The legislation creating the “Joint Select Committee on Deficit Reduction” (AKA, the “Super-committee”) contains little detail on rules and procedures that the Super-committee is to follow. Title IV of the Act establishes the Super-committee and provides for public notice of its hearings, but is otherwise silent on how much of its processes are to be open to the public.
However, as John Wonderlich of the Sunlight Foundation pointed out to me, House Rule X(10)(b) provides that “[e]ach select or joint committee, other than a conference committee, shall comply with clause 2(a) of rule XI unless specifically exempted by law.” The legislation establishing the Super-committee does not exempt it from the requirements of either Rule X or Rule XI.
Does this mean that the Super-committee is bound to follow the requirements of House Rule XI(2)(a)? It is not clear how the House’s rules could impose a requirement on a joint committee established by law. On the other hand, it could be argued that the language of House Rule X(10)(b) is part of the background rules for formation of a joint committee, and the failure of the legislation to specifically exempt the Super-committee from those rules evinces an intent that they be followed.
An alternative argument might be that the House Members of the Super-committee are bound to seek compliance with the requirements of House rules regarding joint committees. Title IV(c)(2) of the legislation provides that “Members on the joint committee who serve in the House or Representatives shall be governed by the ethics rules and requirements of the House.” Although procedural requirements of committees are not normally what one thinks of as “ethics rules,” the Code of Official Conduct (Rule XXIII) does require that a Member “adhere to the spirit and the letter of the Rules of the House and to the rules of duly constituted committees thereof.” One might argue that this indirectly obligates the House Members on the Super-committee to treat the House Rules regarding joint committees as a form of instruction. Cf House Practice, ch. 13, §11 (instructions to House managers of conference committee).
If the House Rules regarding joint committees are either directly or indirectly applicable to the Super-committee, then several significant requirements come into play. First, under Rule 2(a)(1)(A), the Super-committee would be required to adopt written rules in a public meeting (“unless the committee, in open session and with a quorum present, determines by record vote that all or part of the meeting on that day shall be closed to the public”).
Even more significantly, the rules adopted by the Super-committee “may not be inconsistent with the Rules of the House” and must “incorporate all of the succeeding provisions of [Rule XI, clause 2] to the extent applicable.” Among the provisions of clause 2 that would appear applicable are subsection (e)(1), which requires that records of committee actions be maintained and made available to the public, and subsection (g), which requires that all meetings and hearings are presumptively open, and may be closed only when the committee determines by record vote that “disclosure of matters to be considered would endanger national security, would compromise sensitive law enforcement information, would tend to defame, degrade or incriminate any person, or otherwise would violate a law or rule of the House.”
Whether these provisions apply could have a major impact on how the Super-committee conducts its business.
The following two sections of the act may be relevant—the first because it could be interpreted as showing a lack of intent to have the House rule apply, and the second for a more obvious reason:
Sec. 401(b)(3)(B)(v) REPORT AND LEGISLATIVE LANGUAGE TO BE MADE PUBLIC- Upon the approval or disapproval of the joint committee report and legislative language pursuant to clause (ii), the joint committee shall promptly make the full report and legislative language, and a record of the vote, available to the public.
Sec. 404(1) The provisions of this title are enacted by Congress as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply, and such rules shall supersede other rules only to the extent that they are inconsistent therewith.
there are several provisions of the law which, like Section 401(b)(3)(B)(v), contain procedural requirements that are somewhat different than those of House Rule XI clause 2. One might argue that the presence of these requirements shows that the drafters did not intend to import the full requirements of clause 2. OTOH, this falls short of a specific exemption of the law from the requirements of the House rule, which is what House Rule X(10)(b) says is required. And I am not sure that there is any necessary inconsistency between the legislation and the House rule. For example, I think that 401(b)(3)(B)(v) may impose a greater and more specific requirement with regard to making the final report and bill public, but that would not be inconsistent with also following the other sunshine provisions of clause 2.
Section 404(1) is a standard reservation clause that is typically found in “statutized rules.” I am not sure that I see its relevance to the analysis here (though I could be missing something).
This is mostly conjecture on my part so I appreciate any feedback. I have reached out to some informed parliamentary sources, but no luck so far. I am going to post a link on Congressional Counsel and see if anyone there has thoughts.