How Matt Gaetz Kept the Government Open
His refusal to take “yes” for an answer led to Congress acting like a Congress.
Matt Gaetz wanted a government shutdown. Badly.
This explains why he could never take yes for an answer in Republican-only negotiations to pass a Continuing Resolution. Once he and a cadre of similar-minded Members rejected what would have been fiscal conservative nirvana – an 8% cut in domestic spending that did not reduce defense spending and added billions of dollars for border security – Speaker Kevin McCarthy turned to the only available solution. He let Congress act like a Congress.
For decades, the House has been acting as a parliament with none of the efficiencies or consequences for failure. In an actual parliament, one party (or a coalition) takes power and enacts its agenda. If it fails on a significant vote, like the budget, the government falls, and new elections must be held. It makes success easier but also makes failure terminal.
In the U.S. House of Representatives, the parties try to control the entire legislative process with just their own majority – excluding the other party from even offering amendments to legislation. Both parties have done it. The big difference is that the Democrats make it work because they remain far more cohesive as a party. Whether you agree with her politics or not, Nancy Pelosi was one of the strongest Speakers in history. Her margin was no larger than Kevin McCarthy’s is today – but she held her Members together.
Republicans, on the other hand, have failed continually to maintain a cohesive majority. Speakers John Boehner and Paul Ryan left because of resistance in their own party, not opposition by the Democrats. Under the faux parliament form of leadership, there is no penalty when political extremes block the majority party from acting. This was demonstrated repeatedly in the last three weeks.
This was not how Congress was designed to behave. When the Constitution was ratified, the United States had no political parties, and no provisions about parties were included in the founding document. This, even though England had a parliament with political parties, was widely admired by many founders. Not to base the system on political parties was a choice. Instead, the idea was to form a Congress where representatives of all the people gathered in an atmosphere of respect and order to debate and compromise on divisive and controversial issues.
The formal Rules of the House create a process where Members of both parties can debate and offer amendments. There are two of the big differences in how the Senate and House were designed to handle legislation. Debate in the House is time-limited, and in the Senate you can talk until you drop. In the House debate can be ended by a motion to call the question (basically when everyone has had enough the motion ends debate). In the Senate, amendments continue until every pending amendment has been voted on. The clear intention of the formal rules is to allow open debate where amendments to legislation are the norm. It makes sense, really. Representatives of all the people should have the opportunity to affect legislation.
When Congress only allows one party's representatives to shape legislation, it effectively disenfranchises the Congressional Districts that voted for a representative in the political minority.
State legislatures, city councils, county governments, and even town councils have a more open amendment process than the modern House of Representatives. This makes sense from a constitutional perspective but is also plain common sense. If you have a legislative majority, you can always beat back blatantly political amendments offered by the opposition. The amendments that are a threat to the majority’s agenda are the ones that are centrist enough to attract members of the majority party. In an open process, the power in the legislature shifts from the political extremes to the center.
Matt Gaetz may have successfully broken the flawed faux-parliament system by demonstrating how tyrannical and anti-democratic such a system can be. Since a political minority that is silenced has no interest in helping the majority pass its agenda, all it can do is disrupt the process (and I suppose that now includes pulling fire alarms to delay votes). The minority will always vote against the majority’s legislation when they are blocked from participating in its crafting. But, when the majority only has a four or five-vote margin, all it takes is for the four or five most extreme majority party members to vote with the minority.
So, with 221 members and a voting majority of 217 (two seats are vacant), five Republicans can thwart the will of 216 Republican Members. Think about that. It is legislative suicide to allow such a few majority party members to dictate outcomes for the other 98% of the majority.
And keep in mind the futility of letting the extremists define the party’s agenda during a divided government. Nothing they propose can in the Senate or get signed by the President represented by the opposition party. During a divided government, incremental gains are how things get done.
McCarthy kept putting increasingly conservative Continuing Resolutions before Congress and the extremists in his party, leveraging the unanimous opposition of the Democrats, who were blocked from participating in either the drafting or Floor consideration of the legislation.
Here is the irony for Matt Gaetz. Had he worked to pass one of those CRs with deep cuts, the government most likely would have shut down while negotiations continued between the House and the Senate. Most likely, the compromise would have closely resembled the original debt ceiling deal that passed with a bipartisan majority. But it would take some time for that to happen, and Gaetz would have gotten his government shutdown.
