Gaming Out the House

David Super

     Few observers doubt that the House of Representatives due to take office on Tuesday will be a mess.  The humiliating saga of Rep. Kevin McCarthy’s quest for the speakership has previewed the new majority’s dysfunction. 

     Most of these discussions, however, have been fairly global.  This post seeks to work out how exactly that dysfunction will affect the actual business of the House.  In a nutshell, it finds that the extremism and ill-discipline of many Members of the new majority will severely undermine its ability to advance its agenda and to survive the 2024 elections.  This post also predicts that the new majority’s follies will put egregious stress on the (large) cadre of Washington pundits who insist on “bothsidesing” everything:  the new Republican majority is set be exactly the same size as the outgoing Democratic majority, yet the level of chaos will be far beyond anything in living memory.

     A Much More Personality-Driven House.  Before addressing the distinct functions of the House, we must fundamentally change how we must regard the House.  To date, we have applied the tools of gesellschaft to understand the House, seeing not people but categories.  Can the progressives and the mainstream Democrats reach agreement?  How many votes will the leadership lose from the Freedom Caucus?  Will defections from northeastern Republicans sink the tax legislation?  By contrast, we see the Supreme Court and the Senate as tight-knit gemeinschafts where well-defined individuals matter:  how will Justice Gorsuch or Senator Sinema vote? 

     The gesellschaft approach to the House will no longer serve because the new majority will depend on votes from Members with little allegiance to any group or caucus, even extreme ones.  These Members’ self-definition is as rebels, and rebels want to rebel.  Thus, we will have to focus on the decision-making of particular Members in the House just as we do with the Court or the Senate.  Analysts who insist on asking “what do conservatives want?” will be repeatedly confounded. 

     To put this in more concrete terms, three returning House Members – Reps. Lauren Boebert (CO), Matt Gaetz (FL), and Paul Gosar (AZ) – have advanced little in the way of substantive policy demands that could be met while no showing scant interest in strategic voting to aid their Caucus as a whole.  If neither substance nor loyalty offer means to win their votes, they will remain disruptive wild-cards, available to join any rebellion.  This means that any two other Republican Members can deny leadership a majority at any time they please. 

     Indeed, should George Santos be forced out and replaced by a Democrat, any single Member besides those three will be able to bring down any vote.  That makes Reps. Andy Biggs (AZ), Marjorie Taylor Greene (GA), Jim Jordan (OH), Chip Roy (TX), among others, all the effective pivotal votes in the House – to say nothing of whatever firebrands may appear in the incoming House class.  Leadership and serious pundits will need to study these Members just as carefully as court-watchers do Chief Justice Roberts or Justice Kavanaugh.   

     Selecting Leadership.  Contrary to what many believe on the Left and Right, having a strong, credible leader enhances a caucus’s power considerably.  Whether or nor Rep. McCarthy ultimately grasps the poisoned gavel, the new speaker will be catastrophically weak.  (Rep. McCarthy's personal fate prevails matters little:  no other figure in the caucus has wide respect that would allow him or her to impose any discipline.)  Any new speaker will be wholly unable to represent the caucus authoritatively, much less restrain Republican Members’ embarrassing behavior or make hard compromises with Democrats.  As a result, Members will constantly be asked to repudiate this or that outlandish move one of their colleagues has made, risking a primary if they do and a general election defeat if they do not.  And nobody will make significant concessions to a speaker who manifestly lacks the ability to promise that no further demands will be forthcoming. 

     Lest anyone think that normalcy will return once a speaker has been selected, the Republican Caucus has agreed to a dramatic change in House rules that will allow a small number of Members – at this writing, just five – can trigger a new election of a Speaker at any time.  Thus, the new speaker will have no real authority over the caucus.  The inability to respond even to the outlandish George Santos saga demonstrates what that means. 

