Virginia’s House Rules Committee Lacks Legitimacy

By Josh Stanfield of Activate Virginia

Undemocratic forces are at play in our House of Delegates – and they threaten core progressive and Democratic legislative priorities in 2018. Over the weekend, Graham Moomaw at the Richmond Times-Dispatch reported on the newly constituted House Rules Committee:

Bills to raise the grand larceny threshold, let localities set their own minimum wage, grant in-state tuition to immigrant students, and ban bump-stock devices on firearms have been referred to the House Rules Committee, a panel controlled directly by new House Speaker Kirk Cox, R-Colonial Heights, where Republicans have an 11-6 advantage.

Cox said he foresees a “bigger role” this year for the committee, which typically handles more mundane matters like procedural tweaks, study resolutions and bills to set up state commissions.

This “bigger role,” in fact, is a role that eschews notions of democracy, process, and precedence – in favor of exerting raw political power counter to the popular will as expressed in November’s elections. A Rules Committee stacked with 11 Republicans – to the Democrats’ six – is in a fine position to kill various Democratic bills, bills totally unrelated to the typical purview of Rules. Many of these bills are legislative translations of the ideas that drove citizens to elect a historic number of Democrats last November.

Upon further investigation, however, the composition of the House Rules Committee seems itself to be in violation of the rules. There needs to be a loud, public discussion of what this means – and how we can remedy the situation.

Rule 16: Committee Composition and Proportionality

In the 2018 Rules of the House of Delegates, committee composition and proportionality are addressed by Rule 16/16(a):

(Line 146) “Rule 16. There shall be appointed standing committees, to be named and to consist of up to the number of members indicated below:

The Speaker shall designate seven members of the House Rules Committee to meet with members of the Senate to constitute the Joint Rules Committee.”

(Line 164) “Rule 16(a). Membership on all standing committees and subcommittees shall be contingent upon membership or nonmembership in the majority party caucus. The apportionment of members shall be according to the same ratio of members in the House of Delegates who are members or nonmembers of the majority party caucus. If such ratio would represent a fractional number of the committee or subcommittee membership assigned to the majority party caucus, then the number of majority party caucus members shall be the next highest whole number of committee or subcommittee members. For the purposes of this rule only, members who do not caucus with the majority party caucus or the largest minority party caucus shall be deemed part of the majority party caucus. Notwithstanding any other provision of law, the Speaker of the House may appoint two more House members to any legislative commission, joint subcommittee of House and Senate committees, or any interim study committee than are appointed by the Senate.”

The emphases are mine.

Notice that the proportionality clause does not exempt the House Rules Committee. If we run the calculation according to the rules above, 51 Republican Delegates translates into 9 Republicans and 8 Democrats on a 15 member House Rules Committee. Also note that the Speaker may appoint two more House members to several types of bodies – but not to a standing committee like Rules.

Moomaw’s article tries to explain this obvious violation of the rules:

“Under past House practice, rules requiring proportional committee representation haven’t applied to the Rules Committee, which is generally treated as the domain of the speaker.”

But Rules 2-5 (lines 24-77) deal explicitly with the Speaker and the Speaker’s powers, without granting any authority to unilaterally circumvent rules when it comes to the composition or machinations of the Rules Committee. In fact, the Rules Committee isn’t even mentioned in the rules devoted to the Speaker. It’s only in Rule 15 (lines 144-5) that the Speaker is designated Chair of the Rules Committee.

The 2010-11, 2012-13, 2014-15, 2016-17 sets of rules all include a proportionality clause in Rule 16 – and none of them exempt the Rules Committee. So what did the Rules Committee look like then?

