Just hours after the Georgia General Assembly convened in January 2005, the newly Republican-led House of Representatives elected the first Republican Speaker of the House in 135 years. The House then launched its first official day of business with a dramatic change in its internal rules by passing House Rule 11.8—a rule that gives the Speaker unprecedented legal power to control the function of legislative committees. This Commentary argues that Georgia’s House Rule 11.8 is an abuse of the committee system, and that it should push legal scholars to theorize about the normative value of allowing such laissez-faire organization of our legislatures.

I. Rule 11.8 and the Committee System

A. Rule 11.8

Camouflaged in sterile and technical language, Rule 11.8 packs a punch. It provides:

The Speaker may appoint one or more members to the position of Hawk. The Speaker may designate one of the Hawks as the Senior Hawk. The Hawks shall serve as ex officio members of all standing committees and subcommittees of the House and shall have a vote on all committees and subcommittees.

This language authorizes a tremendous increase in the legislative power of the Speaker of the House. The rule empowers the Speaker to appoint any representative to the status of Hawk, and places no limit on how many Hawks the Speaker may appoint. And these handpicked Hawks have the power to vote on any committee proceeding. In other words, the Speaker can now stack the deck of any committee vote with as many voters as he wants in order to kill any bill. He can also use Hawks to muscle a bill out of committee by simply adding voters. No other state has authorized such a massive increase of power in the hands of one legislator.

Soon after the House passed Rule 11.8, the House minority leader called the rule change “the first step to creating a dictatorship in our government." Other Democrats echoed similar concerns. Did these Democrats have a point? Or were their arguments just partisan sniping, comments borne out of the frustration of losing control of the House for the first time in over a century?

B. The Committee System

In order to understand why Rule 11.8 is a bad rule, a few background words about the committee system are in order. Except for voting on the House floor, almost all legislative work is done in committees. Delegating tasks to committees provides an efficient way to sort the good bills from the bad ones. Furthermore, committees allow specialization. By dividing members up by areas of expertise and specialty, a legislative body can rest assured that its most knowledgeable members are entrusted with handling a bill from its infancy.

The unregulated delegation of extensive legislative authority to committees, however, comes at a price. As more bills are delegated to individual committees, fewer elected officials have a chance to vote on the outcome of most of these proposals. And decisions end up being made by the few, rather than by the many.

But the committee system is essential. This is especially true in Georgia where the legislative session is only forty days. As Judge Thrash has observed, without committees, the Georgia General Assembly would be unable to conduct its business appropriately. The alternative would be gridlock or the passage of a lot of “poorly vetted legislation.” Committees are, therefore, a necessary evil; a trade of democracy for efficiency.

The one saving grace of the committee system from the standpoint of representative government is the bargaining process. In committees, representatives have face-to-face meetings and discuss the issues, and in the process of deciding which bills live or die, they trade and bargain. Or as Justice Souter put it, they “pull, haul, and trade to find common political ground.” Bargaining is not merely an incidental byproduct of the committee system. Rather, it defines the committee system itself. As Professor Wayne Francis has noted, “[i]n face-to-face committees, where voting is required to arrive at decisions, trading or bargaining seems inevitable.”

Such bargaining, however, is not limited to committee meetings themselves. For example, representatives on two different committees might strike bargains in order to advance their respective agendas. As long as every representative is entitled to cast committee votes, every legislator has an opportunity to use those votes in order to advance her constituent’s agenda.

This bargaining process is important. Representatives’ ability to control the bargaining process is at the “core of exercising political power.” When representatives lack political power, they lack the means by which to represent their constituents. After all, people do not vote for their health, at least not directly. People vote to delegate power to an official who can make and pass laws. As we will see below, Rule 11.8 short-circuits the political bargaining process, neuters the political power of representatives, and therefore undermines the ability of those representatives to address the concerns of their constituents.

II. Is This a Problem?

Rule 11.8 has the potential to destroy one of the most democratic aspects of the committee system, the system of bargaining that accompanies committee meetings and votes. On its face, the rule can be used either to push bills out of committee or to obstruct them. The Speaker can manipulate the rule for either end. But even if it is rarely used, the sheer existence of the rule gives the Speaker an extraordinary and unjustified amount of legislative power.

On the one hand, it appears that the Rule allows the majority party to run roughshod over the minority. Because the Speaker can decide the fate of a bill in committee without ever bargaining with a single member of the minority party, Hawks dramatically reduce the legislative power of minority members.