     Although cross-party coalitions governing legislative chambers occasionally arise on the state level, this seems unlikely in the House.  Any Republicans joining such an effort would almost certainly end their political careers as most of those voting to impeach former President Trump did.  And even if five brave (or retiring) Republicans were – now or later in the Congress – willing to enter into a coalition with Democrats, they could not enact anything besides core must-pass legislation.  These hypothetical Republicans would not be true moderate Republicans:  all of those have either retired, been defeated in primaries, or lost their seats to Democrats.  These hypothetical renegades therefore would have no common program with Democrats but could be assured of receiving no Republican votes for anything they might propose.  And if these hypothetical renegades can do nothing more than move a few pieces of must-pass legislation, a safer route would be to sign, or threaten to sign, discharge petitions forcing floor debate on particular bills or resolutions that Republican leaders had blocked.   

     Rules.  Beyond making speakers much easier to depose, many of the other rules changes House Republicans seek are largely cosmetic.  One, however, seems remarkably self-defeating.  Rep. Morgan Griffith (VA) announced that Rep. McCarthy had agreed to a rule limiting each bill to a single purpose.  Many states have such rules, but for the legislature as a whole rather than for just one chamber.  Moreover, much of these rules’ effect comes from the threat or reality of judicial review, which a House rule could not trigger.

     Perhaps the House Rules Committee will waive this rule routinely as it waives many other House rules.  Or perhaps it will craft rules allowing several separate bills – each with only one purpose – to be considered and voted upon together, honoring the single-subject purpose in name only. 

     If the House actually tries to operate under this rule, it will face a host of problems.  The Senate is unlikely to follow suit.  (The House has routinely crafted legislation designed to accommodate the Byrd Rule, which operates only in the Senate, in recognition that the Senate majority lacks the means to change that statutory rule; the same would not be true of a non-statutory single-subject rule.)  Therefore, most of any legislation’s substance will be crafted in the Senate, with the House only able to pass one facet of a package at a time. 

     With little ambient trust in the House, achieving trans-substantive legislative deals will be exceedingly difficult without grouping each sides’ priorities into the same bill. 

     A single-subject rule also would deprive House Republicans of their main lever to enact their agenda:  the ability to attach it to unrelated must-pass legislation.  A single-subject rule, for example, would prevent the House from attaching Social Security cuts to debt limit legislation.  As the Democrats learned in the defeat of the Build Back Better legislation in 2021, crowd-sourcing legislative strategy rarely produces positive results.

     Investigations.  Despite the Trump Administration’s copious abuses of power, very few congressional investigations occurred over the past two years.  Certainly the number fell far short of what progressive activists had sought and expected.  Much of this shortfall reflected determined efforts of Speaker Pelosi and Majority Leader Schumer to avoid alienating swing voters, whom polling and focus groups showed  had strong distaste for partisan investigations.  This also reflected Speaker Pelosi and Senator Schumer’s efforts to clear the field for the January 6 Committee to obtain maximum public attention.  That Committee, in turn, showed breath-taking message discipline in only exploring aspects of the insurrection for which they had solid evidence and about which they thought they could persuade swing voters to care. 

     House Republicans now face a similar divergence between swing voters’ opposition to partisan investigations and activists’ demands to probe anything and everything about President Biden’s Administration and family.  Republicans’ inevitably feeble leadership will have no capacity to prevent any politically ill-considered investigations that committee or subcommittee chairs seek to launch.  With primary challenges the main concern for Members with the seniority to assume chairs, many may feel compelled to hold hearings on whatever the Republican base (very much including the QAnoners) want them to investigate.  This seems likely to produce just what the Republicans do not need:  too much ambient noise for diffident swing voters to comprehend any of their specific points but a general picture of spitefulness and irresponsibility that will repel voters in 2024.  Investigatorial pratfalls will dominate many news cycles and give Members in marginal districts awkward choices about whether to distance themselves from their colleagues’ excesses.

     Message Legislation.  Passing ideological message legislation that has no chance of getting through the Senate or being signed by the President would seem the one thing the new House majority ought to be able to do effectively.  Here again, however, the chaotic tendencies of many of their farthest-right Members may prove their undoing. 

