Letting Majorities Rule: The Potential Impact of the Discharge Rule on the Fate of Immigration Reform

On June 28, 2013, the Senate in an uncommon show of bipartisanship passed a comprehensive immigration reform bill. Action on immigration reform is widely popular in the electorate – 86% of both Democrats and Republicans support the controversial path to citizenship for undocumented workers that House Republicans vehemently oppose.[1]  Pragmatic members of the Republican Party, including George W. Bush and other leading conservatives, have also expressed their support for immigration reform.[2], [3] Despite overwhelming popularity, the Senate immigration bill was declared dead upon its arrival in the House. To quash the bill, Speaker Boehner relied on the Hastert Rule, an informal principle that requires a majority of the majority party to support a bill before it comes to a vote.[4] 

As politicians and pundits were quick to point out, however, House rules provide formal means for a majority of the chamber to bypass a majority party leadership opposed to action.[5]  In other words, if immigration reform can garner the support of the chamber majority in the House (even without the support of the majority of Republicans), House rules would allow proponents of reform to attempt an end-run around the leadership. The most straightforward path to the floor in such circumstances involves the introduction, signing, and adoption of a discharge petition. The use of this instrument – or the threat of its use – could provide a mechanism for breaking the immigration stalemate if the GOP leadership decides not to act on the bipartisan measure passed by the Senate.

In this paper, Jackman explores the politics of the committee discharge process and its potential effects on policy outcomes. She begins by reviewing the origins of the House discharge procedure and its subsequent evolution. Next, she provides an overview of committee discharge in the House, highlighting examples of its success and the far more frequent examples of its failure. She then turns to state legislatures, where there is wide variation in the presence and form of committee discharge procedures, to gain leverage on the question of how discharge rules affect both the balance of power in legislatures and the shape of policy outcomes. Jackman concludes by considering the potential impact of the House discharge rule on the fate of comprehensive immigration reform.

Jackman’s findings are two-fold. First, she argues that invoking the discharge rule imposes costs not only on the majority party leadership, but also on those attempting to circumvent the party’s control of the agenda. As such, even those who stand to benefit from discharging a measure from committee may be reluctant to initiate or sign a discharge petition. The costs of this procedural right might help to explain why moderate House Republicans and House Democrats have not moved to discharge the Senate immigration bill despite strong public support.  

Second, Jackman argues that the discharge rule may serve an important purpose, even if it is not invoked. So long as the threat to withdraw a bill from committee is credible, the chamber majority gains power vis-à-vis the majority party leadership, even though this shift in power is difficult to observe directly. If moderate members of the majority party disagree with the party leadership, the two must engage in a game of chicken. When the two sides are staring each other down, the discharge petition is one tool that tips the balance in favor of the more moderate members, making the leadership likely to swerve before the procedure is actually invoked. Thus, although invoking the discharge petition can be costly, the threat of its use lessens the impact of the Hastert Rule on the House and increases the agenda power of a chamber majority. In short, a determined chamber majority and an esoteric procedure might provide an avenue for passing immigration reform and other gridlocked legislation.

[1]Newport, Frank and Joy Wilke. “Immigration Reform Proposal Garner Broad Support in U.S.” Gallup Politics, June 19 2013.

[2] Bohan, Caren. “Can Paul Ryan sell immigration reform to conservatives?”  Reuters, June 26, 2013.

[3] Parker, Ashley. “Big-Name G.O.P. Donors Urge Members of Congress to Back Immigration Overhaul.” New York Times, July 30, 2013.

[4] See, for example, Gibson, Ginger. “John Boehner: No House vote on Senate Immigration Bill.” Politico, July 7, 2013.

[5] For example, see: Klass, Richard. “How to Force Immigration Reform Through the House.” The Huff Post Politics Blog, June 30, 2013.; Ehrenfreund, Max. “The discharge petition’s role in the immigration reform debate, explained.” The Washington Post, June 29, 2013.; Benen, Steve. “Pelosi eyes House solution for immigration.”  The Maddow Blog, July 23, 2013.