Partisan Polarization, Procedural Control, and Partisan Emulation in the U.S. House: An Explanation of Rules Restrictiveness Over Time JOHN E. OWENS The Centre for the Study of Democracy The University of Westminster 32-38 Wells Street LONDON W1T 3UW, United Kingdom Center for Congressional and Presidential Studies Ward 109 American University, Washington, DC. 20016-81301 [email protected] J. MARK WRIGHTON Dept. of Political Science Millikin University 1184 West Main Street DECATUR, IL 62522 [email protected]

Paper presented at the History of Congress Conference, George Washington University, May 29 – June 1, 2008, Washington, DC 1

The Centre for the Study of Democracy at the University of Westminster and the political science department at Millikin University provided institutional support for this research. The Nuffield Foundation granted financial support to John Owens under grant SGS/34839 to collect the rules data. Nick Wunderly and Robert Coppin provided research assistance. We are grateful to Stan Bach for his technical advice in coding rules and to Keith Poole for sharing his DWNOMINATE data. The usual disclaimers apply.

At least since the implementation of Reed’s Rules at the end of the nineteenth century, partisan majorities have set the agenda and structured legislative decisions on the floor in the United States House of Representatives, and the minority has often been greatly disadvantaged by restrictive special rules governing debate. When minorities become majorities, one might anticipate one of two possible – and contradictory – reactions. One might hypothesize that a new majority relaxes the previous majority’s rules regime initially so as not to be tarred with the same brush as its predecessor, but – as it becomes entrenched – it resorts to increasingly restrictive rules. A second hypothesis, consistent with Moynihan’s “Iron Law of Emulation” (1980; see also Wilson 1989), holds that when one congressional party acquires a new technique enhancing its power, the other party will likely adopt it as well in order to carry out election promises and to prevent potential dissidents from within its own ranks from forming winning bipartisan coalitions with the minority. In this paper, we test these and other propositions key to conditional party government, partisan capacity, and balance of power models of congressional behavior to explain variations in rules restrictiveness in the House from the 67th to the 109th Congresses. We find strong evidence that the actual percentages of restrictive rules crafted by successive majority parties and supported by the House floor is related to the degree of partisan polarization in a given Congress and that successive majority parties have learned well from their predecessors in deploying restrictive rules.

In May 2008, House majority leaders approved the introduction of H Res 1175, a special rule providing for consideration of an energy bill (HR 3221) together with the Senate’s amendments incorporating Democrats’ high-priority American Housing Rescue and Foreclosure Prevention Act of 2008. The rule required consideration of HR 3221 and the Senate’s amendments in the House, where no amendments are normally allowed, and provided for a motion to be offered by the chair of the Financial Services Committee that the House concur in the Senate amendment together with three House leadership-sponsored amendments, the second of which consisted primarily of HR 5720, the Housing Assistance Tax Act of 2008. The rule also included stipulations that the previous question be considered as ordered and that the Chair divide the question on each of the three House amendments, and provided for a change to the bill’s title, if the Financial Services chair’s motion was approved, and for postponement of further consideration of the motion to such time as designated by the Speaker. The broader political context for the House’s consideration of this energy/foreclosure relief bill was the 2008 credit crunch, the threatened foreclosure of millions of homeowners’ mortgages throughout the country, sharp differences between Democrats and Republicans as to the best ways to address the crisis, a veto threat made by the Bush White House the previous day, and congressional Republicans holding up House business by insisting on a series of votes on motions to adjourn. By this rule, House Democratic leaders proposed changing the primary content of an energy bill already before the House by adding the formally titled Housing Assistance Tax Act of 2008, which as a tax bill would normally require consideration in the Committee of the Whole. Notwithstanding their earlier criticisms of the previous Republican majority’s excessive use of restrictive rules and promises for greater openness, H Res 1175 was a highly restrictive rule. Efforts by Rules Committee Republicans to report an open rule were defeated on party-line votes. H Res 1175 allowed floor consideration of only three leadershipapproved amendments, and denied consideration of 10 Republican amendments and the minority’s customary motion to recommit. Indeed, instead of allowing separate votes on each of the House amendments, Rules Committee Democrats might well have opted for a closed rule, which simply stating that the House shall be deemed to have concurred with the Senate amendment together with the three House amendments printed in the committee’s report, which would then have been subject to a straight up-and-down vote that majority Democrats would likely have won. At least since the implementation of Reed’s Rules at the end of the nineteenth century, majorities – usually partisan ones – have set the agenda and structured legislative decisions on

2 the floor in the United States House of Representatives by using restrictive rules governing consideration of legislation during floor debate and amendment of bills to expedite the majority party’s legislative agenda, and disadvantage the partisan minority. Despite promises of less restrictive rules, the demands for greater legislative efficiency (e.g. Hinds 1916, IV: 21) and claims that the “will of the people” evidenced through election results be translated into legislation prove irresistible to new legislative majorities. Figure 1 shows a sharp rise in the mean number of rules approved by each House (right-hand axis) from the 1920s to the 1970s before fluctuating between 140 and 200 since. It is, however, the exponential rise in the percentage of restrictive and closed rules approved by the House, 2 which has attracted the greatest attention (see also Bach and Smith 1988: 57; Oleszek 2004: 128), as majority party leaders sought to shape floor decisions to their party’s advantage and expedite enactment of their party’s agenda. Whereas restrictive rules constituted only nine percent of all rules approved in the 1950s and 1960s, one finds that about three out of every five rules approved by the House was restrictive in the 1990s and the early twenty-first century. Indeed, by the 109th Congress, the percentage of restrictive rules approved by the House was just shy of 70 (See also Wolfensberger 2002, 2005: 14-15). More detailed analyses demonstrate that the rise in the proportion of restrictive rules on the most important legislation considered by the House since the 93rd Congress has been even more dramatic (Theriault 2006: Figure 6, Panel B). As Figure 1 shows, restrictive rules are not necessarily a recent phenomenon. In the 27 Congresses between 1921 and 1974, the House approved at least one restrictive rule in every 22 with a mean just short of 10 per Congress (8.1 percent). In the 67th (1921-22) and the 73rd (1933-34) almost 18 per cent of all rules approved by the floor were restrictive.3 Even during “intermediate” or “low” periods of party voting in the House, such as the 1940s, 1950s, and 1960s (Brady, Cooper and Hurley 1979), rules restrictiveness approached and sometimes exceeded 10 percent. [Figure 1 about here]

2 3

“Restrictive rules” include all closed and restrictive rules as defined in the Appendix.

Perhaps surprisingly in light of the contemporary pervasiveness of restrictive rules in the House, important New Deal legislation – including the Banking Act, the Railroad Act, and the Bankhead Cotton Control Act, extending the authority of the Reconstruction Finance Corporation and the Bank Deposit Insurance Act, and the Social Security, Glass-Steagall and Wagner labor relations acts – came to the floor under open rules.