     Speaker Pelosi understood that message legislation comes in two species:  bills seeking to energize the partisan base and bills reaching out to swing voters.  For the most part, she steered her caucus to the latter type.  Above all, she kept potentially alienating leftist provisions out of bills intended as outreach to moderate constituencies. 

     Without strong leadership to keep bills from turning into QAnon Christmas trees, the messages sent may alienate swing voters.  Republicans in marginal districts will have to cast numerous difficult votes that hurt them in the general election while marginal Democrats will have plenty of excuses to vote “no.”  Appointing politically savvy Members to the House Rules Committee could limit mayhem on the House floor, but with almost any Republican Member capable of defeating a special rule limiting amendments when a bill is brought to the floor, the Rules Committee may be enfeebled, too. 

     High-Profile Maintenance Legislation.  A few pieces of legislation are essential for the basic operation of the federal government.  These include an increase to the debt limit to prevent a default on the national debt, preventing partial government shutdowns with appropriations for the fiscal years beginning October 1, 2023, and October 1, 2024, and arguably the annual defense authorization act.  Each of these needs the concurrence of a House majority, most or all of the Senate majority, significant parts of the Senate minority, and the President.  Far-right House Members openly discuss leveraging potential obstruction of this legislation to win sweeping concessions. 

     In practice, the rampant individualistic posturing among House Republicans likely means that the Senate and the Administration will have nobody within whom they can made a deal.  This likely will lead to a near-repeat of the process that produced the year-end appropriations legislation last month:  the Senate Democrats and Republicans will negotiate with one another and the Administration to produce a compromise acceptable to the three of them.  (On the debt limit, this could well include a special procedure by which legislation can pass the Senate without any Republican votes, as happened with the 2021 increase.) 

     The Senate and the Administration will then present this legislation to the House as a fait accompli.  In the unlikely event that the leadership can win a majority with relatively minor changes, those may be accommodated.  Otherwise, after the legislation has passed the Senate, House Democrats can begin a discharge petition to bring it to the House floor.  Once business groups have persuaded five House Republicans to sign the petition (reaching the required 218-vote threshold), the legislation will move through the House with their votes and those of the Democrats.  Republican leaders can try offering poison-pill amendments, but if Senate Democrats and President Biden make clear they are finished negotiating, the House Republicans that took the political risk to bring the bill to the floor are unlikely to discard that investment by accepting changes that would prolong the standoff. 

     Low-Profile Maintenance Legislation.   Congress enacts several hundred bills each session, very few of which garner meaningful public attention.  Some are unnecessary – naming public buildings or declaring National Yorkshire Pudding Day – but many do serve genuine purposes such as periodic reauthorizations of domestic programs, updating older legislation for new technologies or patterns of behavior, or reorganizing agencies that are functioning badly. 

     Limited attention spans may allow some of these to fly through under the radar.  Some committee chairs will have broad enough credibility in their caucus to move dreary-sounding legislation without much attention.  All those interested in such legislation will need the discipline to preserve its bland appearance:  a single enthusiastic blogpost or tweet from an advocacy group or trade organization could be enough to focus right-wing bloggers on the legislation, with their criticism quickly making the bill irredeemably radioactive. 

     All too often, the Orpheuses of Washington interest groups will succumb to the temptation to gaze at the Eurydices of their pending legislation before final passage.  And trying to avoid such lethal adorations by limiting who is aware of covert legislation would offend values of universal engagement that the process-oriented progressives hold dear. 

     As a result, a great deal of significant housekeeping legislation likely will not move for the next two years.  Congress has a long history of appropriating funds for programs that have missed their reauthorizations; the new House majority no doubt will want to crack down on such moves, but ultimately key players are unlikely to trigger a government shutdown over that technical-sounding issue.  Other maintenance legislation will likely stall.  Senate Republicans may lift some of the blame from their House colleagues with filibusters, but either way Democrats in 2024 seem likely to run against Republicans for ensuring a “do-nothing Congress”.