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Dis-charge! Historical data and prospects for success.

“The Speaker’s Attitude” by cartoonist Clifford Berryman (1904), National Archives Berryman Political Cartoons Collection. Speaker Joseph Cannon stood pat so long his adversaries created the discharge rule.

Republican Speakers like to stand pat. But for how long?

House Democrats have announced that they will use a discharge petition to try to bring a clean continuing resolution (CR) to the floor.  What are the chances it will work?  I’ve previously pointed to technical and political barriers that often derail discharge petitions. Now that we know more about the Democrats’ strategy, it’s worth revisiting these challenges.

House Democrats have filed a resolution (H. Res. 372) that would bring — after a series of procedural steps — a clean CR to a vote on the House floor. This “special rule” has been referred to the House Rules Committee.  After seven legislative days in committee (October 11th), House Democrats will file a discharge petition to extract the resolution.  If 218 lawmakers sign the petition (presumably 200 Democrats and 18 GOP), the petition would be entered on the House discharge calendar.  After seven legislative days on the calendar, any petition signer can move to discharge the resolution at the next call of the calendar (October 28).  Assuming a majority vote to discharge, the resolution is immediately in order on the House floor. (Technically, the resolution actually brings a related bill to the floor, and then amends it with the language of a clean CR.)

Prospects for success?  Some factors to consider:

First, consider the discharge petition’s historical record, as shown below for the postwar period (1947-2013):

Graph by Sarah Binder. Data on discharge petitions: Congressional Research Service (1947-2002), Clerk of the House (2003-13).

Over the postwar period, 407 discharge petitions have been filed, but fewer than two percent of targeted measures have passed the House. That number is deceptively low.  Often times, the threat of a viable discharge petition induces the majority party to bring its own version of a targeted measure to the floor.  If we broaden our scope to include such measures, nine percent of discharge drives succeed. Granted, with the government shutdown, this discharge drive is hardly typical. So historical patterns may be less apt. Still, more often than not, discharge petitions fail.

Second, some technical barriers to the petition’s success remain.  The two seven-day waiting periods, coupled with infrequent calls of the discharge calendar, diminish the effectiveness of the discharge rule in this context, given many lawmakers’ desires to re-open the government before October 28th.  I’m surprised that the Democrats’ special rule did not also waive one of the waiting periods or add an additional call of the discharge calendar. If kosher with the parliamentarian, such moves would have made the discharge petition a more viable tool in this context.  Perhaps Democrats will draft a new resolution that does just that.  Or perhaps the government shutdown lasts longer into October, making the discharge drive more timely. That said, as Steve Smith notes, the leadership could extend each legislative day by recessing rather than adjourning, pushing “calendar” and “legislative” days out of sync.

Third, we still don’t know whether or how many GOP representatives would cross their party’s leadership to sign a discharge petition.  (Research by Susan Miller and Marvin Overby in Legislative Studies Quarterly shows that majority party lawmakers disproportionately fail to sign petitions to discharge bills they’ve co-sponsored.)  In this case, GOP lawmakers who have called for a vote on a clean CR will face public pressure to sign, pressure likely to mount as the impact of the government shutdown spreads. But moderates will face countervailing pressure by party leaders and conservatives to stand pat: Hang tight while the House GOP hatches a plan to both open the government and raise the debt limit. If moderates believe that an agreement will be reached by the Treasury’s announced default date of October 17th (and a discharge wouldn’t happen until October 28th), why pay the political costs of challenging leaders’ control of the floor agenda by signing the petition now?  Ultimately, moderates will have to weigh their own electoral interests, their perception of their party’s interests, and their loyalty to party leaders.  As Albert Hirschman famously wrote, “loyalty holds exit at bay.”  (We know which party faction exercises “voice.”)

The historical record diminishes the likelihood of a successful discharge drive.  To be sure, a shuttered government drives home the price of failure. So perhaps “this time is different,” and the discharge will yet prove a credible threat to pry loose control of the chamber floor.  In the meantime with the 11th hour over a week away, the Speaker stands pat.

Update: Peter King (R-NY), one of the more vocal lawmakers in favor of a clean CR, has said he will not sign the discharge petition.

Sarah Binder is a professor of political science at George Washington University and a senior fellow at the Brookings Institution. She has authored or co-authored four books on legislative politics, and she has a mild obsession with congressional rules, the history of Congress, and the Fed.



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