3 Explaining Rules Restrictiveness Over Time Contemporary theories of congressional organization posit competing rationales for the increase in restrictive rules since the 1970s. Some view the rules and processes as benefiting the legislative goals of the chamber as a whole while others stress the role that the majority party and shifts in chamber ideology can play in shaping the process toward meeting its legislative and electoral goals through the use special rules. Krehbiel (1991: 151-92) views the increase in rule restrictiveness essentially as a response to increased uncertainty. According to his informational theory, legislators’ preferences are stable functions of constituency and personal preferences, and legislative processes reflect those preferences without regard to the aims of a partisan majority. Thus, like committees in his framework, restrictive rules serve the interests of the whole chamber – not just those of the majority party – by encouraging specialization and the sharing of policy expertise (97-98, 161). Theorists who emphasize the importance of partisan majorities in congressional processes disagree. While conceding the value of both informational and partisan theories, Sinclair (1994: 492) finds weaker effects for the informational variables and much stronger support for a partisan model, albeit using a different set of Congresses. Restrictive rules thus promote the interests of the majority party and are more likely to be invoked when the majority leadership is involved, when legislation divides the parties, and when legislation is multiplyreferred or packaged into omnibus bills (Sinclair 1994, 2002). Accounts of rank and file Democratic pressures on Speaker O’Neill to adopt more restrictive rules in the late 1970s and early 1980s by Cohen (1979: 1329, 1330) and Bach and Smith (1988: 40-42, 74) show clear partisan and policy motivations. Rohde (1991), Cox and McCubbins (1993: 270) and Dion and Huber (1996: 43) all view special rules and the Rules Committee as agents of the majority. Restrictive rules operate as instruments through which a majority party can determine the floor agenda by privileging its proposals over those of any other chamber majority and the minority (positive agenda control), by affording political cover to its members on issues that divide them, or by denying the minority opportunities to obstruct or delay or to siphon off majority members into a bipartisan winning coalition (negative agenda control). With electoral concerns in mind, the majority may also want to advertise its policies providing its members with position-taking opportunities or leaders with opportunities to embarrass the opposition. These are the imperatives that led Republican Speaker Thomas B. Reed in the 1890s and

4 Democratic speakers in the 1980s to resort to restrictive rules (Cox and McCubbins 2005: 5558; Forgette 1997; Robinson 1930: 273). In their conditional party government thesis, Rohde (1991), Aldrich (1995), Aldrich and Rohde (2000), as well as Sinclair (1995, 2002), specifically attribute majority party leaders’ proclivity for designing and deploying restrictive rules to the degree of polarization between the majority and minority. This polarization affects the willingness of members to delegate strong agenda setting powers to their leaders and to support their use to defend and to promote the majority’s agenda. When the majority party’s preferences are heterogeneous and the party medians close together, majority members are to be reluctant to give leaders strong powers or support their use. Conversely, when majority party preferences are homogenous and party medians far apart, they will support leaders and cede them strong agenda setting power in part because the minority party’s legislative proposals will be objectionable. Under these conditions, majority leaders can design rules to facilitate the passage of legislation important to the party (see also Aldrich and Rohde 1996, 2000; Dion 1997; Finocchiaro and Rohde 2008; Marshall 2002; Roberts and Smith 2003) or that may have divided the parties in the committee of jurisdiction (see also Aldrich and Rohde 1996; Thorson and Nitzchke 1998). Dion’s party leadership model adds an important condition to this party government framework. Focusing on the nineteenth century, he finds that, when the majority party enjoys only a narrow plurality, it will tend to be more cohesive. Majority cohesion encourages minority obstruction, which leads in turn to majority leaders taking further measures to restrict the minority’s ability to obstruct (1997: 31-37). Cox and McCubbins reject the notion that party government and the procedural advantages that may accrue to the majority party as a result are in any way conditional (2005: 6-7). They insist that majority party’s capacity to control the chamber’s agenda – including the power to design and to implement restrictive rules – is fundamentally a function of its status as a cartel in control of the chamber (2005: 7). They do, however, allow that “the mix of [negative and positive] rights” that majority party members allocate to their leaders to govern the agenda can change in response to temporal changes in the homogeneity of the majority policy preferences (6-7, 204-5, 208). These party-based explanations of organizational changes in the House – be they ones that advantage or undermine the majority party in shaping the agenda – have been challenged in important ways by Schickler (2000) and Schickler and Rich (1997). Focused on changes in

5 organizational rules rather than the restrictiveness of special rules, Schickler’s ideological balance of power model posits that the pivotal interests of the floor median drive change. A floor median closer to that of the majority party leads to institutional changes that enhance the majority’s control of the agenda. Conversely, when the floor median moves closer to that of the minority party, the majority has less discretion to use the rules to advance its agenda, and the minority may have more opportunities for consideration of its alternatives (270). In other words, although “some allocation of agenda power to the political parties is necessary for a legislature to function effectively” (cf. Krehbiel 1991), rules changes depend on the balance of power between liberals and conservatives (Schickler and Rich 1997: 1387) rather than changes in majority party homogeneity, the key element in conditional party government theory. Notwithstanding institutional changes that result from shifts in the ideological balance in the House, it is important to recall Cox and McCubbins’ distinction between “core” and “superstructural” institutional rules. Thus, extrapolating from Schickler’s findings (2000) to changing patterns of restrictive rules, it is entirely conceivable that Cox and McCubbins’ “core” institutions remain in place (2005: 4-5), more or less unconditionally cartelizing the majority party’s control, while temporal changes in the liberal-conservative composition of the House – rather than changing majority party homogeneity – marginally impact the majority’s success in winning approval of restrictive rules. In our analysis of changing patterns of House restrictive rules, we test both party government and ideological balance of power explanations in our statistical models. Before doing so, however, we examine the potency and fraught nature of restrictive rules in the House and focus specifically on the possible long-term dynamics of restrictive rules over time, in the contexts of changing partisan control, changing relations between the majority and minority parties, and the changing ideological balance of power in the chamber.

Restrictive Rules and Political Legitimacy Exercising negative agenda control through the use of restrictive rules in the House is not without cost or peril (Cox and McCubbins 2005: 106; Lebo, McGlynn, and Koger 2007). Generally, the “majority [party] will block [bills] only if the benefits exceed the costs” (Cox and McCubbins 2005: 108). Partisan theory suggests that restrictive rules become less problematic for majority party members as committees produce bills more in tune with their preferences. The minority, on the other hand, increasingly bears the costs, and, over time, its

