Accidental Bipartisanship

Ironically, the most polarized Congress in recent history can only accomplish things in a bipartisan way.

By Mark Strand

Ironically, in the most polarized Congress in recent history, the only way anything gets done is through bipartisan votes. When it comes to biting off one’s nose to spite their face, the hardline conservatives are not only abandoning their stated agenda, but they have also inadvertently invited the Democrat minority to take on the things they are supposed to be responsible for.

Agenda control is perhaps the most essential power in any legislative body. In the House of Representatives, it is a maxim that a Speaker with a cohesive majority can control everything that happens on the Floor of the House. This made Nancy Pelosi a powerful Speaker, even when she had smaller majorities. She held her party caucus together.

Mike Johnson has been deprived of two things needed to be a successful Speaker - control of the Rules Committee and a lack of party discipline.

Unfortunately for new Speaker Mike Johnson, he may have a majority, but it is far from cohesive. As a result, he has essentially lost control of the agenda.  

A Speaker controls the agenda through the most powerful yet little-known Rules Committee. 

When a committee passes a bill in the Senate, it goes onto a calendar where the Majority Leader can call it up for consideration. When a bill passes a committee in the House, it is referred to the Rules Committee. 

The Rules Committee 

The Rules Committee has a fascinating history. For several decades, it was independent of the Speaker. Before the 1980s, committee chairs were determined by seniority; the Rules Committee was run by Southern Democrats who were very committed to blocking any civil rights legislation. It took a secret deal between Democratic House Speaker Sam Rayburn and President John F. Kennedy to add two Northern Republicans willing to bring civil rights legislation to the Floor of the House. Both Kennedy and Rayburn would be dead before they could see it through, but their efforts led to the passage of the 1964 Civil Rights Act and the Voting Rights Act.

Later, in the 1974 Republican wipeout following the Watergate scandal, Democrat Tip O’Neill led a fight in the Democratic Caucus to regain control of the Rules Committee under the Speaker. Instead of being chosen by seniority, each member of the Majority on the Committee was hand-selected by the Speaker. And the Committee was given a 9-4 ratio – a two-to-one plus one setup – to make it impossible for the Speaker to lose. This setup has continued to the present day. As a result, the Speaker gained control of the Committee that places legislation on the Floor.

The House Rules Committee may have the smallest room of any committee, but it has the greatest power of any Committee in Congress - the power to control the agenda.

The Rules Committee has many ways to deal with a bill. It can do nothing, effectively killing a bill. As a result, Committee Chairs are careful to ensure the Speaker approves their bill before wasting their time on legislation that is dead on arrival to the Rules Committee. The Rules Committee also controls the terms of the debate. It does this by passing a resolution called a Special Rule. The resolution determines how long the debate lasts, how many amendments, if any, will be allowed, and what standing Rules of the House can be ignored when the bill comes to the Floor. In essence, when it is working the intended way, nothing can come to the Floor that the Speaker does not allow to come to the Floor, and nothing passes the full House unless the Speaker wants it to. Special Rules are routinely approved on a straight party-line vote, making members of the Minority on the Committee little more than “ornamental,” in the words of my good friend Hugh Halpern (former staff director of the Rules Committee).

In short, thanks to the Rules Committee, the Speaker has almost complete agenda control. And the Minority has no input except that granted by the good graces of the Speaker.

Except when they don’t.

In what might be the understatement of the 118th Congress, there is nothing cohesive about the Republican majority. In his effort to be elected Speaker in January, Kevin McCarthy made two concessions that turned out to be his undoing and maybe Mike Johnson’s undoing. He appointed several hard-right conservative Members to the Rules Committee and agreed to allow a single representative to call a motion to vacate the Speaker’s chair.

First, instead of loyalists, he agreed to appoint hard-right members to the Rules Committee. They included Chip Roy (R-TX), Ralph Norman (R-SC), and Thomas Massie (R-KY). While the Republicans have a 9-4 majority, if these three members join the Democrats in voting against the Special Rule, that quickly turns into a 6-7 defeat. If these three Members prevent a bill the Speaker wants to vote on from getting through the Rules Committee, then Johnson does not really have control of the Rules Committee.

