The US House of Representatives has set an unfortunate record for the most failed rules votes in modern history. Some context for this dubious achievement is important, and there may even be a silver lining.
Parliamentary basics
The US House is governed by a set of standing rules, approved by majority vote. Unlike the Senate, which is a continuing body (since only about one-third of its membership is elected each cycle), the House fully reconstitutes itself every two years and adopts a new set of standing rules. The rules themselves consist of a mere 47 pages, but the guide to the rules in practice (a constant companion for any good Hill staffer) is a 1000-page tome.
Even so, in a legislative body with 435 voting members, it is impractical to bring consequential bills to the House floor and simply let the legislative process run its course. The potential amendments, demands for speaking time, and parliamentary maneuvers are simply too numerous.
As a result, major pieces of legislation brought before the House are preceded by a resolution (usually just called “the rule”) from the House Rules Committee dictating specific requirements for its consideration. For example, the rule may limit the amount of time available for general debate, specify which members control the time, which amendments may be offered, and what parliamentary motions are in order.
The vote to approve the rule is typically a party-line affair. The Speaker has determined to bring a bill to the floor and members of the majority are expected to support the rule. The minority routinely opposes the rule because they disagree with the limits it sets, or because they would prefer to see another matter come to the floor instead, or both.
According to Politico, before the current Congress, the last time a vote to approve a rule failed was 2002, under former Speaker Dennis Hastert. The 105th Congress, under Speaker Newt Gingrich, saw five rule votes fail. Former Speakers Boehner, Ryan, and Pelosi never lost a rule vote.
Which brings us to the record-setting 118th Congress.
A record-setting failure
On Valentine’s Day, 18 House Republicans joined all 207 Democrats voting to defeat a rule by a vote of 225 to 195. The rule would have provided for floor consideration of legislation to alter federal tax treatment for state and local taxes, among other provisions. This is the sixth rule to fail during this Congress, three under Speaker Johnson and three under former Speaker McCarthy, a new record.
So, what is going on here?
Part of the challenge facing Speaker Johnson is a slim majority. As of this writing, the House has 219 Republicans, 212 Democrats, and four vacancies, meaning if four Republicans vote with all Democrats, the vote fails. Former Representative Tom Suozzi (D) will be sworn in to replace expelled former Representative George Santos (R) when Congress reconvenes, meaning the margin will narrow further. Given the challenges of travel schedules, illness, and competing obligations, perfect attendance is rare, making every vote a potential toss-up. A recent vote on impeaching HHS Secretary Mayorkas hinged on a Texas Democrat excusing himself from a hospital to vote.
Speaker Johnson is not the first Speaker to contend with a slim majority, however. Former Speaker Pelosi faced roughly the same odds and remained effective. Part of the explanation is Pelosi’s skill as a legislator, and part is the then-Democratic majority’s decision to allow proxy voting as a COVID measure. The current Republican majority may be regretting their insistence on ending proxy voting.
Purposely voting to defeat an important rule is also a newly popular tactic among some Republican factions, however. The House Freedom Caucus does not disclose its members, nor is it monolithic, but thwarting House leadership through procedural means appears to be one of its accepted practices. Among the six rules that have failed were measures that would have allowed individual appropriations matters to reach the House floor.
Now that this door has been opened six times, there is no reason to assume the trend won’t continue. Speaker Johnson’s authority was weakened by the turmoil leading to his election to the post and by the concession former Speaker McCarthy made that allows a single member to offer a privileged resolution to remove the Speaker from office. Speaker Johnson faces a Republican Caucus open to new tactics from members who have more leverage over him than he has over them.
Silver lining?
There is a strange irony in all of this. To save time, House rules allow for a process to consider and pass noncontroversial legislation without a special rule. This legislative short-cut is called “suspension of the rules,” or just “suspension” (parliamentary nerds: see Ch. 53 of House Practice, linked above). The suspension process was designed to allow popular measures to move more quickly. The amount of debate time is capped at 40 minutes, amendments are not allowed, and a two-thirds majority vote is required for passage as a procedural backstop ensuring the matter has broad support.
The suspension process was intended to allow swift passage of bills such as those naming a post office or authorizing a commemorative coin. In recent weeks, however, remarkably significant legislation has cleared the House “on suspension,” including a major tax overhaul and the most recent appropriations extension.
The allure of the suspension route is obvious: rather than face a four-vote margin under a rule, House leaders can still prevail with as many as 145 “no” votes. Of course, in such a scenario, the remaining 290 votes in favor would have to be bipartisan.
If Speaker Johnson continues to face factions within his caucus willing to defeat special rules, we could see the House of Representatives pass more major legislation with significant bipartisan support. In this scenario, when must-pass bills are brought up on suspension, House Democrats would have more leverage to force inclusion of positive language dealing with issues like energy, climate, and transportation, or at least to force bad provisions in those areas to be dropped.
Congress’s current agreement to fund the federal government is set to expire in two stages: four departments are scheduled to lose funding on March 1, with eight more to follow on March 8. There is some hope that Speaker Johnson could use the suspension process to pass new funding and avert a shutdown. For that plan to work, however, the final budget deal would need broad, bipartisan support. That means that the demands of the House Freedom Caucus would have to be refused.
Stay tuned
It will be ironic, to say the least, if Freedom Caucus extremism leads to bipartisan legislative successes. Of course, this bipartisan dream could also falter, leading to more of the chaos we have seen recently.
Speaker Johnson may decide that using Democratic votes to avert a government shutdown will cost him his job as Speaker or at least make his job as Speaker impossible. Kevin McCarthy ran that risk, avoided shutdown by using the suspension process, and was removed as Speaker.
Stay tuned to see which way Speaker Johnson decides to turn.