07 January 2023

A House in Disorder

The world has been watching the new Republican majority in the US House of Representatives go through ballot after ballot without being able to agree on who should be Speaker of the House. Without a Speaker, the House is unable to swear in its members or to convene itself. So between 3 January and 7 January, the House did not function. The United States is/was operating with half of its parliament paralyzed.

Two years ago, the US Congress was invaded by a mob bent on preventing the lawful transfer of power from one president to another by shutting down the count of presidential electors. Today, the very party that has persistently refused to condemn that mob has shut down the operation of one-half of Congress. The symbolism is lost on no one. In both cases, ordinary government functions cannot be conducted and the government has been brought to a halt by those who have stopped following the rules.

In this post, I’ll explain what has been going on as the House of Representatives has cast an unprecedented number of ballots for Speaker of the House. There are quaint legal reasons why all of this is happening. But then I want to ponder what this says about the ability of the Republican Party to govern the United States because this early-days shutdown of the House follows a pattern in which, for nearly 40 years, the Republicans have wanted to both dominate the federal government and shut it down.

How (Not) to Choose a Speaker

The US Constitution says very little about very much, and this is one of those cases. It specifies that there shall be a Speaker of the House of Representatives and says that the House “shall chuse” this Speaker (Article I, section 2, last clause). But it says nothing about how that selection process should occur.

First, there is a chicken and egg problem. Which comes first, the convening of the House or the choosing of the Speaker? Logically, the convening of the House should come first because it is the House members – who need first to be recognized as such – who are to choose the Speaker. But the actual practice is the other way around. Those who have been voting repeatedly on the Speaker this week have not yet been sworn into office and so they have not officially “taken their seats.” Even stranger, the rules of the House that say the rules of the House themselves are to be voted on after the House has convened, and so technically the rules are not in effect until such time as the House adopts them – which can’t happen until House members are sworn in, which by tradition doesn’t happen until there is a Speaker.

So then, how can there be any rules in effect for this process at all? An obscure statute from 1948 (1 U.S. Code Sec. 25) provides a circular answer:

At the first session of Congress after every general election of Representatives, the oath of office shall be administered by any Member of the House of Representatives to the Speaker; and by the Speaker to all the Members and Delegates present . . .

But how anyone can be a member to swear in the Speaker if the Speaker must swear in all the members?

The fact that a member can swear in the Speaker before being sworn in herself suggests at least that one must a member of the House before swearing the oath of office. While Article 6 of the Constitution says that members of the House are bound by their oaths “to support this Constitution,” nothing in Article 1, Section 1, which lays out the qualifications to be a member of the House, says anything about an oath being required for membership.

In fact, a similar question arose recently under EU law, when some of the Catalan MEPs elected from Spain were denied the oath of office that, under Spanish law, they were required to take to be able to represent Spain in the European Parliament. The Spanish government refused to administer the oath to these elected MEPs due to their involvement in the Catalan independence movement. The one who brought the case was, in fact, in jail for his participation.   On 19 December 2019, the Grand Chamber of the Court of Justice found in Junqueras Vies (C-502/19) that “the acquisition of the status of Member of the European Parliament . . . occurs because of and at the time of the official declaration of the election results carried out by the Member States” (para. 71). In short, election alone conferred the status of MEP and no subsequent requirements could be added by national law after the certification of the election.

The same rule could usefully apply here – that certification of the election of Members of the House by the states in which they have run for office should be sufficient to become a member. In US law as in EU law, federal/Union elections are certified state by state so that should be enough to establish that one is a member-elect of the Parliament. If so, then the puzzle of how those who have not yet been sworn into office can nonetheless vote on a Speaker would disappear. Under this theory, House members are already House members before they are sworn in.

The 1948 Statute, however, does say that swearing oaths of office must take priority over all other business, so it seems that one cannot act as a member of the House until the oath is sworn which might be usefully distinguished from being a member of the House, which one can be before the oath. On that reading, the 1948 statute makes sense. Members-elect can vote on the Speaker who will, when one is finally selected, swear them in as members who can do the House’s business.

So then we can proceed to the second puzzle: Why is everyone so certain that a Speaker must be elected before anything else can be done? The answer lies in a precedent of the very House that is deciding (or rather, not deciding) on its fate. In 1869, Congress established as a “legislative precedent” that “The duty of the House to organize itself is a duty devolved upon it by law, and any matter looking to the performance of that duty takes precedence in all parliamentary bodies of all minor questions,” according to Hinds’ Precedents of the House of Representatives of the United States (pp. 120-121.) In the example cited in that volume, the question of election of a Speaker was ruled to have taken precedence over all other business pending before the House, which is why people now believe that the Speaker’s election must proceed before anything else. (Hat tip to Mike Dorf for finding this gem.)

