorum because of absentees, Republicans could not overcome the blocking actions of the Democrats and bring the contested election case to the floor. Democrats, said a Republican, sat "like a set of mules with their haunches on the breech strap wagging their ears instead of answering their names."(42) Republican legislators referred to House rules that required Members to vote. They cited House Rule VIII: "Every member ... shall vote on each question put unless ... he shall be ... excused, or unless he has a direct personal or pecuniary interest in the event of such question." A Democratic leader, Joseph Blackburn, Ky., responded to Republican charges that his partisan colleagues were in violation of House rules. "Every member of this House," said Blackburn, "will determine for himself whether he shall vote or refrain from voting upon such questions as may be presented here."(43) The dilatory tactics of the minority party thus paralyzed the House.
To break the filibuster required the ingenuity of the Rules Committee, especially the GOP member on Rules from Maine (and soon to be Speaker), Thomas Reed. As soon as the House convened on May 27, 1882, Speaker Warren Kiefer, R-Ohio, recognized Reed to submit a privileged report from the Rules Committee amending House rules to restrict dilatory motions on any question involving a lawmaker's constitutional right to a seat. Instantly, a Democrat (John Kenna, W. Va.) moved that the House take a recess. The Speaker declared that "the gentleman cannot interrupt a privileged report to make that [recess] motion." Kenna then raised a point of order and argued that a motion to recess is of higher privilege than a report from the Rules Committee. The Speaker overruled the point of order, but Kenna appealed that decision. The Speaker declined to entertain the appeal: "The gentleman cannot have an appeal from the decision of the Chair pending the submission of a privileged report."(44) With the report's formal submission to the House, Democrats launched another round of stalling tactics that led to the chamber's adjournment.
At the next House session, Reed called up the privileged report for immediate action, but Democrats again began to stall its consideration. Reed then tried a new tactic. He raised a point of order "that upon a proposition that the House changed its rules dilatory motions [a motion to adjourn was then pending before the House] cannot be entertained by the Chair."(45) For the next several hours, the House vigorously debated Reed's point of order. Democrats railed against "an irresponsible, maddened, and unlicenced majority" that sought to deprive the minority party of its rights under House rules.(46) The tyranny of the majority, answered Republicans, "is not half as odious as that which comes from a minority."(47) In the end, the Speaker sided with Reed and held that the motion to adjourn was indeed dilatory; the House then adopted the report of the Rules Committee amending House rules to limit the dilatory use of motions to adjourn and recess.
Scholar and former House member DeAlva Stanwood Alexander declared this result "a great victory since it enabled the Committee on Rules to have its reports promptly adopted."(48) The outcome also enhanced Reed's leadership role in the chamber. The victory had even broader implications. If privileged reports from the Rules Committee could expedite House consideration of constitutional matters (such as contested elections), "what was to prevent the majority from resorting to the same tactics in ordinary matters?"(49) The answer: nothing. In fact, the stage was now set for the acceleration of majority governance in the House.
On February 24, 1883, a crucial step occurred in the development of the Committee's fundamental power: the reporting of special orders, or "rules," that establish the times, methods, and procedures by which the House may take up particular legislation by majority vote rather then suspension of the rules (with its two-thirds requirements) or unanimous consent. On that date, Rules member Reed presented to the House a privileged report from the Committee that ostensibly amended House rules. Reed asked that the report be printed in the Record and requested that no other action occur on it. The report stated:
During the remainder of this session it shall be in order at any time to suspend the rules, which motion shall be decided by a majority vote, to take from the Speaker's table House bill No. 5538, with the Senate amendment thereto, entitled "A bill to reduce internal-revenue taxation," and to declare a disagreement with the Senate amendment to the same, and to ask for a committee of conference thereon, to be composed of five members on the part of the House. If such motion shall fail, the bill shall remain upon the Speaker's table unaffected by the decision of the House upon said motion.(50)
To set the stage for the legislative battle that occurred a few days later when Reed's report was adopted, it is necessary to first outline the political climate of the time, which gave rise to the special order innovation.(51) Three circumstances are worth noting. First, when Reed introduced the special order, the second session of the 47th Congress had only a few weeks to go before it expired on March 3, 1883.(52) Significantly, the congressional elections of 1882 gave Democrats control of the upcoming 48th Congress. Second, the tariff question (the substantive topic addressed by Reed's report) was a hot partisan issue. Democrats wanted to block any GOP-sponsored tariff initiative until they took charge of the House. Finally, the GOP-controlled Senate had passed a major tariff revision on June 27, 1882, by amending a relatively minor House passed revenue bill (the aforementioned H.R. 5538). The Senate returned this legislative package to the House where "it lay on the Speaker's table with every prospect that March 3 would find it still on that very spot."(53) That, however, was not to be the case.
