Note 20. House Special Rules
Majority Control of the Floor Agenda
There are few topics as important as this one for understanding policy making in the House. At issue is the ability of a House majority party to control the floor agenda.
Keen observers of House politics will spend time at the hearings of the Committee on Rules where contending policy perspectives are rehearsed, the desirability of amendments to all important bills is debated, and the interests of the parties, factions, and committees are exposed. A Rules hearing ends with approval of a “special rule” that clears the way for House consideration of a bill and sets the terms of debate and amendments. A resolution embodying the special rule must be approved by a majority of the House.
The importance of special rules is that they are a means for setting aside standing rules governing floor activity and customizing floor procedures for a specific measure. A special rule may waive or supplant the standing rules governing the order in which legislation is considered and the debate and amendments. A special rule may provide for floor consideration of a bill not reported from a standing committee, make one action dependent on another action, provide for action on two or more measures, or even merge two bills.
If a bill is not controversial and of modest importance, it is likely to go to the floor under “suspension.” A motion to “suspend the rule and pass [bill number]” or, in the case the bill was amended in committee, to “suspend the rule and pass [bill number]as amended” is debatable for only 40 minutes (20 minutes for each side) and no amendments may be offered. A two-thirds majority is required to pass a suspension motion, although about three fourths of suspension motions are approved on a voice vote.
I will end this Note with a recent episode in which a special rule authorized the use of a motion to suspend for multiple bundled bills while providing for the consideration three important measures with no amendments allowed. The episode illustrates the creativity exhibited by House majority parties in designing special rules that protect their political interests. Examples of special rules are appended to this Note.
Some Background
In the 19th century, the House used its system of calendars for creating an “order of business” to determine the floor agenda and eventually designating some types of measures as “privileged” and thus in order at any time. The order of business was altered more than a few times to adjust to a rising workload and other new circumstances. Eventually, the Committee on Rules was given authority to report resolutions, at first called “special orders,” the pulled bills off the calendars for immediate consideration on the House floor. The speaker appointed and chaired the committee and so gained a control over the floor agenda. For the first time in 1883, the Rules resolutions did more than merely bring bills to the floor by including provisions that waive or supercede standing rules governing debate and amending activity for individual bills. The term “rule” and eventually “special rule” came to replace “special order” as the label for Rules resolutions providing for floor action.[1]
Since 1973, the speaker has appointed the majority party members of the Rules Committee and so controls the writing of special rules. The majority leader usually takes the lead in scheduling more routine legislation, which is usually taken up under a motion to suspend the rules.
The long-term trend is for more legislation to be considered either under suspension of the rules or under special rules that bar all amendments, known as closed rules. In either case, suspension or closed rule, no amendments are allowed. In the 1970s and 1980s, about a third of legislation was considered under suspension, but in the last seven Congresses (2007-2020), the percent of all bills considered on the House floor under suspension varied from 53 to 78. Of course, the most important legislation often is considered in large omnibus or reconciliation measures, which reduces the number of measures brought to the floor by other methods.
The details of special rules warrant closer examination.
Trends in Special Rules
Partisan interests placed Rules Committee appointments in 1973, led to more restrictive rules in 1979, and encouraged more creativity in designing special rules in the decades since then. Barbara Sinclair’s Majority Leadership in the U.S. House (1983), Stanley Bach’s book with me, Managing Uncertainty in the House of Representatives: Adaptation and Innovation in Special Rules (1988), and my Call to Order: Floor Politics in the House and Senate (1989) tell important parts of the story. By the early 1990s, special rules that limited or fully barred amendments were the most common types. Restrictions on amendments have become even more common since then.
Categories for special rules vary somewhat from one study to another, but I will report counts for several types of special rules that Don Wolfensberger of the Bipartisan Policy Institute. Don was a Republican staff member for 38 years, eventually serving as chief of staff for the Rules Committee. He is the most reliable source for coding the content of special rules, which he has continued since leaving the service of the House in the late 1990s. I am thankful for Don’s expertise, friendship, and his willingness to keep us informed.
Let’s define open, structured, and closed rules.
Open rules allow floor amendments under the standing rules and precedents of the House. In general, germane amendments to specific provisions of a bill are allowed. Actually, most open rules are “modified open” rules that add requirements like advance submission of amendments to be printed in a report accompanying a rule, a limit on debate on each amendment, and barring amendments to those amendments.
