The Old-School Trick That Finally Pushed the House to Move on Immigration

When Speaker of the U.S. House of Representatives Paul Ryan announced late on Tuesday that the House will vote next week on two immigration reform bills, he hit pause on the ongoing debate over the status of the so-called Dreamers shielded from deportation by the Deferred Action for Childhood Arrivals (DACA) program. But, though the step forward can be seen as a victory for the Wisconsin Republican’s conservative camp, it came in the face of a legislative threat.

The announcement of next week’s vote came only after GOP leaders reportedly talked moderates out of forcing one of the immigration reform bills stalled in committee to the House floor for a vote, a threat that had been hanging over the chamber in recent days. The tactic that the moderates had on their side is one with a long history of spurring action among House majority party leaders: the discharge petition.

Among the power trips that Congressional committee leaders can pull, they can prevent legislation from being brought to the House floor by doing, well, nothing. The bill then languishes in committee until its moment passes. A discharge petition is the counterbalance to that power, a way to circumvent gate-keeping committee chairs, as it essentially forces a measure out of committee onto the House floor for a vote. It must be signed by 218 members, representing a majority of the House.

The discharge petition was first created in 1910 as a way to get around Joseph Gurney Cannon, who served both as the House Speaker and Rules Committee chairman, and kept blocking bills introduced by progressive Republican and Democrats. Incidentally, Cannon was featured on the cover of the first issue of TIME in 1923; in the story, he was characterized as believing that “Speakership was a gift from heaven, immaculately born into the Constitution by the will of the fathers for the divine purpose of perpetuating the dictatorship of the standpatters in the Republican Party.”

But members of Congress didn’t really get the hang of using it until after rules for discharge petitions were revised in 1931 and 1935. Desperate times called for desperate measures, so — amid the national upheaval of the Great Depression and the New Deal — discharge petitions only needed 145 signatures. “With the Depression going on, [there were] a lot of kind of populist pressures among members to try new kinds of policies,” says Eric Schickler, professor of Political Science at the University of California, Berkeley. (In 1935, the rule was revised to require 218 signatures.)

For example, the modern minimum wage law — the Fair Labor Standards Act of 1938 — dates back to the heyday of efforts to use discharge petitions, which lasted into the ’60s and ’70s. During the later years of that run, discharge petitions were popular among Democrats struggling to deal with the split between conservative southerners and liberal northerners.

“From the 1930s through the 1960s, northern Democrats were the single group most likely to sign them even though they were in the majority,” says Schickler. “Conservative southerners would work with Republicans to control committees and block liberal legislation.”

But, though the tactic was top-of-mind for legislators in that period, it wasn’t actually all that common for a bill to be stuck in committee, bumped to the floor by a discharge petition and then passed. In fact, between 1938 and the end of the 20th century, the Federal Pay Raise Act of 1960 is the only other discharge petition that actually resulted in the bill in question becoming law. What was more likely to happen was that legislators would use the threat of the discharge petition to encourage other members of Congress to act on the issue before the petition came to fruition. And, because the discharge petition tactic requires using whatever the original bill was, there’s a good reason why the threat works.

“They’d rather structure the process by which a bill is considered in a way that favors the majority party,” says Kathryn Pearson, professor of Political Science at the University of Minnesota, “and try to appease majority party members who might be likely to sign discharge petitions by passing something similar.”

Discharge petitions were used multiple times during this mid-20th-century era to force movement on civil rights bills, as the Rules Committee was chaired by Howard “Judge” Smith, infamous for his inaction on such liberal legislation. Sometimes the threat of a discharge petition is all that’s needed to get the desired result, just as the sight of a growing number of signatures on a discharge petition at the end of the year in 1963 successfully pressured Smith to move a version of what would become known as the Civil Rights Act of 1964 out of committee in the first month of the new year. In 1970, a discharge petition forced the Equal Rights Amendment (ERA) out of the Judiciary Committee (though the amendment has yet to be ratified).

But the more open the process of circulating discharge petitions became, the less popular they were.

In 1993, in a Democratic-controlled Congress, Oklahoma Republican Jim Inhofe successfully filed a discharge petition about making signatures on discharge petitions public. The move was billed as an effort to increase transparency in government, whereas before, they were only published in the congressional record after all 218 signatures were gotten — meaning that petitions that didn’t hit the mark faded away, even if they had an impact on the course of other legislation. Inhofe leaked a list of 223 members who were refusing to sign his petition to the Wall Street Journal.

“Now members of Congress can be pressured by constituents to sign a discharge petition,” says Pearson. “Constituents] can go to the [House] clerk’s website to see if a member signs it. That wasn’t the case before,” says Pearson.

After some Republicans signed the discharge petition to force the House floor to vote on the Shays-Meehan campaign finance reform bill (known as McCain-Feingold in the Senate), Republican leaders warned members not to do that again. Since discharge petition signatures became public, the only discharge petitions that have resulted in bills enacted into law have been Shays-Meehan in 2002 and a reauthorization of the charter of the Export-Import Bank in 2015.

“Having a law enacted exactly as it’s spelled out on the discharge petition is very rare because it’s a very cumbersome process,” says Pearson.

Nowadays, as Pearson sees it, discharge petitions have evolved from a tactic used to go over the heads of committee chairs, to a tactic used to go over the heads of majority party leadership. Just as discharge petitions were popular when the Democratic party was divided within, the latest discharge petition reflects internal divisions within the Republican party.

“In the modern era of a very partisan Congress and polarized parties, discharge petitions have mainly been used by the minority party; there are plenty filed by minority parties, but it’s more a sign of protest,” she says. This latest discharge petition is different from recent ones because a significant number of signatories “are members of majority party challenging the majority party’s agenda control, moderate Republicans trying to overcome majority party leadership gate-keeping.”