From this ancient custom comes the authority that the Speaker must be elected by a majority of those present who will eventually be sworn in as members of the House and that this question takes priority over all other business, including actually swearing in the members. Determining both how a Speaker is elected and why the Speaker must be elected first reveals some surprising but general features of US public law.

The partial and cobbled-together nature of the rules in question reveals how surprisingly little of US public law is codified. Because the US Constitution says so little about anything, the detailed workings of the branches of government created by that Constitution are determined by the historical operation of those branches and by the rules and precedents they set – often accidentally – along the way. Despite bragging about having practically invented the single-text written Constitution, the US is in its day-to-day constitutional practice far more like the UK than it is like any other modern European state. In the UK, working out parliamentary rules of practice one require consulting historical sources about how things had been done since time-out-of mind and those old rules then rise through history to bind us today. Just like the country from which it went to war to separate, the US operates like the UK when it comes to elaborating how its constitutional institutions should operate. It’s even worse in the executive branch than in the legislative one, because most of the “law” binding the president is contained in legal memos from the White House Counsel’s office or from the Office of Legal Counsel and those memos are secret unless expressly declassified. At least the “legislative precedents” upon which the spectacle of endless ballots for Speaker are founded are public. None are properly codified to smooth out contradictions.

Because the US relies so heavily on conventions – rules held to be binding out of sheer practice but without any possibility of legal enforcement – a great deal relies on political actors behaving themselves properly by earnestly attempting to follow the rules. But the days of political civility are long since over in the US. Instead, gaming the rules has become a favored political pastime, more on one side of the political spectrum than the other, if truth be told. And that is why I am concerned that not governing is going to win out over governing in this new Congress – to the detriment of all.

As the number of ballots for Speaker mounted, the Republican side of the aisle in the House started looking around to see whether the rules could be changed to achieve their desired outcome. Maybe a plurality vote would be sufficient? That idea was nixed by the fact that the Democrats stayed together as a caucus and so the plurality winner of the first 11 votes on Speaker was none other than the Democratic leader Hakeem Jeffries. Maybe a majority vote of the majority party in the House would be sufficient? Something else? In short, when the rules didn’t produce the results they wanted, the Republicans were considering abandoning the rules. After all, the rules about the selection of the Speaker are mere conventions whose origins are (almost) lost in the mists of history and unenforceable as law, so why bother to follow them? Even if this is a stupid way to design the rules, it doesn’t mean that one should stop following the rules in an individual case when the rules lead to an outcome one doesn’t want.

In the end, because these endless Speaker’s ballots and the endless failings of Kevin McCarthy as Speaker took place on national television, the Republicans felt constrained in the degree to which they could game the rules. C-SPAN, the public television channel that does nothing more than start the cameras any time either house of Congress is in session without providing any commentary, kept its cameras rolling the whole time that the House met to decide on its leadership. With the whole country watching – and with C-SPAN gaining its highest ratings of all time – the Republicans kept balloting and balloting and reaching the same result. The man who would be speaker – Kevin McCarthy – failed to unify his caucus again and again, while backstage offering to give away more of his power each time he failed.

As a joke making the rounds goes, “to Kevin” is becoming a verb meaning “to engage futilely and ceaselessly in the same action, without hope of success.” And its use in a sentence? “We tried to start the car, but it was so cold that the engine kept Kevining and Kevining. Finally, we gave up.”

The Art of Not Governing

Constitutions are meant to constitute and empower governments, to enable them to exercise public power with accountability and legality. Most modern constitutions build in checks on public power to prevent overreaching. Thus branches check each other, courts ensure the legality of public action, “fourth branch” institutions ranging from audit offices to human rights ombudsmen ensure that public law principles are realized in everyday life. Preventing executive overreach is a major preoccupation of modern constitutions, from term limits to curbs on executive lawmaking to the judicial review of administrative action. The assumption behind constitutions has been that those who seek public power want to do something rather than nothing and they have to be prevented from doing too much.

As a result, modern constitutions are much less successful at preventing what David Pozen and I have called “underreach.” We identified “executive underreach” in the context of the pandemic when both President Donald Trump in the US and President Jair Bolsonaro in Brazil refused to recognize the gravity of the virus, pretended it wasn’t happening, touted fake cures and failed to use the power that that they had to do something about it, undermining a concerted public health effort and racking up huge death tolls in both countries.