Reed recognized that Democratic filibustering tactics so late in the session doomed any chance for separate House action on another tariff bill. But there on the Speaker's table lay the Senate's tariff plan, which might be enacted into law if it could get to the conference committee stage. A large parliamentary hurdle confronted Reed: his party lacked the two-thirds vote to suspend the rules and take H.R. 5538 with the Senate's tariff amendments from the table, thereby sending the package to conference. To overcome this hurdle Reed decided to employ the same parliamentary strategy that he used during the earlier contested election case. He submitted a special order from the Rules Committee that suspended the rules by majority vote and authorized a conference with the Senate.
On February 26, 1883, Reed called up for the House's consideration the privileged report that he introduced two days earlier. A Democratic lawmaker immediately challenged its consideration by the House. Accordingly, the Speaker asked: "Will the House now proceed to consider the rule [the report of the Rules Committee] just read?"(54) His question was decided in the affirmative by a 134 to 126 vote. Another Democratic member then moved to adjourn the House. This motion was rejected. Still another Democrat raised a point of order against the report of the Rules Committee on the ground that "it does not constitute and is not a rule" because the special order addresses only a "separate, distinct, specific measure" and not the general system of House rules.(55) The Speaker overruled the point of order and, on appeal, was sustained by majority vote of the House.
Subsequently, both parties vigorously debated the special order. Democrats called it "a most monstrous proposition," a "fraud," an "outrage," a "crime," and even a "revolutionary act." Reed admitted that the proceedings were unusual and that "unless there was a great emergency I should not be in favor of the passage of this rule."(56) The country expected a revision of the tariff, said Reed, but given the "systematic course of determined obstruction" by the Democrats, there was no other way to accomplish that result except to adopt the special order proposed by the Rules Committee.
The minority party nearly defeated the Reed-led effort through use of the disappearing quorum. When the special order was finally voted upon, the result showed 120 yeas, 20 nays, and 151 not voting. A Democratic member raised the point of order that a quorum (a majority of the House) had not voted even though over 250 Members were physically present on the floor. The House adjourned for lack of a quorum. The next day (February 27, 1883) Reed's special order was adopted (129 yeas, 22 nays, and 140 not voting).(57) That the 47th Congress enacted tariff legislation (which President Chester Arthur signed into law) during its final days can be largely credited to the procedural role of the Rules Committee.
After the adoption of this special order, wrote DeAlva Stanwood Alexander, the Committee on Rules "began to fill the public eye."(58) The Committee's heightened visibility was probably attributable more to the Speaker's 1883 appointment to Rules of the chairman of two powerful committees (Appropriations and Ways and Means) than to the panel's procedural innovation. Rule's composition thus consolidated in one committee the Speaker's influence over the floor, the purse-strings, and the revenues.
Despite recognition of the Committee's rule-granting authority, the special order "was still regarded as a procedure of doubtful validity."(59) This perception evolved from the procedure's initial purpose: to overcome minority filibusters. "The spirit of the special order [from the Rules Committee] is to prevent dilatory motions," declared Speaker Charles Crisp, D-Ga.(60) Given the House's general deference to minority rights and the "newness" of the special order innovation, it is no wonder that the principal avenues to the floor remained unanimous consent, suspension of the rules, and the regular order of business prescribed by the formal rulebook.
Things soon changed, however. Since 1890, wrote the first House Parliamentarian (Asher Hinds), House adoption of special orders reported from the Rules Committee has been "in favor as an efficient means for bringing up for consideration bills difficult to reach in the regular order and especially as a means for confining within specified limits the consideration of bills involving important policies for which the majority party . . . may be responsible."(61) Hinds also noted that special orders were generally employed only when the ordinary methods of bringing legislation to the floor, such as suspension of the rules, were unsatisfactory or produced unwanted delay.
