With passage of the Epstein Files Transparency Act in November, the American public received a crash course on an archaic congressional mechanism known as the discharge petition. The discharge petition has existed in its present form since 1931. When signed by a majority of the House membership – at least 218 members – a discharge petition can force consideration of legislation on the House floor whether the House Speaker likes it or not. Because losing control of the House floor is a humiliation to the Speaker, the discharge petition has always been a thorn in the side of the House majority leadership whether they are Republican or Democrat.
Nevertheless, the discharge petition has survived regardless of which party has controlled the House for more than 90 years. Part of its survival may have to do with the fact that discharge petitions are rarely successful in getting the necessary signatures to trigger a vote – let alone enacting bills into law. But it is enjoying a rare period of success right now and it is not limited to having forced the high-profile passage of the Epstein Files Transparency Act, which required the Trump administration to release all of the investigative files relating to convicted sex offender Jeffrey Epstein by Dec. 19. In recent years, the discharge petition also brought two other measures into law (the Federal Disaster Tax Relief Act of 2023 and the Social Security Fairness Act of 2023). A fourth discharge petition to nullify a Trump executive order that would strip federal workers of collective bargaining rights successfully brought the measure to the House floor earlier this month. And a fifth discharge petition to allow for consideration of an extension of subsidies for the Affordable Care Act just reached the 218 signature threshold, setting up a vote in the new year.
Shortly after the House passed the Epstein Files Transparency Act by a nearly unanimous vote, Speaker Mike Johnson told reporters that he is considering changing the House Rules to make it harder to use discharge petitions. Perhaps this shouldn’t be surprising. The current congressional leadership is limiting the rights of the minority in historic and unprecedented ways.
For example, it is also taking aim at the “Seven Member Rule,” another tool that the Democrats in Congress have used in an attempt to overcome opposition from the majority to releasing the Epstein files. This rule allows members of the principal oversight committee of either chamber of Congress to obtain information from a resistant executive branch. Seven members of the House Committee on Oversight and Government Reform or five members of the Senate Committee on Homeland Security and Governmental Affairs is required for its use. In July, Senate Minority Leader Chuck Schumer invoked the Seven Member Rule in an attempt to force disclosure of the Epstein files. The effort was shortly eclipsed by the bipartisan approval of a subpoena in the House Oversight Committee and subsequent legislation to force release of the documents, so it is doubtful that there is any need to push that request to an ultimate outcome. Regardless, the Epstein-related examples show just how important it is to have congressional tools that enable the minority in Congress to voice their concerns.
The Power of the Seven Member Rule
Like the discharge petition, the Seven Member Rule has a long history in Congress. In 1927, the Supreme Court found that Congress “cannot legislate wisely or effectively in the absence of information,” and therefore the “constitutional provisions which commit the legislative function to the two houses are intended to include” the power to compel information from the executive branch. The following year, in 1928, Congress established a statutory mechanism for congressional committees to obtain information from the executive branch. Congress amended the provision to its modern form in 1966, and has periodically updated the names of the relevant congressional committees as they have changed over time. The provision is found at 5 U.S.C. § 2954 and provides that, when requested, an executive agency, shall submit “any” information requested of it relating to any matter within the jurisdiction of the respective oversight committee.
On its face, the provision is powerful. It is nondiscretionary; an executive agency “shall submit” the requested information. It is broad; an agency must provide “any information requested.” And the jurisdiction requirement is hardly limiting; congressional oversight committees have extremely wide-ranging jurisdiction. Moreover, unlike the discharge petition, the statute does not require any members of the majority congressional caucus to support or join in the request for the request to be effective. With 21 minority members on the House Committee on Oversight and Government Reform and seven minority members on the Senate Committee on Homeland Security and Governmental Affairs, this provision may be used without the support of any member of the majority party.
It is likely this feature that has led the House majority leadership to change the rules of the House to thwart its use. When the Republicans took over the House in 2023, they adopted a separate order along with the House Rules that addressed the Seven Member Rule. A separate order is a freestanding provision that has the force of the House rules without actually amending the House rules. This separate order provides that the chair of the House oversight committee shall be included as one of the seven members in any request for information invoking the Seven Member Rule. This separate order was again adopted in 2025 at the beginning of the current session. The goal is obvious: converting a statutory authority that can be exercised by members of any political affiliation into an authority that cannot be exercised without the agreement and participation of the House majority.
As a legal matter, it is difficult to see how the House can thwart the federal agency duty that flows from the statutory requirement in 5 U.S.C. § 2954. The House’s separate order does not amend the statute (which was passed by both the House and the Senate and signed by President Calvin Coolidge), and the statute is what should govern an agency’s legal analysis. Undoubtedly though, the separate order is having a chilling effect on the actions of House members by making it a violation of the House Rules for a member to use the Seven Member Rule unless the chair of the Committee on Oversight and Government Reform joins in the effort. The Constitution grants the House the ability to “punish its Members for disorderly Behaviour.” Rule XXIII of the House Rules requires members to “adhere to the spirit and the letter of the Rules of the House.” While censure and reprimand are historically reserved for more serious offenses, the separate order technically makes members of Congress vulnerable to disciplinary action in the House for merely using a tool that members have been authorized to use since 1928.
