Interview: Max Spitzer
Why the House rules allow the Speaker to call recess unilaterally, why that could allow rogue situations, and what to do about it
Max Spitzer recently left the House Parliamentarian’s Office after nearly 20 years of service. During the last five years he authored the official procedural guidebook for the House of Representatives. He also served as a legal researcher and editor and assistant parliamentarian.
During his time in the Parliamentarian’s Office, procedural authority became even more concentrated in the hands of House leadership. Max is now sharing insights into how and why that occurred and the consequences for Congress and the federal government, most recently with this piece for Kevin Kosar’s Understanding Congress blog at the American Enterprise Institute.
This interview has been lightly edited for clarity and cut for length. In this conversation, we discuss:
how the rules for recessing the House evolved in recent decades
how a speaker could use the rule to “go rogue” and the affect it could have on the House
how members could try to respond to a rogue speaker
Daniel Schuman: We’re here today with Max Spitzer, who is a congressional procedure expert with 20 years of service on Capitol Hill.
He’s literally written or at least read the book on House procedure and how it functions, and he wrote an excellent piece this past week on the Speaker’s authority to convene and adjourn the House of Representatives. That’s what we’re going to talk about today. Max, welcome.
Max Spitzer: Thanks so much for having me.
Daniel Schuman: That’s a pleasure having you here. You wrote this great piece on the Speaker of the House and his holding the House out of session for more than 40 days. How did the Speaker end up with the power to control whether the House is in session?
Max: As I said in the piece, it’s a long evolution. It’s been building up for quite a few decades now. I trace it back to the 80s and 90s, where members just wanted a lot more certainty in the schedule. Members are pulled in every direction. If you have more open procedures on the House floor, potentially they could be called back to take votes multiple times during the day. Members wanted ways to regularize the schedule a little bit, so they started giving the speaker more and more authority to adjust the schedule in different ways.
A key part of that is postponing and clustering votes when you have a series of amendments that can all be addressed independently. If someone asks for a recorded vote, you just postpone that, stick it in a stack, and then come back for a single vote series where members come in.
Similar things happen with recess authority, where you might need to recess the chamber for a short time and then come back and restart legislative business. These were all done by mostly unanimous consent agreements before and it was just taking up time, so they eventually put in the rules. The speaker has unilateral authority to just say, we’re going to take a break and then come back when the business is ready.
This accelerated a little bit after 9/11 because people started to think more about continuity of Congress issues. Clause 12 of Rule 1 was amended at that time to provide additional flexibility for the speaker to bring the House in and out of session under emergency circumstances.
Sometimes we refer to this as the snowstorm authority, and it was actually used for a couple of snowstorms where the House may be taking its regular weekend break of three days or something that, but there’s a weather event that’s coming and they don’t know whether they can actually access the Capitol when they come in. Under the Constitution, they would need Senate consent to go longer, so the worry was you’d be technically violating the Constitution if you just didn’t come in after the snowstorm was over.
When we get to the later Obama years, you have the Senate very concerned about recess appointment authorities. Basically since 2010-ish, the Senate has not really adjourned for any significant amount of time. They want to come in every three days and prevent recess appointments. So the House knows that it’s not going to get a long adjournment resolution from the Senate anymore. When it wants to take a long break, it also has to provide for these pro forma sessions every three days: come in, do no business, and then go back out in order to prevent members from engaging in any shenanigans on the House floor.
Those authorities got expanded to the point where the speaker is basically allowed to shut down anything that members might cause a vote on basically. They don’t want to have to drag members back from their districts in any of these circumstances. Speakers basically would set a recess period where they’re coming in every three days to do these pro forma sessions. The speaker is allowed to basically ignore any members who are there, gavel in, gavel out, and, and bring the House in and out of session as needed under the Constitution.
The current rule, which is now Clause 13 of Rule 1, expanded authority for the speaker to just go ahead and declare a particular period of time as a district work period. Once that declaration is made, all of these authorities to conduct these pro forma sessions kick in. This gives the speaker a lot of flexibility to basically say we’re going to take an August break now. He doesn’t have to go to the Rules Committee or get any other authority from the House. Clause 13 gives him that flexibility to convene the House, adjourn the House, and not recognize any members for any business during that period. Now you have a situation where the speaker alone has the authority to decide when these district work periods are going to occur, and then he can take advantage of all those authorities to shut down any business on the House floor and that’s where we are today.