The Rules Committee report on the 1890 revision of House rules said: "In clause 44 the words 'an order of business' have been inserted. A strict construction of the old rule would limit the Committee on Rules to reporting as privileged questions only propositions relating to the rules and joint rules and exclude resolutions relating to the order of business, although it has been held that the adoption of such resolutions would be pro tanto a change of the rules. The change proposed merely incorporates into the rule the recent practice of the House."(62) 1890 also saw Rules gain formal jurisdiction over the House's "order of business." This change occurred as a result of an historic overhaul of the House rulebook. Initiated by GOP Speaker Thomas Reed of Maine (1889-1891, 1895-1897), who was determined to end minority obstructionism, the 1890 overhaul emphasized majority rule over minority rights.
The Reed Rules
When Thomas B. Reed, R-Maine, was elected Speaker on December 2, 1889 (the 51st Congress), his party held a slim seven-seat majority. Despite the narrowness of party control, Speaker Reed moved quickly to implement one of the themes of the 1888 campaign: reforming House procedures and operations. He had two fundamental objectives: end the disappearing quorum and curtail dilatory motions. The stress on majority rule was clearly the direction of change. As Speaker Reed wrote:
Our government is founded on the doctrine that if 100 citizens think one way and 101 think the other, the 101 are right. It is the old doctrine that the majority must govern. Indeed, you have no choice. If the majority do not govern, the minority will; and if the tyranny of the majority is hard, the tyranny of the minority is simply unendurable. The rules, then, ought to be arranged as to facilitate the action of the majority.(63)
In fulfilling the "rearrangement" pledge, Reed's legacy to the House was a set of rules which give preeminence to the principle of majority governance.
When the 51st Congress began, Speaker Reed directed the Rules Committee not to report a revised code of rules until the contested election cases were decided. He employed general parliamentary law in the interim to govern House business. It was a contested election case that gave Speaker Reed his opportunity to end the disappearing quorum.
The practice was shattered on January 29, 1890. On that day a resolution was brought to the House floor that concerned who should be seated from the Fourth District of West Virginia: James M. Jackson, the Democrat, or Charles B. Smith, the Republican. Speaker Reed put this question to the Members: "Will the House consider the resolution?"
The yeas and nays were demanded with this result: 162 yeas, 3 nays, and 163 not voting. Democrats, led by Charles Crisp (who succeeded Reed as Speaker in the next two Congresses), then declared that the absence of a quorum--a quorum was 179--prevented the House from making decisions. But Speaker Reed directed the Clerk to record as present but not voting a sufficient number of Members to constitute an official quorum for the transaction of legislative business.
Immediately, Reed's action produced an uproar in the House that lasted several days. "Tyranny," "scandal," and "revolution" were some of the words used to describe Reed's action. Democrats "foamed with rage," wrote historian Barbara Tuchman.
A hundred of them were on their feet howling for recognition. 'Fighting Joe' Wheeler, the diminutive former Confederate cavalry general, unable to reach the front because of the crowded aisles, came down from the rear leaping from desk to desk as an ibex leaps from crag to crag. As the excitement grew wilder, the only Democrat not on his feet was a huge representative from Texas who sat in his seat significantly whetting a bowie knife on his boot.(64)
Speaker Reed remained firm in the face of this parliamentary tumult and angry debate. He continued to count nonvoting legislators for quorum purposes. Reed even ordered the doors of the chamber locked when Democrats tried to exit. Finally, after five days of stridency, the contested election case was taken up and Republican Smith emerged the victor by a vote of 166 yeas, 0 nays, and 162 not voting. Then, on February 6, 1890, the Reed-led Rules Committee reported a new set of House rules. One of the new rules--Rule 15--established a new procedure for determining quorums (counting lawmakers in the chamber who had voted as well as those who did not vote); another new rule--Rule 16--stated: "No dilatory motion shall be entertained by the Speaker." Other important procedural changes involved reducing to 100 the quorum required to conduct business in the Committee of the Whole; granting the Speaker the right to refer measures to committee without debate; and recognizing formally that rules from the Rules Committee are to be adopted by simple majority vote. Eight days later, on February 14, 1890, the House adopted the "Reed Rules." Plainly, the thrust of these changes was to strengthen the authority of the majority party leadership at the expense of rank-and-file members and minority partisans.
