Newt Gingrich and Joe Scarborough have recently criticized a proposed legislative procedure to finalize health care reform as "radical" and "incredible," despite having supported the use of the same legislative process while they were members of Congress. The rule in question is an accepted part of House procedure, and in the years after Gingrich became speaker of the House and Scarborough was elected, Congress "set new records" for its use.
Gingrich and Scarborough criticize self-executing rule
Scarborough: Proposal is "radical": "You can't do that." On the March 16 edition of MSNBC's Morning Joe, Scarborough remarked, "You can't do that," during a report that House Speaker Nancy Pelosi is "mulling a strategy called deem and pass" to finalize the passage of health care reform. He later repeatedly called this legislative process "radical."
Republicans "set new records" for use of rule under Gingrich's speakership
Wolfensberger: Republicans "set new records" for using self-executing rule. Don Wolfensberger, former chief of staff for the House Rules Committee under Republican leadership, stated in a 2006 Roll Call column that the Republican Party "set new records" for its use of the self-executing rule in the years following Gingrich's ascension as Speaker:
Self-executing rules began innocently enough in the 1970s as a way of making technical corrections to bills. But, as the House became more partisan in the 1980s, the majority leadership was empowered by its caucus to take all necessary steps to pass the party's bills. This included a Rules Committee that was used more creatively to devise procedures to all but guarantee policy success. The self-executing rule was one such device to make substantive changes in legislation while ensuring majority passage.
When Republicans were in the minority, they railed against self-executing rules as being anti-deliberative because they undermined and perverted the work of committees and also prevented the House from having a separate debate and vote on the majority's preferred changes. From the 95th to 98th Congresses (1977-84), there were only eight self-executing rules making up just 1 percent of the 857 total rules granted. However, in Speaker Tip O'Neill's (D-Mass.) final term in the 99th Congress, there were 20 self-executing rules (12 percent). In Rep. Jim Wright's (D-Texas) only full term as Speaker, in the 100th Congress, there were 18 self-executing rules (17 percent). They reached a high point of 30 under Speaker Tom Foley (D-Wash.) during the final Democratic Congress, the 103rd, for 22 percent of all rules.
When Republicans took power in 1995, they soon lost their aversion to self-executing rules and proceeded to set new records under Speaker Newt Gingrich (R-Ga.). There were 38 and 52 self-executing rules in the 104th and 105th Congresses (1995-1998), making up 25 percent and 35 percent of all rules, respectively. Under Speaker Dennis Hastert (R-Ill.) there were 40, 42 and 30 self-executing rules in the 106th, 107th and 108th Congresses (22 percent, 37 percent and 22 percent, respectively). Thus far in the 109th Congress, self-executing rules make up about 16 percent of all rules.
On April 26 , the Rules Committee served up the mother of all self-executing rules for the lobby/ethics reform bill. The committee hit the trifecta with not one, not two, but three self-executing provisions in the same special rule.
Scarborough voted for self-executing rule as a congressman
Scarborough voted for H.R. 384. The Office of the Clerk of the U.S. House of Representatives documented Joe Scarborough's vote in favor of H.R. 384 on March 19, 1996. A 2006 Congressional Research Service report included this as an example of a self-executing rule:
On March 19, 1996, the House adopted a rule (H.Res. 384) that incorporated a voluntary employee verification program -- addressing the employment of illegal immigrants - into a committee substitute made in order as original text.
Self-executing rule is accepted part of House procedure
CRS: "Self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House." In a 2006 report, the Congressional Research Service defined the self-executing rule as part of the House rulemaking process:
Starting about twenty-five years ago, in response to developments such as increased partisanship and uncertainty with respect to how long or controversial the amendment process on the floor might be, the Rules Committee began to issue more procedurally imaginative and complex rules.
Definition of "Self-Executing" Rule. One of the newer types is called a "self-executing" rule; it embodies a "two-for-one" procedure. This means that when the House adopts a rule it also simultaneously agrees to dispose of a separate matter, which is specified in the rule itself. For instance, self-executing rules may stipulate that a discrete policy proposal is deemed to have passed the House and been incorporated in the bill to be taken up. The effect: neither in the House nor in the Committee of the Whole will lawmakers have an opportunity to amend or to vote separately on the "self-executed" provision. It was automatically agreed to when the House passed the rule.
Self-executing rules require a vote. The CRS report makes clear that passage of a rule by the House is required for the "self-executed" provision to be adopted. Wolfensberger stated in his 2006 Roll Call column: "Almost every major bill must obtain a special rule, or resolution, from the Rules Committee permitting immediate floor consideration. The resolution also specifies the amount of general debate time and what amendments will be allowed. A special rule also may contain other bells, whistles, gizmos and gadgets.One of these optional attachments is a self-executing provision, which decrees a specified amendment to have been adopted upon the rule's passage [Emphasis added]. In other words, once the House adopts the special rule it effectively has adopted the amendment before the bill has even been called up for consideration [Emphasis added]."