The Discharge Rule in the House: Principal Features and Uses
The Discharge Rule in the House:
Principal Features and Uses
Richard S. Beth
Specialist on the Congress and Legislative Process
Government and Finance Division
Summary
The “discharge rule” of the House of Representatives allows a measure to come to
the floor for consideration, even if the committee of referral does not report it and the
leadership does not schedule it. To initiate this action, a majority of House Members
must first sign a petition for that purpose. The rule permits either (1) the committee of
referral to be discharged from the measure itself; or (2) the Committee on Rules to be
discharged from a special rule for considering the measure. Layover periods required
by the rule permit the Committee on Rules to preempt a discharge attempt, and recover
control of the floor agenda, by securing adoption of an alternative special rule for
considering the measure. This report will be updated to reflect developments in the
rules or practice.
The Discharge Rule and Agenda-Setting in the House
The “discharge rule” of the House of Representatives (Rule XV, clause 2) provides
a means for the House to bring to the floor for consideration a measure (a bill or1
resolution) that has not been reported from committee. Normally, each measure
introduced in the House is routinely referred to a committee, and cannot receive floor
consideration until the committee reports. Because House committees are in general not
required to report measures, they can normally prevent House action on any referred
measure simply by taking no action thereon. This “gatekeeping” function is a key reason
for the central position of committees in shaping the congressional agenda. The discharge
rule provides one of the few procedures by which the House can circumvent this
gatekeeping role.
More generally, the discharge rule offers the only means by which a majority of
House Members may secure consideration of any measure against the simultaneous
1 The procedure is so called because it takes the measure away from the committee “charged”
with it. Strictly speaking, therefore, it is the committee, not the measure, that is discharged.
opposition of the committee of jurisdiction, the leadership of the majority party, and the
Committee on Rules.2 Other House procedures may permit bringing a measure to the
floor over the opposition of some of these entities, but only through the concurrence of
others. For example, the motion to suspend the rules and pass a measure can bring to the
floor even an unreported measure, because the motion can suspend the rule requiring it
to be reported before it can be considered. The Speaker, however, has discretion in
recognition for this motion, and for this purpose normally recognizes the chair of the
committee of jurisdiction (or the chair’s designee). Similar practices govern recognition
for requests to consider a measure by unanimous consent. Finally, the House can adopt
a “special rule” directing that a specified unreported measure be “extracted” from
committee and taken up on the floor. Special rules, however, are normally privileged for
consideration only when reported by the Committee on Rules.
Main Features of the Discharge Procedure
The discharge procedure is designed to be difficult to accomplish, so as to discourage
Members from resorting routinely to a procedure that takes control of the floor agenda
away from the Committee on Rules and other leadership organs that are normally
responsible for it. A discharge motion may be offered on the floor only if a majority of
the entire membership of the House, 218 Members, first signs a petition in support of the
action (Delegates are not eligible to sign). A Member may initiate such a petition only
after the measure has remained in committee for at least 30 legislative days without being3
reported. Seldom is a petition filed this soon; Members generally refrain from initiating
one until they consider it clear that the committee does not plan to act.
The discharge rule explicitly excludes private bills from being subject to discharge.
The chair once asserted that a resolution to establish an investigating committee also is
immune from discharge. Discharge apparently may be sought on any other measure
pending before committees of the House.
A Member obtains the petition form at the Clerk’s desk in the House chamber, where
pending petitions are also maintained and made available for signature.4 Members may
sign or remove their names until the total of 218 is obtained, at which point the signature
list is frozen and printed in the Record, and the motion is “entered” on the Discharge
Calendar. Few petitions reach this point, and for those that do, the process usually takes
some months.
2 House Rules, however, do provide special means for bringing certain narrowly specified kinds
of measures to the floor without concurrence from any of these entities. Examples include
resolutions of inquiry, questions of the privileges of the House, and certain resolutions of
approval and disapproval regulated by statutory “fast track” procedures.
3 A new legislative day starts each time the House meets after adjourning.
4 The last issue of the Congressional Record for each week lists Members who have signed (or
removed their signatures from) each pending discharge petition during that week. This listing
identifies petitions by measure number, but not by subject. The full texts of pending petitions,
including measure titles and current lists of signers, appear on the website of the Clerk of the
House at [http://clerk.house.gov/legislative/legvotes/html].
The motion to discharge may then be offered on the floor, but (1) only at the
beginning of a day’s session that falls at least 7 legislative days after the motion is
entered, (2) only on a “discharge day” (the second or fourth Monday of each month), and
(3) not during the last six days of a session of Congress. Any Member who signed the
petition may offer the motion; normally the one who initiated the petition is recognized.
