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Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts A Tale of Two Coalitions
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Thursday, January 05, 2023
A Tale of Two Coalitions
David Super
Six roll-call
votes have produced absolutely no movement toward electing Rep. Kevin McCarthy speaker
if the House. With twenty Republican Members
voting against him and only a four-Member margin of error, Rep. McCarthy seems highly
unlikely to take the gavel. Media reports
suggest that some of his opponents have shifted to trying to negotiate a
deal. That probably does not matter,
however, because many of the rebels seem disinterested in following leaders or
making bargains. One of Rep. McCarthy’s
supporters was quoted as saying that five to seven rebels will not vote for him
under any circumstances, and that would be decisive as long as current rules
apply. Rep. McCarthy has
floated the idea of shifting the rules to allow a plurality to elect a speaker –
which would allow him to win with 213 votes rather than 218 but also risk
electing Democratic Rep. Hakeem Jeffries if at least eleven rebels continue to
hold out. (That might not be a bad
result for the rebels, who can then combine with McCarthyite Republicans to pass
rules that would allow Republicans to force a vote on replacing Rep. Jeffries
as soon as they have a consensus candidate.)
In any event, Rep. McCarthy would need help from either the Democrats or
the rebels to make that rule change. Some media
accounts suggest establishment Republicans might strip rebels of committee
assignments as punishment. That would
only work if they can get 218 Republicans to support such a measure, which
seems unlikely as it would require sixteen rebels to vote to punish
themselves. After complaining bitterly
about Democrats’ rejection of some of Rep. McCarthy’s selections for the
January 6 Committee, Republicans clearly do not dare invite Democrats to meddle
in Republican committee assignments. Surely backroom
discussions will soon switch to alternative candidates, if they have not done
so already. Some media accounts suggest
that Rep. Steve Scalise, the second-ranking House Republican in the previous
Congress, would be the logical choice.
He was originally added to the leadership as a representative of the
more extreme right-wing factions in the caucus.
This strikes me as unlikely, however, because he is still too much a
part of the establishment to be acceptable to many rebels. As a part of the leadership, he was
effectively compelled to work and vote for compromises the leadership negotiated,
some of which the rebels dislike. Rep.
Elise Stefanik, although ferociously Trumpist of late, may also be tainted for
the rebels because of her presence in leadership or her one-time flirtation with
relative centrism. Rep. McCarthy’s
supporters – whom much of the media absurdly keeps calling “moderates” – are clearly
quite angry with the rebels and so will not consent to give them a speaker of
their choosing. It takes only a handful
of embittered McCarthy supporters to reject a nominee with rebel support. None of the rebels have any chance, and even
House Freedom Caucus members who supported Rep. McCarthy (such as Rep. Jim
Jordan) will probably be unacceptable to those not wanting to reward rebellion. The eventual
winner therefore seems likely to be someone who has neither leadership nor House
Freedom Caucus affiliations. It would
need to be someone whose conservative credentials appeal to the rebels but whose
public persona does not seem incendiary to Members from marginal districts. It would need to be someone who voted to
support challenges to President Biden’s electors but who was not a leading insurrectionist. Quite a few
Members fit that profile, although few have been included in media speculation. For example, Rep. Jim Banks of Indiana just
stepped down as chair of the Republican Study Committee, the primary home of
right-wing Republican representatives before the House Freedom Caucus formed. He voted against the Biden electors, has publicly
attacked Democratic Rep. Ilhan Omar (a favorite right-wing target), and was one
of Rep. McCarthy’s rejected designees to the January 6 Committee. But he has loyally supported Rep. McCarthy’s
speakership quest and has not been seeding media stories about himself. Whomever becomes speaker,
however, will be little more than a figurehead.
He or she will lack the stature to persuade or the power to punish. He or she therefore will be unable to represent
the House majority meaningfully in negotiations with the Senate or the
Administration. Neither President Biden
nor Senator Schumer would have any reason to make any concessions in
negotiations with such a speaker because events of this week demonstrate that no
Republican leader can speak authoritatively for his or her caucus: any concessions will be greeted only with
further extravagant demands. For all intents
and purposes, we already know that the speaker’s chair will be effectively vacant
for the next two years. That raises the
question of how Congress will address must-pass fiscal legislation. The
rebels’ demand that Congress cease passing omnibus spending legislation (instead
moving twelve separate appropriations bills each year) would considerably lengthen
the list of indispensable bills. The answer likely
is that two coalitions will share control of the House for the next two years, just
as disparate coalitions on the Supreme Court may resolve different aspects of a
pending case. One House coalition –
composed of the two Republican factions once they reach an agreement – will elect
a speaker and organize the House. A very
different coalition, composed of all Democrats and a handful of Republicans unafraid
of primary challenges, will do the actual legislating on truly indispensable legislation. Such Republicans could do very well for
themselves in the short-term by striking a deal with Democrats on organizing
the House – one would become speaker and others could gain choice committee
chairs – but that level of high-profile collaboration would surely draw very
well-funded primary opponents. They thus
will stay with their party for House organization purposes and break ranks only
when absolutely necessary to stave off a national calamity such as a prolonged government
shutdown. These hypothetical
five pragmatic Republicans could theoretically defy their party only six times this
Congress: signing a discharge petition this
September to bring a special rule for consideration of Senate-passed omnibus
appropriations bill to the floor, voting to adopt that rule, voting for final
passage of the omnibus, and then repeating that cycle next year. This would avert government shutdowns (or end
ones their colleagues have already triggered).
This does not
account for the debt limit, which the Administration says must be raised this
Spring to avert a default. With no plausible
prospects of reaching even a bad deal on the debt limit with House Republicans,
President Biden would be wise to end the debt limit saga once and for all: either declare it unconstitutional and order
Treasury Secretary Yellen to ignore it or embrace one of the hyper-technical loopholes
that have been suggested for raising the funds to pay the government’s bills without
formally assuming further debt. House
Republicans are hard at work proving that he has no realistic choice. If the House
Republicans’ manifest instability results in our finally being rid of the
dangerous, nonsensical, and obsolete debt limit, then Rep. McCarthy’s political
ambitions will not have died in vain. @DavidASuper1
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Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. 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