Highway bill’s long and winding road

To say the highway bill has been on a long and winding road, filled with potholes, round-abouts and detours, is probably an exercise in metaphoric excess if not overstatement. Whether it will end on an off-ramp to nowhere remains to be seen.  An earlier Congress Blog by this writer (Aug. 29) about a supposed iron-clad agreement between a group of moderate Democrats and House Speaker Nancy Pelosi (D-Calif.) to bring the matter to a final vote by a date certain turned-out to be downright misleading. The third attempt in the Rules Committee to mollify moderates seemed to guarantee a vote by Monday, Sept. 27, on concurring in the Senate amendment to the House-passed infrastructure bill (H.R. 3684). The House adopted that special rule (H. Res. 601) on Aug. 24, by a vote of 220-212, with all 220 Democrats voting in favor, and all 212 Republicans voting against.

But a funny thing happened on the road to that guaranteed vote. The chairman of the Transportation and Infrastructure Committee called-up the motion to concur on Sept. 27, the date designated for final action. Yet instead of proceeding to final consideration, Speaker Nancy Pelosi (D-Calif.) stated she only intended to begin, not finish, debate that day, and not hold a final vote until the following Thursday, Sept. 30 —  the day on which all federal transportation authorizations were due to expire.  

The path Pelosi took to evade a seemingly mandated vote that Monday is fascinating. After the motion to concur had been debated in the House for 40 minutes of the one hour allotted, the Speaker pro tempore announced that, “Pursuant to clause 1(c) of House rule XIX, further consideration of the motion to concur in [the] Senate amendment to H.R. 3684 is postponed.”  That clause states simply, “…when the previous question is operating to adoption or passage of a measure pursuant to a special order of business, the Chair may postpone further consideration of such measure in the House to such time as may be designated by the Speaker.” The rule defies the conventional wisdom that special rules are departures from and supersede the standing rules. 

Even then, the chair did not designate a time for further consideration as required by the rule. Nevertheless, the remaining 20-minutes of debate were wrapped-up the following day, Tuesday, Sept. 28, and the Speaker pro tempore then put the question on the motion to concur and announced, “the ayes appear to have it.”  When the ranking Republican on the Transportation Committee, Rep. Sam Graves (Mo.), demanded the yeas and nays (a rollcall vote), the chair announced that, pursuant to clause 8 of House rule XX, further proceedings on this question are postponed.  

That rule allows the Speaker to postpone a recorded vote to a designated place in the legislative agenda within two additional legislative days. Though the Speaker pro tempore did not specify the date as required, it was well understood, based on Speaker Pelosi’s public pronouncements, that the vote would occur on Thursday, Sept. 30. When it became apparent late in the day on Sept. 30 that Democrats lacked sufficient votes to adopt the motion to concur, the chair declared the House in recess at 4 p.m. It did not reconvene until 10 a.m. the next day, 

Oct. 1, (which was still designated as the over-long legislative day of Sept. 30).  The House then went into recess again as negotiations continued behind the scenes. President Biden announced he would travel to the Hill and address the House Democratic Caucus at 3:30 p.m. that afternoon. In his remarks, the president reportedly advised Democrats to take their time in completing action on both bills in tandem, “whether in six minutes, six days, or six weeks.”  The House reconvened at 7:20 p.m. and first voted 365-51 to pass under a suspension of the rules a bill (H.R. 5434) extending for 30 days various expiring surface transportation programs. The chair then announced that further consideration of the motion to concur in the Senate infrastructure amendment was postponed (again, without designating a date certain for action), after which the chair declared the House adjourned until Tuesday, Oct. 5, relying on one of the Speaker’s emergency pandemic procedures.

The Speaker was able to evade the requirement that the postponed vote on the measure take place within two days by invoking the other rule mentioned above, clause 1(c) of rule XIX. This rule gives the Speaker authority to postpone further consideration of a measure on which the previous question had been ordered. In other words, one rule was used to vitiate another rule. If this were a court case it might be titled, Pelosi v. Pelosi (guess who won?). Thus, the dual-sunrise legislative day of Thursday, Sept. 30 adjourned shortly after 8 p.m. on Friday, sending the motion to concur in the Senate infrastructure amendment circling in a far-flung limbo-land.   

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