House Omnibus Procedural Notes
Some usual stuff, some unusual stuff in the House last Wednesday.
In no particular order, here are a some quick hit procedural notes on last week’s passage of the FY22 appropriations.
It was an Omnibus. No, Seriously. A big One.
The bill clocked in at 2,741 pages. It has all 12 regular annual appropriations bills for Fiscal year 2022. It has the Ukraine aid. It has a ton of other bills stuffed into it:
Procedurally, the reason to do an omnibus is that it allows leaders to package together legislation that might not pass on its own. By pairing popular stuff that members want to vote for (or don’t want to vote against) with less popular stuff, you can often get things across the finish line that might fail in a stand-alone vote. You can also sometimes grow huge bipartisan votes by pairing stuff each party likes, like the defense appropriations act and the Labor / Health and Human Services appropriations act.An omnibus is also a good legislative tactic to use against the president; he can’t veto part of a bill. Congress tied Trump in knots this way, by forcing him to accept lots of appropriations he disliked, because he didn’t want to veto the Defense Appropriations Act.
The House Took a Belt-and-Suspenders Approach
The CR keeping the government open was scheduled to expire at midnight on Friday night, March 11. The House passed the omnibus late on Wednesday night and sent it over to the Senate. But they also passed a short-term 4-day CR by voice vote on Wednesday evening and sent that to the Senate, just in case things fell apart or were delayed in the Senate and they needed a few more days to get the omnibus done.
They used a Rules Committee Print for the bill
The easiest way for leadership to package together an omnibus in the House is to hammer out all the deals to gather the coalition for the bill in both chambers, and then just throw the final bill into a Committee Print at the House Rules Committee, and then use a special rule to stuff the print into an existing bill as a full-substitute amendment.
This is all easy, because in the House the majority can change the rules at any time, and indeed the normal mechanism for brining bills to the floor is to first bring a rules change the floor (the “rule”), and use that to specifically structure the agenda, the debate, and the deliberation of the bill you actually want to deal with. So long as you have the votes to temporarily change the rules—not a given, but usually so because the majority party has hammered out a deal amongst their factions and hold together as a partisan group—you’re all set. This is how the vast majority of controversial legislation moves through the House.
There’s Still Martial Law in the House
One limitation on writing special rules is that normally you can’t surprise people with them. Under House Rule XIII, clause 6(a) you cannot consider a special rule on the House floor on the same legislative day that it was filed in the House. It has to wait until the next day. There are various ways around this,but you actually don’t need to find them right now, because Rule XIII, clause 6(a) is currently inoperative: they keep suspending it.
This tactic—informally called “martial law” by Congress nerds—is often used at the end of sessions when they might need to move legislation quickly. In effect, they write a special rule temporarily suspending Rule XIII, clause 6(a), let that rule lay over the required day, and then once they pass that rule, all future rules can go on the same day. But, like I said, this is usually just an end-of-session technique.
Not in the 117th Congress. We’ve had martial law the entire time since January 3, 2021. They keep extending it by a month or two at a time, in whatever rule happens to be on the floor near the latest deadline. Here’s the latest instance, from H.Res.900:
I only noticed this because they shut down the House floor prior to the Rules Committee finishing their meeting at 1:30am on Wednesday. The special rule teeing up the omnibus didn’t get filed until the House opened on Wednesday at 9:00am, which was what clued me in that the martial law continues. I have no idea why they keep extending it by a month or two, instead of just making it permanent for the rest of the 117th Congress.
They Held a Vote Open for Hours
On Wednesday morning, the omnibus ran into trouble. A lot of Dems were angry about the mechanism they were going to use to pay for the new COVID supplemental. Remember, this was a 2,741 page bill that was released eight hours earlier. And evidently the leadership didn’t vet the financing mechanism for the COVID money. And when people found out about it, they were not happy.
This all occurred while the special rule was about to be debated on the floor. As the House began legislative business, Representative Hice (R-GA) moved to adjourn because he was angry about the omnibus being dropped on them with so little notice. This forced a recorded vote in the House, which normally would last 15 minutes. It ended up lasting four and half hours.