Even if Speaker Johnson can get a Special Rule through the Rules Committee, there is always the possibility that a handful of Republican members can join all of the Democrats and defeat it on the Floor. Typically, a Special Rule is debated for one hour. By tradition, half of the hour is allotted to the Minority and half to the Majority. No amendments are allowed. At the end of the hour, the previous question is called, and the entire House votes on approval of the Special Rule. (The previous question is a motion to end debate and vote on the question, which is the Special Rule. This is critical, as we will see in a moment.)

Usually, a vote on the Special Rules is a party-line vote. From the Speaker’s point of view, it is almost more important than the vote on the bill being considered. For a Member of the Majority party to oppose a Special Rule is a direct challenge to the Speaker’s authority. And, by tradition, it rarely happens. But tradition has been thrown out the window in the 118th Congress.

Six times, including earlier this week, Republicans have banded with Democrats to defeat the Special Rule. That is the most times in the modern era. This week Republicans blocked a tax bill that would have restored some of the State and Local Tax deductions (SALT) in the tax code, a provision crucial to vulnerable New York Republicans who are the top targets of the Democratic National Campaign Committee. Johnson promised these vulnerable members a vote to secure their votes on the major tax bill recently passed. Johnson has not kept his promise to these Members since the House defeated the Special Rule.

After this week’s special election in New York, the Republicans are down to a 219-214 majority. That means just three Republicans joining the Democrats can defeat anything on the Floor by a 216-217 margin. Without party discipline, the Speaker needs unanimous support from his own Conference.  

Accidental Bipartisanship

Speaker Johnson is being blocked in two directions. Hard-line conservatives on the Rules Committee can team up with the Democrats to prevent a Special Rule from ever passing, killing a bill. Even if he can get a Special Rule through the Rules Committee, a small handful of Members willing to defy him can defeat him on the Floor.  

So, what can Speaker Johnson do? He can get creative and bipartisan.

The creative part comes from using the Suspension Calendar to advance must-pass legislation. Speaking for all political science professors everywhere, Molly Reynolds of the Brookings Institute told a Roll Call podcast that she would have to delete all her slides regarding the Suspension Calendar. The reason is that the Suspension Calendar is usually only used for non-controversial legislation. Let me explain.

There are two ways for legislation to pass the House. The first is through the regular order of winning the vote on the Special Rules and then ultimately passing the main bill by a simple majority on final passage. The second is for the Speaker to place a bill on the Suspension Calendar.

The motion to “suspend the rules and pass” a bill is traditionally reserved for non-controversial bills like “National Apple Pie Week.” When a bill is brought up this way, both sides are allowed just 20 minutes of debate, and no amendments are possible. It then must get two-thirds of the entire membership of the House to vote for it. Most suspensions are passed by voice vote. Since the Rules of the House call for the bill to go through regular order, suspending House rules requires a two-thirds vote. So, the vote is actually on the motion to bypass the Rules Committee, and the bill is automatically passed.  

Johnson has been bringing up big bills on the Suspension Calendar to get around the Rules Committee and prevent a handful of Members from defeating a Special Rule on the Floor. 

Recently, he used this method to pass the Continuing Resolution that kept the government open in January with only 127 Republican votes and 209 Democratic votes. He passed the Ways & Means tax legislation that expanded the Child Tax Credit and extended several significant business tax breaks. That bill passed with 169 Republicans and 188 Democrats. The Speaker also tried to pass his bill to approve military aid to Israel this way but lost too many Democrats for the motion to get two-thirds. The vote was 250 for and 180 against, but that was less than two-thirds of the House.

Had the Speaker been able to get the Rules Committee to issue a Special Rule on the Israel bill, it would have easily won. The Rules Committee has been nicknamed the Speaker’s Committee because all of the Members are supposed to be loyal to him.  However, Speaker Johnson was blocked by the Speaker’s Committee and forced to bypass them and try the Suspension Calendar.

Other Ways to Bypass Regular Order

There are other ways that the Democrats might force action on legislation with the help of Republicans. Both of which would further weaken the Speaker.

The first is a Discharge Petition. This is a procedure where Members can sign a petition to discharge a committee of further consideration of a bill and force a vote on the Floor of the House. It has only been victorious 27 times in the history of Congress. This is a cumbersome process that requires at least 30 days to advance.

