Here we go
Previewing the House Rules
This is the week of two congresses, where the 118th Congress sails off into the sunset and the 119th Congress unfurls its sails. The moment of congressional transition is noon on January 3rd, 2025, the counting of the electoral college votes is set for January 6th, and the presidential transition is on January 20th.
The unaligned timing means Congress has at least three calendars. There's the calendar year, from January 1 to December 31. There's the fiscal year, from October 1 to September 30. And there's the congressional session, which starts on January 3rd and lasts about a year.
But you didn't come here for a disquisition on the weirdness of congressional calendars…. or did you? (You didn’t.) Let’s chat about how the House gets organized.
Whose rules?
All eyes are turning to the presidential election certification and who will be elected as Speaker of the House. CRS has several reports on the certification of the electors, including this 2016 report on legal processes for contesting an election and this 2022 report on procedures for the joint session of Congress.
How can the electoral college votes be counted if the House has not elected a speaker? Um, that’s a fun question. Ultimately, I'm not too worried because the Republican House and Republican Senate have every incentive to make this process work for an incoming president who would be very angry if there’s a bump in the road.
If we assume Rep. Johnson cannot muster the votes to become Speaker, the House can adopt a resolution providing for the election of a speaker for limited purposes, or for a short period of time, or by less than a majority vote. (Historically speaking, a House speaker was elected by a plurality— once. But still.) Even if Johnson lacks the support to return to that role permanently, you could imagine him, a caretaker, or even the acting Clerk serving in that role for a period of time or a limited purpose.
A parliamentary state of nature
The House of Representatives is an institution whose rules are largely constructed by its members. How do they govern themselves? Prior to the adoption of the rules and separate orders, the House is governed by general parliamentary law. What is that? They’re the rules in the Constitution plus a combination of soft interpretive precedents plus the ghosts of rules adopted in prior congresses.
That last sentence was a lot of gobbledygook, so let’s try an analogy. Imagine you were given the board game Monopoly for the holidays. Inside the box is a Monopoly board, dice, the property cards (Boardwalk, Park Place, etc.), various amounts of currency, and no instructions. How do you play the game?
If you’ve never played before, it’s not obvious what to do. There are some rules written on the board itself, and the “chance” and “community chest” cards have somewhat cryptic instructions. You’ve played board games before, and you’ve heard of Monopoly, so you might be able to guess at the general contours of the game. So you would chat with the other players and reach an agreement about basic rules of the game. When you run into a situation you hadn’t addressed before, you’d adopt new rules to cover those circumstances.
Let’s say you had played Monopoly before. That makes it easier. You can play the game exactly as you remember the rules—assuming you and the other players agree—but you don’t have to follow those rules. Some regular Monopoly players tweak the rules at the start of a new game. Maybe you get $200 if you land on “Free Parking.” Maybe you start with an extra $1,000. Maybe you can pick two random properties from the pile and add them to your holdings. People have tons of alternative rules. They adopt those rules at the start of the game and can change them as they go along. And you can always break the rules—after all, it’s your game.
What I like about general parliamentary law is that there’s only a few rules. It’s like Monopoly without the instructions. Article I section 5 of the Constitution empowers each chamber to make its own rules of proceedings. Besides a handful of rules about age requirements and the like, there’s not much else. There is some requirement to follow the rules you adopt, but the enforcement mechanism—the courts—very rarely intervene.
The history of the House of Representatives is watching smart people create rules for the purpose of winning the game—gaining control of the House. (The same is true in the Senate, although their decisions to not to adopt new rules at the start of each Congress limits the opportunity to most membesr to change the rules.)
Historically speaking, in the House of Representatives there was a time when there were no standing committees and legislation was amended on the floor. When the Rules committee only existed for a short period of time each Congress and its role was merely to draft rules for the chamber—it didn’t decide what legislation went to the floor. Decisions about what rules to adopt were made by all the members. At times committees could report legislation to the floor and some committees had special privileges to bring up their legislation first. Where power existed has moved around a lot: at one time matters of importance were decided by a triumvirate, or by the party, by a bi-partisan coalition, or by no-one.