The motion is debatable for 20 minutes, equally divided between supporters and
opponents (typically, controlled by the Member calling it up and the chair of the
committee to be discharged). If a simple majority of Members present and voting adopt
the motion, the committee is discharged, and the House may proceed to consider the
measure. Because the measure has not been reported, however, it comes to the floor in
the form introduced, with no recommended committee amendments and no written
committee report to guide Members or establish legislative history.
Once the House acts on a discharge motion on any measure, any further action under
the discharge rule is precluded for any measure on the same subject during the same
session of Congress (that is, roughly, for that calendar year). At the final sine die
adjournment of a Congress, all legislative business terminates, including pending
discharge petitions.
A discharge motion that never comes to the floor may still serve proponents’
purposes, for a committee may sometimes respond to a discharge effort by reporting the
measure on its own initiative. This response may become increasingly likely as the
petition approaches or obtains the required 218 signatures. Even counting such cases,
nevertheless, usually no more than one measure on which discharge is attempted reaches
the House floor in a single Congress. Also, some such measures fail to pass the House,
and only a few have ever become law.
Discharge on Unreported Measures
Within the structure of this general mechanism, the discharge rule incorporates two
distinct approaches: the petition may be filed either directly on the unreported measure
itself, or on a special rule for its consideration. The first approach permits the committee
of referral to nullify the discharge attempt by reporting the measure, for once the
committee no longer has the measure in its possession, it can no longer be discharged.
The committee may even wait until all 218 signatures are obtained, then report the
measure before the next discharge day. The motion to discharge then cannot be called up,
because it is moot. Although the measure is then procedurally available to be considered,
it remains unlikely to reach the floor unless the reporting committee takes action to bring
it up.
If a measure is referred to more than one committee, all the committees may be
discharged simultaneously by a single petition. A multiply referred measure remains
eligible for action under the discharge rule until all committees of referral report it (or
otherwise lose possession of it). In these circumstances a single committee cannot nullify
the discharge attempt by reporting, unless it is the last committee holding the measure.
If 218 signatures are obtained and the committee does not report the measure, the
discharge motion may be called up, and the House may adopt it. Any Member who
signed the petition may then move for the House to take up the measure under the
appropriate general rules. (If this motion is defeated, the measure may later be taken up
by any of the usual means, but these, again, are normally under the control of the
leadership.)
If a measure reaching the floor by discharge is a “money bill,” including an
authorization, appropriation, or revenue bill, House Rules mandate that it initially be
considered in Committee of the Whole; the proper motion is therefore that the House
resolve into Committee of the Whole for its consideration. If the House agrees to this
motion, the measure is considered under the equivalent of an “open rule”: the measure
is read by section for amendment, and any germane amendment is in order to each
section. Under these conditions, this first method of discharge offers no possibility of
limiting or structuring the amendment process, or, conversely, of providing any waivers
that prospective amendments might need. In these circumstances, also, the time for
general debate on the measure can be limited and placed under the control of managers
only by unanimous consent.
If the House agrees to discharge on a measure that is not a “money bill,” then the
motion in order is that the House consider it. On agreement to this motion, the House
considers the measure under the “one-hour rule,” which permits the Member calling the
measure up to move the previous question after one hour of debate. If the House orders
the previous question, it then proceeds to vote on the measure in the form introduced,
before any Member has any opportunity to offer an amendment. Even if the House
defeats the previous question, a Member who led the effort to do so is then normally
recognized, offers an amendment, and at the end of his or her hour moves the previous
question on the amendment and the measure. Under these conditions, too, this first
method of discharge provides no way to adapt the terms of consideration and amendment
to the circumstances of the specific measure.
Discharge on Special Rules for Unreported Measures
The second method of discharge was added to House rules in 1931 as a means of
avoiding the difficulties just discussed, and has become more common in recent years.
Under this second approach, a Member must first draft and submit a special rule (which
takes the form of a House resolution) providing that a specified measure be considered
even if it remains unreported. The special rule may not permit the offering of any
non-germane amendment, nor provide for consideration of more than one measure. If the
Committee on Rules has not reported this resolution after seven legislative days, the same
(or another) Member may file a petition to discharge that committee from considering it.
At that point, the measure the special rule makes in order either must have remained in
committee for at least 30 legislative days, or must have been reported.
If the petition obtains the requisite 218 signatures, the motion in order on a discharge
day is to discharge the Committee on Rules from the resolution. If that motion is adopted,
the House then considers the resolution under the one-hour rule, just as with any other
special rule. If the resolution itself is then also agreed to, its own terms bring the desired
measure out of committee and to the floor, just as with an “extraction rule” that the
Committee on Rules may report in the ordinary course of events.