6 support for increasingly restrictive special rules significantly declines (see, for example, Marshall 2005: 43-55), generating legitimacy problems for the majority. In extremis, the majority runs “the risk that the opposition might be able to convince the public that the majority is greedy or unfair” (Cox and McCubbins 2005: 209) or unrepresentative. Within a Westminster-style parliamentary system, such as that of the United Kingdom or Australia, the majority party’s almost complete monopoly of the agenda poses few legitimacy problems. In the United States, however, such monopoly control would violate the system’s competition between different parts of government and between the major parties, the rights of political minorities, and its electoral support. Thus, when the majority pleads its electoral mandate and its responsibilities for governing and promoting legislative efficiency (e.g. Dreier in Stone and Welch 2004), many observe unchecked majoritarianism and arrogance: “What happens after a majority has been in for a long time?” asked Norman Ornstein in the fortieth year of the House Democrats’ majority. “The majority”, he argued, “begins to believe that it is their God-given right to be in the majority and the minority begins to get more and more obstreperous and obdurate” (Quoted in Connelly and Pitney 1994: 69). Ten years later, Ornstein complained that the Democrats’ “highhandedness was nothing compared to what House Republicans are doing now” (Ornstein 2003: 13). “It is the middlefinger approach to governing, driven by a mind-set that has brought us the most rancorous and partisan atmosphere I have seen in the House in nearly 35 years.” (2004: 10) “Why do it?” he asked. “It is more than sheer partisanship, it is sheer power. The Republican leadership did it because they could, and they knew that they could hold their own troops on a procedural vote.” (2004: 10; see also Chaddock 2004). Majority leaders’ strategic choices in shaping restrictive rules may very well reinforce perceptions of illegitimacy, for the conditions affecting the production of restrictive rules are not entirely determined exogenously. Those conditions may depend on the extent to which the preferences of majority members are homogeneous (Aldrich and Rohde 2000), the ideological balance that exists in the chamber as a whole (Schickler 2000), or on leaders’ personalities, judgments, goals, and skills (Aldrich and Shepsle 2000: 41; Rohde and Shepsle 1987: 114; Owens 2003: 43-88; Peters 1997: 4; and Strahan 2002). In attempting to satisfy the policy demands of the majority, leaders might move forward with rules that are perceived as unfair because they exclude proper consideration of policy alternatives, produce legislative outcomes that are out of tune with public opinion, or damage the majority party’s national reputation.

7 The Congress has rarely enjoyed a stellar reputation among American voters. Because public antipathy toward the institution is so deeply engrained (Hibbing and Theiss-Morse 1995) and reinforced over recent decades by ideological polarization, party leaders have made publicizing their opponents’ use (and alleged abuse) of procedural rules an effective political tactic. Cox and McCubbins note that following the implementation of Reed’s rules in the House, his party lost control for the next two Congresses. Indeed, Reed himself held that one of the central issues in those campaigns was the implementation of the new rules (209). Schickler concurs, arguing that the Republican majority used restrictive rules to enact policies that did not represent a sufficiently broad coalition of interests among voters (2001: 42-43). Likewise, the 1981 budget fight, 4during which House Democrats proposed a complex restrictive rule to preclude floor consideration of the Republican-favored Gramm-Latta II proposals to the 1982 budget reconciliation bill, presents a similar case. A House majority’s nightmare scenario followed as a bipartisan coalition defeated the previous question, effectively took control of the floor, approved an amended rule permitting an up and down vote which resulted in the enactment of the entire Gramm-Latta package, putting House Democrats back on their heels for several years. Thirteen years later, Democrats successfully imposed a closed rule on House consideration of President Clinton’s economic stimulus package. The rule waived all points of order against the bill and prevented consideration of 37 amendments submitted by members of both parties. Along with others, this episode prompted House Republicans to charge in the 1994 elections that the 40-year old Democratic majority was “arrogant” and “permanent” (Hook 1987: 2449; Michel 1993: 33), to create a prop of a gagged Statue of Liberty over a running scorecard of open versus restrictive rules, and to promise that a new (Republican) majority would require more open rules. As the majority, Republicans repeated their pledge (Towell 1994: 3320-21), almost doubled the percentage of open rules and slightly reduced the number of restrictive rules in the 104th House. By the 108th Congress, however, many accused majority Republicans of even worse procedural crimes than the Democrats as the percentage of restrictive rules rose beyond the level under the Democrats (Figure1; see also Theriault 2006: Figure 6, Panel B). In one particular episode, House Republican leaders brought to the floor legislation that would legalize wiretapping by the National Security Agency, a practice the Bush administration had 4

Because a large number of centrist Democrats were frequently willing to form bipartisan coalitions and to design restrictive rules in cooperation with Republicans and the general absence of complex structured rules, complaints against the use of restrictive to shape and structure floor debate were less common before the late 1970s. As, however, the respective parties in the House became much more ideologically homogenous and polarized in the 1980s, such cooperation ended as majority parties sought greater certainty on the floor.

8 previously authorized without congressional or judicial approval. With the midterm elections barely a month away and majority leaders intent on sending voters a strong message on terrorrelated issues (Starks 2006: 2626), the legislation came to the floor under a restrictive rule (H. Res. 1052) that denied consideration to all amendments – including a bipartisan substitute amendment tightening the definition of surveillance – and considered the previous question as ordered without any intervening motions, except one to recommit with or without instructions. The Republican majority also imposed restrictive rules on other important legislation in the run-up to the 2006 elections, cementing Democratic charges that House Republicans were unresponsive to popular concerns, too close to the Bush White House, and guilty of the evisceration of democracy “in the people’s House …by those who recommend it to others.” (Hastings 2006: H7775). Even some reform-minded Republicans, including former Speaker Gingrich, complained. The majority’s high-handedness helped Democrats sweep to majorities in the House (see also Schickler 2001: 273-5).

Explaining Rules Restrictiveness Over Time Given the House majority’s reputation for using its control over the floor agenda to consolidate and to promote a preferred legislative agenda, it is important to understand the over-time variation in the degree to which the rules restrict, shape and structure the floor process. Specifically, by analyzing patterns of rules restrictiveness over time, we can illuminate the underlying political, organizational and ideological factors that provide the context for House approval of majority leaders’ decisions to resort increasingly to restrictive rules. Unless placed on the House’s suspension or corrections calendars or agreed to by unanimous consent in order to avoid waiting its turn on the Union or House calendars, a bill needs a special order or rule providing for its consideration by allotting time allowed for floor debate, dispensing with the first reading of the bill and any preprinted amendments, determining the number and time for debate of amendments, and ordering the previous question. The degree to which a rule restricts the ability of members to offer amendments varies along a continuum between closed – in which only committee amendments are allowed – and open, in which any amendment is in order so long as it comports with the House’s general germaneness rule.