I was at a talk recently where noted congressional scholar Sarah Binder said that the House and Senate largely started off with similar rules in the late 18th century, but they took entirely different paths on how they operate today. The Constitution doesn’t contain a lot of rules, and there’s a lot of room for the chambers to decide how they want to function.
Kicking off 2025
This January 3, 2025, prior to the adoption of the rules, the House of Representatives is in a state of nature, with only the Constitution and general parliamentary law to guide it. There are no committees— they’re created by the rules. There's no Rules Committee to control what legislation goes to the floor. There’s an acting Clerk, held-over from the last Congress, but there’s no magic minute or the right for one member to be recognized before another. In theory, anyone can make a motion to establish a rule and it can be carried by majority vote.
The start of a new Congress is the point of maximum danger for the leadership structure of both parties. There may be little else they agree on, but Democratic and Republican party leadership agree that they should be able to keep their power and prerogatives. That means establishing a pyramid with themselves at the top. They do this through the party rules and the chamber rules. There are longstanding informal agreements between the party leaders to prevent themselves from being deposed by the rabble. (Yes, there was one big exception.)
The start of the new Congress is where members, by withholding their votes for the leadership-drafted rules package, could gain more of a say in running the chamber. For example:
Members could push for the rank-and-file to select members of the Rules Committee, negotiate for mechanisms to move legislation around the Rules Committee (such as “Calendar Wednesday,”) negotiate for a change in the appointment process to the Rules Committee, or make it possible for proposed rules changes to come to the House floor directly and not solely be referred to the Rules Committee.
Members could push for changes to who appoints and removes members from committees, how they are selected, a committee’s jurisdiction, whether legislatino can bypass a committee’s jurisdiction can be bypassed, or lower the threshold for discharge petitions.
Members could establish and fund coordination mechanism for the various factions that allow for members to gain knowledge and collaborate with one another. The best modern example of that is the Democratic Study Group, off of which most modern factions (including the Republican Study Group, Blue Dogs, and Freedom Caucus) have modeled themselves.
Members could push for changes in chamber operations, such as a rule against stock trading or an age limit for committee chairs.
Modern leadership would say this is anarchy and would be unproductive. It certainly would entail more give-and-take and require members to learn new ways of doing business. The business model since the 1980s for party leadership has been to keep their party voting together and splitting the other party. This arrangement is great for centralizing power at the top. A two-party arrangement makes anyone who disagrees with leadership a potential “traitor.” It’s run on rewards and punishment, and the hope that members can one day move up and become the boss. You’d have better luck playing the lotto, at least in my experience.
My hypothesis is that eventually power becomes so centralized that the party becomes brittle, incapable of adapting to change, and it topples.
The toppling can come from a coup d’etat, where party members use the party apparatus to topple leadership. This is is happening with Republicans, who had the last three leaders removed. The MAGA Republican faction is now the senior partner in a coalition arrangement that is slowly purging its partners from positions of consequence.
The Democratic leadership structure largely has been unchanged since the 1980s, with the modern day Pelosi-led faction continuing to exercise control over the party agenda. (I pick on Pelosi because she is the modern apotheosis of a strong leader running a political machine.) The Democratic party is widely criticized for stagnating. True or not, it lost control over all branches of government in the last election and lost control of the courts for a generation. Speaker Jeffries is the heir apparent to the Pelosi machine, and we watched Pelosi wield her power to shape contests for committee leadership.
Democrats will attempt to unify as an anti-Trump party, using the external threat to clamp down on challenges to decision-making. This may work for a time. But, in my opinion, by excluding the out-faction instead of co-opting it, they increase the likelihood of being deposed should the political winds bring power back to Democrats and new members to the House.
The current political dynamic of a strong centralized leadership is breaking down — I discussed how the 118th Congress was an outlier compared to the last thirty years, and a harbinger of things to come.
What to expect from the House Rules package
We are seeing signals from the Freedom Caucus and MAGA-aligned Republicans (MAGA-R) that they are unhappy with Speaker Johnson for insufficiently deferring to their preferred policy priorities. What are those priorities? Generally speaking, it’s a moving target, a more radical version of whatever conservative or Trumpian policy position a majority of the party can support. (This is very clever politics from the MAGA-Rs because it keeps moving the party to the right and paints less Trumpian Republicans as RINOs, making it likely they’ll be replaced in primary elections.)
