How does a ‘frozen’ U.S. House function without a speaker? Everyone’s got an opinion.
House Speaker Pro Tempore Patrick McHenry, R-N.C., is pursued by reporters as he returns to the offices of former Speaker of the House Kevin McCarthy, R-Calif., at the U.S. Capitol on Oct. 4, 2023 in Washington, D.C. The process is underway to replace McCarthy, who was ousted from the speakership on Oct. 3 by a group of conservative members of his own Republican Party along with all the Democratic members of the House of Representatives. Photo by Chip Somodevilla | Getty Images
WASHINGTON — The stunning ouster of U.S. House Speaker Kevin McCarthy on Tuesday — the first time a speaker has been removed in Congress’ 234-year history — created a leadership vacuum in the chamber and left multiple questions about how legislative business would proceed.
North Carolina Republican Patrick McHenry ascended to the role of speaker pro tempore following the vote to unseat McCarthy. McHenry’s rise occurred under a House rule created in the aftermath of the Sept. 11, 2001, terrorist attacks that allowed McCarthy to secretly choose a temporary successor in advance, in the event the speaker’s office was vacated.
The rule seems designed to keep the chamber running without an elected speaker, but in an institution governed largely by precedent, the unprecedented nature of the situation provoked a buzz of uncertainty, speculation and opinion in D.C. on the day after McCarthy’s unwilling exit.
“The only thing I’m certain about is that anyone who says that they have any certainty on this is lying,” said Josh Chafetz, a professor of law and politics at Georgetown Law. “There’s absolutely no precedents on any of this because this hasn’t happened before.”
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Members were exasperated. “The House of Representatives is effectively frozen,” Rep. Garret Graves, a Louisiana Republican and McCarthy ally, told reporters Wednesday. “We’re not able to actually advance legislation. We can’t even refer bills to committee.”
McHenry has called for House members to vote on the next speaker on Oct. 11. Until then, the House is unlikely to try to conduct business — even as a government funding deadline approaches Nov. 17. But there’s also the possibility that the House won’t — or is unable to — choose a speaker for even longer.
Here are some questions about how the chamber moves forward in the absence of an elected speaker, with answers from legal and congressional experts.
Why does the role of speaker pro tempore exist in the U.S. House of Representatives, and what powers does that person hold?
Molly E. Reynolds, senior fellow in Governance Studies at the Brookings Institution, said Wednesday during a panel discussion the role of speaker pro tempore was designed as a way to bolster continuity of government.
“The language of the rule itself isn’t entirely clear on what powers the speaker pro tem has — whether it’s all of the powers of the Office of the Speaker, or just authorities that allow him to effectuate a new election for speaker,” Reynolds said.
There are two schools of thought about how much power a speaker pro tempore holds, Reynolds said.
“I would put myself in the camp that the speaker pro tem, McHenry, has the full powers of the speakership with the possible exception of sitting in the line of succession.” Reynolds said.
“My logic there is that given how this rule was originally designed, which was to allow someone to act as speaker in the event of a real crisis, that you would not necessarily have wanted to develop a rule that would limit that person’s power in an actual emergency,” Reynolds said.
Other experts agreed with that view.
“The idea behind a pro tempore is: The person can act in the absence of a speaker,” Jason Roberts, a political science professor at the University of North Carolina, told States Newsroom. “So I interpret that to mean the speaker pro tempore can do basically whatever they choose to do.”
Nearly every move McHenry makes would become a precedent for future temporary speakers, Roberts said.
Tests to McHenry’s power could end up being settled by a majority of the House, experts said.
“The way that precedents in the House work when things are unprecedented is when someone does something, that becomes a precedent,” Roberts said. “If someone is unhappy with what they did, they can raise a point of order… And then the House would vote on that, and if they sustain the point of order then that would become the precedent.”
How is McHenry approaching the job?
For the time being, McHenry is taking the more restrained approach to his authority as the temporary speaker of the House. He has not yet referred bills to committee or scheduled floor votes on any legislation, Reynolds said.