No limits
Daniel: It’s interesting, it went from purely a logistical question of having votes together or dealing with snowstorms, to way beyond that to prevent members from engaging when the House is in a pro forma session, to basically being able to be out of session even when the members want to be there it seems.
What’s the consequences of this power as it’s currently written in the black letter text? What does this mean for the distribution of power in the House?
Max: If, on the one hand, the authorities are used as they are intended and the speaker is playing ball, then everything proceeds pretty rationally and logically. The members want a two-week break to go back to their districts? The speaker accommodates that by exercising these authorities. He declares a district work period for those two weeks, and then the House can come back into session and regain all of its powers to challenge the speaker to engage in regular parliamentary activities after that period.
What the rule doesn’t provide is any limits on this authority. There’s nothing directly in the rules that says the speaker can’t declare a five-month period as a district work period, or the remainder of the Congress for that matter.
You could have rogue speakers who are not just looking out for the scheduling interests of the members and trying to coordinate district work periods and DC periods. It really shifts the power to the speaker for potential abuse in these ways. As we’ve seen most recently, just extending these authorities and declaring a district work period that will end on a particular time, the speaker can just announce again, oh, I’m going to extend that district work period. Now the speaker is using these authorities for more political reasons. It’s not just a matter of scheduling things anymore. He may be trying to keep certain things off of the House floor for a particular period of time.
The House has acceded to this regime. They’ve put no limits in the rules and so they are at the speaker’s mercy in terms of how he wants to exercise these authorities. It’s only when he decides to come back and say, okay, we’re going to do real sessions again does the House really have an opportunity to claw back those authorities because in the interim, he’s in full control of when the House is not in session.
Daniel: How mechanically does the speaker say that this is a district work period? Does he simply say I declare bankruptcy?
Max: It’s essentially that. I think he sends a letter to the clerk, and the clerk informs the members that the Speaker has declared this new period as a district work period. I believe it’s just a matter of paperwork at his end.
Chris Nehls: Just pulling on this a little bit more, let’s say the House is considering impeachment. The president and the speaker are co-partisans. Can he just say, “disappear, House,” and shut down a constitutional process like impeachment?
Max: Yeah, I don’t see any reason why the rule wouldn’t allow that. As I said, there are no articulated limits in Clause 13. If he lays down that letter to the clerk that says even though we’re in the middle of an impeachment thing, the next three months are going be a district work period, I don’t see any reason why the rules wouldn’t allow that.
Basically any business in the House that the speaker doesn’t want to see continued in some way, there’s definitely the possibility of using these authorities to take the House out of session for basically as long as he wants.
Chris: So we just saw a situation where a member-elect had to wait until the House came back into session. Can you explain how those different sets of rules actually line up?
Max: Yeah, so the swearing-in of members is a highly privileged piece of House business. Traditionally when a new member shows up having won a special election it’s a high priority item to get that member sworn in as soon as possible. As soon as they show up with the certificate of election, it’s usually the first thing on the first day that they show up. It’s so privileged that it happens during electoral counts. Members have been sworn in during vote sequences because everyone recognizes you can’t fully participate as a member until you are sworn in. As soon as you’ve got that paperwork in order, the House has traditionally been very happy to get that person sworn in as soon as possible.
With these authorities for the speaker to declare district work periods and take the House in and out of session, theoretically, no business is going to be conducted. I guess on one hand, there’s less of a need to swear in people immediately if there’s not going to actually be any business for them to participate in. On the other hand, as we’ve seen, it can also be used to delay things and prevent that member from becoming a full member of the House for whatever reason. What we saw most recently with the discharge petition, is one area that the new member wanted to participate in and the speaker seemed to not want her to participate in and so the swearing-in was delayed until the real session came back in.
Daniel: It’s not just participating in legislative business, but it’s also constituent services work as well. The people in the district aren’t represented in that respect.
Max: Yeah, there are various administrative things that the moment where they’re sworn in has a lot of consequences in terms of their ability to participate in the legislative process, do these administrative things, do their constituent work as well.
Daniel: This district work period also suspends committee work, right? Committees aren’t allowed to conduct their business without leave of the House, right?
Max: That’s a good question. I have not looked into that too deeply because committees and the floor have diverged a little bit. There used to be much more strict rules about when the House is working on a bill in the Committee of the Whole, that the other committees needed special permission of the House to even meet under those circumstances.