Over the years, House members have invoked the Seven Member Rule repeatedly. In some cases, requests have been routinely complied with. For example, in January 2017, members obtained information from the General Services Administration about the leasing of the Old Post Office building in Washington, D.C., pursuant the Seven Member Rule. The Seven Member Rule was also used to compel the State Department to produce unredacted emails between former Secretary of State Colin Powell and former Secretary of State Hillary Clinton in September 2017.
In other cases, the executive branch has vigorously fought the Seven Member Rule requests. For example, when the executive branch has refused to provide requested information relating to the census and additional information relating to the Old Post Office building, members of the House have taken the executive branch to court in efforts to force compliance with the Seven Member Rule. These cases have had a mixed record in the courts so far. Two district court rulings have found that the Seven Member Rule can only be enforced by Congress as an institution, not the members who signed the letter. (One case concerned the Medicare Modernization Act, and the other was in regard to additional information sought on the Old Post Office building.) A Court of Appeals decision upheld members’ enforcement authority, but the Supreme Court granted certiorari on the case raising questions about the durability of that decision.
Ultimately, however, the Supreme Court never reached the merits. The Court of Appeals decision was vacated as moot after a political change in the executive branch resulted in the executive branch producing nearly all the requested records. Additionally, the executive branch has argued that legislative history indicates that the Seven Member Rule should be interpreted as less encompassing than specified by the plain language of the statutory provision. For watchers of today’s Supreme Court, it may seem highly unlikely that legislative history could negate statutory text, but that issue has not been resolved by a court.
Attempts to Thwart the Seven Member Rule
The House majority’s separate order can be traced to actions taken during the first Trump administration when the Acting Administrator of the General Services Administration testified before the House Appropriations Committee that the administration “instituted a new policy that matters of oversight need to be requested by the committee chair.” That general policy of distinguishing between requests from committee chairs and individual members of Congress was not novel in context of the Freedom of Information Act. However, applying that general policy to the Seven Member Rule was new. A 2019 opinion by the Department of Justice’s Office of Legal Counsel later enshrined the distinction between requests from committee chairs and individual members without acknowledging or factoring in the Seven Member Rule.
The House’s approach is an apparent effort to put a stop to uncomfortable questions being asked of the executive branch. But should a House majority be able to make its members subject to disciplinary action just for exercising their rights as members of Congress? Certainly, the House rules should not be able to prohibit members from introducing certain legislation, speaking out in opposition to other legislation, or even signing a discharge petition. These are all tools, options, and opportunities that we expect members to exercise and are necessary in a democracy. Why would requesting information from the executive branch be considered any differently? Can the House Rules prohibit members of Congress from filing Freedom of Information Act requests or showing up at a federal facility without approval of the majority? Answers to these questions are not readily available, but they point to silly and unproductive policies. Instead of obscuring government operations, congressional leadership could better serve the nation by promoting transparency.
Certainly, all information in the possession of the executive branch is not equally disclosable. Government leases, census data, advice from the Department of Justice to its federal agency clients, and communications between the president and his closest advisers, all have different legal status. But questions of privilege don’t need to be answered to allow for a more systematic implementation of the Seven Member Rule. The executive branch should provide information where it can and raise objections where it must. Congress need not be in the business of preventing a question from ever being asked.
The Seven Member Rule is not a panacea for the ailments of congressional oversight. And the discharge petition is not a solution for congressional leadership that refuses to address pressing issues in the country. But these tools, along with other established policies and practices in Congress, are essential in ensuring that Congress is knowledgeable and responsive to the nation’s challenges. They are a critical part of the checks and balances that help democracy function.
In this time of political polarization, the discharge petition and the Seven Member Rule are two longstanding features of the country’s legislative institutions that allow the minority to have a meaningful, although limited, role in advancing their agenda. Hearing the concerns of the minority party has value and rather than squelching these voices, the U.S. Congress should work to better hear and respond to them.
FEATURED IMAGE: This photo illustration taken in Washington, DC, on December 23, 2025 shows a new batch of files released on Tuesday by the US government in relation to the notorious late sex offender Jeffrey Epstein. A first batch was made public December 19, 2025 amid fierce criticism that the US Justice Department was deliberately slow-walking the release and excluding any references to US President Donald Trump. The latest slew of documents contains 8,000 files, including hundreds of videos or audio recordings. This includes surveillance footage from August 2019, the month Epstein was found dead in his jail cell — and declared to have committed suicide. (Photo by AFP via Getty Images)
Great Job Greg Dotson & the Team @ Just Security Source link for sharing this story.