But that could change if Republicans cannot quickly elect another speaker.
“This is all pretty untested and it may well be the case that McHenry’s choice to act in this more limited way is a political one,” Reynolds said.
Because this has never happened before, anything McHenry does during the days or weeks to come could be used as precedent in the future if the House ever needs to lean on another speaker pro tempore, Reynolds said.
“In the kind of situation that this rule originally anticipated — a true catastrophic emergency — I think we would probably want the person acting as speaker pro tem to have more expansive powers than McHenry is at least planning at this moment to exercise,” Reynolds said.
Steven S. Smith, a professor at Arizona State University, said that if a leadership vacuum persists past next week, McHenry may have to consider a more robust approach.
“If no new speaker manages to get elected that quickly and he remains the speaker pro tem, then I’m guessing that he’ll have to start thinking about exercising the real powers of the speakership,” Smith said.
Though a temporary speaker could — possibly — use many of the official powers of the office, McHenry lacks some of the power speakers typically enjoy as the leader of the House.
McHenry would lack the power to appoint Rules Committee members, for example, which is what allows a speaker to control the House floor and makes the position as powerful as it is, Smith said.
“If McHenry ends up being, say, a medium-term speaker pro tem, it’s going to be somewhat awkward because none of the Rules Committee members owe their presence there to him,” Smith said. “And he’s not empowered to do anything about it under the conference rules.”
McHenry would also lack the power to appoint members to the steering committee, which makes appointments to every committee in the House, Smith said.
What exactly does the rule say?
The official rules of the House detail what the chamber should do if the speaker becomes ill for a long period of time, or if the office is vacated.
Section 8(b)(3)(A) of Rule I states: “In the case of a vacancy in the Office of Speaker, the next Member on the list described in subdivision (B) shall act as Speaker pro tempore until the election of a Speaker or a Speaker pro tempore. Pending such election the Member acting as Speaker pro tempore may exercise such authorities of the Office of the Speaker as may be necessary and appropriate to that end.”
What is “necessary and appropriate to that end” is the part that leads to some debate among experts.
What can the House do without a speaker?
The speaker pro tempore position was intended to allow the House to continue to function as normal, even without an elected speaker.
In practice, though, at least in the short term, it’s a major disruption to House business.
Graves blasted Rep. Matt Gaetz, the Florida Republican who led the challenge to McCarthy, saying he undermined conservative goals and stripped powers from the Republican office.
“You can’t offer subpoenas, you can’t go after Hunter Biden, you can’t go after any of the controversies that this administration has carried out,” Graves said.
Experts said it was unclear how subpoena power could be affected.
If McHenry becomes more assertive as an acting speaker during a prolonged period without an elected one, the House itself would ultimately decide the extent of that position’s power.
“The most fundamental thing about the House is a majority of the House can do anything the majority wants to do,” Roberts said.
Can House committees meet for hearings or to report bills to the floor?
Nothing but political considerations would prevent committees from meeting, Smith said.
Committees’ authorities, organized under a rules package approved at the beginning of this Congress and in effect even after McCarthy’s ouster, “don’t change at all,” Roberts said.
“I can’t think of any reason why committees couldn’t meet,” Chafetz said. “Committees don’t need the permission of the speaker to hold a meeting.”
Can the House change the rules that allowed for McCarthy’s ouster?
Yes. The House can change its rules at any time, through a majority vote on the floor, Smith said.
McCarthy agreed to a rule change allowing any single member to bring a motion to vacate, the procedure that Gaetz used to trigger the speaker’s fall.
With that in mind, McCarthy’s successor may seek to add a minimum number of members who must sign on to such a motion.
Though rules packages are usually only passed at the beginning of a two-year Congress, a majority can choose to change them at any time.
What about the line of succession?
The House speaker is second in the line of succession to the presidency, behind only the vice president.
