The virtual meltdown on the House floor was deeply unsettling. It reflected a breakdown of basic comity and civility, as well as a breakdown in the well- established practices for resolving disputes or dealing with bad behavior. [IMGCAP(1)]
When I first became aware of the vote controversy, I thought it must have been a truly egregious act on the part of Democratic leaders. But as I explored more, I saw that this was a more complex and variegated story. The special panel of Members will perhaps give us some answers in a few months, but given the partisan divide, I fear it will split 3-3. So it is worth going into some detail not just on what happened but on what the rules and practices are — and what the behavior on all sides here tells us about today’s House and today’s leaders.
The brouhaha, of course, was about the vote on a motion to recommit on the Agriculture appropriations bill. As the very tight vote drew to a close, Rep. Mike McNulty (D-N.Y.), presiding at the time, banged the gavel and announced the results, saying twice that the motion had failed. At the end, there had been a flurry of switched votes: When it looked as if the motion was going down, three Republicans moved to change their votes (as did several Democrats). The gavel and presiding officer’s announcement appeared to pre-empt some of those switches. At the time of the gavel and first announcement, according to several Members, the voting screen in the chamber reported 215-213 in favor of the motion to recommit and read “final.” McNulty announced the vote as 214-214, meaning the motion failed.
First, some basics on rules and procedures on the House floor. Contrary to what many Republicans said, and many reporters wrote, there is no such thing as “gaveling the vote.” The gavel, for purposes of finality, simply is irrelevant. Gavels get banged by presiding officers all the time, including during votes, to restore order or before an announcement. What matters is the announcement from the chairman. Even an announcement can change if new information comes in on a timely basis. The occupants of the chair often make premature announcements and then update them.
What about the voting screen? It is even more irrelevant than the gavel. Presiding officers are told before they take on the role to ignore the screens, which are not official or relevant information for a vote count by the chairman.
So what matters? The sheets compiled by tally clerks, who give them to the presiding officer with running counts; when the counts are complete — and they may be viewed as complete but then change as Members arrive two minutes late or signal that they are going to switch — the chairman announces the total. The final tally on a vote can come only when the chairman, using information from the tally clerks, reads a final vote and moves on to other business.
Thus the notion that at one moment frozen in time, when the gavel banged and the vote screen read 215-213, the vote was final — as if it were a basketball game that ended when the horn sounded and the final shot had not yet left the shooter’s hand — simply is bogus. Standard practice for a 15-minute vote is to take an extra minute or two to let stragglers vote and switches to occur — but only for at most a handful of minutes to accommodate those on their way to vote or signaling a desire to change, not to cut them short or, at the other end, to prolong a vote so leaders can change the clear outcome.
Now having established that, it is clear that McNulty, widely viewed as extraordinarily fair in the chair, acted prematurely when he announced the outcome, and it certainly appears that he did so at the behest of Majority Leader Steny Hoyer (D-Md.). When the final vote tally was made, after both gavel and announcements by the chairman, the motion actually failed by four votes. So if the majority were going to win anyhow, why try to end the vote early? Most likely because to gain that victory would require the Majority Leader to get some of his Members from vulnerable districts to switch their votes to compensate for the last-minute Republican switches the other way, and he did not want to require his own teammates to walk the plank. Whatever the motives, it simply was wrong to do so — not a simple error on his part, but an effort to contravene the regular order. It did not “steal” a vote, and in the end, all the votes were counted as in the established practice, but it should not have been handled that way.
That gets us to the specifics of the motion to recommit. This motion, if it passed, would have required the Appropriations Committee to find language to ban any funds for housing for illegal immigrants and report the bill “promptly” back to the House. Three observations are in order.
First, this motion should not be done on an appropriations bill — it is a substantive action, not technically legislating but having that effect. Second, the motion sought to ban funds for housing. This was an agriculture bill — it was not about housing. Third, the motion consciously dropped the standard, long- established language of serious motions to recommit, calling for the measure to be reported back “forthwith,” which means immediately and gives these motions the functional equivalency of substantive amendments or substitutes — a way for the minority to offer alternatives. Using “promptly,” as I discussed at length in an earlier column, is a subterfuge, a way to kill bills, and reflects a desire not to legislate but to embarrass vulnerable majority Members through a “gotcha” process.
In other words, this motion was a sham, not a serious attempt to offer a minority alternative. The majority was wrong to try to circumvent the process; the minority showed a lack of seriousness by offering such a motion to an appropriations bill.
More dismaying was to watch Republican leaders after this event, and to read what Minority Leader John Boehner (R-Ohio) has been writing in his press releases and in a column in Human Events. Either he and Minority Whip Roy Blunt (R-Mo.) are consciously distorting what they know are the rules and practices of the House or they don’t know the basics of the rules. These two leaders, who generally have been institutionalists even in their partisan roles, are responding to the demands of the Republican Conference — but that is not exactly the textbook definition of leadership.
Rep. Eric Cantor (R-Va.), who was one of former Majority Leader Tom DeLay’s (R-Texas) major allies, said after the fiasco, “Never once in the majority did we ever try to steal a vote.” Whoa, remember the three-hour vote on the Medicare prescription drug bill, during which an absolute majority of the House, 218, voted “nay,” which was ignored by the chair and the majority and resulted in several rare rebukes by the ethics committee? Or the occasion in 1995, when Republican John Linder (Ga.) declared a vote over when several Democrats were openly and actively clamoring in the well to record their votes — a vote that was vacated by unanimous consent the next day after an uproar?
There are no heroes here. The minority has ample reason to be frustrated by the conduct of the majority Democrats. There have been too many closed rules, in addition to too much boorish behavior on the floor and in the chair by the likes of Rep. John Murtha (D-Pa.). But the escalation of conflict by Boehner and Blunt, including using a string of privileged motions as the first resort, not the last, are taking matters too far.
(It was interesting to see Boehner reject Hoyer’s offer to let the ethics committee resolve this dispute, saying that the panel is “a black hole.” I will watch with interest whether he follows up on that sentiment with enthusiastic support for an independent investigative arm for the ethics process, with its own subpoena authority — or decides he and his colleagues should just leave the “black hole” in full charge of the ethics of the House.)
As for the press, the number of veteran journalists who know procedure, or who take the time to find out the facts before writing, has dwindled sharply. As I discussed this issue with several veterans of parliamentary procedure, all spontaneously lamented the shallow quality of reporting on the issue, which made the dynamic far worse, especially as reports hit the blogs (or as the story emerged on official journalistic blogs).
The dynamic here between the parties is not just game-playing; it is serious business. The House is fragile enough that we could end up with truly nasty and counterproductive behavior deeply damaging to the country and to the long-term operation of Congress. It is time for Speaker Nancy Pelosi (D-Calif.) and Majority Leader Hoyer to step up to the plate and create a fairer process, one with fewer closed rules, more amendments, more opportunities for debate, more of a willingness for the majority to let the House work its will, even if that means occasions where you lose. But it is incumbent upon the minority as well to turn down the heat and call off the dogs. If the minority ends up being driven by immature brats such as Rep. Patrick McHenry (R-N.C.), everyone will suffer, starting with the American people.
Norman Ornstein is a resident scholar at the American Enterprise Institute.