Gaetz is obsessed with the motion to vacate the Chair. He has been angry at McCarthy for not influencing the Ethics Committee to dismiss his sex-trafficking and bribery charges. Not only would it be unethical for the Speaker to try to influence those proceedings, but why should he protect any Member accused of such heinous charges?
By opening the vote to both parties on the Floor, McCarthy no doubt rescued the majority from one of two embarrassing solutions to the government shutdown. And those two potential tactics would have effectively handed over control of the majority to the minority.
The first is a Discharge Petition. This process allows a majority of the House to sign a petition discharging a committee of further consideration of a bill and forcing a vote on the Floor of the House. The minority party, with the support of Republican members who were either more centrist or had large numbers of constituents (think federal employees and military bases affected by the shutdown), probably would have gotten the necessary signatures. It has only been successful 27 times in the history of the House (although there is nothing like a discharge petition approaching 218 signatures that can suddenly inspire a committee chair to pass their version of the bill in question).
The second procedure that a shutdown could have triggered would have been for most members to vote against “calling the previous question” on a special rule vote. This is a bit complicated, but bear with me, and I will explain.
The way the majority party controls the agenda is through the Rules Committee. All legislation of importance that Committees pass is referred to the Rules Committee, which is generally, though not always, controlled by the Speaker. The Rules Committee then passes a resolution called a special rule that determines how the entire House will consider a bill. It can include time limits. It can allow all amendments, some amendments, or no amendments. It can waive the formal Rules of the House, preventing points of order against a part or all of a bill from being considered. The special rule must be passed by the entire House before the bill in question can be brought up for consideration.
A special rule has one hour of debate, by tradition divided between the two parties, and cannot be amended. When the debate is done, the Floor Manager of the special rule offers a motion to call the question, and if successful, the House then votes on the special rule. If the special rule passes, which is routine, the House can consider the bill in question. The bill cannot come up if it is defeated, and the Rules Committee must try again.
However, one very little-used provision of the Rules is that if the motion to call the question on the special rule is defeated, the minority gets an hour to propose their own special rule. And, since special rules can be used to enact legislation, the political minority, with the help of those same Republicans who might sign a discharge petition, could have proposed a clean CR and made it self-enacting with the passage of the special rule. The last time that was successfully done was in 1981 when Phil Gramm, then a Democratic representative from Texas, joined Republicans in the minority and conservative southern Democrats to pass most of Ronald Reagan’s budget proposals. Much to the chagrin, I might add of Speaker Tip O’Neill.
Defeating the previous question on a special rule effectively hands control of the House agenda to the minority party. They can’t go crazy since whatever they propose still needs a majority of the House to pass. Still, they can offer a compromise with more centrist members of the opposition party to bypass the majority’s legislative proposal. Had Matt Gaetz gotten his shutdown, the Republican majority might have been completely neutered by this vote.
What McCarthy did by compromising with the Democrats to keep the government open was in the self-interest of both the Republican majority and the Democratic minority. McCarthy protected the party from two different proposals that would have given control of the Floor over to the Democrats. Jeffries assured that Democratic votes would matter in a vote to keep the government open.
All of this sets up Gaetz’s boyhood-like fantasy of offering a motion to vacate the Speaker’s Chair. In the words of Speaker McCarthy, “Bring it on.”
The hypocrisy of Gaetz’s effort to leverage Democratic votes in a motion to vacate the Chair is mind-blowing. To be successful, Gaetz would need the votes of every Democrat, who just benefited from being allowed to participate in the passage of important legislation. Ironically, Gaetz and four of his best buddies would try to leverage the Democrats to remove McCarthy from the Speaker’s office as a punishment for McCarthy bringing up a vote that leveraged some Democrats to keep the government open.
Democratic Leader Hakeem Jeffries has conducted himself well through this. Members say what they need to say on the Floor for their political purposes, but tactically, Jeffries has remained open to working with Speaker McCarthy. Now, suppose Jeffries can convince a majority of his members to vote present on a Gaetz motion to vacate. In that case, the extremists will be isolated, and there would be a hard count of how many Democrats are needed to pass vital legislation.
In short, the unjust actions of a few extremists may finally end the faux-parliamentary system and restore Congress to its constitutional role of allowing all representatives to represent their citizens well. If that happens, and Congress becomes a more open legislature, then Matt Gaetz may have accidentally and inadvertently performed an excellent service to our country.