Corrected Jan. 9 | A proposed House rules package Republicans released late Sunday includes a few olive branches from Kevin McCarthy to Freedom Caucus members who have yet to commit to supporting him for speaker.
The gestures from McCarthy include proposals to reduce to five the number of Republicans it would take to force a vote on ousting the speaker, create a select Judiciary subcommittee to centralize investigations into the executive branch, limit bills to a single subject and make it harder to waive the germaneness rule for amendments.
But those proposals did not appear to be enough to win over many members who have opposed making him speaker.
A Jan. 1 letter from House Freedom Caucus Chairman Scott Perry, R-Pa., and eight other Republicans affiliated with the hardline conservative group called those rules changes “progress” and “helpful.” But they said a written response McCarthy provided Friday to demands they laid out in a Dec. 8 letter is “missing specific commitments with respect to virtually every component of our entreaties” and did not address their request that leadership and their affiliated political action committees stop getting involved in Republican primaries.
McCarthy has yet to secure the 218 votes he will likely need to be elected speaker. That’s the majority threshold if all 434 members-elect (there’s one vacancy since Rep. A. Donald McEachin, D-Va., died a few weeks after winning reelection) are present and vote for a candidate in the speaker’s election by name. Any absences or members voting “present” in the speaker’s election could lower the majority threshold and help McCarthy.
Five Republicans separate from those who signed Perry’s letter have publicly announced plans to oppose McCarthy.
The California Republican has a day left to sway his detractors. The Republican Conference is scheduled to meet Tuesday morning before the 118th Congress convenes at noon. After a recorded quorum call to determine how many members are present, the first order of business is the speaker’s election, followed by a vote on the rules package.
One of the most significant provisions in the rules package outside of the measures McCarthy included to appease his skeptics is a move to strip House employees’ collective bargaining rights. Democrats adopted a resolution in May that granted nearly 9,100 House staffers the ability to form unions, but Republicans put language in the rules saying that resolution shall have no force or effect during the 118th Congress.
Motion to vacate
As Republicans have debated the rules, they’ve spent a lot of time discussing the motion to vacate the chair, which is the mechanism for ousting the speaker.
Until four years ago, any member could file a privileged motion to vacate. When a measure is privileged it can be brought up for a vote over the objection of leadership.
Freedom Caucus members used the motion to vacate in 2015 to help force out then-Speaker John A. Boehner. McCarthy ran for speaker then but dropped out just before the conference nomination vote amid opposition from the Freedom Caucus.
Democrats changed the motion to vacate rule in 2019 after taking back the majority to say it is only privileged if offered at the direction of a party caucus or conference, instead of just a single member.
Freedom Caucus members wanted to restore the old rule, but the rules package keeps the current rule in place, with a key exception. Language is added that would allow a motion to vacate to be privileged if five members of the majority party sign onto the resolution, which means five Republicans could band together and force a vote on ousting McCarthy or whoever the House elects speaker.
Ohio Rep. Jim Jordan, a former Freedom Caucus chair who is supporting McCarthy’s speaker bid after he unsuccessfully ran against him for minority leader in 2018, floated the five-member threshold as a compromise that McCarthy agreed to support.
But it was unclear Monday if that had swayed many of McCarthy’s detractors to vote for him. Perry and the eight Republicans who signed his letter specifically said the five-member threshold would still “restrict the availability of the traditional motion to vacate the chair.”
Freedom Caucus wins
The rules package also includes a few other changes Freedom Caucus members requested.
One is a rule designed to limit bills to a single subject. Specifically, the new rule would prohibit members from introducing bills or joint resolutions after Feb. 1 without including a statement for the Congressional Record designating a single subject of the legislation. The rule does not include any further mechanisms for enforcing the single subject limitation, so it’s unclear this rule will have much practical effect.
Another change the Freedom Caucus secured is a ban on the Rules Committee practice of waiving points of order against amendments that violate the House’s germaneness rule. Instead, the package creates a new rule requiring the House to vote on any motions to waive germaneness for an amendment after up to 20 minutes of debate.
McCarthy has also agreed to not to waive an existing House rule requiring bills to be released at least 72 hours before a floor vote, but the rules package does not contain any new language to ensure that commitment is upheld.
Virginia GOP Rep. Morgan Griffith, a Freedom Caucus member who had been undecided on who he’d support for speaker, said in a statement Friday that he would back McCarthy after he agreed to the single subject and stricter germaneness rules.
