The discharge petition, explained.
Kevin McCarthy won the House speaker job in part by making himself a hostage of Republican hardliners, pledging high-stakes confrontations on issues like funding the government and preventing a debt ceiling breach. And he can use his power over the House agenda to make good on that promise, blocking bills on these topics from even coming to a vote unless conservatives get what they want.
But Democrats and GOP moderates have one weird trick they could use to stop him: the discharge petition.
This procedure was crafted to allow a majority of the House to force action on a bill that the speaker or key committees aren’t holding a House floor vote on. For instance, if McCarthy won’t allow a vote on a “clean” debt ceiling increase bill, 218 members of the House can sign a discharge petition forcing such a vote — and, since that’s a majority, that bill would likely then pass. Once a vacant Democratic seat in blue territory is filled in a special election next month, only five Republicans would have to join 213 Democrats to make a discharge petition succeed.
There are various procedural and timing technicalities that could complicate this if it had to happen right before a debt ceiling or government shutdown deadline. But in theory, it could happen, if a mere handful of Republican members want it to.
The real problem, of course, is politics — because there are many political reasons that even moderate Republicans would be reluctant to take this step.
A discharge petition is a bold challenge to the speaker’s authority, effectively wrenching control of the chamber out of his hands. In this case, it would also undercut his negotiating strategy, since he is purportedly trying to win concessions Republicans want. Working with Democrats on a petition would also be a marker of partisan disloyalty. Anyone who does it would get a target on their backs in next year’s primary — and, if they survive it, Democrats would turn around and try to beat them in the general.
Few moderates feel as empowered to defy their party on key issues as Sen. Joe Manchin (D-WV), and recent history has shown that House Republican moderates are particularly unlikely to do such a thing. But this partisan loyalty and reluctance to take a bold stance could well lead the country into crisis. So while there may be a trick that could save us from the brink, its success will still depend on navigating the political polarization that has brought us to the brink in the first place.
One weird trick to circumvent House leaders
Through much of the House’s history, the chamber’s members have battled over who should have control over the chamber’s agenda — what gets brought up for a vote and when. Should it be the speaker? Should it be key committee chairs? Or should a disparate group of rank-and-file members be able to have a voice?
By 1910, old-guard Republican Speaker Joseph Cannon had centralized power in his hands to an unprecedented degree. But eventually enough Progressive Republicans joined with Democrats and revolted, forcing Cannon to make concessions limiting his authority. One of those changes to House rules established the discharge petition, though the details of how it works changed in subsequent decades.
Frequently threatened and attempted, successful discharge petitions have been rare — but some have been extremely consequential.
In 1938, Rep. Mary Norton (D-NJ) used it to get the Fair Labor Standards Act, which set a federal minimum wage, overtime pay, and a ban on “oppressive child labor,” out of the Rules Committee. (Democrats had an enormous House majority, but several Southern Democrats had opposed the bill and held key seats on the Rules Committee.)
In 1963, Democrats forced conservative Rules Committee chair Howard Smith to hold hearings on civil rights legislation with a discharge petition — Smith caved before they got 218 signatures, and the Civil Rights Act of 1964 passed the following year.
Democrats repeated that play in 1965 to advance their bill to let the District of Columbia govern itself past another conservative Democrat committee chair, though the bill did not become law that session. (Notably, in all three of these cases, a Democratic president had endorsed the discharge effort to bypass conservative Southern Democrats holding key committee seats.)
But it hasn’t only been used for bold liberal wins — interest groups also discovered the discharge petition could help them circumvent committee chairs they disliked.
Soft drink distributors sought and won an antitrust exemption in 1980, the banking industry rolled back a new tax withholding law in 1983, and the National Rifle Association got a gun rights bill through in 1986 — and all used the motion to discharge to get around Democratic committee chairs who opposed those measures. Similarly, the last discharge petition to win 218 votes got the Export-Import Bank’s reauthorization past a conservative GOP committee chair in 2015.
The discharge petition has also been employed to force party leaders to hold votes they’d prefer to avoid.
While Democrats controlled Congress in the 1980s and early 1990s, Republicans and conservative Democrats repeatedly used the discharge petition to force votes on a constitutional amendment to balance the budget (though, since a constitutional amendment requires two-thirds of the chamber for approval, it didn’t pass).
In the Republican-controlled House of 2002, Democrats and moderate Republicans used it to get campaign finance reform to the floor of the House, despite Republican Speaker Dennis Hastert’s reluctance. They succeeded, passing the Bipartisan Campaign Reform Act, otherwise known as McCain-Feingold.
Lessons from the last big discharge petition fight
But to understand why Republicans might be gun-shy about using it this year, it’s worth revisiting the last discharge petition that came close to succeeding, in 2018.
