Three weeks after Democrats joined eight hardline Republicans to depose U.S. House of Representatives Speaker Kevin McCarthy (R-Calif.), the speaker’s chair is still empty. Republicans failed three times to elect Rep. Jim Jordan (R-Ohio), and acting Speaker Patrick McHenry (R-N.C.) is reluctant to fully exercise the powers of the speakership. As a result, House business has ground to a halt.
Factional House politics – alongside polarized congressional parties – is keeping the House shut down, precluding normal House business. That full stop also prevents any floor votes on the White House request for over $100 billion in emergency aid, a package that includes billions in military support for Israel and Ukraine.
It could take the brink of a government shutdown in November to compel Republicans to act.
What if Republicans can’t coalesce behind a new GOP speaker sooner than that? The House could try to elect a fully empowered temporary speaker. Or McHenry could start exercising authority of the speakership and turn the legislative lights back on, seasoned Congressional observers believe.
Finding a speaker, however, won’t cure Republicans’ leadership and governing crisis.
Deadlocked GOP conference
The factional politics that roiled the speakership contest last January continue to complicate selection of a new GOP speaker. A decades-old GOP cleavage – between establishment conservatives prone to compromise and a hardliner faction that prefers to throw bombs – fueled GOP hardliners’ demands after the November elections that McCarthy adopt more aggressive legislative strategies and give hardliners key seats at the table.
Republicans’ exceedingly slim majority led McCarthy to pay the hardliners’ ransom – including placing three of them on the pivotal House Rules Committee, promising to pare back federal spending, and changing House rules to make it easier to depose him as speaker. His concessions eventually brought the House to a near government shutdown and cost McCarthy his post.
That same rift today prolongs GOP efforts to elect a new speaker. It’s tempting to tag the factional dispute as one solely between moderates and far-right conservatives. But as Steve Smith points out, disagreements about strategies and priorities can divide partisans even when they agree with each other on policies and starkly disagree with the other party. True, half of the Republicans representing districts won by Biden in 2020 voted against Jordan on the third ballot. But Jordan’s opponents also included a core group of seven lawmakers who sit on the House Appropriations Committee. Why? Because as Phillip Wallach and Matt Green have both observed, Jordan (alongside fellow Freedom Caucus members) is a long-running instigator of government shutdowns and threats to default – hardliner strategies that put him at odds with past and present GOP appropriators. And nine months into the 118th Congress, prime committee and party spots have already been doled out, leaving Jordan with few carrots to secure votes.
The reluctant speaker
House rules elevated McHenry as acting speaker pro tem when the House deposed McCarthy. As I discussed here last month, the House in the wake of 9/11 adopted a new rule to require the speaker to deliver to the House clerk a “secret list” of acting speakers in the event of a vacancy in the speakership. McHenry topped McCarthy’s list.
McHenry is the first-ever “secret list” House speaker. And as such, there’s been disagreement about just how much authority McHenry can exercise. Matt Glassman provides a thorough rundown of the issues at stake, and I had a Good Chat about it with Matt, Molly Reynolds, and Ruth Bloch Rubin. A dominant view – adopted it seems by McHenry, alongside most members of the House and their parliamentarian – is that the acting speaker can exercise only those powers related to the election of a new speaker or a temporary speaker. As I explore below, Republicans might yet change their minds about that.
In the meantime, this interpretation of the post 9/11 rule puts the House into a deep freeze. McHenry has declined to refer newly introduced bills to committee, recognize members to call up legislative measures, or to entertain “suspensions” (that is, recognizing a member to offer a motion to suspend the rules and pass a bill). Still, McHenry has exercised other speaker authorities – booting past Democratic leaders from Capitol hideaways and recessing the House seemingly at the “beck and call” of the GOP’s speaker nominee. Both actions blur the line between a neutral ump moving the House to an election and a leader advancing the interests of the majority party.
Turning the lights back on
Republicans will start from scratch this week to elect a party nominee. The key unknown remains whether Republicans will set aside differences and vote on the House floor to elect whomever the GOP conference nominates. Minimizing defections and rallying around the party pick would restore at least the semblance of what Gary Cox and the late Mathew McCubbins long ago termed a legislative party cartel, and which Jeff Jenkins and Charles Stewart have shown to be critical for the emergence of party governance in the House.
What if Republicans fail again to unite behind their House speaker nominee?
First, a majority of the House (perhaps in a bipartisan vote) could elect McHenry (or any other member) to serve as an “elected” speaker pro tem (SPT). In contrast to “designated” SPTs, elected SPTs hold nearly all the authority of a duly elected speaker – including recognizing members to move legislative measures, appointing conference committee members, and swearing in newly elected members. (SPTs, however, are excluded from the line of succession to the presidency.)
Last week, some GOP argued that elected SPTs were unconstitutional. That was undoubtedly wrong. The Constitution only directs the House to “chuse” its speaker and gives each chamber authority to write its own rules. And as a matter of practice, the House has periodically elected SPTs to stand in for an absent speaker. True, the House rarely does so any more because chamber rules now allow the speaker to name “designated” SPTs with specific legislative powers.
Second, McHenry could exercise speaker powers and see if any member raises a parliamentary objection. If someone objects, a majority would be the arbiter of whether McHenry’s actions are kosher. In other words, although lawmakers on both sides of the aisle tend to defer to the parliamentarian’s advice, a majority of the House can disregard said advice. True, it’s possible that the framers of the rule sought a restrained speaker who would merely move the House to a speaker election. But “original intent” is only one factor that can inform how future lawmakers interpret the meaning of a rule. After all, rules last longer than the coalition that adopts them. Nor is today’s GOP infighting the type of 9/11 crisis for which the rule was likely created.
Some suggest that allowing secret-list SPTs to act as a real speaker could set a dangerous precedent; a bad apple interim speaker, for example, could go rogue. Some lawyers posit that it could carry “serious legal” challenges – potentially putting any resulting legislation at risk – were McHenry to act without explicit authorization from a House majority. I’m not a lawyer, but it seems doubtful that federal courts would challenge the House’s interpretation of its own rules if the legislative process complied with the constitution’s bicameralism and presentment requirements. And of course, a future majority could regret and curtail such exertion of speaker power.
Even electing a speaker won’t resolve the crisis
Neither of those options seem politically palatable to House Republicans today. But options deemed unacceptable now could yet prove politically attractive down the line. After all, if the House is kept in the dark past November 17, when the current stopgap spending law expires, the government will shut down. Congress rarely turns its homework in before the deadline, so lawmakers might yet decide to temporarily elect McHenry speaker.
But don’t confuse the election of a speaker – temporary or not – with resolution of the House GOP leadership crisis. It’s one thing to gin up the chamber’s legislative machinery. It’ll be far harder for the next speaker to get Republicans on the same legislative page. Hardliners have yet to concede the inevitability of bipartisan compromise, and most are unlikely ever to do so.