9 Undoubtedly, majority party leaders have well-earned reputations for crafting creative rules designed to protect their legislative agendas on the floor, provide cover for caucus members, and generally to manipulate floor consideration of legislation in any way that a majority of votes on the floor will support. Rule provisions determine not only which amendments or substitutes can be offered, their number, which member can offer them, and the time allowed for debate on each but also the order in which amendments will be considered, which amendments or substitutes (which in reality can amount to whole bills) are selfexecuting – thereby deeming them passed without vote,5 and which House rules can be waived.6 Our aim in this paper is to make sense of the varying patterns of restrictive rules deployed over time and the general pattern by which special rules have become more and more restrictive over time as well as to explain these patterns in light of party government and ideological balance of power theories of congressional politics. We test two interrelated explanations of the pattern of rules restrictiveness over time, both of which postulate a interactive relationship between the majority and minority within the broader context of changing partisan control of the chamber, varying levels of majority party capacity, and changing distributions of liberals and conservative on the House floor. The first explanation taps Ornstein’s suggestion that as a party becomes entrenched in the majority over time they resort to increasingly restrictive rules (and arrogant behavior): increased rules restrictiveness over time is related to longevity of majority party status. There is a reactive as well as a time element to this explanation. When first elected, we postulate that new majorities are often bent on openness, if only because they do not wish to be tarred with the same brush as their predecessors. They react to previous majority’s tight agenda control and initially relax the previous majority’s rules regime (which will have reached a high point just before they were defeated). As the new majority becomes entrenched over several Congresses, it insists on considering more and more legislation under restrictive rules. This, in turn, induces increasingly hostile reactions from the minority party, the leaders of which

5

Between the 101st and 109th Houses (1989-2006), self-executing rules typically accounted for just less than onequarter of all special rules, although in the 105th House they accounted for 35 per cent of House rules and in the 107th, 37 per cent. (Data kindly provided by Don Wolfensberger.) It should be noted, however, that the universe for these calculations is different from that used in the analysis provided in this paper. 6

This is by no means an exhaustive list of the conditions that a rule governing the consideration of a bill might prescribe (see, for example, Oleszek 2004: 125-140).

10 promise “more openness” at the moment its electoral fortunes change and it becomes a new majority. If we scan recent congressional history, we can recall that House Republicans complained bitterly of Democrats’ extensive use of restrictive rules before they took control of the House in 1994. When they became the majority, however, they too resorted to increased use of restrictive rules. “I was bellyaching”, explained former Rules Committee chair, David Dreier (R.CA). “I had not known what it took to govern … [Now], our number one priority is to move our agenda ... with one of the narrowest majorities in history" (VandeHei 2003: A21). In turn, Democrats complained bitterly (US Congress. House Rules Committee, Minority Office. 2005), but after they won the House in 2006, they, too, deployed numerous restrictive rules to pass their "100 Hours" agenda and other legislation regarded as important (Sinclair 2008: 90). This is by no means a recent phenomenon, however. During the late 1920s, for example, the Democrats complained of Republicans’ use of restrictive “gag” rules and promised greater openness. After they took control of the House in 1930, they, too, resorted to restrictive rules; and House Republican leaders were swift to criticize. During the debate on a closed rule on a general relief bill, former Rules chair and then Minority Leader Bertrand Snell (R.NY) noted that “Our friends, the Democrats have spent much time talking about the liberality of the rules [when in opposition], and what they would do when they had an opportunity”; but as the majority party they too resorted to restrictive rules (Congressional Record 1932: 12191). Subsequent majority and minority leaders have made similar observations – or accusations. Ornstein’s comments on the contemporary context also suggest a cumulative process: recent Republican majorities “went further” in their use of restrictive rules than the previous Democratic regime. Again, a quick scan of the Congressional Record shows this is not a new notion. In the early 1930s, for example, in the debate on H Res. 251 – a closed rule governing the 1932 general relief bill (HR 12445) – Minority Leader Snell insisted that in their efforts to embarrass the Hoover administration majority Democrats were going “farther in hog tying this House than any rule that has ever been presented during my [17-year] membership of the House … Gentlemen, you have gone farther in this rule than I ever dared to go at any time” (Congressional Record 92nd Congress, First Session, 1932: 12191). Fifteen years later, it was Democrats who claimed more dastard iniquities than previously. In objecting to a Republican

11 closed rule in the 80th Congress, Adolph Sabath (D. IL) charged that Republicans’ “gag policy will soon outdo even Uncle Joe Cannon’s dictatorial practices, just as he did Speaker Reed” (Congressional Record 80th Congress, First Session 1947: 1200). Our inquiry seeks to discover whether these claims are merely political rhetoric or whether a ratcheting effect on rules restrictiveness accompanies switches in partisan control over time. That is, with each change in partisan control, has rules restrictiveness moved up a notch, so that a new majority party resorts to a higher proportion of rules than the opposing party when it was last in the majority? We anticipate that whether or not this occurs when partisan control changes will have much to do with the prevailing political context in the House – measured by the condition of the majority party and the whole chamber. Our second explanation of the pattern of rules restrictiveness over time assumes a different interactive relationship between the majority and the minority. Instead of anticipating a newly elected majority party reverting toward greater openness after a switch in partisan control, followed by increased rules restrictiveness by the same majority party as it becomes entrenched in power, as in the first pattern, our second explanation assumes a simple emulation effect. This anticipated emulation effect is consistent with Moynihan’s “Iron Law of Emulation” (1980), based on Wilson’s finding (1989: 259) that organizations come to resemble other organizations, especially when they are in conflict or competition with one another. Moynihan applied the emulation dynamic to the relationship between the different branches of the federal government. “Whenever any branch of the government acquires a new technique which enhances its power in relation to the other branches”, he argues, “that technique will soon be adopted by those other branches as well” (118). We apply this dynamic to relations between the House majority and minority leaderships. Instead of assuming an entrenchment effect, as in our first explanation, like Moynihan, we also infer an incremental effect resulting from emulation: “This migration of technique … begins with buildings and ends with attitudes” (118-119). Leaving aside bricks and mortar, our focus is attitudes: we suggest that successive House majority leaders learn from their predecessors. As Majority Leader William Bankhead (D.AL) noted wryly in response to Republican criticism of proposing a closed rule for consideration of the 1933 Agricultural Adjustment Act in the first New Deal Congress, “All that I absorbed or learned about so-called ‘gag rules’ I learned [as a member of the Rules Committee] while sitting at the feet of the distinguished gentleman from

12 New York [Mr. SNELL, former Republican Rules Committee chair] and his associates.” (Congressional Record 73rd Congress, First Session 1933: 666) As a consequence of “technique migration” in the context of a change in partisan control of the House, we anticipate that rules restrictiveness rises to a new, higher equilibrium plane after each partisan change.7 The result is a steady, punctuated, escalation in the restrictiveness of House rules over time, so that – in chairman Dreier’s words – the majority party can govern.8 Scanning the Congressional Record over our 88-year time period, we find evidence of this emulation through learning process from the statements of party leaders: “You did this to us when you were in power. Now, we are doing (or having to do) the same to you.” Or, more benignly: “Please don’t accuse us of using ‘gag’ rules. Your party also used them. We are using the same techniques”. Just as chairman Dreier recognized the necessity of restrictive rules, so in an earlier period William Bankhead explicitly (and humorously) acknowledged this phenomenon in a speech accepting the Speakership in 1937: “When Mr. Snell was chairman of the Rules Committee and brought upon the floor … so called gag rules which it appeared to me, stripped minority members of every vestige of constitutional and parliamentary power [Laughter], I was one of the foremost to pour out upon him and his associates the viale of my wrath.” However, he continued: “The tide of political fortune changed, … and I became chairman of the Committee on Rules. In order to expedite what we considered to be some legitimate party programs, I occasionally brought in as chairman of that committee, some innocent little rules [Laughter] of the same nature … So I am reminded of the old Latin maxim, Tempora mutantur, et nos mutamur in illis – Times change and we change with them.” (Congressional Record, 75th Congress, First Session, 1937: 12). Bankhead’s justification is the same as Dreier’s: the demands of governance dictate privileging the majority party’s program and protecting it from emasculation or defeat by any other coalition within the House.