The 51st Congress (1889-1891) proved to be one of the most partisan and productive of that era. Speaker Reed mobilized majorities to pass more than 600 public bills. Needless to say, Reed dominated the Rules Committee. According to one account, the Speaker would inform the two Democrats on the panel that he, William McKinley, R-Ohio (soon to be President), and Joseph Cannon, R-Ill. (soon to be Speaker), "have decided to perpetuate the following outrage." Then he would read and give the two Democrats "a copy of whatever special order had been adopted by the majority of the committee."(65) The Rules Committee, Reed said, must "arrange the order of business and decide how and in what way certain measures shall be considered."(66)
Like many speakers that came after him, Reed employed the Rules Committee to accomplish his partisan and policy objectives. Worth noting is that Democrats won control of the House in the election of 1890, and Speaker Crisp returned to the former practice of not counting lawmakers who were present but who did not vote. Minority Leader Reed led several GOP filibusters against Democratic measures, and soon Speaker Crisp supported a rules change which ended the silent quorum tactic once and for all. Speaker Crisp, too, expanded Rule's authority to govern the House's agenda. He ruled that "the question of consideration could [not] be raised against a report from the Committee on Rules."(67)
In 1895, Reed returned to the speakership. However, in a dispute with President William McKinley, Reed resigned from the House in 1899. David Henderson, R-Iowa, succeeded Reed as Speaker and served four years before retiring from the House. The election of Joseph Cannon, R-Ill., as Speaker in 1903 eventually led to the dramatic 1910 House "revolt" against his arbitrary and heavy-handed use of procedures, including the Rules Committee, to obstruct the House's will.
In sum, Reed riveted into House procedure the principle of majority governance. For Reed this meant party government and he utilized his position on the Rules Committee and as Speaker to facilitate that goal. As Reed once said: "The best system is to have one party govern and the other party watch; and on general principles I think it would be better for us to govern and for the Democrats to watch."(68) More generally, Reed argued that accountability and efficiency in lawmaking were paramount values in the conduct of the public's business. "When a legislative body makes rules," he wrote, "it does not make them as the people make constitutions, to limit power and provide for rights. They are made to facilitate the orderly and safe conduct of business."(69) The determination of what constitutes "orderly and safe conduct" remains to this day a fundamental assignment of the Rules Committee.
1. House Republican Leader Robert H. Michel, "Dear Republican Colleague" Letter, October 26, 1984, p. 8.
2. Quoted in Matsunaga, Spark M. and Ping Chen. Rulemakers of the House. Urbana, Ill., University of Illinois Press, 1976. P. 3.
4. O'Neill, Thomas P. Man of the House. New York, St. Martin's Press, 1987. p.158.
5. Rasky, Susan F. The Speaker of the House: Everyone Has Something to Say About Wright. New York Times, Dec. 18, 1987: A34.
6. Barry, John M. "The Man of the House," New York Times Magazine, Nov. 23, 1986: 109.
7. New York Times, April 2, 1995: 20.
8. Annals of Congress, v. 1, April 2, 1789. p. 101.
9. Ibid., April 7, 1789, p. 102-106. On April 13 and 14, 1789, the select rules panel reported additional rules, which the House agreed to.
10. Alexander, DeAlva Stanwood. History and Procedure of the House of Representatives. Boston, Houghton, Mifflin Co., 1916. P. 182.
11. Ibid., April 7, 1789. p. 102-106. On April 13 and 14, 1789, the select rules panel reported additional rules, which the House agreed to.
12. Alexander, History and Procedure of the House of Representatives, p. 182.
13. Annals of Congress. v. 12, Feb. 21, 1803. p. 580.
14. See Bach, Stanley. Suspension of the Rules, the Order of Business, and the Development of Congressional Procedure. Legislative Studies Quarterly, Feb. 1990. p. 49-63.
15. See Fisher, Louis. The Authorization-Appropriation Process in Congress: Formal Rules and Informal Practices. Catholic University Law Review, Fall 1979. P. 54-55.