Structured rules allow some but not all amendments, which often are listed in the rule or accompanying report. The number of amendments may be just one or two but more commonly is ten or more.
Closed rules permit no amendments.
Special rules of all kinds usually limit debate and waive standing rules that are contrary to the provisions of the special rules.
Wolfensberger’s count for recent Congresses is provided in Figure 20-1. Closed rules, once the least common type of rule, became the most common. Majority party leadership has become increasingly protective of the legislation they bring to the floor. At times, this reflects a desire to protect delicate compromises, often made within the majority party, from being put at risk on the floor. Most of the time this reflects a desire to limit the ability of the minority party to highlight issues and force votes that might cause discomfort for the majority party.
Fully open rules—allowing floor amendments as anticipated by the standing rules—have nearly disappeared. At the time of this writing in mid-2021, there have been no open rules since 2016. The majority party leadership and its Rules Committee surrogates simply do not leave anything to chance in recent Congresses.
The story is more complicated. Special rules can supersede the standing rules and can be used to expedite decisions and limit the opportunities for obstacles to arise. For example, a “self-executing rule” is a rule that provides that an amendment is considered adopted upon the adoption of the special rule. This is often a part of a closed rule, thereby allowing an amendment favored by the majority party leadership to be incorporated in a measure without subjecting that amendment to separate debate and a vote. Self-executing rules have been quite common for some time but have become ever-so-much more common as the number of closed rules has increased (Figure 20-2).
Another example: Nearly a third of special rules in recent Congresses pulled legislation out of committee before a committee voted to report it to the floor (Figure 20-2). That is, before members of a committee—including the minority party members of the committee—acted on a measure, the majority party leadership decided to have the House act on the bill. It is not a stretch to say that the scheduling and political needs of the party are valued far more than the contributions of minority committee members that might be made during committee markups.
The Motion to Recommit with Instructions is Gone
Until 2021, the House rules allowed a “motion to recommit with instructions” to be offered before a bill came to a final vote. The “instructions” would be to amend the bill in a specific way, thereby guaranteeing the minority a last opportunity to amend a bill before it was passed. In the 116th Congress (2019-2020), Republicans used the motion to recommit with instructions to successfully amend a bill eight times, much to the frustration of Democratic leaders. At the start of the next Congress, Democrats removed the right to include instructions in a motion to recommit from House rules, leaving just a motion to recommit—that is, to send a bill back to committee. In 2023, the new Republican majority left in place the motion to recommit (without instructions).
The effect, quite obviously, is to eliminate the only guarantee of a minority’s right to offer an amendment. Some Democrats wanted to drop the motion to recommit altogether, arguing that it was an unnecessary step because a motion to pass that comes next and fails would have the same effect. Republicans, it will be no surprise, insisted that preserving one amending opportunity for the minority party was fair and essential to a deliberative body. Democrats won on the issue.
Move and Countermove: Suspension and Special Rules
In early March 2021, several members of the Freedom Caucus, the organization of the most conservative House Republicans, demanded debate and roll-call votes on 13 noncontroversial bills that typically are approved by voice vote on a motion to suspend and pass each bill. This move could require the House to debate each measure for up to 40 minutes and spend 15 minutes on a vote on the motion to suspend. The move surprised the leadership of both parties.
The majority Democrats regrouped and late the next month sent a special rule to the floor with the primary purpose of making in order the consideration of three notable bills (DC statehood and two immigration bills). This closed rule also included a provision that authorized the majority leader to offer a motion to bring up one or more of the 13 bills as a bundle under suspension, thereby making the whole set subject to just 40 minutes of debate, no amendments, and one vote. This “en bloc” vote radically cut the time for consideration of the bills (to which few members objected). Because the provision was tucked into a special rule that was going to be considered for the other three bills anyway, no extra floor time was consumed to enable the bundling.
Plainly, the majority party, if it is reasonably united behind its leadership, has the last word in the House. For that reason, the House deserves the label “majoritarian.”