The battle then was over the Deferred Action for Childhood Arrivals (DACA) program, which provided temporary deportation protections for some unauthorized immigrants who came to the US as children. President Obama had established the program through executive authority, but now Trump was trying to phase it out. Many believed that if a legislative fix for DACA was presented to the House, it would pass (with the support of Democrats and some moderate Republicans). But Republicans controlled the chamber and, deferring to conservatives, they hadn’t acted.
So eventually, Reps. Carlos Curbelo (R-FL) and Jeff Denham (R-CA) put together a discharge petition to try to force the House to vote on four different DACA bills, including a bipartisan compromise bill. Eighteen Republicans signed first, and then over the next month, every Democrat, as well as a few more Republicans, added their names, raising the number of signatures to 216 — two short of what was needed.
Then Republican Speaker Paul Ryan acted to prevent anyone else from going wobbly. He cut a deal in which he’d agree to hold votes on certain DACA measures — but not the bipartisan bill. Instead, Ryan wanted Republicans to make a deal among themselves that would include border security measures sought by conservatives. Ryan argued that only that process could advance a bill that President Trump would sign into law (though Politico suggested Ryan feared the potential “huge embarrassment” of the bipartisan bill passing and infuriating conservatives). The eventual deal failed overwhelmingly on the House floor that June, with opposition from most Republicans and all Democrats.
Did GOP moderates just so happen to fall two votes short of what they needed — meaning, if only two more sympathetic members happened to be in Congress, they could have succeeded? If so, that might bode well for a discharge petition in this Congress, since just five moderates rather than 25 would be necessary this time.
A cynic might suspect, though, that the key moderates were always likely to cave if they were close to success — making the whole effort look more like image-burnishing for reelection purposes than a genuine revolt. Alternatively, perhaps they were just trying to force some action but felt more comfortable if that was Republican action rather than banding with Democrats to enrage their own party.
The prospects this year
So what are the chances the discharge petition will be deployed this year, to seize control from McCarthy and the right on certain issues?
One complication is that there are certain procedural and timing restrictions with how it can be used. The process would likely take significantly more than a month from start to finish, as Josh Huder outlined on Twitter. It’s not an accident the process is cumbersome — it’s meant as a last resort rather than a first resort. As Semafor’s Joseph Zeballos-Roig points out, these complications could pose a problem when there’s a hard deadline in play, like for raising the debt ceiling or funding the government.
But there’s another, more political difference from past cases in which discharge petitions were successfully used. Typically, frustrated members of the majority party turn to them when their own party leaders or members are seeking to avoid an issue, taking no action on it at all.
On both the debt ceiling and government funding, though, the House GOP will likely be actively trying to make something happen in negotiations with Democrats — spending cuts that the vast majority of Republicans want in exchange for a debt ceiling increase.
McCarthy’s strategy there is to drive a hard bargain, holding tough to force the Senate and President Biden to make concessions to the GOP. That means, for Republicans, joining a discharge petition would mean undercutting their party leaders’ negotiating strategy and reducing the GOP’s leverage — a betrayal. (One could, of course, argue that it’s unethical to hold the nation’s credit rating hostage at all, but good luck convincing Republicans of that.)
Take Rep. Brian Fitzpatrick of Pennsylvania, one of the most moderate Republicans in the House. Fitzpatrick told Semafor that a discharge petition was “one of many options” to avoid default, but also told Politico that he’d need moderate Democrats to “get on board” with spending cuts in exchange for raising the debt ceiling. That is: He wants a deal where Democrats make concessions.
Indeed, the more a discharge petition effort is seen as defying McCarthy, rather than defying an extreme group of hardline House Republicans, the less likely House moderates will do it. The pressures to be a good partisan soldier are quite strong. Swing-district Republicans will face tough reelections and may think they need the money McCarthy and his allies can steer their way.
They also have to get through the primary before even making it to the general, which makes many reluctant to anger the right. Only some members have the appetite to truly be mavericks — for most, the path of least resistance is to stick with the team (though there could theoretically be a scenario where McCarthy tacitly approves of a discharge petition, so he could argue to the right that his hand was forced).
Again, these members of Congress do have agency, and it’s important to keep in mind that five Republicans really could act boldly, embracing the discharge the petition to save the nation from a dangerous crisis, if they wanted to. They just probably won’t want to, because they won’t see it as in their political self-interest.
More broadly, there’s a long-running centrist fantasy of the coalition of commonsensical moderates coming together, dramatically seizing power from the extremes, and doing reasonable things — funding the government, preventing a debt ceiling breach, and maybe passing other good policies, too.
In one sense, this never happens, because partisanship is too strong.
But in another sense, it happens all the time — just less dramatically. The appropriations process regularly proceeds with bipartisan support in the Senate. Even during the last eight-year stint of Republican House control, there was only one really big fight on the debt ceiling and one on government funding. For the rest of that span, GOP leaders regularly allowed bipartisan deals with Democrats on those matters to come to the floor and pass over conservative opposition.
No discharge petition was necessary for all that. The question is whether McCarthy is so beholden to the right that one will be necessary now.
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