Posted by on January 23, 2023 3:46 pm
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Is a discharge petition the debt default silver bullet? 

Treasury Secretary Janet Yellen notified Congress on Friday, Jan. 13, that the U.S. would likely breach the $31.4 trillion statutory debt ceiling on Jan. 19.  She urged action as soon as possible to avert a financial disaster. Yellen added she would take “extraordinary measures” in the interim to stave off default, but those would probably only last until June.  

House Republicans have vowed they will not vote to raise the debt limit unless it is in concert with deep spending cuts. President Joe Biden, on the other hand, has asserted he will not negotiate with the GOP majority on the debt limit. Instead, he wants a clean debt limit increase bill sent to this desk without conditions. 

There is already talk in some quarters that a discharge petition is the silver bullet needed to resolve the approaching debt default. The public interest group, No Labels, announced on the same day as Yellen’s notice that its affiliated House Problem Solvers Caucus co-chairs, Reps. Josh Gottheimer (D-N.J.) and Brian Fitzpatrick (R-Pa.), were already on the case and prepared to file a discharge motion as a “backup procedural maneuver.” Fitzpatrick underscored that point by calling the discharge route an “absolute last resort.”  

The No Labels release was careful to add that any increase in the debt limit should be tied to “prudent spending cuts to help reduce the deficit and debt…as part of passing the annual appropriations measures.”  

Meantime, the House Freedom Caucus, reportedly struck an agreement with Speaker Kevin McCarthy (R-Calif.) during his bid for the speakership that any increase in the debt limit should be combined with an approach that prioritizes payments to existing bond holders and entitlement programs like Social Security, Medicare, and veterans’ benefits, presumably leaving non-priority programs on the cutting-room floor.   

How all the spending cuts pursued by any group are meshed with a debt limit measure will be the tricky part. For one thing, Republicans just amended House rules to prohibit the introduction of any bill that covers more than one subject.   

Similarly, the House discharge rule prohibits the filing of any petition containing more than one measure. It also bars making non-germane amendments in order to the measure. Debt limit and spending bills are referred to the Ways and Means and Appropriations committees, respectively. Mixing apples and oranges might make for a good fruit salad, but it is not part of the House’s new dietary regimen.   

I have received several inquiries as to what exactly a discharge petition is. The simplest explanation is that it is a formal House document filed at the Clerk’s desk to dislodge a bill or resolution from committee after it has been pending there for at least 30 legislative days (which could be more than two months in real time). 

Prior to 1993, signatures were kept secret until the requisite 218 members signed (a House majority). But that year the House adopted a rule change, mandated by a successful discharge petition, to make the signatures publicly available from the outset of the petition’s filing.   

When the motion reaches that majority threshold, it is placed on the Calendar of Motions to Discharge Committees, and, after pending there for seven legislative days, any member who signed the petition can call it up in the House where it is debatable for 20 minutes. If adopted, the chamber proceeds to debate and vote on the discharged measure.   

In recent times, most discharge petitions have been filed on special rules for consideration of the targeted measure to avoid a committee aborting the discharge effort by reporting the measure, even though it has no intention of actually calling-up the bill up in the House. 

Those who think a discharge petition is an EZ-pass to resolving the debt crisis are driving against traffic. A few years ago, when I charted all the discharge petitions filed from the 90th to 115th Congresses (1967-2018), I found that, of the 321 petitions filed during that period, only 13 received a majority of signatures and made it onto the discharge calendar. Of those, only seven were called-up and only four were passed. I did not go on to chart their subsequent fate in the Senate, or at the White House. But it was, no doubt, bleak. To put it bluntly, discharge petitions rarely have a snow-ball’s chance in a certain hot spot of succeeding.   

The handful that do make it onto the discharge calendar are issues of high public visibility and popularity – issues like the Equal Rights Amendment, school prayer, school busing, and balanced budget constitutional amendments, and bills on campaign finance reform, and, most recently, the “DREAM Act,” an immigration reform bill discharged, passed and enacted in 2021.  

The debt limit is unlikely to stir-up sufficient popular attention or support to fuel a successful discharge campaign — as important as the issue is to the financial well-being of the country and the world. But it certainly does deserve, beginning now, the kind of hardnosed bargaining and deliberation that can bring the Congress, the president, and the country together on the same path to resolution. 

Don Wolfensberger is a Congress Scholar at the Woodrow Wilson International Center for Scholars, former staff director of the House Rules Committee, and author of, “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own. 
     

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