16. Damon, Richard Everett. The Standing Rules of the U.S. House of Representatives. Unpublished Ph.D. Dissertation. Columbia University, 1971. P. 195. For an early discussion of freedom of debate in the House, see Annals of Congress, v. 23, Dec. 23, 1811. P. 570-581.
17. Alexander, History and Procedure of the House of Representatives, p. 191.
18. Congressional Globe, v. 9, June 16, 1841. p. 63. For further discussion of the gag rule, see Rable, George C. Slavery, Politics, and the South: The Gag Rule As A Case Study. Capitol Studies, Fall 1975. P. 69-87 and Richards, Leonard L. The Life and Times of Congressman John Quincy Adams. New York, Oxford University Press, 1986.
19. See Congressional Globe, June 18, 1841. p. 72-73.
21. Congressional Globe, July 6, 1841. p. 155. Also see Alexander, History and Procedure of the House of Representatives, p. 191-192..
22. Congressional Globe, December 5, 1853, p. 2.
23. Congressional Globe, v. 27, June 14, 1858. p. 3048.
25. Follett, Mary P. The Speaker of the House of Representatives. New York, Longmans Green, 1902. p. 274. It is worth noting that from 1789 to 1911 the Speaker made all committee assignments, including those to the Committee on Rules.
26. Atkinson, C.R. and C.A. Beard. The Syndication of the Speakership. Political Science Quarterly, Sept. 1911. p. 384.
27. Congressional Globe, v. 27, March 8, 1858. p. 990. When the 35th Congress convened (Dec. 7, 1857), the membership simply readopted the rules of the last House without change. Rep. Clingman attempted unsuccessfully to change one of the House rules dealing with the call of committees during the morning hour. One committee (Public Lands), he said, "got the floor and held it" for entire sessions. His change provided that "whenever any committee shall have occupied the morning hour on two days, it shall not be in order for such committee to report further until the other committees shall have been called in their turn."
28. Alexander, History and Procedure of the House of Representatives, p. 192.
29. U.S. Congress. House. Committee on Rules. A History of the Committee on Rules. Committee print, 97th Cong., 2d Sess. Washington, U.S. Govt. Print. Off., 1983. p. 48 (Hereafter cited as House Committee on Rules, A History).
30. Alexander, History and Procedure of the House of Representatives, p. 217.
31. Congressional Record, v. 9, June 25, 1879. p. 2328.
32. House Committee on Rules, A History. p. 57.
33. House Committee on Rules, A History. p. 56.
34. There were, to be sure, permissible interruptions of the regular order, such as the consideration of conference reports or presidential vetoes.
35. Reed, T.B. How the House Does Business. North American Review, June 1897. p. 644. The concept of "privilege" has been defined this way: "An exact definition of the parliamentary meaning of the word 'privilege' cannot easily be given. It is sufficient, however, to bear in mind that the Rules or customs of the House accord this quality to certain specified classes of questions, and that matters so endowed take precedence of everything else except other business with which Rules or custom invests an equal or higher privilege." Se Gardner, A.P. The Rules of the House of Representatives. North American Review, February 1909. p. 234.
37. Contemporary usage favors rules or special rules. Today, special orders commonly refer to the period at the end of the House's daily session when Members reserve an hour to discuss topics of their choosing.
38. Hinds' Precedents of the House of Representatives. Vol. IV. p. 210. A year earlier, on March 1 and 8, 1882, Rules member Thomas Reed of Maine reported from the Committee a House rules change that would permit the membership "by majority vote to secure prompt consideration of business regardless of its place on the calendars." Robinson, William A. Thomas B. Reed: Parliamentarian, New York, Dodd, Mead and Co., 1930. p. 85. Also see Congressional Record, v. 52, March 1 and 8, 1882. p. 1539; p. 1718. These proposals were not acted upon by the House.
39. Price, H. Douglas. The Congressional Career -Then and Now. In Polsby, Nelson, ed. Congressional Behavior. New York, Random House, 1971. p. 19.
