As they look to the second session of the 118th Congress, lawmakers in the House are frustrated with what some say is an overuse of a procedural tool allowing any member to sidestep leadership and bring a resolution to the floor.
House rules allow certain resolutions, such as censures and expulsions, to be considered privileged. When a member raises a question of privilege on the floor, leaders must schedule a vote on it within two legislative days.
That was what was used to oust Kevin McCarthy from the speakership, as well as to expel former Rep. George Santos, a New York Republican, from office. The same procedural maneuver led to the censures of Democratic Reps. Rashida Tlaib and Jamaal Bowman.
“It’s clearly being overused right now,” said Florida Democratic Rep. Jared Moskowitz.
Removing McCarthy from the speakership was one of the most high-profile examples of a question of privilege in the history of Congress, said Matt Glassman, senior fellow at the Government Affairs Institute at Georgetown University. This, he said, got lawmakers thinking about other ways they could use privileged resolutions.
Member discipline has been one of those ways.
“These privileged resolutions, to censure and to impeach, it’s such a colossal waste of time. These people aren’t interested in governing, they’re interested in distraction,” said Rep. Jim McGovern, the Massachusetts Democrat who serves as ranking member of the Rules Committee.
Questions of privilege are classified as “those affecting the rights of the House collectively, its safety, dignity, and the integrity of its proceedings” and “those affecting the rights, reputation, and conduct of Members, Delegates, or the Resident Commissioner, individually, in their representative capacity only,” according to the rules of the House.
Rep. Nicole Malliotakis said she respects the right of members to raise such questions, but she would rather see them stick to an orderly legislative agenda instead of taking colleagues by surprise.
“I think we need to work through leadership so it’s scheduled appropriately. If we’re planning something for one day and all of a sudden we have to take up a privileged resolution, it is a problem. It is disruptive,” the New York Republican said. “It doesn’t mean it’s a bad idea, it just needs to be done in a way where you know it’s coming and we can prepare for it and set aside the proper time to debate it and take the vote.”
The use of questions of privilege for member conduct isn’t new — from 1995 to 2014, 39 percent of those raised were related to conduct, according to data from the Congressional Research Service.
Rep. Tom Cole, chairman of the Rules Committee, said he has no problem with members raising questions of privilege, but that this Congress has a lot more “solo operators” who may be doing it just to make a point.
“I prefer team players to solo operators,” the Oklahoma Republican said.
Many said they felt exasperated over how the year ended, despite avoiding a government shutdown and finishing up must-pass bills like the annual National Defense Authorization Act. Questions of privilege, they said, ate up valuable time in the fall.
“I wish we were passing bills here. I wish we were passing laws. I wish we were helping the American people. So if they’re worried about, you know, all this other privilege stuff, perhaps they can bring real substantive issues to the floor,” Moskowitz said.
Not every privileged resolution ends up getting its moment in the spotlight — a member can choose to back down, as Democratic Rep. Becca Balint of Vermont did when she pulled her resolution to censure GOP Rep. Marjorie Taylor Greene of Georgia. And Greene saw her own efforts to impeach Homeland Security Secretary Alejandro Mayorkas referred to committee.
“Anytime I hear them even say the words ‘I rise,’ I get mad. It makes me feel uneasy. I don’t know what’s coming out of their mouths,” McGovern said.
That phrase is part of the language a member will typically use on the floor before offering a privileged resolution: “Mr. Speaker, I rise to give notice of my intent to raise a question of the privileges of the House.”
‘Hijack the agenda’
Questions of privilege date back to the early days of British Parliament, but their formal use in the United States Congress goes back only to the 1880s.
Glassman said members now are more aware of the procedural tool than they used to be, largely because of its use to remove McCarthy from the speakership.
“If you polled members 10 years ago, I bet there’s a huge proportion that had never even heard of a question of privilege or knew it was a tool you could use to sort of hijack the agenda on the floor unilaterally,” he said.
Glassman stressed that a question of privilege is not the actual mechanism of things like discipline, but a tool for getting control of the agenda.
“I don’t doubt that there’s some sort of a learning effect here,” he said.
Members of the minority party can turn to questions of privilege to make their voices heard. Between 1995 and 2014, 72 percent of such questions came from the minority party, according to the Congressional Research Service.
But as internal feuding gripped the Republican Party this Congress, the tool has also gained traction as a way for lone actors in the majority to force a vote on pet resolutions — or to stage an outright rebellion.
While any member of the House can raise a question of privilege, party leaders like to keep tight control of the flow of business on the floor. That was very much not the case in early October, when GOP Rep. Matt Gaetz of Florida rose to offer a privileged resolution “declaring the office of speaker of the House of Representatives to be vacant.”
The tool had been weakened in the House in recent years for that specific use, but it was one of the concessions McCarthy had made to holdouts in his party to convince them to elect him as speaker: Only one member would be needed for a motion to vacate, instead of most of the House Republican Conference.
After his dramatic ouster came a flurry of other privileged resolutions, including the Santos expulsion, the Bowman censure, and a blocked attempt to censure Tlaib before another was ultimately adopted.
“It’s become sort of normalized that this is a way to bring partisan attacks on people,” Glassman said. “There’s a tit for tat.”
As Congress heads home for a holiday break and looks ahead to 2024, some members are making their New Year’s resolutions — and hoping to see less of the privileged ones.
“This is the chaos Congress,” Moskowitz said. “This Congress is absolutely going to be historic. But it’s going to be historic because the only thing that was accomplished was removing a speaker and expelling a member.”
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