A New Republican Majority
The 2022 elections produced a Republican majority in the House and created the opportunity to alter how special rules were designed. Members of the House Freedom Caucus (HFC), the most conservative faction of the party, had proposed that all legislation be subject to amendment on the floor. By the time the Republicans were constructing a rules package for the new Congress, HFC members were insisting that the the normal 12 appropriations bills be considered separately and under open rules. They said, “If amendments must be limited to some degree, then any Republican amendment supported by at least 10 percent of the Republican Conference must be allowed to be offered, debated, and voted on.” No formal rules to this effect were adopt by the Republican conference or the House, but the newly elected speaker, Kevin McCarthy (R-CA), promised to move the separate appropriations bills and provide for more amending opportunities.
It is too early to see how this will unfold. On one of the early bills of the Congress, McCarthy had the Rules Committee approved a “modified closed rule” for a bill to tie use of the Strategic Petroleum Research to allowing more drilling for oil on public lands. The rule permitted any germane amendment that was submitted and printed in the Congressional Record in advance. This kind of rule creates substantial uncertainty about how long the action on the bill will take and what the final outcome will be, although Republicans had little other legislation for the House to consider early in the session and expected the party would easily pass the measure. As the Republican leadership confronts unfriendly Republican and Democratic amendments, seeks to protect delicate compromises required to gain a majority and work with the Senate and president, and responds to requests from Republican committee leaders who want to protect their measures from floor amendments, their interest in structuring the amending process is likely to grow.
Final Thought
As I observed in Note 2 and Note 3, these developments reflect the intense partisan polarization and partisanship that reside on Capitol Hill today. They constitute a squeeze on the policy space in which committees operate independently of the majority party, a significant encroachment on the legislative work in which committees might otherwise engage, and a real reduction in the breadth of opportunities for individual legislators and factions to devise new approaches and have their amendments considered on the House floor.
In June 2023, something odd happened—a special rule that the Rules Committee sent to the floor in coordination with the speaker and majority leader was defeated. This was the first rule defeated on the floor since 2002. Majority party members support the adoption of a special rule nearly all the time, as requested by their leaders. This regular outcome reflects both the leaders’ ability to accommodate their party colleagues in pre-floor negotiations and recognition by the party rank and file that party control over the floor agenda is essential to the power of the party. The June 2023 outcome was unexpected and unusual. Minority party Democrats voted against the rule because they disapproved of the legislation that the rule would make in order, but the decide votes were cast by ten Republicans, most members of the far-right House Freedom Caucus, who were unhappy with a debt ceiling deal negotiated by Speaker Kevin McCarthy (CA) and approved by the House a few days earlier. They asserted that they would not vote for special rules until McCarthy lived up to promises he made to them about how the House would operate—including giving all parts of the party a voice in leaders’ strategizing and adhering to what they called “regular order.” The notion of regular order is discussed in Note 14. At the writing, to be updated as more developments occur, the speaker and the ten renegades were at an impasse.
Examples
For everyone’s convenience, I illustrate the three types of special rules below.
Open Rule (H.Res. 736, 114th Congress)
Resolved, That (a) at any time after adoption of this resolution the Speaker may, pursuant to clause 2(b) of rule XVIII, declare the House resolved into the Committee of the Whole House on the state of the Union for consideration of the bill (H.R. 4974) making appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2017, and for other purposes. The first reading of the bill shall be dispensed with. All points of order against consideration of the bill are waived. General debate shall be confined to the bill and shall not exceed one hour equally divided and controlled by the chair and ranking minority member of the Committee on Appropriations. After general debate the bill shall be considered for amendment under the five-minute rule. Points of order against provisions in the bill for failure to comply with clause 2 of rule XXI are waived. Clause 2(e) of rule XXI shall not apply during consideration of the bill.
(b) During consideration of the bill for amendment—
(1) each amendment, other than amendments provided for in paragraph (2), shall be debatable for 10 minutes equally divided and controlled by the proponent and an opponent;
(2) no pro forma amendment shall be in order except that the chair and ranking minority member of the Committee on Appropriations or their respective designees may offer up to 10 pro forma amendments each at any point for the purpose of debate; and
(3) the chair of the Committee of the Whole may accord priority in recognition on the basis of whether the Member offering an amendment has caused it to be printed in the portion of the Congressional Record designated for that purpose in clause 8 of rule XVIII. Amendments so printed shall be considered as read.
(c) When the committee rises and reports the bill back to the House with a recommendation that the bill do pass, the previous question shall be considered as ordered on the bill and amendments thereto to final passage without intervening motion except one motion to recommit with or without instructions.
