04 Jun 2018 The Discharge Petition: Ins and Outs in Government Reform, Immigration

By Jonah Barron

Much attention has recently been directed towards Rep. Carlos Curbelo’s (R-FL) discharge petition to bring several immigration amendments addressing DACA to the House floor. Normally, discharge petitions are both complex and risky, often proving difficult to pull off and politically costly. However, this petition, introduced on May 13th, has already come farther than most and shows no sign of stopping. We asked BPC’s Don Wolfensberger (BPC Fellow and former Chief of Staff, House Rules Committee) to explain the ins and outs of how it is being used here, and this is what we found:

Q: What is a discharge petition, and what kinds of things can it be used for?

A: A discharge petition is a method of, well, discharging a single bill or special rule pertaining to a bill from its assigned committee and bringing it directly to the House floor, should its committee refuse to hear it.

Q: What are the requirements for a bill or special rule to qualify for a discharge petition?

A: It depends on a couple of factors. Normally, discharge petitions are used for bills and special rules that have not yet been heard in committee. In the case of a bill, it must have been pending before a committee for at least 30 legislative days without being reported. In the case of a special rule for consideration of a bill that has been pending for 30-days in committee, the rule must have been pending for at least seven legislative days before a discharge petition can be filed on it. The special rule can also apply to a bill that has been reported without losing its viability. In both cases, any voting Member can file a discharge petition so long as the correct amount of time has passed. The petition is in writing at the clerk’s desk in the House chamber for any member to sign when the House is in session.

Q: So, how does a discharge petition get adopted?

A: After the petition has been signed by 218 members, it is placed on the discharge calendar and, after being on the calendar for seven legislative days, the motion to discharge can be offered by any signer on the second or fourth Monday of the month. If the motion to discharge receives a majority vote, the House proceeds immediately to consider either the special rule or bill involved. In the case of a special rule, the House proceeds immediately to vote on it, and, if adopted, the House then proceeds to consider the bill under the terms of the special rule (which usually specified the amount of general debate time and type of amendment process).

Q: This seems like a very direct way to get legislation passed, why is it not used more often?

A: Despite sounding effective, there are several very real obstacles facing any would-be discharge petition, the largest being the acquisition of the needed signatures. Generally, this is a tactic rarely used by representatives of the majority party, because their leadership is usually inclined to allow legislation their party supports to be heard. Because of this, petitions come most frequently from the minority party, facing issues they feel the majority is ignoring. Furthermore, regardless of origin, majority party Members are unlikely to sign due to pressure from above. Rare is the representative who will knowingly defy party leadership, making each majority signature an uphill battle.

There is also the fact that a successful discharge petition in the House does not make the Senate any more likely to pass the bill, so it still faces a major hurdle.

Also hurting any chance for a petition is the fact that discharge motions can only be considered on the second or fourth Mondays of a given month, excluding any such Mondays within the final six days of session. This may still sound somewhat permissive, but under the current schedule for this session of the House, June 25th and July 23rd are the only days this year meeting that criteria. This means that even if the DACA petition gained the needed signatures the first day the House is back in session, signatories would still have to wait until June 25th to see it acted upon. Should that not occur, they would need to wait an entire month to try again, a period of time in which signatories could well choose to withdraw their signatures.

Q: So how does all of this apply to the discharge petition being made for the DACA bills?

A: The petition for DACA will have to follow all of the above procedures, of course, though it is strange for two reasons. The first is that this petition actually was filed by a member of the majority party. However, only 23 Republicans have signed it so far, with the lack of action on the issue at the helm. Second, this petition is different in that it allows for consideration four alternative substitutes rather than a single bill.

Q: How does that work? Don’t discharge petitions only apply to one bill or rule?

A: Normally, that is true, but it is possible here because the petition is not directed at four separate bills but rather at four substitute amendments to a single bill by House Judiciary Committee Chairman Robert Goodlatte (R-VA) under an obscure procedure known as “queen of the hill” that allows for separate votes on multiple substitute amendments, with the one with the most votes prevailing. In the case of a tie vote, the last one adopted prevails. The idea is to increase the likelihood of adopting the special discharge rule which allows for a variety of alternative approaches.

Q: So, what substitute amendments would be allowed under the rule?

A: The rule would allow for votes on four amendments in the nature of a substitute in the following order: (1) by Chairman Goodlatte; (2) by Rep. Lucille Roybal-Allard (D-CA); (3) by Speaker Paul Ryan (R-WI); and, (4) by Rep. Jeff Denham (R-CA), one of the discharge petition’s original signatories.

Currently, the petition is just three votes shy of the 218 needed signatures and there is optimism among supporters that it will get over the line once members return from the Memorial Day break. If so, it’s looking more and more likely that the House could be taking votes under the Queen of the Hill rule as soon as June 25.