This is because the chair did not gavel the vote closed. A lot of people who watch C-SPAN think the vote clock in the House is like a shot clock in college basketball; a countdown timer showing how long you have left to vote. That is not right. The vote clock shows the minimum amount of time under the House rules that Members have to cast their vote. It’s a protection device to keep people from being quick-gaveled. Any vote can be held open indefinitely by the chair.
And that’s what the Dems did. While they tried to figure out their differences on the COVID supplemental, they just left the House frozen in the adjournment vote.
They Had to Write a New Rule
As it turned out, the couldn’t solve their differences on the COIVD supplemental. The members who were angry about the funding mechanism were refusing to vote for either the rule or the omnibus until it was fixed. And since there is such a small majority in the House (221-213 currently), they had enough strength to hold the balance of power in the House. House leadership couldn’t alter the funding mechanism, because that was going to cause problems passing the omnibus in the Senate, where they needed GOP votes and were worried more deficit-financed COVID money might blow up the coalition.
So the COVID money had to be pulled out of the omnibus. Which meant that the existing proposed rule for the floor (H.Res. 972) had to be scrapped, because it would put a full-substitute onto the floor that contained the COVID money, with no opportunity to amend it out. So they had to go back to the Rules Committee and write a new rule. Which meant that they had to withdraw the current rule from the floor. So they closed the vote on the (losing) motion to adjourn, and then Rules Chairman Jim McGovern (D-MA) pulled the rule. Womp-womp.
The new rule amended the committee print to strike Division M, which was the COVID supplemental funding. It would have to wait till next week.
The new rule went through the committee during the day on Wednesday and, thanks to the existing martial-law situation, could be put on the floor same-day. Which it finally was, at 5:58pm.
They Stacked the Votes
The new rule (H.Res.973) passed at 7:22pm on Wednesday, and under the terms of the rule, set up a bunch of debate and a bunch of votes on a bunch of different bills. First, they debated and passed H.R. 6968, which is the Russia energy import ban. When the debate ended, the chair postponed the vote (as is her authority, and as is quite common), in order to start building a stack of votes later in the night. They then debated the omnibus, and postpone the vote when the debate ended. They then debated the 4-day CR, and also postponed the vote.
Why postpone votes to create a stack? Mostly, to make it easier on the members. Prior to the chair having the ability to delay votes, members were stuck coming to the floor whenever a vote came up procedurally. This meant in the 1960s that members had to be with 15 minutes of the floor at all times, whenever Congress was in session. By giving the chair the authority to postpone votes, the leadership can easily set up a situation where members only have to come to the floor once or twice in a day, at a known time, and take a bunch of votes. This allows members to set up meeting they know won’t be interrupted, or go raise money off-campus at the DNC/RNC, or even do things around town or in northern Virginia, without fear of of missing votes. It’s a consistency that has radically changed how Members spend their day, and Members love it.
The leadership also likes it because it puts members on the floor for an extended period of time where they can’t escape, and that helps the whip operation. With single votes throughout the day, Members could slip in, vote, and slip out. But with stacked votes, they have to wait around for the next vote to be called (the first vote in a stack is a 15 minute vote, but the subsequent ones are typically 5-minute votes). This means the leadership has a captive audience often for 45 minutes on the floor. Lots of time to lobby people, cut deals, and generally take the temperature of their caucus. Important whip stuff. Individual members use this time too, for the same stuff. Lots of Members have palm cards with the list of everyone they need to talk to during the stack. It’s efficient one-stop shopping. It also looks like a school playground while it’s happening.
In the end, they took six roll call votes Wednesday night: two on the omnibus (see below), two procedural votes on tabling motions to reconsider, a motion to recommit on the Russian oil import bill, and a final passage vote on the Russian oil import bill. They also passed the 4-day CR by voice vote.