I think a lot of those authorities have gone away just based on the fact that the House doesn’t consider all that much in the Committee of the Whole anymore. We’re not seeing those open rules on the floor where members are coming down and it’s a freewheeling thing on the floor. If it’s only select members coming in to do their amendment for 10 minutes, then there’s no particular disadvantage in having committees meeting at the same time. Generally, those authorities have gone away, and committees can meet regardless of when the House is in session. I don’t think there’s anything in Clause 13 that specifies that committees are prohibited from meeting during district work periods, but I think the general sense is that members are going back to their district during this time, so committees are going to be in a holding pattern until members come back.
with great power…
Daniel: I want to move you out from the descriptive side to the prescriptive: Should the speaker have this power?
Max: I would say absolutely not. In my mind, it’s a symptom of Congress moving from regular proceedings to ad hoc proceedings. I feel the trend in modern House history is that you want to make everything very easy for members, very flexible. The speaker and the Rules Committee have been given a lot of authority to just make up the schedule on a day-to-day, week-to-week basis. Members don’t have a good sense that the institution has an internal momentum to it.
That’s the thing that I always go back to is that you should, in theory, have a legislative body that has fixed rules about when you come in, what you do each day, how, when when the members get sick of doing their business, they formally make a motion to adjourn and they adjourn and then they come back the next day and pick up where they left off. Those sorts of things haven’t happened in decades. Members want a lot of certainty in the schedule, and so the Rules Committee makes an order for a bill for a defined set period of time that everyone knows we’re going to get out of here – this bill can only really be considered on the floor for 4 hours, that’s the most that this could possibly take, so everyone knows that’s when they’re going to come in for the final vote sequence.
If you have open rules, where you’re essentially conducting a markup in the Committee of the Whole, no one has any idea how long that’s going to go. Members could come in with all sorts of amendments and just drag out the proceedings. So we’ve moved to a system where it’s very choreographed, very, very ad hoc. I think that these additional authorities are just more of the same: The House moving to flexible procedures, as opposed to regular, routine procedures.
Daniel: In many respects, it’s more for show than for deliberation.
Max: Yeah.
Daniel: If you could fix this, how would you do it differently? Who would have the authority, or how would it function?
Max: Well, it’s tricky with the Senate and their recess authorities, because if they don’t want to, the House can’t take their long breaks that they used to because the Senate isn’t going to give them an adjournment resolution that does that. When they want to go back to their districts – and everyone agrees that district time is important – they have to set up this schedule of pro forma sessions.
I think the House should have their eyes open when they agree to these authorities, and they should be doing it on a very temporary basis as they used to. The Rules Committee would be the body that’s in charge of defining that district work period. If that is a vote on the House floor that everyone understands, okay, this is going to be a two-week break, we are officially voting for it.
That, to me, is very similar to just taking a motion to adjourn and doing things organically: a majority of the House is fully aware of what’s going on and they are agreeing to it at the moment.
I would definitely repeal Clause 13. I don’t think the Speaker needs that flexibility. The House should be doing it on a case-by-case basis as they need.
If I had a magic wand and could change the entire House schedule. I would try to regularize things a lot more where they have longer periods in DC and then longer periods in the district. Those things could be written into the rules in a little bit more formal way, where you’re not giving ad hoc absolute authority to the speaker to do X, Y, and Z. Instead, you are agreeing to a schedule in advance and everyone knows when the periods are going to be and what the authorities are going to be during those periods.
state of nature
Let’s go back to a different version of the thought, which is that the speaker could decide tomorrow to go rogue, to cancel the house for the rest of the year. I don’t think the Speaker could do it forever. I think there’s an obligation to meet once a session.
Max: Under the Constitution, I think they would have to convene at least once in 2026.
Daniel: They could do that on December 30th of next year. There’s no way you would know whether that’s satisfied until it’s too late. So, it’s the Constitution, it’s the rules of procedure that are adopted by the House, it’s the separate orders, it’s the precedence. Then there’s this weird natural law stuff that seems to come into play at the beginning of the new Congress. Should the Speaker decide to go rogue, are there things that members of the House could do to say, we need to convene now and to make that happen.
Max: It’s difficult for me to see clearly how they would do that and how they would legitimize it. You do point to what we call general parliamentary law, which is this state of nature before the formal adoption of rules. In a lot of pre-Civil War speakership battles where the House couldn’t really organize itself because there were too many contentious issues and they didn’t even adopt rules right away. The question is, what rules are applicable here?
