Bipartisan Resolution Will Force a Vote on Limited Proxy Voting in House

WASHINGTON — A bipartisan resolution that would allow proxy voting in the House by members who are also new parents is headed for a vote in the chamber despite the opposition of House Speaker Mike Johnson, R-La.

The resolution, introduced by Reps. Anna Paulina Luna, R-Fla., and Brittany Pettersen, D-Colo., in February, would allow new parents in the House to designate a colleague to cast votes in their place for up to three months after they or their spouse has had a child.

But Johnson, who led a Republican lawsuit aimed at eliminating proxy voting during the coronavirus pandemic, declined to schedule a vote on the matter, saying while he sympathized with the sentiment, such a vote would simply be unconstitutional.

He based his assertion — then and now — on a provision of the Constitution that states a quorum, or majority, of members must be physically present in order for the House to conduct business.

That lawsuit, filed against then-House Speaker Nancy Pelosi, D-Calif., was never heard due to U.S. District Judge Rudolph Contreras ruling that the House has “absolute immunity from civil suit.”

This time around, Luna was determined to have her resolution voted on, and on Monday she filed it as a discharge petition.

The House discharge rule, clause 2 of Rule XV, is a parliamentary mechanism that allows 218 members of the House — a majority of the chamber — to bring a bill or resolution to the floor for consideration even if the measure has not been reported by committee or is not supported by the House leadership.

Luna’s resolution hit the magic 218 number when Rep. Mike Lawler, R-N.Y., signed on Tuesday afternoon.

As soon as he did so, the petition was officially “frozen,” and the discharge motion was entered on the House Journal, printed in the Congressional Record, and placed on the “Calendar of Motions to Discharge Committees.” 

Once a motion to discharge has been on the calendar for at least seven legislative business days, it becomes eligible for consideration on a “Discharge Day,” which, under the rule, is the second or fourth Monday of each month. 

If the House is not in session on a Discharge Day, the motion to discharge cannot be made until the next Discharge Day on which the House meets.

When a vote will actually be held in this case is still very much an open question. At present, the House is on recess and will remain so until March 24.

Even when it gets back, and the motion meets the calendar requirement, the House still has to first vote to discharge the bill — setting the stage for its consideration on the floor — and then, finally, vote on it.

Once the House acts on a discharge motion, any further discharge petitions on the same subject are precluded for the remainder of the session of Congress.

In a statement, Luna said, “We have received overwhelming support from a majority of the conference and have ensured that this legislation is in line with the constitution. 

“If Congress wants to have a governing body that is truly reflective of the American people, it should allow and encourage new parents to vote while in office,” she added.

Discharge petitions are extremely rare because they’re considered a direct challenge to leadership.

In fact, a precursor to the current discharge rule was adopted in 1910 following a member revolt against the skillful but roundly disliked House Speaker Joseph Cannon, R-Ill.

The modern version of the rule was adopted in 1931, though the rules were changed in 1935 so that the number of signatures required to force a vote went from one-third of the chamber to an absolute majority.

According to the Congressional Research Service, between 1931 and 2003, a total 563 discharge petitions were filed, of which only 47 obtained the required number of signatures.

In those cases, the House voted for discharge 26 times and passed 19 of the measures, but only two have become law.

The CRS notes, however, that the threat of a discharge petition has caused the leadership to relent several times; such petitions are dropped only because the leadership allowed the bill to move forward, rendering the petition meaningless. 

Overall, either the petition was completed or else the measure made it to the floor by other means in 16% of cases, it said.

Since then, there have only been four discharge petitions filed, but three of them — including this latest attempt — have come on Johnson’s watch.

In October 2015, a bipartisan group successfully used a discharge petition to force a vote on a bill reauthorizing the Export-Import Bank of the United States.

More recently — and on Johnson’s watch — a Freedom Caucus–sponsored petition on a disaster relief tax bill received the required signatures and was overwhelmingly passed by the House.

The Senate then added its approval by unanimous consent and President Joe Biden signed the measure into law.

In September 2004, a second discharge petition reached the required 218 signatures, leading to a vote on a bill that eliminated existing provisions that would have reduced Social Security benefits to some seniors.

Again, the bill passed the House by a wide margin, and it passed the Senate as well.

As was true in the case of the first discharge petition of the Johnson era, the bill was ultimately signed into law by Biden.

Dan can be reached at [email protected] and @DanMcCue