But Rule 11.8 does more than merely cement the power of the majority—it centralizes power in the hands of one legislator while depriving other members of the power and value of their committee votes. The rule creates a major incentive to bargain with, and only with, the Speaker of the House. Since Hawks serve at the pleasure of the Speaker, he can dispatch them to any committee to alter the vote. His decision to send in a Hawk, especially where there is a close vote, has the effect of undoing any bargains that were predicated upon the outcome of a committee vote. Because legislators are aware that committee votes will eventually reflect the policy preferences of the Speaker, there may be little incentive to bargain with committee members at all.

Even if Rule 11.8 is always used to further the goals of the majority, it still does untold damage to the bargaining process because it promotes the shirking of legislative duties by members of the majority party. Members may be less inclined to perform their roles as committee members (attending meetings and researching the relevant topics, for example) because they know that Hawks can be sent in to ensure their party’s dominance. By the same token, minority members may shirk their committee duties if they feel that they are unlikely to influence committee outcomes. Rules that breed apathy among legislators can hardly be expected to promote bargaining or vigorous representation.

It is no defense of the Speaker’s power to say that he is simply executing the will of the majority party. There is no reason to believe that his actions will always be synonymous with the majority’s interests. To the contrary, the Speaker now has a new weapon that he can use to build majority support for his initiatives or to quell opposition by rewarding representatives through strategic use of Hawks. The rule can be used as a means of ensuring that members of the majority party stay in line. One could argue, however, that Rule 11.8 is beneficial to representative government. If stodgy committee members keep important bills bottled up in committee, or if committee members refuse to show up in order to thwart the House’s quorum requirements, despite the fact that these measures enjoy widespread support, Rule 11.8 might be needed to break up the committee logjam. Although there is some merit to this argument, it cannot be a defense of lodging such power in the hands of one person. To the extent that legislators are troubled by the power of committees and see a need for Hawks, the power to appoint them should be democratized. That is, the entire body should be allowed to appoint a finite number of Hawks to ensure that committee members do not thwart the will of the majority. The Speaker is, after all, only one member of the House, and not the final arbiter of legislative wisdom. But even a democratized version of Hawks may erode political power by damaging one of the major functions of committees: specialization. As a reward for doing the heavy lifting of issue-specific committee work, legislators not on committee often defer to a committee’s recommendations because of its expertise. A Hawks regime allows generalists, uninformed about the specifics of a legislative bill, to waltz up unannounced and decide a bill’s fate. As a result, committee recommendations and reports may no longer constitute an authoritative view of the committee’s experts. Allowing unqualified generalists to potentially dictate the outcome of the committee vote may undermine the power of the standing committee members and reduce the influence of their “expert” recommendations. Thus, whether they are appointed by the Speaker or the House at-large, Hawks may reduce the legislative power of committee members.

Despite the importance of committee rules, few scholars have attempted to theorize any principled limits upon the internal governing procedures of legislatures. By and large, courts have adopted a laissez-faire attitude about the way that legislatures may organize themselves. As long as the selection of legislators complies with principles of “one-person, one-vote,” courts have, for good reason, refused to intervene.

Our Constitution is all but silent upon the means by which states may organize their legislatures. There is no constitutional requirement that all legislators be equipped with the exact same power and influence. But, if state legislatures truly are the “fountainhead of representative government in this country,” is it enough to require only that legislators be elected fairly and then to turn a blind eye to the structural power that each representative wields once elected?

In Reynolds v. Sims, Justice Warren condemned the scenario where votes cast in one part of the state could be given ten times the weight of votes cast in another part. What if, hypothetically, one legislator had ten times the votes of another legislator? Would that be constitutional? Would that be desirable? The Georgia House of Representatives’ abuse of the committee system warrants consideration of these questions.

Kamal Ghali holds a J.D. from University of Michigan Law School. He is currently clerking for the Honorable Thomas W. Thrash, Jr., U. S. District Court for the Northern District of Georgia. In August, he will begin clerking for the Honorable Frank M. Hull, U.S. Court of Appeals for the Eleventh Circuit.

Click here for an audio version of this Commentary, read by Christopher L. Griffin.

Preferred Citation: Kamal Ghali, A Procedural Rule and a Substantive Problem: Rule 11.8, Legislative Hawks, and the Concentration of Power in Georgia’s Speaker of the House, 117 Yale L.J. Pocket Part 210 (2008), http://yalelawjournal.org/forum/a-procedural-rule-and-a-substantive-problem-legislative-hawks-and-the-concentration-of-power-in-georgias-speaker-of-the-house.