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In hyper-partisan times, effort to replace Boehner gets curiouser and curiouser

Several scenarios loom as the U.S. House prepares to pick its next speaker.

Majority Leader Kevin McCarthy and Speaker John Boehner speaking during a September news conference.
REUTERS/Jonathan Ernst

The House of Representatives will need a new speaker to replace the retiring John Boehner. Here is the entire text of the U.S. Constitution as it relates to how the choice should be made:

“The House of Representatives shall chuse their Speaker.”

That’s it. Nothing about how to do it, just chuse one.

But the system is well established by House rules and past practice. The House members of the majority party will meet among themselves, vote until someone is “nominated” for speaker with the support of a majority of the caucus. Then at a subsequent meeting of the full House, the majority party will close ranks behind their nominee and that person will become speaker by majority vote. (Again, the Constitution doesn’t specify that a majority is needed, but House rules do.)

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That’s how it works in normal times. But it appears that these are not quite such normal times.

It shouldn’t really be much of a race. At least two candidates are running for speaker, Majority Leader Kevin McCarthy of California and Rep. Jason Chaffetz of Utah. Every story on the subject indicates that a large majority of House Republicans will vote for McCarthy for the job.

(The Repubs actually have a rule providing that after each ballot, the lowest ranking candidate is dropped from the next ballot, but McCarthy is expected to get the majority on the first ballot. So he will be the nominee of his party as the selection process moves from the closed caucus room — and that starts Thursday — to the House floor, currently scheduled for Oct. 29.)

But you will also see a lot of stories indicating that 40 or 50 of the most extreme anti-government Republicans (last week I dubbed them the “barn burners”) will not support McCarthy on the House floor (and apparently there is no party rule requiring that they do so). And, although the Repubs currently hold a substantial 247-188 majority in the House, if you subtract 40 or 50 from their votes, the remainder is not enough to constitute a majority of the full House. The 188 House Dems will presumably vote for their leader, Nancy Pelosi of California, but she cannot get the majority without Republican votes and there is no realistic scenario in which that comes about.

Process and possibilities

Most of the stories don’t say much about what happens next, so I asked Congress expert (and Minnesota native) Norm Ornstein to walk me through the process and the possible outcomes.

Assuming we get through the first House floor ballot, and no one is elected, it’s possible that McCarthy meets with the dissidents and provides them with some kinds of assurances about what he will and won’t do and he wins over their support. This might weaken McCarthy and strengthen the barn burners, but it will make him speaker, perhaps on the second ballot and for as long as he keeps the barn burners happy.

(You should recall how the Boehner resignation came about. The barn burners were preparing to make what is called a “motion to vacate the chair.” That’s fancy talk for a new vote on whether the speaker has the support of the majority of the House. If on such a motion the speaker fails to get a majority, it can trigger a whole new process to find a speaker who does have majority support. But that’s the next chapter, and presumes that McCarthy has been chosen as speaker, then alienates enough barn burners to bring him down.)

Another possibility, Ornstein said, is that the Repubs go back into their own caucus and redo the nominating process. Having demonstrated that McCarthy cannot command a majority in the full House, the caucus could try Chaffetz or turn to someone else who perhaps could cobble together 218 votes from the 247-member Republican caucus.

There is another possibility, Ornstein mentioned. McCarthy could have discussions with the Democrats. They could easily make him speaker by voting for him (and it wouldn’t take very many Dem votes, assuming McCarthy had about 200 votes from the Repub side). But as a technical matter, Ornstein said, they probably wouldn’t do it that way. The speaker, by rule, must be chosen by a majority of those voting in the leadership election. If a certain number of Dems agree to simply not vote at all, they would reduce the magic “majority of those those voting” number to the number of McCarthy’s supporters. Not that this would fool anyone, but Ornstein said this is how such a deal probably be worked out.

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But why would the Dems do such a thing? Obviously, the deal to provide those abstentions would be tied to some negotiations over what McCarthy would and wouldn’t do as speaker. This outcome seems a longshot at best. McCarthy couldn’t attract Republican votes if he gave too many concessions to the Dems. Perhaps the concessions would be around the fundamental question that separates the barn burners from most of the rest of the House, namely the advisability or inadvisability of shutting down the government as a bargaining tool.

A step to responsible government?

When I think of this last possibility, acknowledging how unlikely it is, it strikes me as a step back toward the pre-Gingrich norm that shutting down the government or refusing to raise the debt limit are not responsible tools for gaining leverage.

As regular Black Ink readers know, I’m very struck by the conflict between the peculiar structure of our government system and the current insistence of some members of Congress in getting what they want. Our system has so many choke points that — except in rare moments of supermajority control by one party all the major institutions — it really can’t function properly without compromise across partisan and ideological lines, which means, as the song says, that you can’t always get what you want. And this belief of mine was reinforced by the important  analysis by Ornstein and Tom Mann in their 2012 book “It’s Even Worse than it Looks,” subtitled “How the American Constitutional System Collided With the New Politics of Extremism.”

Ornstein made one other point before he begged leave to get off the phone. Boehner made some comments about “cleaning up the barn” before he turned the gavel over to the next speaker. This metaphor certainly meant that Boehner — who had come to the conclusion that shutting down the government or constantly threatening to do so was neither a responsible nor politically popular way to govern — hoped to leave behind a situation in Washington in which most of the easy piles of gridlock/shutdown opportunities had been swept out of the barn for as long as possible. If Boehner succeeds, Ornstein said, it will make a big difference in the chances of the next speaker succeeding for at least a year or more.