IX. Special Rules for Major Bills
Each major piece of legislation, except privileged matters (such as appropriations bills, budget resolutions and conference reports) not in violation of any rule of the House, normally needs a “special rule” to be adopted before the measure can be considered. A special rule, also known as an “order of business resolution,” is a House resolution that sets the terms for debate and amendment. A special rule is highly important because it controls what the House can and cannot do regarding the bill itself. Special rules are reported to the House by the Rules Committee, acting as an arm of the majority leadership. They require adoption by the full House by a simple majority vote in order to take effect. Bills considered under suspension of the rules or on other special procedural days do not require a special rule in order to be considered on the House Floor.
Special rules should not be confused with the established procedures of the House. Generally speaking, special rules provide exceptions to, or departures from, the established procedures of the House. Those procedures are found in the Constitution of the United States, applicable provisions of Jefferson’s Manual, rules of the House adopted on the opening day of each Congress, provisions of law and resolutions having the force of rules of the House, and established precedents by Speakers and other presiding officers of the House and Committee of the Whole.
Among the various types of special rules considered in the House, the most common are:
Open rules, which permit general debate for a certain period of time (typically one hour) and allow any Member to offer an amendment that complies with the rules of the House and the Congressional Budget Act during consideration of the bill for amendment under the five-minute rule.
Modified open rules, which permit general debate and allow any Member to offer an amendment which complies with the rules of the House under the five-minute rule subject only to a requirement that the amendment be pre-printed in the Congressional Record. Modified open rules may also allow for any amendment that complies with the rules of the House to be offered without pre-printing in the Congressional Record, but the rule may place an overall time cap on consideration of the bill for amendment.
Structured rules, which permit general debate for a certain period of time, but limit the amendments that may be offered to only those designated in the special rule or the Rules Committee report to accompany the special rule, or preclude amendments to a particular portion of a bill, even though the rest of the bill may be completely open to amendment.
Closed rules, which permit debate for a certain period of time, but do not allow amendments to be offered to the bill.
NOTE: To encourage Members to pre-print their amendments in the Congressional Record in advance of their consideration, the Rules Committee routinely includes a provision in open rules allowing the Chair to give priority in recognition to such Members. This common provision encouraging pre-printing should not be confused with the provision in modified open rules requiring the pre-printing of amendments.
One of the most important features of a special rule is what it designates as the base text for purposes of amendment. This often may be the text of the committee-reported amendment in the nature of a substitute; an amendment in the nature of a substitute as modified by another amendment; the text of the bill as introduced; or a completely new text printed in the Congressional Record, or in the report of the Committee on Rules accompanying the rule, or consisting of the text of another introduced bill, or consisting of the text of a Committee Print of the Committee on Rules.
When a special rule waives points of order, it means that some rule of the House (such as germaneness) or a provision of the Congressional Budget Act is being set aside to permit the bill to be called up for consideration or to permit certain amendments to be offered to the bill in question. Without such waivers, a point of order would lie against consideration of the bill or amendment and any Member could make that point of order and, if sustained, thereby prevent consideration of the bill or amendment. It is the practice of the Committee on Rules to provide a prophylactic waiver even when the Committee is not aware of a violation of the rules or the Budget Act. This insulates the Chair against having to litigate specious points of order and the Majority from previously undisclosed points of order.
Before a special rule is considered by the House, it is the subject of a hearing by the Rules Committee during which Members testify as to the type of rule and amendments they support. Members are usually notified by the Committee, in the form of a “Dear Colleague” letter, in advance of a meeting if a rule structuring the amendment process is anticipated. After a hearing is held, the Rules Committee will consider a motion to grant a special rule, and will then vote to report the rule to the House. The rule and accompanying report are usually filed on the same day.
A special rule may not be considered on the same day it is reported, except by a two-thirds vote of the House (unless it is within the last three days of the session). This prohibition (clause 6(a) of rule XIII) is sometimes waived by the adoption of another special rule reported by the Rules Committee.
The process for considering a rule in the House is as follows:
- The rule is called up for consideration in the House by a majority member (manager) of the Rules Committee.
- One hour of debate is permitted and the majority manager customarily yields one half of the time to the minority manager for the purpose of debate only.
- Amendments to special rules are very rare. Special rules can be altered by unanimous consent or the manager may offer an amendment. It is also possible, but unlikely, that the majority manager will yield for the purpose of amendment, or that the previous question will be defeated.
- The previous question is moved and put to the House by the Chair for a vote.
- Once the previous question is ordered, the House then votes on the rule. Upon adoption of the rule, the House may proceed to consider the legislation.
The previous question is a motion made in order under clause 1 of rule XIX and is the major parliamentary device in the House used for closing debate and preventing further amendment. The effect of adopting the previous question is to bring the resolution to an immediate, final vote. The motion is most often made at the conclusion of debate on a rule, motion or legislation considered in the House prior to final passage. A Member might think about ordering the previous question in terms of answering the question: Is the House ready to vote on the rule, bill or amendment before it?
NOTE: The previous question is not in order under a motion to suspend the rules.
In order to amend a special rule (other than by using those procedures previously mentioned), the House must vote against ordering the previous question. If the previous question is defeated, the Speaker then recognizes the Member who led the opposition to the previous question (usually a Member of the minority party) to control an additional hour of debate during which a germane amendment may be offered to the rule. The Member controlling the Floor then moves the previous question on the amendment and the rule. If the previous question is ordered, the next vote occurs on the opposition’s amendment followed by a vote on the rule as amended.
Adoption of the rule occurs after the previous question is agreed to. When the previous question is not a subject of controversy, it is simply disposed of “without objection.” Next, the question of adopting the rule is put to the House, and the rule is either adopted or defeated. The underlying bill is not prejudiced for future consideration if the rule providing for its consideration is defeated. The Rules Committee can report another rule providing for consideration of that initial underlying bill.