The Speaker Election was the Start
Last week's election for Speaker was just the start of what promises to be one of the most disruptive and unpredictable Congressional sessions in recent memory.
On Saturday Kevin McCarthy was able to enjoy a moment of triumph, finally winning the Speaker’s gavel on the 15th round of voting. Despite all of the controversy and floor fighting (almost literally on the latter), he had finally climbed to the top of the greasy poll in the House of Representatives. The look on his face was one of deep satisfaction and it was clear that this long-delayed moment was filled with meaning for him. There have only been 55 Speakers of the House in the history of the United States and Kevin McCarthy will now be a part of that list. He deserves recognition for persevering through the most tumultuous Speaker election in roughly one hundred and fifty years to achieve the office.
However, from the perspective of the functioning of the 118th Congress, McCarthy’s election promises to usher in a period of profound uncertainty around the core functions of the first branch of the U.S. government. In order to win over the doubters, McCarthy has agreed to wide-ranging changes to the rules of the House of Representatives - rules that are designed to achieve a more small-d democratic House, to cut government spending, and to satisfy the policy preferences of a small group of lawmakers from the rightwing of the Republican Party. They also will enable a new subcommittee aimed at a wide-ranging investigation of the executive branch’s response to the Trump presidency and the 2020 election. While this last matter will likely be the vehicle for more highly public news over the next couple of years, it is the changes to the management of the House that will have a more profound impact.
Before diving into the concessions McCarthy made, it’s worth offering a short explainer of how the House of Representatives operates in the modern era. Following the post-Watergate reforms and changes imposed at the end of the Democrats’ long majority, the general structure of the House as it currently exists was set by Newt Gingrich. This structure is designed to work with ideologically polarized caucuses that empower the majority’s Speaker to fundamentally shape what comes to the floor and when it is considered. This is not how the institution always worked, but it is the current concept.
The path for most controversial legislation to the floor of the House currently runs through the Rules Committee. In order to govern debate on a contentious bill, the Rules Committee will create a legislative vehicle (known unsurprisingly as a rule) that vehicle dictates when a bill will be heard, what amendments will be in order, and what other rules will govern the debate before the full House (known as the Committee of the Whole). The Rules Committee is thus very powerful - and it is typically stacked with strong supporters of the Speaker. Where most committee memberships are proportioned with the relative percentage of House membership (i.e. if Republicans control 55% of the House they would hold 55% of the seats), the House Rules Committee is normally 9-4 or 9-5 for the majority party. It is that critical to the shepherding of legislation for the Speaker that they have a supermajority written into the structure of the House.
The reason the Rules Committee is so important is that the vehicles it creates can override much of the underlying House Rules with a simple majority vote. Basically, because the Rule sets the terms of the debate for the Committee of the Whole, they can (and frequently do) override basic rules in the House (“Notwithstanding Clause X of Section Y, etc., etc.). When the House needs to move fast to avoid a deadline or if a compromise agreement would run afoul of Paygo rules, this ability is used to get things done. Just to reiterate, the Rules Committee’s ability to waive the regular rules of the House is key to the passage of many of the more important bills that it considers in a timely manner.
Once the Rules Committee has created the rule to govern debate, it is then voted on by the whole House of Representatives prior to debate beginning on the underlying bill. For reasons that I don’t believe are entirely justified, these votes have become the sine qua non for measuring members’ commitment to the caucus and are whipped heavily (mostly by the majority but also by the minority). The one exception to this is at-risk members who will normally use the Rules vote as an opportunity to vote against leadership. It all is wildly inside baseball that has no real tangible impact on anyone outside of the Washington DC metro area. If at any point a Rule appears to be in danger of failing, it is almost always immediately pulled off the floor rather than risk giving control of the floor to <gasp> the minority.
In order to win election, McCarthy has committed to a wide variety of changes to the rules that govern the House of Representatives, including to the Rules Committee itself. The House Freedom Caucus, the most conservative group in the House, will be getting at least two and potentially three seats on the Rules Committee, giving them the ability to team with Democrats to thwart consideration. In addition, there is a commitment to reducing spending (implementation of what’s called “Cutgo” where any new spending commitments must be offset by reductions in other spending rather than increases in revenue or the increases in the deficit), but the Rules committee bit is likely the most important.
The other key change McCarthy committed to is a return to a single member being able to offer a “motion to vacate the chair”, which is the legislative language for calling what amounts to a vote of confidence in the Speaker. Fundamentally, this gives any one member of the House the ability to restart the process that we just saw with a vote to remove the current Speaker and then an election of a new Speaker. Historically only one member had been needed to file such a motion, but Democrats in the previous Congress had since limited that ability to just the leaders of the respective conferences. Previously the threat of such a motion had been used to usher John Boehner into retirement in 2015.
The rest of the proposed changes are largely procedural problems for any potential budget deal and will set up the meat of the confrontation that will take place. The House Republican caucus will likely be able to come together to pass messaging bills (which is really about 50% of what a normal House does) but work on the basic responsibilities of Congress - appropriations and the debt ceiling will be vastly more complicated by the new structure.
Roughly, here is the situation that will face Speaker McCarthy regarding the debt ceiling and funding the government:
His caucus will likely struggle to pass appropriations bills (I’ll write a longer post on this, but House Republicans could barely pass defense appropriations bills in the Obama era that fit their debt reduction guidance with vastly larger majorities, never mind the big non-defense bills)
In particular, the Rules Committee will see deeply contentious fights over bills acceptable to moderate Republicans wherein House Freedom Caucus members join with Democrats to attack leadership rules
What bills House Republicans do pass will be unacceptable to the White House/Democratic Senate (who will also struggle to pass their bills if they even try to do so - the Senate frequently just doesn’t pass appropriations bills)
In order to negotiate an agreement, House Republicans will be forced to accept compromises that are unacceptable to the members that just held the Speaker nomination hostage
One or more of said members will threaten to move to vacate the chair should McCarthy put the compromise on the floor
McCarthy will need to decide whether to risk his Speakership by passing the must-pass legislation or to risk the debt limit/shut the government down
Luckily, the FY 2023 appropriations were agreed to in December and there remain a few months until the debt ceiling needs to be raised this summer. However, everyone should be under no illusions as to how difficult it will be for this particular Congress to function.