Examining Claims about Procedural Choice: The Use of Floor Waivers in the U.S. House

By Hixon, William; Marshall, Bryan W. | Political Research Quarterly, December 2002 | Go to article overview

Examining Claims about Procedural Choice: The Use of Floor Waivers in the U.S. House


Hixon, William, Marshall, Bryan W., Political Research Quarterly


Congressional theories offer competing explanations of the role of restrictive amendment rules in the U.S. House (Krehbiel 1997; Dion and Huber 1996; Sinclair 1999). But this literature has largely ignored the importance of waivers in the legislative process. Our analysis begins to address this gap by utilizing waivers to test theoretical claims that to this point have only been applied to the amendment portion of special rules. We find waivers are a source of conflict on special rules independent of the restrictive characteristics of the rule. We also find waiver protections can be explained by some of the same determinants of restrictive rules as claimed by informational, distributive, and partisan theories, but that no single explanation covers all types of waivers. In general, we infer from these results that procedural choice is shaped not only by amendment restrictions imposed by special rules, but also by features of waivers that determine which standing rules of the House may apply. By not incorporating waivers in our studies of floor procedure, we miss an important source of evidence for distinguishing between theories of legislative organization.

How does this House consider things? Representative Barney Frank (D-MA) put this question to Republicans during debate on a rule (H.Res. 63) to bring the Violent Criminal Incarceration Act of 1995 to the floor. Frank and other Democrats were upset about the rule but not about the usual issue of restrictions on the minority's ability to offer amendments. As Howard Berman (D-CA) put it (H1474, CR 2/9/95): "The issue to me is not whether this rule is open or not. I understand the need of the majority to try and manage the business of the House. The question is whether the rules process is used to tilt the process fundamentally, one way or another." In fact, the rule was basically open and gave members of both parties a chance to offer amendments on the floor.1 What upset Democrats was the Rules Committee's use of waivers.

Berman's particular complaint centers on an amendment that he hoped to offer on the floor. His amendment would have reimbursed states for the cost of imprisoning illegal aliens convicted of felonies. Technically, the amendment would have violated requirements of the Budget Act. Without a waiver of those requirements, any member could effectively have killed the amendment by raising a point of order against it. Despite its popularity in the Judiciary Committee, Berman's amendment was denied the necessary waiver by the Rules Committee on a straight party-line vote.2 In Frank's view, "they [the Republican leadership] are in fact using their power to restrict debate a little bit more technically than we did" (H1475, CR 2/9/95).

Members of Congress tend to question rules of procedure for the same fundamental reason that congressional scholars seek to explain them: rules are outcome consequential (Krehbiel 1999). As the example of the Berman amendment illustrates, there are many different ways to control how the House considers things. Restrictive rules that limit amendment possibilities are just one of these mechanisms. Waivers represent another.

Although congressional theories have offered considerable insight into the mechanisms underlying House procedure, the debate regarding the role of special rules remains unsettled (Marshall 2002; Krehbiel 1997; Dion and Huber 1996; Sinclair 1995 and 1999). Much of this work emphasizes only one dimension of special rules-amendment restrictions-and therefore limits the inferences that can be drawn from their study. This does not suggest that restrictive rules are not important or even the most important features of procedural choice. However, we argue that waivers of the House standing rules may have just as important consequences on policy outcomes as amendment restrictions.

Waivers of the standing rules of the House, seemingly routine elements of special rules, combine with amendment restrictions to structure member decisions. …

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