Because Johnson cannot become speaker without the MAGA-R support, the MAGA-R’s can push for concessions from Johnson in return for concessions. For example, the MAGA-Rs can keep or perhaps even grow their control over the Rules committee, they can demand legislative commitments over spending, they can push ideological legislation such as the instantiation of culture war policies, and they can work to dismantle checks-and-balances such as the current law against presidential impoundments. I would imagine they’ve not been very happy about the use of the suspension calendar to pass appropriations bills. They have a lot of leverage to change the rules so they can affirmatively set the agenda.
The MAGA-R faction may also push for de jure control. They could try to oust Johnson and elect one of their own as Speaker. We will see if they have the numbers.
Similarly, the more traditional Republicans who formerly exercised control may look to assert power within the party. It could get to the point where they are willing to assert their independence and move decision-making back in their direction. In this case, that would mean voting against MAGA-R positions. They can still survive—if they learn the lessons from the book Why Cities Lose—but so far they don’t seem willing to go the mat.
News reports over the last few weeks suggest there is a detente over the House Rules package between the MAGA-Rs and traditional Republicans. The contours of the agreement are as follows: leadership would not be given additional powers in the party rules to discipline the factions. In return, the factions agreed to slightly raise the threshold for the motion to vacate the Speaker to 9 members.
What else will be in the Rules package? We don’t yet know. The House Rules and separate orders are likely already finalized, but they could be subject to last minute negotiations. Should the detente hold, they could be very similar to that of the 118th Congress.
Looking at the rules package
We should see the House Rules package published sometime on Thursday, in advance of the House vote on Friday. There’s no rule requiring their publication in advance. My preference is 72 hours, but we’re lucky if it’s 24 hours. My guess is they’ll show up on rules.house.gov, although it would also make sense if they are published at docs.house.gov.
You can find resources on the rules for the 118th Congress here and for prior Congresses here. Our friends at the Foundation for American Innovation built a tool that allows you to compare the text of various House rules going back decades.
If the rules are published on the Rules Committee website, you might see something like this:
The House Rules package takes the form of a resolution. Last Congress’s rules package was embodied in H. Res. 5. The House Rules Committee will publish the document as a PDF and an XML file.
The PDF document is just a picture of the text of the resolution. The XML file is the resolution as structured data, and if you’re clever you can compare the 119th version against the 118th version to see what’s changed.
Rules Republicans will also publish a section-by-section, which is a plain language explanation of what’s in the the resolution.
What they likely will not do, at least not immediately, is publish the text of the updated compilation of the Rules of the House of Representatives for the 119th Congress, taking into account the amendments adopted at the start of the Congress. This usually takes some time.
The resolution itself likely will be broken into several sections.
Section 1 will re-adopt the House Rules from the 118th Congress.
Section 2 will contain a laundry list of changes to the House Rules re-adopted from the 118th congress.
Section 3 will contain “separate orders.” These are rules that apply for this Congress only. Many are re-adopted from Congress to Congress.
Section 4 may establish new select committees, address subpoena power for various entities, and reestablish ongoing offices like the House Democracy Partnership, the Tom Lantos Human Rights Commission, and the Office of Congressional Ethics.
Section 5 may concern the “orders of business" and usually identifies some favored bills or resolution for speedy consideration on the House floor.
If you can’t find this on the Rules Committee’s website, the text is also published the same day as adoption in the Congressional Record. (This would be after the fact.) You can see it here for the 118th.
What happens if the rules fail?
What would be fascinating is if the House defeated the rules package. The Democrats would have an opportunity to offer an alternative, and if that is defeated, members would be able to offer their own rules.
A smart move for Democrats would be to draft and publicly release in advance a rules package that is more favorable to the general membership than that offered by the Republicans. They could, for example, propose proportional representation on the Rules committee, or lower the threshold for discharge petitions to advance a bill to the floor for a vote, or guarantee that members would have at least one bill that must advance to a vote in committee. By doing so, they could provide every member a seat at the table and make themselves relevant to the operations of the 119th Congress. They could even draw from the bipartisan rules proposals released by the American Governance Institute and the Foundation for American Innovation.