7

For other applications of the punctuated equilibrium concept in political science, see for example, Burnham (1999) and Baumgartner and Jones (1993). 8

Unlike the Wilson and Moynihan formulations, however, our model assumes a causal direction: the behavior of the previous majority influences that of the new one.

13 The broader theoretical contribution of this paper is that the long-run pattern of successive majorities’ use of restrictive rules should be explained as well as the short-run dynamics that are the stuff of everyday congressional politics. An analysis of the growth in the use of restrictive rules is a worthwhile effort because it allows us to consider the effects of changes in partisan control of the House, majority capacity, and the changing ideological composition of the chamber.

Models of Rules Restrictiveness We specify six models, each of which seeks to estimate the percentage of rules that are restrictive deployed by the House majority party in each Congress from the 67th to 109th. We assume that higher percentages of restrictive rules in any one Congress reflect a greater desire on the part of the majority party to control, to shape, and to structure the legislative agenda and a greater capacity to win approval for such rules on the House floor. Conversely, smaller percentages of restrictive rules reflect a weaker imperative to control the agenda and weaker capacity to win floor approval. All six models assume that the introduction of the House’s electronic voting system in 1973 led to a splurge in floor amending activity. The Legislative Reorganization Act of 1970 signaled a shift from roll call to electronic voting in the House. Shifting to this method reduced the amount of time needed to record the votes of all 435 members and, perhaps more importantly, reduced the costs associated with proposing floor amendments, led to greater exploitation of voting opportunities on those amendments, and changed the partisan character of amending activity, giving some new advantages to the Republican minority. As a consequence, Democratic majority leaders responded by introducing a greater proportion of restrictive rules in order to manage and reduce the resultant uncertainty (Sinclair 1981: Smith 1989: 28-35). The implication here, then, is that rule politics after the introduction of electronic voting differed from those before. Owens (1999: 91) has shown, however, that the total number of floor amendments offered in each Congress in the late 1940s and early 1950s equaled and sometimes exceeded the number offered in the late 1980s and early 1990s. So, this distinction may not be justified. We measure the supposed effect of electronic voting in all our models by a dummy variable that takes on a value of 1 for all Congresses after the 92nd (1971-72) and 0 for previous ones and hypothesize that the introduction of electronic voting stimulated an increase in the majority’s use of restrictive rules.

14 Entrenchment, Emulation, and Rules Restrictiveness Our first set of models (Columns 1, 2, and 3 in Table 2) test the proposition that – as majorities become entrenched over time and employ procedural tactics to promote and shape their agenda – cries of hubris and arrogance from the minority increase with the consequence that, when a shift in partisan control occurs, the new chamber majority opts for a smaller percentage of restrictive rules. Thus, after House Democrats castigated the tight agenda control often pursued by the Republicans in the 1920s, as the previous discussion showed, the Democratic majority elected in 1930 came to power on the heels of promises of greater “openness” and “fairness”, which they then proceeded to implement by opting for fewer restrictive special rules. Republicans made the same accusations and promises in the late 1980s and early 1990s, and, when elected as the majority in 1994, resorted to fewer restrictive rules than the previous majority – although perhaps not as few as observers had been led to believe or hope they would.9 Rules restrictiveness should increase over the duration of a party’s tenure as the majority becomes entrenched over time and the political realities of enacting the new majority’s agenda override their good intentions. In such circumstances, the imperative to push the party’s legislative agenda – possibly reinforced by the memory of a sustained period in the minority – may very well persuade leaders to dispense with their earlier promises and acquiesce to the demands of the rank-and-file to bring bills that are important to the party’s brand to the floor quickly and protect them from being diluted by amendments from the minority (and majority party dissidents). Especially in an era of sharp partisanship – such as the one that has evolved since the early 1980s – the inclination to pass bills important to the majority party quickly trumps previous assurances of openness and fairness made by the incoming majority. As the majority party maintains control of the chamber, over time the percentage of restrictive rules approved by the House increases. Successive election victories lead to further entrenchment and further consolidation of control emboldens the majority party to extend further their shaping and structuring of the floor agenda and legislative outcomes. We measure this anticipated trend by PARTISAN SWITCH COUNTER, which assumes a value of 1 when a new majority takes over control of the House and then increases by a value of 1 for every Congress that that party remains in power. Following a change in partisan control, however, the counter reverts to 1. Thus, in the 103rd Congress, the twentieth 9

Since 1921, partisan control of the House changed hands seven times (1930, 1946, 1948, 1952, 1954, 1994, and most recently in 2006).

15 successive one controlled by Democrats after 1954, the variable has a value of 20. When the Republicans took control in the succeeding, the measure reverts to 1. We expect a positive correlation between this variable and the percentage of restrictive rules in each Congress over time – suggesting that majority party entrenchment leads to higher levels of rules restrictiveness followed by sharp reversions to lower levels when chamber control switches to the other party. In a second set of models (Columns 4, 5, and 6 in Table 2) we test an alternative explanation for variation in rules restrictiveness. Whereas PARTISAN SWITCH COUNTER anticipated a newly elected majority party reverting toward greater openness after a switch in partisan control, followed by increased rules restrictiveness by the same majority party as it becomes entrenched, EMULATION COUNTER suggests an emulation effect. Based on the earlier discussion of Moynihan’s “Iron Law of Emulation,” we postulate that successive majority party leaders emulate their predecessors in their use of restrictive rules. We also assume an incremental escalation in rules restrictiveness over time, punctuated by changes in partisan control of the House. That is, the impetus of an electoral victory that results in a new House majority leads not only in euphoria but also to a strong determination to enact its legislative agenda and a larger percentage of restrictive rules.10 EMULATION COUNTER assumes a value of 1 in the 67th Republican House, remains at that level until the change to Democratic control in the 72nd, and so on. Given seven changes in partisan control over the period, the variable has a value of 7 for the 104th through 109th Republican Houses. Competing Explanations for Rules Restrictiveness Within the respective contexts of entrenchment and emulation outlined above, we test the competing theoretical frameworks of conditional party government, party capacity, and ideological balance of power explanations of rules restrictiveness over time. We enter a measure of partisan polarization in equations 1 and 4, measures of majority partisan capacity in equations 2 and 5, and a measure of the House’s ideological balance of power in equations 3 and 6. Based originally on an analysis of strengthening Democratic control in the 1970s and 1980s (1991), and subsequently over the period since 1952 (Finocchiaro and Rohde 2008), Rohde argues that when the two parties’ median preferences are far apart, that is, when partisan

10

Van Hollen (1951: 62), for example, notes sharp rises in the number of closed rules approved in the 73rd and 80th Congress, both of which were preceded by changes in partisan control of the House.

