Friday, November 11, 2022

McCarthy’s Minefields

David Super

     With the latest projections showing House Republicans likely to take a five-seat majority, it seems worth considering what their impending reign might resemble.  Those concerned with the nation’s well-bring will surely be disappointed.  Those hoping for a Democratic rebound in the 2024 elections should be buoyed.  And those that enjoy political slapstick may want to make extra popcorn. 

     At the top line, a majority is a majority.  The House of Representatives is designed around the same principles of “democratic centralism” that made the Supreme Soviet all that it was. 

     Only a simple majority is required to elect a speaker.  My guess is that Representative McCarthy becomes speaker, notwithstanding internal anger over the lack of a “red wave”, because of the absence of a clear, credible alternative.  If McCarthy falls, each faction will want to put forward its own candidate and will start trashing those of the other factions.  (Liz Truss, anyone?)

     In some state legislatures with tenuous majorities, the minority party has made deals with a faction of majority-party legislators to elect one of the faction’s number to lead the chamber in lieu of the majority party’s leader.  That is not possible here because of the lack of genuine moderates within the House Republicans and the certainty that any Members in such a hypothetical rump caucus would be primaried and defeated in two years.  And the Democratic Party is not cohesive enough to offer such hypothetical breakaways immunity from serious challenge in 2024. 

     The new majority will have little procedural difficulty bringing whatever legislation it pleases to the floor and blocking legislation it disfavors.  Because the House lacks a filibuster, the minority has no say in how the chamber is organized.  This means the majority can and typically does give itself majorities on key committees far greater that its proportion of the total membership of the House.  Ways and Means, Appropriations, and other priority committees will all have Republican majorities of sixty percent or more.  (Proportionate committee membership in the Senate results from the minority’s ability to filibuster each session’s organizing resolution and delay the start of legislative business indefinitely if it is not treated fairly.) 

     The House Rules Committee likely will have a 9-4 Republican majority – the same five-vote margin as the chamber as a whole – and will be stacked with Members absolutely loyal to the speaker.  The Rules Committee makes grand juries look like paragons of independence:  it would (and actually once did) report out a ham sandwich.  Any unwelcome amendments that somehow get added in substantive committees may be stripped out in the Rules Committee before the legislation goes to the floor.  Knowing that, Republican Members on those substantive committees may see little advantage to defying their committee’s leadership.

     Because of their extreme vulnerability to defections, and their inability to give endangered Members permission to cast dissenting votes that will be politically popular back home, the Republican leadership is likely to direct the Rules Committee to bring almost all legislation to the floor under closed rules or “modified open rules” that sharply limit amendments.  The relatively slender House majorities of recent years on both sides have greatly reduced opportunities for Members to bring amendments to a vote that could be uncomfortable for majority-party legislators; that process of curating democracy will surely accelerate.

     One large open question is the fate of motions to recommit.  One House tradition that both Democrats and Republicans have held sacrosanct when leading the House has been that, prior to final passage, the minority party may offer one motion to recommit that legislation to committee.  This is, in effect, a single opportunity for an amendment.  Rather than directly adding or subtracting text to a bill, or offering a substitute, a motion to recommit sends the legislation back to committee with instructions to make the desired additions or subtractions or to report out the desired substitute.  (Some motions to recommit are offered without instructions, but that serves little purpose as it merely duplicates the vote on final passage.)  The motion to recommit forces a vote of the full body on one change or package of changes desired by the minority. 

     When they were in the minority from 1994 to 2006 and from 2010 to 2018, Democrats’ motions to recommit have largely sought to give their own Members opportunities to vote for things their base desired rather than to force Republicans to cast difficult votes.  Many were wholly new versions of the pending legislation, including provisions Republicans could safely cite as reasons to vote “no.”  Others were cartoonish protest resolutions that posed no threat to Republican cohesion and that no objective observer would criticize Republican Members for voting down.  Democrats’ inability to resist including unpopular items in their motions to recommit have made these motions politically harmless.  Republican motions to recommit, by contrast, have often been much smarter, proposing changes in legislation with considerable public appeal and forcing Democrats to cast politically costly votes to defeat the motion. 

     With such a slender majority, a Republican Rules Committee may be reluctant to continue to allow motions to recommit on all major legislation.  If it does, the Democrats’ ability to craft more viable, reasonable motions that stress the majority’s cohesion will depend on the willingness of the entire Democratic caucus to vote for motions to recommit that leave intact many troubling parts of the pending Republican legislation. 