This is clever, but is it likely? No. Democrats likely wouldn’t do so because the first rule of leadership is to avoid weakening your hand just in case you regain power someday. I think it’d be in their interest to have some say over the House of Representatives, particularly in these political circumstances.
Any member of Congress or faction could also release their own rules package. Various factions have pushed for provisions to be included in the rules package to be offered by the majority with varying levels of success. Historically, groups have collaborated on rules reform efforts, which is how the Dixiecrat coalition was defeated, Joe Cannon lost his dictatorial power, and so on.
But that’s not likely, either. Not only do things have to get worse for this to happen, but members of both parties need to become savier about the intersection of the rules and power. This is not something that leadership will teach them.
But wait, there’s more
In addition to the rules package, the majority party offers a series of resolutions on Day 1—or at least the day that the Rules package is adopted—that governs the operations of the House. Some are very important. You can see them here in the Congressional Record. They include:
Controlling how recognition works on the floor (“Recognition shall be conferred by the Speaker only pursuant to lists submitted by the majority leader and by the minority leader”).
Promulgating a series of policies with respect to the legislative process that address (1) privileges of the floor, (2) the introduction of bills and resolutions, (3) UC requests for the consideration of legislation; (4) recognition for 1-minute speeches; (5) recognition for Special Order speeches; (6) decorum in debate; (7) votes by electronic device; (8) use of handouts on the floor; (9) use of electronic equipment on the floor; and (10) use of the chamber.
Disallowing other legislative business on the floor.
Allowing the Speaker, majority leader, and minority leader to accept resignations and make appointments.
Allowing the Congress to assemble outside the seat of government.
Setting the various legislative dates and times.
Allowing for the extensions of remarks.
Appointing the House building commission.
Establishing a designee in case the Speaker is “recalled.”
Appointing members to act as Speaker Pro Tempore and authorizing them to sign bills.
There’s no reason it has to be done this way. The resolutions pull a ton of power from the rank-and-file and committees and place them in the hands of leadership. These resolutions are adopted by unanimous consent and members could object to them.
I am not aware of anyone doing so. It does seem that Freedom Caucus members have spent the time to understand the process. Maybe others have as well.
But wait, what about the Senate?
I’m far from an expert on the Senate. The Senate has a series of rules and standing orders that generally govern its operations along with its voluminous precedents. At the start of a new Congress it adopts a series of resolutions, including:
A series of unanimous consent agreements regarding the fillings and receiving of reports
Election of the president pro tempore
Setting the daily meeting schedule
Appointing the Senate Legal Counsel and deputy
At some point there is the adoption of a series of organizing resolutions, like this one for the 118th that designated the majority membership of the various committees. The chamber will have to appoint the chairs and members for all committee. The group Indivisible has a good explanation of what happened in the recent 50-50 Senate and CRS has an older report on what happened in 2001.
The organizing resolution from the 117th Congress is a more interesting read. It governed the budgets and staffing for the committees, what it takes to discharge a bill from committee, the committee member ratios, and how leadership may bring up measures for consideration on the floor.
There is no reason why senators could not seek to modify these agreements. For example, you could create a mostly-unanimous consent provision whereby a bill can be enacted under UC provisions so long as three senators don’t object. One could get creative.
That’s all for now
We’ll know more about the contours of the 119th Congress in a few days, including we’ll get to see the rules package for the House of Representatives. This will give us a sense of whether there’s an earthquake in how the House will operate, including whether power will splinter in the Republican majority and whether the Democrats will play a role in co-governance.
In the Senate, we can expect the majority will continue to have agenda setting power. The use of reconciliation and the absense of the filibuster for nominations means that Democrats will not have that much leverage. Democrats will be able to exercise some leverage on the appropriations bills. Considering Republican priorities, it will be of limited use. Democrats can wield the filibuster against small bills that wouldn’t otherwise be scheduled for floor consideration, but even there Republicans will simply package them into omnibus bills.
We’ll be back next week with a look at the rules package and whatever else seems interesting. Thanks for reading.
What are the best books to read about the history of House rules?