16 polarization is high, majority leaders have more incentive to maintain the integrity of their policy proposals than they do to attract votes on the rules from members of the minority. If the medians of the two parties are closer together, majority leaders may see less incentive and less need to block minority efforts to influence the chamber’s agenda, and restrictive rules may serve only to alienate potential allies (Rohde 1991). We measure PARTISAN POLARIZATION as the absolute difference between the majority and minority party median DW-NOMINATE scores. 11 The highest value occurred in the 109th Congress along with other high values recorded in Republican congresses in the 1920s and recently; the lowest were in the 80th and 83rd Congresses, also Republican. We also test for the effects of majority party capacity over time. Thus, while Binder (1996, 1997) concurs with Rohde and others that the majority party’s capacity to use and win approval for restrictive rules varies over time, she argues that the majority party’s ability to use a high proportion of restrictive rules is only as great as its capacity to muster floor majorities to support such rules. Such capacity depends on the majority party’s relative preference homogeneity and size vis a vis the minority: the stronger the majority party’s capacity relative to that of the minority, the more likely it will be able to win floor approval for restrictive special rules advantaging its agenda (1996: 13; see also Schickler 2000: 280).12 Conversely, the leaders of smaller, less homogeneous majorities will be less likely to craft restrictive rules to ensure floor support from would-be dissenters on the substantive bill. Following Binder (1996: 13), as revised by Schickler (2000: 275), we measure majority partisan capacity as the difference between majority and minority party strengths. Party strengths are measured as the percentage of seats held divided by the standard deviation of that party’s DW-NOMINATE scores. Thus, MAJORITY PARTISAN CAPACITY = (% seats held by majority/std majority party’s DW-NOMINATE scores) – (% seats held by minority/std minority party’s DW-NOMINATE scores). Not surprisingly, the maximum value of this variable was in the Second New Deal Congress elected immediately after President Roosevelt’s and congressional Democrats landslide victories in the 1936 elections. The lowest value was in

11 12

Data derived from Keith Poole’s website at http://www.voteview.com/DWNL.htm

Cf. Riker (1962: 66), Canon and Price (1999: 11-12) and Tsebelis (2002) who argue that where the majority enjoys an overwhelming plurality in the legislature diminishing marginal returns should be anticipated as the number of veto players increases, as the range of values and interests in the majority party that leaders need to satisfy widens and the scope for defections increases. Dion’s empirical findings (1997) for the nineteenth century, reported earlier, show exactly this.

17 the 84th Democratic House (1955-56). We hypothesize that the stronger majority party capacity is in any one Congress, the higher will be the percentage of restrictive rules approved. Finally, we test Schickler’s ideological balance of power model (2000) as partexplanation for the pattern of restrictive rules. Schickler’s posits the effects opposite to those anticipated by CPG: it is shifts in the ideological balance of power between liberals and conservatives on the House floor -- not the extent of partisan polarization or majority party capacity – which explain rules change in the House over time. The key actor is the median legislator. The chamber’s median will confer a greater share of agenda control on the majority party when closer to the majority’s median (275); conversely, when differences between the majority party and floor medians are greater – and, therefore, the floor median is closer to the minority party – the median allows the majority less agenda control (2000: 275-6). We extend this rationale to the majority party’s use of and House approval of restrictive rules. We postulate that the pattern of restrictive rules over time will change with changes in the location of the floor median relative to the majority and minority parties. Thus, we suggest that only when nearer to the median majority party member will the median House member support higher levels of restrictive rules. When closer to the median minority member, the median House member will not support many, if any, restrictive rules. We follow Schickler and calculate the ideological balance of power within the House in any one Congress as the distance between the absolute differences between the majority party’s median and the chamber median and absolute the minority party’s median and the chamber median. Thus, CHAMBER IDEOLOGICAL POWER BALANCE = ABS (median of majority party’s DW-NOMINATE scores - median of the chamber’s DW-NOMINATE scores) – ABS (median of minority party’s DW-NOMINATE scores - median of the chamber’s DWNOMINATE scores). The value’s highest value was recorded in the strongly Republican 67th Congress in the first two years of the Harding administration and the lowest in the marginally Democratic 72nd Congress in the last two years of the Hoover administration.

Findings and Analysis Table 1 presents descriptive statistics for the variables used in the analysis. Table 2 reports the results of our six models estimating the effects of our independent variables on the percentage of restrictive rules in the House from the 67th to the 109th Congresses. Because the dependent variable measuring rules restrictiveness is expressed as a percentage and the number

18 of rules on which it is based varies over time, we employed a weighted least squares analysis to estimate our models of rules restrictiveness. [Table 1 about here] The results from the regressions explain a significant amount of the over-time variance in rules restrictiveness and affirm support for our emulation hypothesis while providing no support for an expectation that rules restrictiveness follows a pattern of entrenchment followed by reversion with a change in party control. The coefficients for PARTISAN SWITCH COUNTER in Models 1 through 3 do not exhibit the expected signs; the pattern of rules restrictiveness is actually negatively correlated with this variable. Evidently, chamber majorities do not employ higher proportion of restrictive rules as they become entrenched over time.13 Conversely, EMULATION SWITCH COUNTER does yield positive results, at least when estimated together with PARTISAN POLARIZATION (Column 4). While entrenched majorities do not resort increasingly to restrictive rules, successive majorities do appear to emulate one another and step up their successful use of restrictive rules after each change in partisan control of the House. As Moynihan suggested, there is a migration of technique that is cumulative over time. Indeed, this result was anticipated to some extent by the pattern shown in Figure 1, although it arbitrarily divides up the period analyzed into decades. The regression estimates show that a one step change in emulation is associated, on average, with a 3.8 per cent increase in the percent of restrictive or closed rules. One finds the most striking results in columns 1 and 4, both of which include our measures of partisan polarization. These results lend very strong support to conditional party government and little support for either the partisan capacity or ideological balance of power theories. In both these models – as CPG anticipates – greater partisan polarization leads to greater use of restrictive rules, and smaller distances between the majority and minority parties are associated with smaller percentages of restrictive rules and weaker agenda control. That is, as the proponents of CPG insist, the extent to which majority leaders are able to assert their agenda-setting privileges - by resorting to a higher proportion of restrictive rules and win floor approval for them - is conditioned by the extent of partisan polarization in the chamber at the time. In both the models that estimate the effects of partisan capacity (columns 2 and 5), the

13

Further analyses will test findings reported by Dion (1997) and Canon and Price (1999) that smaller pluralities for the majority party in the legislature are associated with higher proportions of restrictive rules. With fewer members above 218 to spare, the majority party’s leaders may resort to smaller proportions of restrictive rules because they fear losing the rule.

19 variable is neither significant and in the second model the coefficient’s sign is also in the wrong direction. In both the models that estimate the effects of Schickler’s ideological balance of power variable (columns 3 and 6), the coefficients fail to attain significance even at the 0.10 level. [Table 2 about here] The regression estimates in column 4 corroborate conditional party government theory as well as our emulation argument: the greater the spatial distance between the majority party and the chamber median, the greater the incentive for the majority to seek (and win) approval for restrictive rules. But, at the same time, EMULATION COUNTER indicates another – only less potent effect – working at the same time (betas of .58 for POLARIZATION, .42 for EMULATION). Both variables are significant at the 0.01 confidence level and the signs are in the expected direction. Indeed, these two variables are so strong in this equation that ELECTRONIC VOTING, which is significant at the 0.01 level of confidence in the other five equations, barely makes the 0.10 significant level in column 4. Thus, although this variable remains significant at conventional levels of significance (t = 1.745; sig. = .089), we are now much less confident in asserting that rule politics changed after 1973 as a consequence of the change in the chamber’s voting system.

