The man who would be speaker of the House, Kevin McCarthy, can expect to have his hands full trying to herd the particularly fractious cats of the Republican Conference next year. And if the House Freedom Caucus has its way, he’ll have to make do with one arm tied behind his back.
The far-right Freedom Caucus is demanding a suite of changes to the Republican Conference rules and House rules that would reverse a decadelong trend of power consolidating in the speaker’s grip. Done right, such a shift could herald a renaissance of bipartisan legislating, experts say. But done wrong, it will exacerbate partisan tensions and empower extremists, all but ensuring legislative deadlock that could force federal government shutdowns and a sovereign debt crisis.
“There’s a real question about whether the Freedom Caucus members want to pursue a positive legislative agenda or whether their goal is to simply be an agent of chaos,” said Daniel Schuman, policy director at Demand Progress.
“Congress has been testing this speaker-dominant model for at least 30 years,” said Kevin Kosar, congressional scholar at the American Enterprise Institute. “Certainly it has some advantages in terms of being able to make commitments to voters and then push legislation through the House on party-line votes. The downside is legislators feel like they’re not legislators.
“Legislators now need more authority to behave as legislators,” Kosar added. “If they don’t have that authority, they’re going to do other stuff, like a dog without a toy chewing on the couch. They will engage in the performative stuff.”
The Freedom Caucus released an outline of the reforms they are seeking over the summer, following it up with a memo directed at incoming lawmakers warning them how little power they’d have under the centralized status quo. On Wednesday, the group saw many of its ideas taken seriously, as Republicans began sifting through a list of 24 specific proposed changes to conference rules.
Among their proposals are ones that would place more members unaffiliated with the speaker onto the House Republican Steering Committee (which decides the committees that GOP members can join), let the entire Republican Conference pick who sits on the powerful Rules Committee (rather than the speaker) and reimplement a “majority of the majority” rule that would prevent any bills coming to the floor that didn’t have the support of most Republicans.
At least some of those wishes, like expanding the Steering Committee, are likely to come true.
Other proposals include a prohibition on earmarks; a ban on suspending the rules, a fast-track procedure, on bills with price tags over $100 million; and a requirement to pass spending bills before the fiscal year begins, or else no other legislation can be heard on the floor.
The GOP debated some of those internal conference changes this week and will resume after Thanksgiving before trying to find a consensus on the rules for the chamber as a whole, which must be adopted by a House vote after the 118th Congress begins in January.
Republicans nominated McCarthy for speaker this week by a relatively tight margin — he earned 188 votes, while 31 members preferred former Freedom Caucus Chair Andy Biggs and a few others wrote in names or voted “present.” McCarthy will need to give in to some of the Freedom Caucus’ demands to shore up support. Already, two Republicans, Matt Gaetz of Florida and Matt Rosendale of Montana, have said they’ll vote against McCarthy.
That has some observers daydreaming of a truly contested speaker’s election come Jan. 3 — former Rep. Justin Amash offered his services as a “nonpartisan speaker” — but the last time it went to multiple ballots was 1923. Given the Freedom Caucus’ interest in empowering the GOP’s most conservative members, McCarthy’s continued support from the party’s moderates and the widening ideological gulf between the two parties, a vote for a compromise candidate seems unlikely.
Similarly, any dream of a lively debate on the House rules at the start of the new session like in the days of yore is fantastical, said Kosar. “The rules will be made among Republicans in the conference,” he said. “We won’t see something break out on the floor.”
Thus sidelined in the minority, most Democrats will watch the GOP’s intraparty negotiations with resigned bemusement.
“I’ll let them settle that for themselves,” said Rep. Deborah K. Ross of North Carolina. “But if they make it easier for us to be effective, I’ll take it.”
Good ol’ regular order
Democrats might welcome some of the changes, and not only because they promise to make the next speaker’s job of wrangling a majority on legislation more difficult. Rank-and-file members of both parties have long lamented the consolidation of power into the speaker’s office. In interviews earlier this year, retiring Democrats often said they’d like to see a return to “regular order,” which would empower committees again.
“Regular order” is a bit of a misnomer these days, as it hasn’t been the modus operandi on major legislation in more than 30 years. It’s most often used to refer to the traditional path bills took in becoming law: a long, laborious march through committee markups and then onto the House floor for a freewheeling session full of amendments and horse-trading votes.
Kosar thinks most of the proposed changes are probably beneficial. The real question is what Republicans will do when a looser process leads to internecine infighting broadcast on (soporific no more) C-SPAN.
“The party is going to need thicker skin for messiness,” he said.
Avoiding the discomforting disarray caused by one part of the majority fighting another on the floor is partially why House members have ceded so much power to leadership in recent decades, Kosar said, even though that’s a bad trade-off.