With that office vacant, the president pro tempore of the U.S. Senate, currently Washington Democrat Patty Murray, would move up to second in line, Roberts said. Murray holds the position by virtue of being the most senior member of the Senate’s majority party.
While McHenry could exercise most of the speaker’s powers within the House, he is not technically the speaker for the purposes of succession.
“Officially, the speaker’s office is vacant,” Roberts said.
Does the vote to remove McCarthy as speaker increase the odds of a government shutdown or spending cuts?
Reynolds from Brookings said one of the challenges for the next GOP speaker will be when and how to make trade-offs with the hard-right members of the conference or the centrists, who are most at risk of losing reelection next year.
“If you try to pass an appropriations bill that is embraced by those on the right end of the conference, you’re going to lose votes from the left end of the conference,” Reynolds said.
“So it’s a much different political struggle to manage those differences in the conference,” Reynolds said. “And that’s not going to go away for whoever is the next speaker of the House and in some ways the stakes of all of this are going to get higher the longer we go into the fiscal year.”
A provision in the debt limit law that President Joe Biden and McCarthy brokered in May would institute a 1% across-the-board spending cut to defense and domestic discretionary programs next year if Congress cannot pass all 12 of the annual spending bills before the spring.
That provision wouldn’t have any real-world effects until April 30, though if any of the bills aren’t law before then, all of the departments and agencies would be forced to cut spending.
The “Sword of Damocles” provision, as Reynolds called it, will likely galvanize defense hawks in the House and Senate to broker agreement on all the bills before that deadline.
“But one thing that we should take away from this episode, is that if we think what Kevin McCarthy did over the weekend was the right thing, that does not necessarily save him, or any future speaker, from punishment from a dissident faction of his own conference, even though ultimately it may be the right choice for the government and for the country,” Reynolds said.
Matthew Green, professor of politics at Catholic University of America, said the next Republican speaker will likely have a brief time to broker bipartisan agreements without facing the same motion to vacate that McCarthy did.
“I think there is probably a small window for the next speaker to be able to get things through, even if that requires cooperating with the Democrats and the president — which it almost certainly will — that it won’t necessarily end their speakership,” Green said.
Another challenge for House Republicans is that dealing with the speakership race eats up precious time they need to pass spending bills, Smith said. A new speaker won’t take office until Oct. 11 at the earliest.
“Taking out about 25% of the remaining days before the CR expires is going to put Republicans in a pinch,” Smith said, referring to the continuing resolution that funds the government through Nov. 17.
How did the House Republican Conference get here, and what does it mean for the future?
Green, of Catholic University of America, said that changes in the GOP’s goals over time have partially led to what happened this week when eight members were able to oust a speaker who was backed by more than 210 of his Republican colleagues.
The trend can be traced back to former Speaker Newt Gingrich, and leaders before him, who Green said began shifting the goals to having power, having a majority and communicating. The central goal, he said, wasn’t always legislating.
“That objective and that way of viewing one’s political career gets certain folks elected, who may have genuine views and beliefs and political preferences — but they also don’t see Congress as a place to solve problems and legislate,” Green said. “And that’s in many ways why we are where we are today.”
Philip Wallach, senior fellow at the American Enterprise Institute, said sometimes House Republicans “get distracted from the fact that they are members of a legislature that ultimately has to pass laws with majorities of two chambers and get the signature of the president.”
How does kicking McCarthy out as speaker affect House Republicans’ fundraising prospects heading into the 2024 elections?
Kevin R. Kosar, senior fellow at the American Enterprise Institute, said that the eight Republicans who voted to remove McCarthy might have created long-lasting problems for House GOP fundraising efforts.
“He was a tremendous fundraiser. He raised gobs and gobs of money for his party, just as Pelosi had done. That’s one of the duties of the modern speaker, is to be this sort of a cash cow,” Kosar said.
“The GOP dissidents just killed that cash cow,” Kosar added. “And I wonder inside the GOP conference, how many members are seething about that because many of them are heavily reliant on the speaker to raise money for them.”
Ariana Figueroa contributed to this report.
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