The House Rules Should be Publicly Available in Advance of Their Adoption

At the start of the 115th Congress, there was a fight over whether the Office of Congressional Ethics should continue its existence. 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 rules of the House of Representatives, which are adopted on the first day of the new Congress. The House Rules are contained in a simple resolution, and that resolution usually is released to the public at most 24 hours before the vote, and sometimes with even less notice. At the start of the 115th Congress, the Republican Conference did not finalize the proposed rules until the night before they were to be considered by the House, and the full text didn’t leak out in full until the day of the vote.

More or less, this is the general practice of both parties, which is neither transparent nor helpful to the deliberative process. And yet, bills and joint resolutions were publicly available online for 3 days in advance of when they were voted on, just as the House rules require. What was going on?

As a matter of policy, the House Republicans pushed forward a 72-hour rule by which legislation should be available to the public before a final vote on the floor. Here is then-Speaker Boehner making the case for its adoption.

Here’s the 72-hour rule was put into text, as descried in the House Republican document “A Pledge To America.”

We will give all Representatives and citizens at least three days to read the bill before a vote. (emphasis added)

As it turns out, there are many different 3 days rules that apply 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)), Special Rules (Rule XIII, Clause 6(a)). (This CRS Report explains the 3-day rule.)

In addition, it’s not a 72-hour rule, as is generally understood, but has been implemented as a 3 legislative day rule, which can be considerably shorter. In some instances, barely 24 hours.

Even so, as the rules from the prior Congress have expired, and new rules for the House has not been adopted, what rules existed at the start of the 115th Congress that could require legislation be made publicly available prior to a vote?

A clue is found in House Rule XXIX, clause 1. It states:

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 of Representatives has (in effect) an underlying set of parliamentary practices that constitute a common law of sorts that apply even when the House has not adopted new rules. That would explain why so many other bills and joint resolutions were published three days in advance of the start of the new Congress. And House Rule XXIX clause (3) explains why those bills were available online:

3. 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.

But, if all of that’s true, why were the House Rules not available in advance?

As it turns out, there is no House rule that requires simple resolutions to be made available to the public in advance of a vote. That long list of provisions that require pre-publication does not include simple resolutions.

Simple resolutions include things like a statement honoring someone’s life, but they are also 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.

Even so, this violates the pledge by House Republicans. As we saw, the Rules of the House of Representatives establish policy, not just handle administrative matters or make statements about one matter or another. The proposed abolition of the Office of Congressional Ethics was a big deal, and required at least a minimum of notice and debate.

At least in the case of the House Rules, the resolution that would put them into effect should be available to all members of Congress and to the public 3 days in advance. They should be treated like all the bills and joint resolutions that were made publicly available in advance of the start of the new Congress.