House Rules Package for the 113th Congress Suggests Battles Ahead by Claudia A. Hrvatin

by King & Spalding

On January 3, 2013, the House approved by a vote of 228-196 a new rules package for the 113th Congress. The package, H. Res. 5, carries over many of the rules from the 112th Congress and makes several clarifying changes, however, numerous provisions highlight new and ongoing areas of contention, including the ability of the House to review recommendations from the Independent Payment Advisory Board established by the Affordable Care Act, the budget crisis, the ongoing litigation involving the Defense of Marriage Act and the continued investigation of "Fast and Furious."

At the beginning of each Congress, the House must reconstitute itself and adopt rules to govern its proceedings for the next two years (termed "sessions"). (In contrast, the Senate is a continuous body and need not do either.) The proposed rules are offered in the form of a resolution and are first approved by the members in the majority of the House; the Republican Conference approved H. Res. 5 on January 2. Upon floor consideration, numerous Democrats voted together with Republicans in favor of the package; one Republican, Walter B. Jones (NC-03), voted against. As a resolution governing the operations of the House, H. Res. 5 is not considered by the Senate, nor does it require the signature of the President to be in force.

H. Res. 5 includes three sections that make the following key changes:

Changes to the Standing Rules

o Streamlined Voting. The Speaker and the Chair of the Committee of the Whole are authorized to reduce the time for certain votes.

o Jurisdiction of Committee on Homeland Security. The Committee's jurisdiction is clarified to include general management of the Department of Homeland Security.

o Office of Congressional Ethics (OCE). The Chair and the Ranking Member of the Committee on Ethics jointly may extend the time for consideration of a dismissal referred by the OCE.

o Ban on Nepotism. The ban is expanded to prohibit Members from employing their grandchildren. Those employed prior to the start of the 113th Congress may retain their employment.

o Use of Private Aircraft. In conforming House rules to those of the Senate, Members now have increased flexibility in this area. They are permitted to pay their pro rata share for a charter flight based upon the fair market value of the flights, divided by the number of Members, officers or employees of the House on the flight. Members may pay for a charter flight with either personal or official funds. The Chair and Ranking Member of the Committee jointly may waive the restrictions regarding the use of private aircraft in extraordinary circumstances such as in an emergency or in the aftermath of a natural disaster.

Separate Orders

o Independent Payment Advisory Board (IPAB). Eliminates provisions contained in the Affordable Care Act that limit the ability of the House to consider recommendations from the IPAB.

o Budget Matters. Prohibits a bill from being reported out of committee that exceeds an applicable allocation of new budget authority under section 302(b) (Appropriations Subcommittee allocations) as estimated by the Budget Committee and creates a point-of-order. The budget resolution for fiscal year 2013 remains in effect until a budget resolution for fiscal year 2014 is adopted.

o Access to Exercise Facilities. Maintains the prohibition on former Members, officers or spouses who are registered lobbyists or agents of a foreign principal from accessing exercise facilities made available to Members, former Members, officers, former officers and their spouses.

o U.S. Government Accountability Office (GAO). Any House committee may request an analysis from the GAO of any legislation referred to the committee to determine whether the legislation creates a new federal program, office or initiative that is duplicative or overlapping.

o Directed Rule-makings. For any bill reported by a committee, the accompanying report must include an estimate of the number of directed rule-makings in the legislation.

Other Matters

o Defense of Marriage Act (DOMA). The Bipartisan Legal Advisory Group (BLAG) is reauthorized to continue litigating in the 113th Congress the case involving the constitutionality of DOMA (Windsor v. United States). H. Res. 5 clarifies that the BLAG continues to speak for, and articulate the institutional position of the House in all litigation matters in which it is involved, including Windsor v. United States.

o "Fast and Furious." The Committee on Oversight and Government Reform, through the Office of the General Counsel, is reauthorized to continue litigation to enforce a subpoena against the Attorney General related to the "Fast and Furious" investigation (United States House of Representatives v. Eric H. Holder, Jr.).

o Other Reauthorizations. The House Democracy Partnership, the Tom Lantos Human Rights Commission and OCE are reauthorized. H. Res. 5 clarifies that term limits to not apply to members of the OCE.

o Investigative Subcommittees. H. Res. 5 continues a provision approved in the 110th Congress directing the Committee on Ethics to empanel investigative subcommittees within 30 days after the date a Member is indicted or criminal charges are filed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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