Disarming the Speaker

Laura Blessing | March 12, 2024

Another shutdown threat barely averted, and another stopgap spending bill passed with more to follow, while major legislation stagnates. If this feels familiar, you’re not alone. But how difficult is this moment we’re in? Congress has been derided as a “do nothing” institution before: in 1880, in 1948, and more recently with the divided government two years into the Obama administration. These earlier times have nothing on the current Congress, whose first session last year delivered a historic level of gridlock and dysfunction. To be sure, our current moment may feel different for reasons beyond comparable metrics, whether that be the hyper awareness of the exigencies of the day (Ukraine and more), or the cultural zeitgeist of congressional behavior approximating a reality TV show. How should we think about this moment in a broader historical and procedural context? A look at metrics of legislative success and Speaker weakness, additional context for the House majority leadership, and the historic shift to major lawmaking under suspension of the rules shows a Speaker who has lost his major procedural tool for achieving legislative wins.

Measuring Legislative Productivity and Party Weakness

Congress passed 34 public laws last year, making 2023 its least productive year since 1851; only six years have seen fewer laws passed. Even divided government under Obama delivered hundreds of laws per Congress, as did 1948. But just as important is what’s not happening. Special rules, which bring a bill to the floor for consideration, have failed at the highest rate ever in this Congress. Four failed last year and one already this January, just the third vote of the year. Fifteen pieces of legislation have also failed unexpectedly on the floor.

The House is far more hierarchical than the Senate, and Speakers typically have tremendous power to shape the agenda. Recent Republican speakers have had significant problems on this front. Last year saw the first successful motion to vacate the chair, leading to the ouster of Rep. Kevin McCarthy from the post and marking the first time two multi-vote speaker elections occurred in the same year. The House went three weeks without a speaker in October before Rep. Mike Johnson was elected. They were also the least unified party on legislation since 1982, before modern polarization trends.

Additional Context: House Republican Leadership

The legislative and leadership dysfunction are connected.  Congress is highly polarized, and the majority party has had very narrow margins for the past two Congresses.  This would be a tough environment for any Speaker, but the Republican Party has additional challenges: their factions, their tactics, and their incentives.  Johnson’s lack of experience exacerbates this and is in contrast to previous speakers of both parties who had longer tenures in Congress as well as previous committee and party leadership posts.

While political scientists have noted that the polarization in Congress is asymmetric – that is, that the Republicans have polarized more than the Democrats – the biggest difficulty for Republican leaders is their faction of hardliners, for whom there is no Democratic equivalent.  This faction has been institutionalized in the House Freedom Caucus since the 2010 election, but isn’t always a perfect match for different recent votes that have bucked party leadership in significant ways; far fewer legislators are needed to rock the boat with such tight margins, even if those hardball tactics are hallmarks of the larger conference.

These hardliners, whether in the HFC or the smaller numbers who’ve removed the Speaker or voted down leadership bills, don’t have a strong record of achieving their policy goals, but they can certainly make lawmaking more difficult and scuttle deals.  Beyond this, they’re responding to additional different incentives: unlike the Democrats, their voters have both far more negative views of their leadership, and there are far higher political penalties for bucking Trump than a party leader in Congress.  This is true in both chambers but particularly pronounced in the House, where about two-thirds of House Republicans voted against certifying electors for the 2020 election.

A Change in Procedure Means a Change in Power

The hardliners have tussled with House party leadership since John Boehner’s tenure and since then, norms have weakened and more members willing to break those norms have been elected.  In a then-extraordinary episode of affronting the Speaker, two members of the Rules Committee voted against John Boehner’s 2015 bid for Speaker, and found themselves dismissed from the committee.  The Rules Committee’s majority members are personally selected by the Speaker, and the Rules Committee creates the “special rules” for legislation to come to the floor—this path is traditionally used by major legislation.  Boehner continued to battle this faction, of course, while protecting his working relationship with Democratic leaders.

How times have changed.  After promising hardliners many things to become Speaker, Kevin McCarthy helped pass the Fiscal Responsibility Act, avoiding a debt ceiling default and a worldwide economic calamity.  Unsatisfied with the package, two Republican Rules Committee members voted against advancing the rule for the bill out of committee, facing no punishment.  Shortly thereafter a rule failed on the floor, the first of the historic four for 2023.  The Rules Committee, with its lopsided 9-4 partisan division, is an arm of party leadership: it helps orchestrate the majority party’s legislative agenda on consequential bills of any controversy.  The writing was on the wall: the Speaker no longer could exert a procedural majority.

Since then, both Speaker McCarthy and now Speaker Johnson have had to rely on Democratic votes to pass major legislation.  Specifically, they’ve relied on a different route to the House floor: instead of going through the Rules Committee, and risking losing either votes in committee or narrow votes on the House floor (for the rule or the legislation), they’ve chosen a different procedural path altogether.  For bill after major bill, including averting both potential government shutdowns last year and now this one, they’ve brought bills to the floor not through the Rules Committee but by a procedure called suspending the rules, which does not allow bills to be amended and requires a 2/3 supermajority to pass the bill.

This tactic has succeeded in averting government shutdowns, and has passed other legislation such as the National Defense Authorization Act (NDAA). Along the way, the compromises entailed have enraged the most reactionary of the hardliners, even though various policies they pursue – from anti-abortion riders to reneging on the discretionary spending agreement hammered out in the FRA— would not pass the Senate or be signed by the President into law.

Major aspects of these core dynamics have been building for a long time, and the Speaker’s inability to wield a procedural majority was established last year.  The majority margin, once identical to Pelosi’s the previous Congress at four seats, has shrunk, and additional members are occasionally unavailable. Earlier failed votes, for impeaching Secretary Mayorkas and for aid for Israel, could be a harbinger of further volatility.  Speaker Johnson holds the House by the barest of majorities, while the clock ticks forward on major priorities, from funding the government past late March to international aid to Ukraine, Israel, and Taiwan, to a possible yet imperiled immigration deal.  The Speaker has fewer tools, less experience, and a less governable conference whose incentives are not aligned with bolstering party leadership.  This year is unlikely to be predictable.

Laura Blessing is a Senior Fellow at the Government Affairs Institute

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