40. Congressional Record, v. , Feb. 24, 1875. p. 1734. Various historians of the House contend that this practice began in 1832 when Representative John Quincy Adams, former Senator, Secretary of State, and President of the United States, refused to vote on a pending measure. His action set a precedent that lasted to 1890. Representative Roger Q. Mills, D-Tex., gave this account: "In 1832 a resolution was submitted by Mr. Bates, of Maine, to censure Mr. Stanberry, of Ohio. Ex-President John Quincy Adams, who was then a member of the House, asked to be excused from voting on it. The House refused to excuse him, and Mr. Adams sat still when his name was called and refused to vote. Resolutions were offered and debated; inquiries were set on foot to discover the way to enforce the rule that required every member to vote; but it all resulted in sound and fury signifying nothing. They had 'led the horse to water, but could not make him drink.' The House, finding it beyond the power of a majority to compel the vote of a minority of one, dropped the whole subject, or, rather, laid it all on the table." See Mills, Roger Q. Republican Tactics in the House. North American Review, Nov. 1889. pp. 669-670.
41. Congressional Record, v. 4, Aug. 7, 1876. p. 5265.
42. Robinson, Thomas B. Reed: Parliamentarian, p. 86.
43. Congressional Record, v. 13, May 26, 1882. p. 4269.
44. Ibid., May 27, 1882. p. 4278.
45. Ibid., May 29, 1882, p. 4305.
46. Ibid., p. 4314.
47. Ibid., p. 4322.
48. Alexander, History and Procedure of the House of Representatives, p. 202.
49. Robinson, Thomas B. Reed: Parliamentarian. New York, Dodd, Mead and Co., 1930. p. 89.
50. Congressional Record, v. 14, Feb. 24, 1883. p. 3259.
51. Alexander discussed a short-lived experiment with special orders. See Alexander, History and Procedure of the House of Representatives, p. 191-192.
52. The 20th Amendment to the Constitution, which was ratified in 1933, changed the beginning and ending terms of a Congress from March 4 of oddnumbered years to January 3 of odd-numbered years.
53. Robinson, Thomas B. Reed: Parliamentarian. p. 93.
54. Congressional Record, v. 14, Feb. 26, 1883. p. 3305.
55. Ibid., p. 3307-3308. Speaker Warren Kiefer, R-Ohio, declared in part that a "rule might have been reported from the committee, and properly, which would suspend or repeal or annul or set aside every rule of this House, standing or special; and if the House so decided to affirm that report by a majority vote it could do so."
56. Ibid., p. 3317.
57. Ibid., Feb. 27, 1883. p. 3335. Another controversy associated with this case involved the origination clause of the Constitution. Some House members charged that the Senate had violated the Constitution because of the nature of its amendments to H.R. 5538. See Congressional Record, v. 14, Feb. 27, 1883. p. 3336-3350.
58. Alexander, History and Procedure of the House of Representatives, p. 204.
59. Hinds' Precedents of the House of Representatives. Vol. IV. p. 192. More specifically, Hinds' Precedents states that "the method of adopting a special order by majority vote after a report from the Committee on Rules" remained a procedure of doubtful validity in 1887 but "in the next two or three years grew in favor."
60. U.S. Congress. House. Cannon's Procedure in the House of Representatives. House Document No. 122, 86th Cong., lst Sess., Washington, U.S. Govt. Print. Off., 1959. p. 410.
61. Hinds' Precedents of the House of Representatives, Vol. IV, p. 192.
62. See Congressional Record, v. 21, February 7, 1890, p. 1150.
63. Reed, Thomas B. Rules of the House of Representatives The Century Illustrated Monthly Magazine. March 1889: 794-795.
64. Tuchman, Barbara. The Proud Tower: A Portrait of the World Before the War, 1890-1914. New York, Macmillan, 1966. p. 127. In 1892, the U.S. Supreme Court upheld a Democratic challenge to the new quorum-counting rule (U.S. v. Ballin, 144 U.S. 1).
65. Robinson. Thomas B. Reed. p. 273.
66. Ibid. p. 274.
67. Fuller, Herbert B. The Speakers of the House. Boston, Little, Brown, and Co., 1909. p. 244.
68. Congressional Record, April 22, 1880, p. 2661.
69. Quoted in Randall Strahan, Thomas Brackett Reed and the Rise of Party Government. In Davidson, Roger, et. al., eds., Masters of the House: Congressional Leadership Over Two Centuries. Boulder, Colo.: Westview Press, 1998. p. 51.