For nearly three decades I labored in the congressional vineyards of rules, procedures, norms and reforms. And, in all that time, until last week, I had never heard of a law creating the Senate rule of five or the House rule of seven.
Suffice it to say it was antiquated, obscure and rarely invoked. Moreover, it is not contained in the standing rules manual of either body. Instead, it is enshrined in permanent law — namely 5 U.S. Code, sec. 2954, first enacted in 1928.
That section simply directs any executive agency to comply with any request for information from one of the two principal oversight committees of Congress. The request should be made by the full “Committee on Government Operations of the House of Representatives,” or at least seven members thereof, or by the full “Committee on Governmental Affairs of the Senate” or any five members thereof. (The law has subsequently been modified several times to reflect committee name changes).
What has reignited interest in this succinct century-old law is its resurrection last week by Senate Minority Leader Chuck Schumer (D-N.Y.) and all seven Democrats on the Homeland Security and Governmental Affairs Committee demanding that the Justice Department turn over all documents relating to the Jeffrey Epstein controversy.
In his announcement, Schumer released the text of their letter to Attorney General Pam Bondi in which they demanded that all the relevant materials be submitted by Aug. 15. Schumer reassured the media that “today’s letter matters,” that “it’s not a stunt,” and “it’s not symbolic.”
The 1928 law has only been invoked three times prior to this: in 1994, when Republicans requested information on the savings and loan crisis; in 2000, when Senate Democrats asked for documents relating to the 2000 census; and in 2017, when Democrats tried to force release of documents relating to the Old Post Office Building which then-President Trump’s organization, in a lease agreement, had converted into a luxury hotel.
There is no mention that any of these efforts met with success, and the current request is unlikely to have any better success given the president’s desire to “move on.” There is no implicit enforcement mechanism, though Schumer thinks the courts could help. The rule of five and seven may be deep-sixed again — at best a stunt to apply pressure.
How does this statutory rule differ from the more common committee practice of subpoenaing witnesses to testify and produce relevant documents? For one thing it’s less formal. For another, it is available only to the two major oversight committees, and not to all committees. Third, until recently in the House (more on that later), it does not require the backing of a committee’s chairman. Fourth, it is clearly designed as a blunt tool to empower minority usage.
Why would Congress, in 1928, go out of its way to hand over a piece of power to a partisan minority? In politics, context is everything. This law was enacted in the wake of the Teapot Dome Scandal involving oil leases in the early 1920s, which implicated Republican President Warren Harding, his Cabinet and a less than vigilant Republican Congress.
While Republicans continued to control Congress until 1933, the latter half of the 1920s was awash with all manner of reforms to reestablish Congress’s relevance and awakening. Hence, the rules of five and seven were a bone thrown to minority rights and public expectations of more bipartisan oversight.
Ironically, the Epstein scandal has forced some House Republicans out of their oversight somnolence to fight for full disclosure (and appease their more hard-core MAGA backers who supported full disclosure of the Epstein files back when Trump and his current Justice Department officials were demanding disclosure).
One thing lost in the transition back in 2023 was the rule of seven in the House being neutered on opening day of the 118th Congress (2023-24) to now require that the Government Oversight and Reform Committee chairman must be one of the seven demanding information. That “special order” rule was renewed at the beginning of the current 119th Congress.
Despite that, the Oversight Committee by a bipartisan vote, recently issued subpoenas for the Epstein files. Those votes, and potentially more of such votes on the horizon, sufficiently spooked House Speaker Mike Johnson (R-La.) last week that he cancelled all substantive legislative business and votes and gave members an early departure for their August break. The cooler weather in Washington this week is no omen that the heat of the Epstein scandal will significantly subside by September.
Don Wolfensberger is a 28-year congressional staff veteran culminating as chief of staff of the House Rules Committee in 1995. He is author of “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress” (2018).
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