2017: 11R, 4D (66/34 HoD)

2016: 11R, 4D

2015: 11R, 4D

2014: 11R, 4D

2013: 10R, 4D, 1I  (66/32/2 HoD)

2012: 10R, 4D, 1I

2011: 8R, 5D, 2I

2010: 8R, 5D, 2I

2009: 7R, 6D, 2I (54/44/2 HoD)

2008: 7R, 6D, 2I

The compositions of the Rules Committees from 2008-2017 above all appear roughly proportional given the political compositions of the House. It might make sense to take a look at the last time the House was almost evenly split:

1996: 8D, 2R (52D, 47R + 1I HoD)

1997: 7D, 2R (52D, 47R + 1I HoD)

1998: 8D, 6R, 1I (50D, 49R+1I HoD)

1999: 8D, 6R, 1I (50D, 49R+1I HoD)

2000: 9R, 7D, 1I (52R+1I, 47D HoD)

In the years most analogous to 2018, we find rough proportionality. Could it be that Speaker Cox is getting revenge for the lopsided Rules Committee in 1996-7?

Whatever the case may be, recent history (and the most analogous situation) suggest the Rules Committee has defaulted to proportional representation. House Republicans currently have the votes to change the rules and exempt the Rules Committee – but it’s a real stretch to fall back on tradition or precedence here.

Rule 18: Types of Bills Sent to Committee

The House Rules Committee has come under close inspection partially because bills unrelated to the rules have been sent to the committee. There’s a clear political motive behind collecting Democratic priorities in a Republican-stacked Rules Committee. So let’s examine the rules.

Rule 18 of the 2018 House Rules states:

(Line 196) “Rule 18. The several standing committees shall consider matters specially referred to them and, whenever practicable, suggest such legislation as may be germane to the duties of the committee. The chairman shall have discretion to determine when, and if, legislation shall be heard before the committee. The chairman, at his discretion, may refer legislation for consideration to a subcommittee. If referred to a subcommittee, the legislation shall be considered by the subcommittee. If the subcommittee does not recommend such legislation by a majority vote, the chairman need not consider the legislation in the full committee. It shall be the duty of each committee to inquire into the condition and administration of the laws relating to the subjects which it has in its charge; to investigate the conduct and look to the responsibility of all public officers and agents concerned; and to suggest such measures as will correct abuses, protect the public interests, and promote the public welfare.”

The emphases are mine.

Although the Clerk, “under direction of the Speaker,” may refer legislation to any standing committee he so pleases, what’s currently happening is disconcerting. The language above, in mentioning “the laws relating to the subjects which [each committee] has in its charge,” suggests an expectation that committees will focus on and presumably hear legislation within a given subject. This hint of intent is being entirely ignored by the Speaker and the Clerk.

Republican committee chairs, members, and their constituents should also be concerned about ceding so much power to the Rules Committee. Not to mention the language about protecting “the public interests” and promoting “the public welfare.”

Rule 18 maintains this same 2018 language in at least the 2010-2017 sets of rules.

Rule 37: The Clerk

Rule 37 of the 2018 House Rules reads:

(Line 358) “The Clerk shall, under the direction of the Speaker, refer all such legislation to the proper committee and enter the fact, with the names of the members presenting them, upon the Journal. Such bills shall be printed, unless otherwise ordered by the House, and numbered in the order in which they are filed with the Clerk.”

What do the rules mean by “proper committee”? Is it not ridiculous to expect “proper” to mean “whichever committee the Speaker prefers”? Again, if House Republicans want to change the rules to fully enshrine undemocratic power grabs, they may have the votes. But ignoring the rules and shrugging off intent shouldn’t be acceptable to citizens.

Response from Speaker Cox

Moomaw reports:

“In a statement, Cox spokesman Parker Slaybaugh said the partisan split on the Rules Committee was part of the deal Republican leaders struck with Toscano during recent power-sharing negotiations.

“By custom and practice, the proportional representation rule has not applied to the Rules Committee,” Slaybaugh said. “The makeup of the Rules Committee was specifically agreed to by Leader Toscano as part of the organizational agreement. Democrats were given two extra slots on Rules at their request.”

So Cox claims Democratic leadership specifically agreed to a stacked Rules Committee, a black hole into which all Democratic priorities collapse? If so, we need to know: what did Democrats get in exchange? Especially after Governor Northam refused to pull Republicans from the legislature to trigger special elections.

And how many House Democrats would vote for this set of rules again – knowing how the committees would ultimately be constituted?