“I believe these changes can dramatically improve our legislative process,” he said. “Because Leader McCarthy agreed to these rules changes, I have agreed to vote for him for Speaker of the House.”
The rules package also sets up a vote on a resolution to establish a select Judiciary subcommittee to centralize investigations into the executive branch called the “Select Subcommittee on the Weaponization of the Federal Government.”
This panel could have been established in the rules package itself, so it’s unclear why McCarthy is making it a separate vote. It’s possible enough Republicans may oppose creating the panel that the resolution is ultimately defeated.
The rules package also returns some House rules Republicans had when they were in the majority that Democrats got rid of in 2019. And it eliminates a few rules Democrats had in place for the past two Congresses.
Several of those are budget-related rules that Republicans feel better adhere to their spending and tax priorities.
The GOP replaced Democrats’ preferred pay-as-you-go rule, which requires legislation adding to the deficit to be offset with spending cuts or tax increases, with a cut-as-you-go rule that only requires offsets if bills increase mandatory spending within a five-year or ten-year budget window. This means Republicans can pass tax cuts that would add to the deficit, which they have already broadcast plans to do with legislation to extend several provisions of their 2017 law that have expired or are set to sunset in 2025.
Also in the tax cutting spirit, Republicans would restore a rule requiring a three-fifths supermajority vote to pass any tax rate increases. This is largely a symbolic rule, however, since Republicans control what legislation and amendments come to the floor and wouldn’t bring measures that would raise tax rates up for a vote.
Another rule that could help Republicans with tax cuts would require the Congressional Budget Office and Joint Committee on Taxation to incorporate macroeconomic effects, like changes in economic output and employment, into their official cost estimates for “major” legislation “to the extent practicable.” Major legislation is defined as a measure that would cause a gross budgetary effect in any fiscal year within the budget window that equals or exceeds 0.25 percent of the projected GDP for that year. Alternatively, the Budget chair can designate spending legislation and the Ways and Means chair can designate revenue legislation as major for purposes of triggering this rule.
A similar rule applies the same definition of major legislation to require the CBO to estimate the inflationary impact of big spending bills when practicable.
The rules package would get rid of Democrats’ “Gephardt rule” that would allow the House to automatically send a measure extending the debt limit to the Senate when it adopts a budget resolution. And it would reinstate the “Holman Rule,” which allows members to offer appropriations amendments targeting the jobs or salaries of federal employees.
A new rule would require any appropriations bills reported to the floor to include a “spending reduction account” to state whether the measure’s budget authority exceeds the 302(b) subcommittee allocations.
The package also restores two budget points of order — one that can be raised against amendments to appropriations bills that would result in a net increase in budget authority and another against budget reconciliation directives that would lead to a net increase in direct spending.
It would also create a new point of order against legislation that would increase direct spending by more than $2.5 billion on net in any of the four decades after the official 10-year budget window.
Another new point of order would prohibit appropriations increases over the previous fiscal year for any expenditures not written into an enacted authorizing law. If that point of order is raised and sustained, an amendment reducing the appropriation to the most recent enacted level would be considered automatically adopted.
Other changes in the rules package include:
- Directing the Jan. 6 select committee, which is not being renewed, to transfer its records to the House Administration Committee by Jan. 17.
- Establishing a select Oversight subcommittee with up to 12 speaker-appointed members, up to five of which may be members of the minority, to investigate the origins of the coronavirus pandemic and make legislative recommendations to prevent future pandemics.
- Reducing the minimum time for floor votes from five minutes to two minutes.
- Changing the name of two committees – Oversight and Reform would be Oversight and Accountability, and Education and Labor would be Education and the Workforce.
- Requiring each standing committee except Appropriations, Ethics and Rules to adopt an authorization and oversight plan for submission to the Oversight and House Administration Committees by March 1.
- Directing the Ethics Committee to establish a process for members of the public to flag potential violations.
- Requiring the speaker to establish a bipartisan task force to review House ethics rules and regulations and submit a report on recommended improvements.
- Allowing only non-government witnesses to participate in hearings remotely, meaning government officials must testify in person.
- Striking a rule allowing the Washington, D.C., mayor and governors of U.S. territories access to the House chamber.
- Directing House officials to broaden the availability of documents in machine-readable formats and continue improving the electronic document repository for committee documents.
- Establishing rules for considering various bills Republicans plan to take up in early January.
The description of the makeup of a proposed Oversight subcommittee to investigate the origins of the coronavirus pandemic in this report has been corrected.