They Divided a Question
Under House Rule XVI, clause 5, you can ask for a division of any vote that contains multiple substantively-distinct questions, in order to get separate votes on the distinct questions. This almost never comes up, because almost all questions that come before the House arrive under restricted-procedures, either suspension of the rules, or a special rule that bars a motion to divide the question.So you never really see it.
But under the special rule for the omnibus, they purposefully built in a divided question on the omnibus itself, creating two separate votes on the omnibus. If either vote failed, the bill would not be passed. The first vote was for divisions B,C,F,X,Z, and part of N, which was all stuff Republicans wanted to vote for (Defense funding, Homeland Security Funding, the Intelligence Authorization Act, the Ukraine funding, etc.), and the other vote was for everything else in the omnibus (the rest of the appropriations, some other Dem priorities). The first vote passed 361-69. The second vote passed 260-171.
Why would the Dems do this, in effect allowing the Republicans to get a vote they liked on the security funding and Ukraine aid, without having to vote for the domestic appropriations that Dems liked? I don’t know the answer for sure, but the obvious one is that this was the price for getting the appropriations through the Senate, where GOP votes would be needed to overcome a filibuster. In essence, GOP leadership negotiators demanded that House Republicans be able to vote in favor of the Ukraine aid and the military funding, but not the rest of the appropriations, as a condition for agreeing to the big deal to move the omnibus forward in the Senate. It’s a good reminder that the filibuster doesn’t just affect legislation in the Senate, but also shapes outcomes in the House.
They Used a Previously-Senate-Passed Shell Bill
The omnibus was amended as a substitute into H.R.2471, which was a bill about aid to Haiti, which has passed the House in June of 2021, and then passed the Senate (with an amendment) in January 2022, and had come back to the House for further consideration of the Senate amendments.
Why did they use this bill for the omnibus? Presumably to save time in the Senate. If the omnibus was new bill, it could not be taken up in the Senate without either unanimous consent or a debatable motion to proceed, the latter of which would require the breaking of a filibuster just to get the bill on the floor, where it would still be subject to another filibuster on the bill itself. By using a bill that had previously been passed, the motion to proceed to it in the Senate would not be debatable, since House amendments to Senate-passed bills are privileged. This means the omnibus could immediately get on the Senate floor, by majority vote with no debate, potentially cutting the number of filibusters they would have to break in half, saving a lot of time.
It’s also possible to fail with an omnibus, because people hate the stuff they don’t like more than they like the stuff they do like. My go to hypothetical example is an omnibus that requires a 48 waiting-period for all gun purchases and abortion purchases. That’s a lot more likely to get 0 votes than to get a huge bipartisan majority. The real-life example is the original omnibus—the Compromise of 1850. Clay tried combining the elements (California statehood, Texas boundary fix, New Mexico and Utah territories organized without mention of slavery, ban on slave trade in DC, tougher fugitive slave act) but that made both the anti-slavery and pro-slavery forces hate the bill. The solution Stephen Douglas came up with was to separate the elements, so the small number of centrists who liked the omnibus could vote with the anti-slavery members on their stuff and the pro-slavery members on their stuff, creating narrow majorities for all the elements.
This is indeed what happened. Not because the Senate vote was particularly delayed, but because they wanted to give the legislative clerks more time to enroll the massive bill. So the Senate passed the 4-day CR, and Biden signed it on Friday. The omnibus will be signed today or tomorrow.
Non-controversial bills have a number of other options for moving through the House. If you have a 2/3 majority for a bill, it usually will move via a suspension of the rules, which is actually how most bills get approved in the House, because believe it or not, most of what the House does is not controversial but actually has massive bipartisan support.
The most common trick is to just keep the House floor open late into the night, until the Rules committee finishes meeting. Even if it’s 5am, they can report out the rule, file it in the House, and then the House can adjourn. When the House comes back into session at noon, it will be a new legislative day. You could also create a new legislative day by adjourning the House very briefly, and end up with multiple legislative days on the same calendar day.
I mean, half the point of an omnibus, as discussed, is to avoid separate votes on things that might not pass, so obviously the leadership has no generally interest in allowing you to divide the question.