This method permits supporters of a measure to propose whatever terms to regulate
the consideration and amendment of the measure they find appropriate to the specific
situation, just as the Committee on Rules normally does. A special rule for such purposes
normally includes provisions such as (1) that the House resolve into Committee of the
Whole automatically or by motion, rather than at the Speaker’s discretion; and (2) that
consideration continue on subsequent days until a final vote. These provisions guard
against the possibility that a leadership hostile to the measure will be able to recover
control of the floor agenda by turning to other business before the House completes action
on the desired measure.
This second approach to discharge also prevents the committee of jurisdiction from
nullifying the discharge effort by reporting the measure and declining to find a way to call
it up. If the special rule provides for considering a measure whether or not it has been
reported, then even if the committee does report the measure, that action raises no
obstacle to discharge action on the special rule.
House Rules also protect against the possibility that the Committee on Rules itself
might attempt to vitiate a discharge effort by reporting the special rule and then declining
to call it up. If the committee reports any special rule, and then fails to call it up within
7 legislative days, House Rule XIII, clause 6(d), requires the Speaker to recognize any
member of the committee for that purpose, once the member has given one day’s notice
of intent to do so. This requirement protects any discharge effort that can rely on
cooperation from at least one member of the Committee on Rules. Finally, if the
committee reports the special rule adversely, House Rule XIII, clause 6(e), and House
Rule XV, clause 3, require the Speaker, on any discharge day, to recognize any Member
of the House for the purpose of calling up that special rule.
The chief potential difficulty with this second approach is that it requires Members
to draft the special rule at the beginning of the process, even though, by the time the
measure reaches the floor, judgments about appropriate terms for consideration may have
changed. Care may be required to formulate terms for consideration flexible enough to
accommodate unforeseen circumstances, such as permitting amendments to be offered
that may remedy newly recognized problems or attract desired support.
Discharge on Special Rules for Reported Measures
When Members seek to discharge the Committee on Rules from a special rule for
considering an unreported measure, the actual obstacle to action is presumably not the
Committee on Rules, but rather the committee to which the measure is referred. By
contrast, if the Committee on Rules declines to report a special rule for considering a
measure that the committee of jurisdiction has reported, it can itself become the obstacle
to consideration. Such action is not common today, but was more frequent in the period,
ending in the mid-1960s, when the committee often did not work as an organ of the
leadership in managing the agenda.
The second method of discharge offers recourse in these circumstances as well, for
Members may submit, and seek discharge on, a special rule for considering the already
reported measure. This approach was used by supporters of campaign finance legislation
in the 107th Congress. In such cases, the reporting committee might even support the
attempt to discharge the Committee on Rules.
Recovery of Agenda Control
Through the Committee on Rules
Although the Committee on Rules cannot nullify a discharge attempt directed against
a special rule by reporting the special rule, in recent years it has often taken another course
of action by which it may recover control of the floor agenda. Often after a discharge
petition has obtained the required 218 signatures, and sometimes when such a result has
seemed imminent, the committee has reported, not the special rule on which discharge
was being sought, but its own special rule for considering the same measure (or,
sometimes, for considering an alternative measure on the same subject).
The committee has then called up this special rule during the required layover period
before a discharge motion can be brought to the floor. If the House has adopted this
resolution, the measure has then been considered under the schedule and terms that the
committee (and perhaps the leadership and the committee of jurisdiction) has found
appropriate, rather than those preferred by the supporters of discharge. These special
rules have also provided that no further action take place pursuant to the original
discharge petition.
As a result of these actions, supporters of the measure in question still succeed in
securing its consideration by the House, yet the leadership retains its normal control over
the schedule and terms of action on the floor. For consideration of campaign finance
legislation in the 107th Congress, however, the Committee on Rules reported a special rule
that was identical in text to the one on which discharge had been sought. Under such
conditions, the leadership’s recovery of floor control might be viewed as but nominal.
This course of action does not leave discharge proponents without recourse. If they
dislike the terms for consideration that the Committee on Rules proposes, they can
attempt to defeat the committee’s special rule, thereby retaining the capacity to call up
their discharge motion on the next discharge day. On some occasions, the prospect of
such action has led to a negotiated agreement on the terms of consideration.
For Further Reference
U.S. Congress. House Committee on Rules. Subcommittee on Rules of the House.rdst
Discharge Petition Disclosure. Hearing on H.Res. 134. 103 Congress, 1 session.
Washington: GPO, 1993.
CRS Report 97-856. Discharge Rule in the House: Recent Use in Historical Context, by
Richard S. Beth.