Sec. 2. Upon adoption of this resolution it shall be in order to consider in the House the bill (H.R. 5243) making appropriations for the fiscal year ending September 30, 2016, to strengthen public health activities in response to the Zika virus, and for other purposes. All points of order against consideration of the bill are waived. The bill shall be considered as read. All points of order against provisions in the bill are waived. Clause 2(e) of rule XXI shall not apply during consideration of the bill. The previous question shall be considered as ordered on the bill and on any amendment thereto to final passage without intervening motion except: (1) one hour of debate equally divided and controlled by the chair and ranking minority member of the Committee on Appropriations; and (2) one motion to recommit.
Sec. 3. Section 514 of H.R. 4974 shall be considered to be a spending reduction account for purposes of section 3(d) of House Resolution 5.
Sec. 4. During consideration of H.R. 4974 in the Committee of the Whole pursuant to this resolution, it shall not be in order to consider an amendment proposing both a decrease in an appropriation designated pursuant to section 251(b)(2)(A)(ii) of the Balanced Budget and Emergency Deficit Control Act of 1985 and an increase in an appropriation not so designated, or vice versa.
Sec. 5. During consideration of H.R. 4974 pursuant to this resolution—
(a) section 310 of House Concurrent Resolution 125, as reported in the House, shall have force and effect in the Committee of the Whole; and
(b) section 3304 of Senate Concurrent Resolution 11 shall not apply.
Structured Rule (H.Res. 508, 117th Congress, allowing amendments printed in an accompanying report)
Resolved, That during further consideration of the bill (H.R. 3684) to authorize funds for Federal-aid highways, highway safety programs, and transit programs, and for other purposes, pursuant to section 6 of House Resolution 504 –
(a) after debate, each further amendment printed in the report of the Committee on Rules accompanying this resolution not earlier considered as part of amendments en bloc pursuant to subsection (b) shall be considered only in the order printed in the report, may be offered only by a Member designated in the report, shall be considered as read, shall be debatable for the time specified in the report equally divided and controlled by the proponent and an opponent, may be withdrawn by the proponent at any time before the question is put thereon, shall not be subject to amendment, and shall not be subject to a demand for division of the question; and
(b) it shall be in order at any time after debate for the chair of the Committee on Transportation and Infrastructure or his designee to offer amendments en bloc consisting of further amendments printed in the report of the Committee on Rules accompanying this resolution not earlier disposed of, and such amendments en bloc shall be considered as read, shall be debatable for 20 minutes equally divided and controlled by the chair and ranking minority member of the Committee on Transportation and Infrastructure or their respective designees, shall not be subject to amendment, and shall not be subject to a demand for division of the question.
Sec. 2. All points of order against the further amendments printed in the report of the Committee on Rules or amendments en bloc described in subsection (b) of the first section of this resolution are waived.
Sec. 3. It shall be in order without intervention of any point of order to consider concurrent resolutions providing for adjournment during the month of July. Sec. 4. The provisions of section 202 of the National Emergencies Act (50 U.S.C. 1622) shall not apply during the remainder of the One Hundred Seventeenth Congress to a joint resolution terminating the national emergency declared by the President on March 13, 2020.
Sec. 5. House Resolution 188, agreed to March 8, 2021 (as most recently amended by House Resolution 403, agreed to May 18, 2021), is amended by striking "July 1, 2021" each place it appears and inserting (in each instance) "July 30, 2021".
Closed Rule (H.Res. 479, 117th Congress)
Resolved, That upon adoption of this resolution it shall be in order to consider in the House the bill (S. 475) to amend title 5, United States Code, to designate Juneteenth National Independence Day as a legal public holiday. All points of order against consideration of the bill are waived. The bill shall be considered as read. All points of order against provisions in the bill are waived. The previous question shall be considered as ordered on the bill and on any amendment thereto to final passage without intervening motion except: (1) one hour of debate equally divided and controlled by the chair and ranking minority member of the Committee on Oversight and Reform or their respective designees; and (2) one motion to commit.
[1]Stanley Bach, "Suspension of the Rules, the Order of Business, and the Development of Congressional Procedure," Legislative Studies Quarterly (1990) 15: 49-63; Jason Roberts, “The Development of Special Orders and Special Rules in the U.S. House, 1881–1937,” Legislative Studies Quarterly (2010) 35: 307-336.