     The House Republican leadership will have absolutely no capacity to discipline its Members for pretty much anything.  No matter how egregious the conduct, an aggrieved Member can paralyze the House by getting just two friends to join in withholding votes.  The Members will know this, and acting out by the (numerous) Members with weak impulse control is likely to crescendo.  If the Democrats are effective at hanging the failure to punish bad behavior on individual Members, this could help in marginal districts in 2024.  Of course, that strategy will depend on Democrats’ having the discipline only to make an issue out of behavior that would genuinely shock swing voters rather than everything that irritates some part of the Democratic base. 

     The leadership likely will struggle to move major legislation.  The Trumpist wing of the Party likely will insist on some other constraint on deals with Democrats.  Such constraints will magnify the power of their threats to withhold votes.  Perhaps mildest restraint the leadership can hope for is reinstatement of the “Hastert Rule,” which allows legislation to move if but only if it enjoys majority support within the majority party.  Crucial may be whether primary-fearing Republican Members are forced to declare publicly their support for legislation proceeding publicly:  if they must, the leadership may face continual deadlock.

     Appropriations bills typically have remained at least somewhat bipartisan even in a sharply polarized House:  they provide the ideal vehicle for buying off Members of the minority party without either side making ideological concessions.  But if some far-right Republican Members refuse to vote for appropriations bills that fail to defund investigations of former President Trump (or of themselves), the leadership may struggle to get their primary-fearing Members to vote for a bill dependent on many Democratic votes to pass.  Funding for Ukraine, which enjoys significant Republican support, seems secure; if the pro-Russian faction cannot find a political “off-ramp” to allow such legislation to move, they may make Democrats’ votes even more indispensable to their own leadership and hence strengthen Democrats’ bargaining positions. 

     To minimize the number of divisive votes required, the leadership may largely abandon the annual appropriations process in favor of a single catch-all omnibus appropriations bill in the fall.  Perhaps they will seek the appearance of normality by passing a few smaller appropriations bills for less controversial agencies in the interim.  On the other hand, the leadership may try to fund Ukraine entirely through separate supplemental appropriations so that their need for bipartisanship on that funding does not force them to reach broader appropriations deals with Democrats. 

     Non-appropriations bills will be even harder.  Various House Republican factions will have demands about what conditions to place on legislation raising the Debt Limit, due fairly early next year.  The leadership will struggle to get them down to a single demand even though a laundry list would surely be difficult to defend to the public and especially to business-oriented donors unwilling to risk a default.  The most likely scenario, once those donors weigh in, may be for the House to pass highly conditional, politically infeasible debt limit bill with only Republican votes, go to conference with the Senate, and bring back a “clean” debt limit increase that achieves final passage largely with Democratic votes.  The dissention that would bring likely would imperil the leadership’s ability to move legislation for some weeks or months thereafter. 

     Disruptive investigations should be easy to maintain:  they require only the initiative of the pertinent committee chairs and can significantly hobble the Biden Administration’s capacity to function.  On the other hand, impeachment, whether of President Biden or Administration officials, could pose serious challenges for the leadership.  It likely will have many Members in marginal districts that are leery of voting for an unsupported impeachment.  Bringing impeachment to the floor and losing would intensify right-wing activists’ cries of “RINO”.  But getting incoming Judiciary Chairman Jim Jordan to slow-walk impeachment to save his marginal colleagues from difficult votes seems unlikely. 

     Because House rules so completely entrench the majority party’s power, transitioning from majority to minority or vice versa is extremely challenging.  Few Members, and even fewer leaders, do it well because the two roles require fundamentally different skill sets.  Speaker Pelosi is one of the few adept at both jobs:  indeed, as gifted a Speaker as she has been, she was the most effective Minority Leader in many, many decades. 

     Many Republican bomb-throwers that have thrived in the minority will have extremely difficult paths to the lower-profile, more cooperative profile needed to have an impact in the majority.  If they fail to make the transition, they will hand President Biden and their Democratic challengers in 2024 the perfect “do-nothing Congress” piñata to bash for failure to respond to the likely economic downturn.  If I were Representative McCarthy, I might well be quietly rooting for the remaining toss-up races to break for the Democrats and save me from embarrassing failure leading this caucus with a slender majority. 


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