House Republicans’ victories on Nov. 3 mean Democrats will have a much narrower majority in the 117th Congress—one of the narrowest congressional majorities in decades. And doesn’t Speaker Nancy Pelosi, D-Calif., know it. Not only does she not want to give up the power grabs she muscled through during the current Congress, reports suggest she wants to tighten down on one of the few remaining procedural options Republicans have to amend legislation.
As the next Congress prepares to convene on Jan. 3, Republicans should publicly make the case against each of these Pelosi power grabs. At minimum, raising the profile on these will force so-called “moderate” Democrats to determine whether they wish to endorse Pelosi’s autocratic rule by rubber-stamping her power grabs (again).
I noted last spring that several House Democrats had undermined the arguments for proxy voting. Weeks after Pelosi’s party established proxy voting in the name of COVID, more than one dozen House Democrats who voted by proxy—delegating their voting authority to a colleague, because they claimed to think it unsafe to return to Washington and vote in person—suddenly showed up in person at Black Lives Matter rallies.
It defies belief that members of Congress could attend protests—in several cases, violating public health guidance on mass gatherings—while arguing they could not travel to Washington to perform the duties taxpayers are paying them to do. Their inaction also stands in direct contrast to the millions of essential workers, from delivery personnel to grocery store workers, who have showed up for work day after day during the outbreak.
Some may argue that the current spike in coronavirus cases nationwide would make an immediate end to proxy voting unwise. But imminent mass distribution of a vaccine means the need for proxy voting should abate by summer at the latest. If House Democrats persist in retaining proxy voting after, say, July 1, voters should see it for what it is: a power grab by Pelosi to keep the House in session—and under her thumb—while members remain scattered to the hinterlands.
‘Martial Law’ Rule
Rule XIII of the Rules of the House generally prohibits any business from the House Rules Committee—which prescribes floor procedures for debate on major legislation—from being considered on the same calendar day it is presented to the House. This procedural safeguard, which a two-thirds majority of the House can waive, protects the minority party by preventing the majority from ramming major bills through on a moment’s notice.
House leaders often waive these procedures at the end of a Congress, putting the House under “martial law.” This procedure makes some sense in the frenetic last days of a session, when lawmakers are trying to wrap up business for the end of the year. It also made a certain degree of sense for Pelosi and House leadership to impose “martial law” at the start of the pandemic, when Congress adjourned in haste as the virus spread, with an uncertain date of return.
But since enacting the “martial law” rule in May, the House majority has extended these procedures repeatedly—in June, July, September, and again last month for the balance of the 116th Congress. Just like governors who have become increasingly comfortable extending their “emergency powers” in perpetuity during the pandemic, Pelosi has treated an extension of “martial law” as a matter of course. House Republicans should protest strongly, and demand a return to the status quo ante in the 117th Congress.
Motion to Vacate
An under-the-radar change to House rules that Pelosi rammed through at the beginning of the last Congress shows that while she may have had to undergo a grueling process to re-acquire the speaker’s gavel, she has little intention of giving it up any time soon.
For the past several years, Republican speakers of the House have worried about the “motion to vacate.” Heretofore, that motion allowed any single member to demand a vote on a resolution that, if adopted by a majority of the House, would declare the speakership vacant. Former Speaker Paul Ryan talked about weakening the power of the motion to vacate, but he ended up keeping the prior language when the 115th Congress convened in January 2017. Not Pelosi.
Page 3 of the House rules package Pelosi foisted on the House in January 2019 included the following language: “A resolution causing a vacancy in the Office of Speaker shall not be privileged except if offered by direction of a party caucus or conference.”
In effect, this change means that 218 backbenchers of either party, or a combination of parties, have no ability to remove the speaker unless they obtain the consent of at least one party’s leaders. Any member can offer a motion to vacate the speaker’s chair, but unless or until that motion receives privilege by reason of being blessed by party leaders, the speaker can put the motion in the circular file.
To give a very practical example from the last several Congresses: Suppose that 40-50 conservative members of a Republican-controlled House want to oust the speaker. To do so, they would have to convince either the Republican Conference, or the Democratic Caucus, to agree to make the motion to vacate privileged. Even if large numbers of backbench members of both parties wanted to remove the speaker, they would have no ability to file a privileged motion to vacate unless party bosses agree.
Moreover, because it requires the consent of “a party caucus or conference” for a motion to vacate to receive privilege, this change also means that independent members who do not caucus with a party have no way to remove the speaker of the House. While most members caucus with either the Republican Conference or Democratic Caucus, several members—for instance, then-Rep. Bernie Sanders, I-Vt.—have sat as independents.
Also, some members have effectively sat as independents. For instance, Rep. Jim Traficant, D-Ohio, received no committee assignments from either Democrats or Republicans after crossing party lines to vote for Rep. Dennis Hastert, R-Ill., for speaker in 2001.
In a 2019 summary of the rules changes, House leadership claimed the change to the motion to vacate represented “a more thoughtful process.” But the ironies abound:
- Even as Pelosi expanded voting privileges to non-members of Congress—i.e., the delegate from the District of Columbia, and resident commissioners from U.S. territories—she restricted the ability of members to vote on the House’s sole constitutionally prescribed officer.
- While House leaders talk about “restor[ing] the Voting Rights Act…for the people,” in the House itself, Pelosi wants fewer votes that could challenge her authority as speaker.
- While it seems unlikely to hold up in court—the Constitution permits the House to craft the rules of its proceedings, and courts are loathe to wade into internal rules disputes such as this—one can credibly argue that this change contravenes the spirit of the Fourteenth Amendment’s equal protection clause, by shutting independent members of Congress out of the process entirely.
In theory, any group of 218 truly committed members can still take control of the House, and force the ouster of a speaker within a short time. They could overturn any procedural ruling by the chair calling a motion to vacate out of order—a reprise of the “parliamentary coup” that saw the House clip the wings of then-Speaker Joe Cannon, R-Ill., in March 1910. Or they could just vote down every single piece of legislation unless and until the speaker resigns.
But as a practical matter, removing the privilege behind the motion to vacate—which had allowed a majority of the House to remove its speaker at any point in time—makes the House a less democratic (small “d”) institution. The House Republican Conference should authorize any of its members to offer a privileged motion to vacate at any point in time so that Republicans can respond immediately if and when Pelosi no longer commands the support of a majority of the House. They can also file a discharge petition (which retains its privileged status) removing her from the speakership, to provide another way for the House to work its will, should it so choose.