Legislative breakdown imperils governance 

“Legislative Breakdown” could be the title of a catchy Bluegrass tune. Instead, unfortunately, it’s the current state of inactivity in Congress due to House Republicans’ inability to choose a Speaker who can garner a majority of votes in the chamber.  

The House removed Rep. Kevin McCarthy (R-Calif.) as Speaker on Oct. 3 by a 216-210 vote on a motion to vacate the speakership offered by Rep. Matt Gaetz (R-Fla.). While only seven other Republicans joined Gaetz, that was sufficient to adopt the resolution when combined with the votes of all the Democrats.  

Ever since, the House Republican Conference has been stumbling and bumbling to choose a successor. It has sequentially nominated two candidates: Majority Leader Steve Scalise (La.) and Judiciary Committee Chairman Jim Jordan (Ohio).   

Scalise withdrew his nomination when he realized he could not achieve a majority vote on the House floor. Jordan had the same problem, falling short of a majority vote on the first two ballots in the House on Tuesday and Wednesday. At this writing the House still hangs in a leaderless, legislative limbo with a possible third ballot pending, or the nomination of another candidate if Jordan withdraws. 

Through all this, the House has held brief, pro forma sessions presided over by Rep. Patrick McHenry (R-N.C.) who had been designated as Speaker Pro Tempore from a list prepared by McCarthy when he was elected Speaker last January. That was done pursuant to a post-9/11 “continuity of Congress” rule to temporarily address a vacancy in the speakership. The legislative history behind that rule seems to make clear that such an interim officer’s only authority is to preside over the election of the next Speaker, though some, like McCarthy, dispute that interpretation. 

To label this profile in dysfunction an embarrassment to the ruling party is an understatement. Republican members are not just humiliated but increasingly nervous that their negative public image will adversely affect their individual chances for reelection in 2024 and their party’s ability to retain majority control of the chamber. 

As mentioned in my previous column, Democrats were careful to avoid such a situation when they retook control of the House in 2019. They changed the House rule for the motion to vacate the speakership from a single-member trigger to a motion that could be activated as privileged only if first approved by a majority of a party caucus or conference. But McCarthy agreed to revert to the old rule as one of the concessions he made to the Freedom Caucus in order to be elected Speaker on the 15th ballot on Jan. 6. 

As the current deadlock continues, members are becoming increasingly anxious about the prospects of a government shutdown on Nov. 17 when the continuing appropriations resolution expires. There is one avenue available to reopen the House for the conduct of legislative business and that is to elect a Speaker Pro Tempore — an option specified in the post-9/11 “continuity” rule. Such an elected Speaker Pro Tempore would have all the authorities of a regular Speaker.  

Rep. Mike Kelly (R-Pa.) introduced a resolution (H. Res. 787) last Monday to elect McHenry to that elevated role with a sunset date of Nov. 17, or upon the election of a Speaker. The prospect of such a hybrid speakership, however, makes some members of both parties skittish — as if it would create an out-of-control Frankenstein monster who could wreak unmitigated pre-Halloween havoc.   

It should be kept in mind, though, that the regular Speaker wears two hats, both as party leader and as the neutral presiding officer of the House. An elected Speaker Pro Tempore, on the other hand, would not be head of the majority party’s leadership and therefore could not determine its policy priorities or dictate through the Rules Committee what bills could be considered when, and under what amendment conditions.   

Instead, the role would literally be confined to sitting in the Speaker’s chair and wielding a gavel to call the House to order, keep it orderly, refer bills to committees, and recognize members eligible to call-up legislation under the “order of business” rules of the House. Any rulings on points of order or questions of privilege would be based on well-established precedents after consulting with the parliamentarian. 

There is an actual Bluegrass song titled “Foggy Mountain Breakdown” that may be an apt metaphor for what we are witnessing. The fog of internecine party warfare among House Republicans currently enshrouds Capitol Hill, preventing the movement of all legislative vehicles. It must be dissipated soon by the majority if Congress is to avoid driving the country off another fiscal cliff. 

Don Wolfensberger is a 28-year staff veteran of the House of Representatives, serving as minority staff director of the Rules Committee from 1989-94, and chief of staff of the full committee from 1995-97. He is author of “Congress and the People: Deliberative Democracy on Trial” (2000), and “Changing Cultures in Congress: From Fair Play to Powe Plays” (2018).