Given that both presidents were governing by not governing, we asked: Who could make a president do something if he didn’t want to do it? For US law, we concluded that there were few legal levers to press that could generate an affirmative obligation of the president to act even in a high-stakes matter like a global pandemic. In Brazil, the courts were more likely to recognize positive obligations, though even then only obliquely. The Brazilian courts prevented the president from intervening when state governors attempted to do something about the pandemic, ordered the federal government to provide a public health plan for indigenous groups and even ordered Bolsonaro himself to wear a mask. Even so, in no country I know of can courts order the president to take his job seriously and act effectively with the full range of his legal powers when disaster strikes.

The failure to organize the orderly opening of the House of Representatives this year suggests that underreach is a more general problem. What if a branch of government simply wants to do nothing at all? Can anyone make a crucial part of the government act? As the number of ballots for Speaker climbed into double digits with no end in sight, the sheer helplessness of public law at a time like this has become evident. There is no way to force the government to do its job, at least not in US law. And this is where the vote for Speaker presages a difficult time ahead.

The contemporary Republican Party in the United States has for decades been practicing the art of not governing. Trump’s failure to act in the most recent pandemic is but one example. Since the early 1970s, disagreements between the two big political parties have led to nearly two dozen government shutdowns, most lasting a few days but some lasting a few weeks. Shutdowns occur when Congress fails to fund the government and so the money runs out. In a shutdown, all federal agencies must discontinue all “non-essential discretional functions” until the funding is authorized.

While each side customarily tends to blame the other, the Republican Party has been blamed by the public for most of the shutdowns because it has long stood for smaller, leaner and meaner government, if there must be government at all. Having government simply not functioning is less of a philosophical problem for the Republicans, who would rather rein government in, than for the Democrats, who would rather that government be more active. The two longest shutdowns before the Trump Administration occurred when the Republicans who controlled both houses of Congress refused to fund President Bill Clinton’s agenda in 1995-1996 and then opposed funding President Barack Obama’s Affordable Care Act in 2013. During the Trump Administration in 2019, President Trump shattered the record for shutting down the government when the Democratic Congress refused to fund his border wall. Trump refused to even discuss a compromise and he openly bragged about how he closed the government for 22 days rather than back down as if that made him a stronger leader.

Promising to not govern is a political strategy that apparently now passes to the House Republicans, the only branch of the national government that the Republicans presently control. In the 2020 presidential election, the Republic Party refused to issue any platform. The Republican majority in the House has no affirmative agenda. The very thin platform that the Republican House members ran on in 2022 included a number of issues that are not within Congress’s jurisdiction (e.g. preventing trans women from engaging in women’s sports) and listed other priorities so vague as to be meaningless (e.g. promoting tax cuts and reductions in government spending, without any details on either). Mostly, however, the House Republicans promised to engage in “rigorous oversight” – that is to say, investigating the Democrats in the White House. In short, this is a negative agenda, designed to tear down the other side more than to build up a policy agenda that requires that things get done.

So – government shutdown anyone? Fine with them! They want to spend less money anyhow. And what about doing what has to be done? That’s going to be optional. After all, nothing can force them to do anything. Doing nothing is a policy choice that the current Republican Party actively embraces.

But some items on the congressional agenda for 2023 require action, in particular meeting the peculiar and uniquely American requirement known as “raising the debt ceiling.” Whenever Congress votes to authorize deficit spending, it must by law do so twice – once to authorize the specific spending in the first place and then again to authorize actually paying the debt thus incurred. “Raising the debt ceiling” is required whenever the already incurred debt exceeds the previously set limit on debt, which does not automatically increase with newly authorized spending. Raising the debt ceiling has become a high-stakes drama that occurs every few years. If Congress fails to raise the debt ceiling, the United States defaults on already-incurred debts.

As part of the negotiations to become Speaker, Kevin McCarthy seems to have set no limits on what he is willing to bargain away in order to gain power. He has apparently promised to disable the Ethics Committee since so many Republicans (including himself) are now under investigation for ethics violations and more may come under scrutiny as indictments issue for the January 6 insurrection. He has apparently promised some of the more extreme members of his caucus seats on plum committees. He has agreed to allow a vote of no confidence in himself if only one member of his caucus wants to challenge him. But perhaps most disturbingly of all, he has apparently agreed to hold raising the debt ceiling hostage to “conditions.” In his drive to become the Speaker, he has given up all of the power that he had to set the agenda. Now, under pressure from the far-right part of his party, he has bargained away his ability to commit the House to doing what is required to prevent a major default on US debt or to ensure accountability for anti-democratic and unlawful action on the part of his caucus members.

So, as Republican power at national level has passed from former President Trump to potential Speaker McCarthy, the art of not governing has passed along with it. Rather than taking seriously the constitutional obligation to act in the nation’s interest, the new leadership in the House seems to be demonstrating in its opening act that it is perfectly ok with the government simply shutting down and not governing at all.