The general consensus for hundreds of years at this point is that there is a natural body of basic parliamentary principles that you can apply. I don’t think that really applies once you adopt rules. To the extent that is applicable once you have adopted rules, I’m a little, a little wary of saying that it has much applicability.
You’re right to say that the House adopting rules that are so against basic parliamentary principles that, if there was a rogue speaker that abused these authorities and there was a majority of House members who wanted to do something else, they could potentially point to that body of law and say the rules that we have adopted contradict these basic principles and we should really get back to them in some way.
The House formally giving this authority to the speaker, amending their standing rules to say the speaker has this authority, then trying to claw that back in some way when you’ve already given the speaker authority to ignore your requests to claw it back – it’s a weird knot that they’ve tied themselves into, and it’s difficult for me to see how exactly they could get out of it.
Daniel: I want to extend this just a little bit further. In the 19th century, the Speaker changed the way that a quorum was determined. The way that the Speaker addressed the disappearing quorum is to say that I am now going to count everybody who’s in the room, whether they say they’re present or not. Members were pissed, and they went to the Supreme Court, and the Supreme Court said, the House rules are the House rules.
If members of the House were to say, we are reconvening and a bunch of members were to show up and conduct business, and a majority were to be a quorum were to be present and they say, when we adopted these rules, we never intended for the Speaker to be able to make a nullity. We thereby retroactively bless what’s happened here [in regathering.] That is an assertion of the rule interpretation capability that is inherent in the House to interpret its own rules.
Max: Yeah, it’s an argument that you could make. I think in that piece I wrote, I described it as a majority coming in and declaring themselves a new House of Representatives, and electing a new speaker to preside over them because the old speaker has gone rogue and abused the authorities that they gave them. I don’t know what legal challenges that may cause. I would hope that the courts would be the House rules are the House rules, and the House should do what it likes. But, yeah, if you had two very opposing blocks, one supporting the rogue speaker and one trying to do something else, you’d get into some real tricky situations there.
I do think you point to another important consequence of all this: the speaker unilaterally making the House a nullity. That has broader effects in our government. You mentioned war powers and the executive branch. One way to get a more authoritarian system where the executive branch can do what it likes is to nullify the Congress as much as possible. So I think the more that the House agrees to these situations where they can allow the speaker to nullify themselves, Congress becomes less of a factor in the government, and there isn’t the same checks and balances that we all assumed are part of the system.
Daniel: Should members of the House think reasonably about your recommendation to strike, Rule 1, Clause 13?
Obviously, that’s not going to go through the Rules Committee. In the short term, if a member were to want to fix this, presumably a discharge petition to change the House rules would be the most straightforward mechanism, right?
Max: Yeah, I think so. Members’ access to the floor in order to do any legislative business, including changing the rules, is fairly limited. A discharge petition would be probably the simplest and now most well-known way that a majority can come in and do something that the leadership doesn’t want them to do.
Another option would be to amend special orders of business that come out of the Rules Committee. The Rules Committee these days puts very complicated rules on the floor – multiple bills, all sorts of different authorities in them. That special order needs to be ratified by a majority of the House.
If they don’t, they can vote down the previous question. Then an opponent of that special order is recognized and they can offer an amendment. You could put in an amendment that says, oh yeah, by the way, Clause 13 and Rule 1 is not applicable for the rest of this Congress, or is repealed, or however you want to do it.
Daniel: That makes a lot of sense. I guess a third mechanism would be to go back to the 19th century, where the Rules Committee was not the only place that changes to the rules could be heard. There was a time where there was no Ethics Committee and the Rules Committee just sat at the beginning of the new Congress and that was it, where those matters could be sent to the floor and go around the Rules Committee. That’d be the harder way to do it, but the Rules Committee doesn’t have to be the place where everything goes for these types of questions around process.
Max: Yes, the members could certainly change that. This is assuming that the members could get access to the floor in some way, but you could change the rules in such a way to provide more access points to the floor, either for individual members or other committees, or some other mechanism where you can get access to the floor without needing a discharge petition or going through the Rules Committee.
Daniel: Well, Max, you’ve been incredibly generous with your time.
Max: This has been a lot of fun.
Fascinating unpack of how convenience became unchecked power. The evolution from scheduling coordination to the Speaker unilaterally nullifying an entire branch of government shows how procedural drift compounds. What's particularly troubling is Spitzer's point about no articulated limits in Clause 13,essentially creating an honor system where the Speaker can declare indefinite district work periods. The discharge petition fix sounds straightforwrd, but requiresthe very legislative function the Speaker can suspend.