Conclusion At least since Reed’s rules, the majority party has run the show in the House of Representatives, generally to the exclusion of the minority. The majority organizes committees, hires the chamber’s staff, and determines the rules by which legislation is considered for amendment and debate on the floor. Our longitudinal analysis has identified the over-time conditions under which the majority party has resorted to imposing restrictive rules on the House between 1921 and 2006, a period that witnessed seven changes in partisan control.14 The strongest factor influencing the imposition of varying percentages of restrictive rules over this 88-year period was partisan polarization, lending further support to Rohde’s conditional party government framework while casting doubt on party capacity and balance of

14

Shortly, we anticipate extending our dataset back to the first recognized “special order” or rule introduced by Reed in 1883.

20 power explanations. The premise of CPG is that when the majority and minority party’s policy preferences are far apart, the majority party has a stronger incentive to strengthen its agenda control. The evidence provided by this study of most of the post-Reed period demonstrates that the actual percentages of restrictive rules crafted by the majority party and supported by the House floor fluctuate with the degree of partisan polarization. When the majority party is further from the minority, it enjoys greater leeway to employ restrictive rules; when it is closer to the minority, it is more constrained in passing such rules and with that, its agenda setting power is more limited. Thus, as the number of centrist House members reduces in any one Congress, one should expect House floor business to become increasingly governed by restrictive rules. Beyond polarization, however, our analysis also detected another important factor: successive majority parties emulate one another over time, and rules restrictiveness at one level begets restrictiveness at a higher level over time. Taken together, these two phenomena may not bode well for “the people’s House” or those represented there. Increases in the proclivity – and willingness – of the House majority to impose stricter restrictions on the consideration of legislation may have significant effects on the legitimacy with which the American electorate views the legislative process, although it may not necessarily result in the majority party’s electoral defeat.

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28 Wilson, James Q. 1989. Bureaucracy: What Government Agencies Do and Why They Do It. New York: Basic Books. Wolfensberger, Donald R. 2002. “The House Rules Committee Under Republican Majorities: Continuity and Change,’’ Paper prepared for the 34th Annual Meeting of the Northeastern Political Science Association, 25 October. Wolfensberger, Donald R. 2003. “The Motion to Recommit in the House: The Creation, Evisceration, and Restoration of a Minority Right.” Paper prepared for presentation at a conference on the History of Congress, University of California, San Diego, 5-6 December. Wolfensberger, Donald R. 2005. “A Reality Check on the Republican House Reform Revolution at the Decade Mark.” Introductory Essay, Congress Project Roundtable on “The Republican Revolution at 10: Lasting Legacy or Faded Vision?” Washington, DC: Woodrow Wilson International Center for Scholars. 24 January. Accessed 22 January 2006 at http://wwics.si.edu/events/docs/repub-rev-essay.pdf

29 Appendix 1. Coding of House Special Rules Affecting the Amending Process Classification of House special rules or special orders was a relatively simple matter before the development of so-called complex rules in the 1970s (Bach and Smith 1988: 56). Rules were simply identified as open or closed by Rules Committee members and staff, although a third type was used, which waived points of order against all or part of a measure (Van Hollen 1951: 64; Robinson 1957: 43), particularly appropriation bills and conference reports. Van Hollen also allows for what Bach and Smith (1988: 52) and we call “expansive” rules, which expand the scope of an open rule by making in order measures opposed by the majority of a reporting committee. Beginning with the publication of a Legislative Calendar in the 93rd Congress, followed by a Survey of Activities in the 97th Congress, the House Committee on Rules lists and classifies special rules or orders as open, modified open, modified closed, and closed: these publications also identify bills on which waivers have been granted to appropriations bills and conference reports. These official committee sources, however, are notoriously unreliable. For example, neither the committee’s Legislative Calendar nor its Survey of Activities for the 97th and 98th Houses list any closed rules for these congresses (1983: 35; 1985: 71) whereas our analysis identifies such rules as having being adopted in these congresses. In various congresses, moreover, rules requiring a measure’s consideration in the House, rather than in the Committee of the Whole, are sometimes defined as “open” then they are in fact closed; and rules adopted in different congresses and employing exactly the same language are frequently classified differently, especially within the “modified closed” and “modified open” categories. The Committee’s former staff director, Don Wolfensberger, has used the same classification system to generate lists of special rules in different categories, and for many years, has generously made these available to scholars either by personal communication or through the Woodrow Wilson Center’s website. While Wolfensberger’s data applies the same system with much greater consistency and accuracy,15 genuine differences of opinion often arise in interpreting the same rule, given political sensitivities and controversy that surround the use and number of special rules. Thus, Wolfensberger’s classification for any given rule sometimes differs from that used by the committee under both Republican and Democratic control. The classification system used in this project is different. It refines the schema used by Bach and Smith (1988: 50-53) and seeks to classify special rules according to their restrictiveness. The Universe of House Special Rules The universe of House rules included in the analysis is all House resolutions adopted on the House floor providing for floor consideration of a public bill or resolution;16 where a single rule 15

Wolfensberger’s definitions are: “open” rule, one that permits any member to offer an amendment otherwise germane in the Committee of the Whole under the five-minute rule; “modified open”, one that either requires the pre-printing of amendments in the Congressional Record, sets an overall time-cap on the amendment process, or both; “modified closed” or “structured” rule, one that restricts the amendments that can be offered to those specified in the special rule and/or report on the rule; and “closed” rule is one that permits the offering of no amendments, except those recommended by the reporting committee(s). A “self-executing” provision in a special rule is one that provides for the automatic adoption of additional language into the legislation upon the adoption of the rule. 16

Wolfensberger’s universe is different. His data exclude privileged resolutions considered in the House (which are typically closed or restrictive), subsequent rules for the same measure, conference reports, and special rules that only waive points of order against appropriations bills but do not provide for consideration in the Committee of the Whole.

30 governs procedures for more than one measure, each measure is counted as one rule and coded according to the restrictiveness of the language used in the relevant part of resolution, as printed in the Congressional Record.17 Discharge resolutions releasing the Rules Committee from further consideration and allowing a measure to be brought to the floor under House rule XXVII, which stipulate whether or not floor amendments to the host bill may be considered, are also included.18 The following special rules are excluded from the data set: •

Rules governing only general debate in the expectation that there will be a subsequent rule granted governing the amending process;

•

Rules governing adjournment of the House;

•

Rules governing same day consideration of a measure;

•

Rules governing a bill that the House already had passed that simply agree to a conference with the Senate or instruct House conferees to agree or disagree with Senate amendments 19

•

Rules governing suspensions of the rules;

•

Rules governing private bills, claims, or ceremonial legislation (but see S 686 re. Sciavo in 109th);

•

Rules pertaining to House organizational matters e.g. providing for committee expenses, committee investigations or the creation of new committees;

•

Rules that failed or were laid on the table.

