- The Washington Times - Wednesday, March 28, 2007

A member of the minority party once joked that he was part of the “Mushroom Caucus.” “Mushroom farmers keep their crops in the dark and covered in manure,” he remarked. “And that’s exactly how the majority treats us.” This enlightened observation describes the normal fate of minority status in the House of Representatives. But so far this year the Republican Party has repeatedly transformed minority procedural rights into a series of substantive wins on everything from enhancing maritime security to more workplace protection for religious practices, to prohibitions on contracts to educational institutions not supporting U.S. defense efforts. The minority unsheathed its prerogatives again this week, winning a motion protecting airline travelers from being sued if they report suspicious activities. Frustrated with the Republicans’ success, Democrats may try to bury minority rights even further by relying on hardball procedural methods absent since the last time they were in the majority.

Using an obscure tactic known as the “motion to recommit,” Republicans have produced a few legislative winning hands, despite a parliamentary deck stacked against them. The GOP prevailed on seven of these motions so far this year — more in the first three months of 2007 than the Democrats ever won in an entire Congress throughout their last 12 years in the minority, according to data provided by the Congressional Research Service (CRS). The threat of winning another last week caused the Democrats to temporarily shelve the D.C. voting-rights bill last week. A brief detour into parliamentary history helps demystify the practice.

When the Democrats were last in power in the late 1980s and early 1990s they increasingly used the practice of highly restrictive or closed rules when considering legislation in the House. This procedure severely limits the minority’s ability to offer floor amendments.

Even under these restrictive conditions, the minority was still allowed to offer a “motion to recommit with instructions.” This motion allowed the minority to amend legislation by sending it back to the committee of jurisdiction, but then have it reported back to the House immediately (or “forthwith” in parliamentary parlance) for a final vote, giving them one final amendatory bite at the legislative apple.

After losing several of these motions in the early 1990s, Democrats clamped down even further, offering the minority only “motions to recommit” but not with instructions. But a simple motion to recommit is tantamount to killing the bill, according to the Congressional Research Service. Republicans chafed at this procedural change because restrictive rules limited their ability to offer amendments and by taking away the motion to recommit with instructions, the majority removed their final amendatory option.

In 1995, the new Republican majority injected more fairness in the process and included a provision in the House rules that guaranteed the minority the right to offer motions to recommit “with or without instructions.” The majority party normally labels these tactics “mere procedural motions.” Yet enough Democrats have joined with Republicans on at least seven occasions this year to create winning bipartisan coalitions.

Democrats sometimes scoff at these motions as “gotcha votes.” But this view belies the fact they substantively change the legislation. “They may be still learning the ropes in the majority but they can’t have it both ways,” a former House Republican leadership aide told me. These motions are either procedural or substantive. If they are just procedural, they should just vote ‘no?’ ” The answer is these motions are substantive and the majority is ‘losing’ these votes.” When the Republicans were in the majority, he added, they understood the implications of losing these motions — and rarely did. Indeed in the last Congress, Democrats offered 53 such motions and none passed, according to CRS.

Fraying party discipline among Democrats on these motions has caused the majority to reevaluate their options. Last week the Democratic Whip issued a stern reminder that “Democrats are expected to VOTE NO on the Republican Motion to Recommit regardless of its content.” Democrats may even backslide in the fairness department and limit Republicans’ procedural options. “They could go back to their practice of denying the minority’s motion to recommit with instructions,” a House Republican committee aide told me. Democrats have three options: Continue to lose these motions that make substantive change in legislation, instill more party discipline or further restrict minority rights. But unfair procedural practices like old mushrooms have something in common — they both start to smell.

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