Brownstein Client Alert, January 6, 2021
The House of Representatives of the 117th Congress convened this week, as prescribed by the U.S. Constitution, and adopted a set of rules to govern the body over the next two years. While rules packages are often full of the arcane and mundane, the changes to the standing rules of the House this year are replete with clues about the Democratic majority’s priorities and intentions, at least in a few key areas. Here are some takeaways:
- The Centrality of Diversity and Inclusion (D&I). The rules package features a handful of changes that reflect the Democratic majority’s commitment to a policy agenda to increase diversity and inclusion in both industry and government. Committee oversight plans—often perfunctory documents that state the majority party’s oversight plans for the next two years—must now include discussions of how the committee’s work will address issues of inequity based on race, ethnicity, gender, sexual orientation, disability, age and other factors. In addition, the Office of Diversity and Inclusion of the House, which promotes equitable hiring practices among the staff of the members and committees of the House, has now become an organic part of the House Rules. These changes supply evidence that House Democrats intend to redouble their focus on D&I issues across disciplines in the 117th Congress. There is also a provision requiring a study of the diversity of witnesses that appear at House committee hearings.
- Economic Fairness as Key Concern. The 117th Congress Rules establish a Select Committee on Economic Disparity and Fairness in Growth, which will broadly investigate issues of wealth, opportunity and education inequality and examine methods to empower more American workers. The committee may hold hearings and conduct investigations, but its role is limited to advising the other standing committees with respect to legislation. Despite this limitation on jurisdiction, however, the mandate of this committee is very broad; its investigations will likely be cross-disciplinary.
- PAYGO Waived for COVID-19 and Climate Measures. The Rules of the House now waive pay-as-you-go (PAYGO) points of order for measures to prepare for, prevent or respond to public health and economic consequences from the COVID-19 pandemic and climate change. While points of order are often waived by the House Rules Committee when a rule is adopted, this change streamlines new unpaid-for spending if there is a determination that the measure is COVID-19- or climate-related. It is unclear how the breadth of this provision will be applied; while challenges will be raised, the speaker (and ultimately the House) is the arbiter of the meanings of these new exceptions.
- Toward Statehood for Washington, D.C. House Democrats, generally, have long supported the effort to bring the District of Columbia into the Union. The House Rules for the 117th Congress will give, for the first time, the mayor of Washington, D.C., privileges to access the floor of the House—a special honor previously reserved only for current former House members. This rule change portends another attempt to enact legislation to advance the cause of statehood of the nation’s capital.
- Elimination of the Motion to Recommit with Instructions (MTR). The minority party in the House has often used the motion to recommit (with instructions) to make passage of legislation under a rule a politically uncomfortable proposition for the majority party. The MTR with instructions is the minority’s final opportunity to modify the bill before final passage. Because many bills are considered under a “closed rule,” a floor procedure that does not allow amendments, the MTR with instructions was often the only opportunity for the minority to obtain a vote on its policy preferences. While the MTR has been available since the very first Congress, its use as a final opportunity for the minority to amend a bill has been utilized since 1909. The Rules of the House for the 117th Congress remove the availability of the motion to recommit with instructions. The basic MTR—to send the bill to a committee for further consideration rather than pass—will remain available, but the minority party has lost an important tool for expressing a policy preference before taking a vote on final passage.
This document is intended to provide you with general information regarding new House rules for the 117th Congress. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.