17

In certain congresses, this coding procedure may potentially skew results, when the universe of rules is fairly low and several bills are attached to a single rule. However, in all but one of the congresses the universe of rules was low (primarily pre-1930), these multiple-bill rules were open. For example, in the 72nd House, the amending process for as many as seven bills (all judgeships) was governed by a single (open) rule thereby accounting for over 15 per cent of the universe. The exception is the 67th House where one closed rule governs four bills, which represent half the closed rules in that House. In his lists, Wolfensberger classifies different parts of a rule governing different bills separately. Thus, a rule making in order one measure under an open process and two bills under a closed process is classified as “open/closed”. 18

Thus, during the 78th House, for example, then-Congressman Warren Magnuson (D.WA) brought up HR 7, an antipoll tax bill that had been denied a rule by the Rules Committee. H Res 131 provided for an open rule for floor consideration of HR 7. 19

Before House rules changed in 1965 (Froman 1967: 141ff), the House could send a bill to conference only by unanimous consent or pursuant to a special rule, which meant that the Rules Committee could grant a rule sending a House bill and any Senate amendments to conference without allowing House opponents any opportunity to amend the House bill on the floor in the Committee of the Whole in light of the Senate amendments. In the 1920’s, particularly the “gag rule” epithet was occasionally used against such rules (e.g. H Res 288 in the first session of the 71st Republican-controlled House considered 2 July 1930.) These special rules are excluded from the data set because they govern a bill that the House has passed previously.

31 The Coding Scheme The coding scheme is designed to determine the extent to which the position of the reporting committee(s) could be challenged on the House floor by the offering of floor amendments. Open rules

rules that permit floor amendments, including amendments in the nature of a substitute offered or supported by the reporting committee (regardless of whether or not the substitute is treated as original text); or those requiring only preprinting of amendments to be offered or limits to time available for debate.

Waivers

rules that only waive points of order against the bill or its provisions, without affecting the amendment process e.g. To protect Appropriations bills that contain legislative authorization provisions or conference reports (which are not normally open to amendment) from being challenged by points of order

Expansive rules

otherwise open rules that waive points of order against one or more noncommittee amendments (which are not treated as original text)

Restrictive rules

rules that limit amendments otherwise in order but do not preclude them completely, including where an amendment may be offered in the House, rather than in the Committee of the Whole, and allow a motion to recommit. (Note: in this classification scheme, time limits and pre-printing requirements are not regarded as sufficiently restrictive to warrant inclusion in this category i.e. where rules include only these restrictions, they are not classified as restrictive.)

Closed rules

rules that prohibit all amendments, permit only committee amendments, or permit only amendments to be offered by the reporting committee chair or his/her designee (Note: rules which require consideration of a measure in the House rather than in the Committee of the Whole - are, by definition closed rules unless they specifically permit the offering of amendment(s) and regardless of any other provisions included in the rule.)

Complex rules

rules that include some combination of restrictive, expansive, and/or structuring provisions (e.g. King/Queen of the Hill, and/or selfexecuting clauses, etc.) no matter how restrictive (limiting amendments) or expansive (waiving points of order against certain amendments) it is. Such rules have become increasingly prevalent since the 1970s (Bach, 1981; Bach and Smith, 1988). (Note. Where a rule includes some complex elements but is predominantly open, closed, restrictive, or expansive, the complex characteristics are ignored since the primary purpose of the coding scheme is to determine whether or not a rule is predominantly restrictive.)

32 In order to provide more meaningful classifications for a larger number of rules, complex rules were subsequently classified according to whether (subjectively) their primary effect was to restrict or permit floor amendments. Thus, the available codings for complex rules are ‘complex/expansive’, ‘complex/restrictive’, or ‘complex/complex’ where the classification before the slash is a determination of the objective nature of the rules, and that after the slash is a subjective characterization. Complex/expansive rules are rules which include some combination of restrictive, expansive, and/or King/Queen of the Hill, and/or selfexecuting provisions BUT, subjectively, the primary effect of these rules on the amending process is expansive i.e. in our judgement, the primary character of these rules is expansive, even if the rule also includes one or more provisions which may be restrictive. Complex/restrictive rules are rules which include some combination of restrictive, expansive, and/or King/Queen of the Hill, and/or selfexecuting provisions BUT, subjectively, the primary effect of these rules on the amending process is restrictive i.e. in our judgment, the primary character of these rules is restrictive, even if the rule also includes one or more other provisions which may be expansive. (Note. If the restrictive elements of those rules we have characterized as complex/restrictive rules are limited to restrictions on the time allowed for the offering of amendments, the offering of second degree amendments or the divisibility of first degree amendments, in an otherwise complex rule with expansive provisions, such restrictive provisions will be regarded as of secondary importance and the rule will not be classified as restrictive or complex/restrictive.) Complex/complex rules are rules that are objectively complex (under the definition of complex rules) but are judged to be impossible to characterize as primarily expansive or restrictive.

33

34

Table 1. Descriptive Statistics N % Restrictive or closed rules Partisan Switch Counter Emulation Switch Counter Partisan Polarization Majority Partisan Capacity Ideological Balance of Power Electronic voting Valid N (list wise)

43 43 43 43 43 43 43 43

Minimum Maximum Mean Std. Deviation .000 .688 .173 .176 1 20 6.79 5.519 1 7 4.63 2.161 .52 .91 .639 .116 -.820 4.24 .748 1.048 -.02 .32 .109 .082 0 1 .40 .495

35 Table 2: House Rule Restrictiveness, 67th to 109th Congresses Dependent Variable:

% Restrictive or Closed Rules (1)

(2)

(3)

(4)

(5)

(6)

Constant

-.098 (.096)

.104 *** (.027)

.101 *** (.030)

-.609 *** (.090)

.005 (.041)

.017 (.046)

Electronic Voting

.280 *** (.047)

.325 *** (.045)

.325 *** (.045)

.068 * (.039)

.205 *** (.046)

.209 *** (.046)

Partisan Switch Counter

-.007 * (.004)

-.010 ** (.004)

-.010 ** (.004) .038 *** (.008)

.016 * (.010)

.015 (.010)

Emulation Switch Counter Partisan Polarization

.308 ** (.143)

Majority Partisan Capacity (Binder revised by Schickler) Chamber Ideological Power Balance (Schickler) Adjusted r-squared: Number of cases:

.910 *** (.126) -.001 (.013)

.009 (.014) .013 (.173)

.018 (.184)

0.632

0.589

0.589

0.811

0.561

0.556

43

43

43

43

43

43

Note: Figures are Weighted Least Squares regression coefficients. Standard errors in parentheses. * = significance at p < 0.10, ** = significance at p < 0.05, *** = significance at p < 0.01 (twotailed tests)