It could be used for the Military Aid bill that passed the Senate early Monday morning by a vote of 70-29. A member will have to introduce a Special Rule that calls up and passes the Senate bill. The Rules Committee would never pass such a resolution. But after 30 days, the Discharge Petition would discharge the bill’s committee and force a vote on the House Floor. Once the Discharge Petition gets a majority of the House to sign on (currently 217), the Speaker must bring up the legislation for a vote.

By tradition (you know where this is going), Majority members do not sign a Discharge Petition for fear of incurring the wrath of the Speaker and the Committee being discharged. But this is the 118th Congress. Tradition has flown out the window.

The Senate military aid bill may not be easy, as 30 Democrats strongly oppose the aid to Israel in the bill. So, it is likely that 40 or more Republicans would have to sign the petition. This happened on the last successful Discharge Petition that reauthorized the Export-Import Bank. But in that case, Speaker Boehner, who favored the reauthorization, gave a wink and a nod to the Republicans signing on. Speaker Johnson is not likely to do this, but he might get rolled anyway.

Another mentioned method would be considered high treason, perhaps even in this non-traditional year. Recall earlier in this article when I discussed the motion to call the previous question on the Special Rule. Here is why you burdened your brain with that scrap of information. If the motion to call the previous question on the Special Rule is defeated after one hour of debate, then the Minority gets to try to pass their own special rule during the next hour of debate. For example, the Democrats could offer a Special Rule that made the Senate’s Military Aid bill in order – heck, they could write what is called a self-executing rule that deems the Senate bill passed if they can get a majority of the House to vote for their Special Rule.  

A Republican voting to defeat the previous question is considered high treason because the Majority surrenders control of the Floor to the Minority. The last time it happened was in 1982 when Phil Gramm, then a Democratic Representative from Texas, and a bunch of conservative Southern Democrats joined the Republicans to defeat the previous question on the bill to debate President Reagan’s budget. The motion to call the previous question was defeated; the Republicans gained control of the Floor and passed Reagan’s entire budget in one vote when they beat the Democrat’s attempt to call the previous question on their Special Rule.

It’s okay if your head hurts after reading that last paragraph. There were a lot of broken body parts among the Democrats who voted with the Republicans as Speaker Tip O’Neill stripped them of their committee assignments and issued other punishments. Phil Gramm famously resigned from Congress, switched parties, and won his seat back in the special election called to replace him. He later went on to be a Republican Senator from Texas.

A motion to defeat the previous question can take place at any time. Democrats and a handful of Republicans can defeat the previous question on any Special Rule, even if it is unrelated to military aid. Usually, it would be like Caesar crossing the Rubicon, but in this Congress, you would have thought voting to remove your own Speaker would be enough to banish a Member from the party.

Changes Republicans Would Be Smart to Make

There are two things the Republican Conference can do to help Speaker Johnson get back agenda control. First, they can authorize him to pick his own Rules Committee. Rules Committee Members did not have any other committee assignments in the past, but every Republican Member has another significant committee. Speaker Johnson should be allowed to pick his own Committee. Republicans can do this in their own Conference without involving any Democrats.

Second, Republicans should try to change the rule that allows a single person to introduce a motion to Vacate the Chair. This is tougher because it requires some Democrats to cooperate. When Nancy Pelosi was Speaker, the rule only allowed a party conference to move to vacate the Speaker’s Chair. In other words, a majority of Republicans would have had to authorize the Conference Chair to make a motion to Vacate the Chair. This is not an insurmountable hurdle for an angry minority to pursue. If Republicans cannot get the Democrats to go along, they should change their party rules to strip away the committees of a Member offering or voting for a motion to remove their own party’s Speaker.

For the time being, expect the chaos to continue. Speaker Johnson won a bipartisan majority for the Continuing Resolution (CR) to keep the government open until March 1. Congress just left town for a two-week recess and has not considered a new appropriation bill since the CR passed.

As I wrote, President Biden waited too long to pass the military aid bill, and now Ukrainian civilians and soldiers, and perhaps soon Israeli civilians as the missiles for their Iron Dome run out, will pay with their lives as the 118th Congress wades into presidential politics with badly weakened leadership. 

And that is an embarrassment for all Americans who think of ourselves as a democratic republic.