“It’s a peculiar thing: Members seem to think this model of avoiding tough votes, and letting the speaker be in charge, is going to make reelection easier and make majorities last longer, and there is no evidence that shows that’s the case,” he said.
Almost every speaker in recent years has paid lip service to returning to “regular order” before further consolidating their power, said Schuman of Demand Progress.
Under Nancy Pelosi’s speakership and Republican Paul D. Ryan’s before it, leadership has dominated the four pillars of power in the House, said Schuman: election fundraising support, committee appointments, the Rules Committee and which bills are brought up on the floor.
“Right now, leadership has all of them, and the Freedom Caucus is starting to let the other members of Congress actually have a say again,” Schuman said.
“The Freedom Caucus are asking for a number of reforms that will redistribute power away from leadership and toward committees and rank-and-files,” he said. “And it would reduce the extreme centralization of power in one or two people at the top, which is generally a good thing.”
But, he cautioned, it all depends on what the group really wants — a return to regular order, or just disorder. After the Freedom Caucus of his era ousted him in 2015, former Speaker John A. Boehner called them “anarchists” who “want total chaos.”
Blocs could backfire
Still, given the right combination of changes, one could imagine an unusually productive 118th Congress, said Schuman, with cross-party coalitions emerging from the committees pushing bipartisan measures on the floor. Some populist Freedom Caucus members might join with Democrats on beefing up antitrust laws or curtailing government surveillance powers, for example.
The levy holding back this flood of bipartisanship would be the “majority of the majority” rule, which would prohibit the speaker from bringing any bill to the floor that isn’t backed by more than half of House Republicans. Other proposals would essentially grant any subset of the Republican Conference the ability to block floor consideration of a bill.
The idea of a “majority of the majority” rule concerns Kosar. “If you construe it strictly, is it going to create trouble for omnibuses?” Kosar wondered, noting the potential for lengthy government shutdowns. “That’s the place where we could see it being significant, if it comes back. And the House Freedom Caucus, as far as I can tell, is fine with that — they are sick of excessive spending.”
Kosar noted, however, that all of these rules can be waived in a pinch. That means McCarthy could strike a deal with Democrats to fund the federal government or raise the debt ceiling if he needed, although he’d surely then face a backlash if he did so over conservative objections.
Collectively, the rule changes would empower a cohesive ideological bloc, like the House Freedom Caucus, over centralized leadership. But they would empower party moderates too, said Kosar. The results could backfire.
The Freedom Caucus has long been the GOP’s most vocal faction, but it’s hardly the only one. With more than 50 members, the more moderate Republican Main Street Partnership outnumbers the roughly three dozen Freedom Caucus members. The same rule changes that would empower the Freedom Caucus would bolster other Republican blocs as well.
Kosar pointed to something Perry said in his guide to new lawmakers. “We believe that good policy flows from good process,” he wrote.
“Great! That’s absolutely the case. We should do more regular order and do the hard, nitty-gritty work of Schoolhouse Rock-ing bills through Congress,” Kosar said. “But if you follow the process, it doesn’t necessarily produce the MAGA conservative result all the time. And you’re going to have to be OK with that.”
It all comes down to the numbers
All that adds up to an agonizing calculus problem for McCarthy as he tries to secure both his own future and that of the House majority. And since Republicans just barely eked out enough wins to regain the chamber, the numbers game could ultimately be beyond his control.
The presumptive speaker has already signaled his support for some changes to the wider rules of the House, like ending the practice of proxy voting that was implemented by Democrats during the height of the COVID-19 pandemic and extended repeatedly since then despite the dramatically reduced danger from the disease.
But McCarthy may ultimately regret killing off the proxy, which has allowed House Democrats to pass party-line bills despite the absence of members who stayed at home, whether because they were ill or just busy campaigning.
With an even smaller margin than Democrats had in the 117th, McCarthy will have precious few votes he can lose. Pelosi had her hands full at times managing defections from the progressive Squad, like when all six voted against the infrastructure bill (but were more than offset by 13 ayes from the GOP). The Freedom Caucus may prove to be even more rebellious.
Then there is the simple fact that members tend to die, retire or take other jobs. There were 16 vacancies in the 117th Congress, 13 in the 116th, 18 in the 115th, nine in the 114th, 11 in the 113th, 14 in the 112th and 12 in the 111th. While these figures include vacancies that McCarthy is unlikely to face, like members leaving for administration jobs, most are outside his control. Members of both parties will feel enormous pressure to refuse job offers in the private sector and campaigns for other office, especially those representing swing districts that might go the other way in a special election.
McCarthy will have at least one less thing to worry about thanks to some maneuvering this week: The GOP conference has already agreed that a “motion to vacate the chair,” the procedure the Freedom Caucus threatened to use to defenestrate Boehner, could be made only with the support of a majority of the caucus.