The media missed it: right-wing Freedom Caucus brought more democracy to US House
Horse-race reporting over the Speaker election ignored revival of democratic rules that Pelosi/Democrats previously had killed
Is “internal democracy” — a fair and transparent process within a legislature — important? Or is legislative efficiency and speed so crucial that talk of evenhanded rules is wishful and naïve?
A lot of ink and electrons were deployed to report the recent blow-by-blow drama of California representative Kevin McCarthy trying to get himself elected Speaker of the House. And yet the media barely mentioned the most ironic aspect of all: the far-right Freedom Caucus of the GOP negotiated for more democratic rules and procedures in the US House of Representatives. Some of those rules had long been part of House tradition, but Democratic Speaker Nancy Pelosi had killed them.
Day after day, the McCarthy kabuki dominated the news. Since the speaker is the presiding officer, the House couldn’t gavel itself into session until a speaker had been elected. It couldn’t conduct any business, and its members-elect could not even be sworn in (and start earning their paychecks!).
It was a Shakespearean tragedy, all the way around. McCarthy was being squeezed by 20 far-right members of his own party who refused to vote for him without concessions. Tensions between the moderate, right and far-right wings of the GOP were on national display. Finally, after four days and 15 rounds of voting, McCarthy caved in to enough of their demands to herd the cats into the crazy chuck wagon.
What were the concessions agreed to by McCarthy? The Freedom Caucus ultimatums were numerous, but the media mostly gave wall-to-wall coverage to the more far-out kooky stuff. Along those lines, McCarthy apparently promised them some plum committee assignments, as well as he promised to allow floor votes on some of their pet issues: a balanced budget amendment, an end to taxpayer-funded abortions, a Texas border plan (the Wall is back! Mexico will pay for it!), defunding and hogtying the IRS (gotta protect those wealthy and corporate tax cheats), an end to all remaining coronavirus mandates, and the establishment of a subcommittee on the “weaponization” of the federal government.
…Plus a few sensible rules changes
But beyond any specific policies or issues, the Freedom Caucus also negotiated for a number of procedural changes that actually make a lot of sense. These new rules defy the caucus’s reputation as being nothing more than a group of rabble-rousers and troublemakers.
The 72-hour window
One rule change requires that the Speaker of the House allow a 72-hour window for members to read any new bill before it can be voted on. Republicans recently criticized Democratic leadership in the House for not allowing sufficient time to read the 4,000 pages of the Biden administration’s $1.7-trillion fiscal 2023 omnibus spending package. But cry me a river, because when the Republicans had the majority not that long ago, they too manipulated legislative procedures to ram bills through Congress, including a 1,100-page tax-reform measure in December 2017. That fat legislative tome was distributed to members on a Friday evening, with a rushed House vote the following Tuesday.
What's wrong with expecting Congress members to actually read the bills they are voting on? Absolutely nothing. Many congressional bills propose spending billions and trillions of dollars, and members need time to digest their complexities. Having our elected representatives voting on legislative bills they have not been able to study seems pointless. So a 72 hour rule is eminently reasonable.
“Open rule” for floor amendments
Another procedural reform was secured by a verbal promise from Speaker McCarthy to allow legislative amendments to be considered on the floor. This marks a return to the "open rule" which in the past has allowed any lawmaker to offer an amendment to be voted upon by the entire chamber. Looking back historically, when Newt Gingrich was GOP House Speaker in the 1990s, more than half the bills reached the House floor through the open rule. It ended in 2016 when GOP Speaker Paul Ryan dropped it, trying to prevent right-wing Republican House members from sabotaging his legislative agenda.
Then, when the Democrats took over the House, Speaker Nancy Pelosi did not reinstate the open rule. Like Speaker Ryan, she continued the closed practice as a way of maintaining her tight grip on intra-party discipline. Now it has been seven years since any legislation has been introduced on the floor through that rule.
Certainly, party discipline and cohesion are important. But is it really necessary to hamstring most House members and silence their individual legislative initiatives? That seems like overkill and a waste of talent. Anyone who has observed a House “debate” in recent years has noticed a rather alarming visual – the House floor is nearly empty for most debates. The People’s House has fewer and fewer representatives of “the people” actually sitting in the chamber. It doesn’t seem like a coincidence, given that House members have not been able to offer amendments there for a number of years. Instead, their main job is to shovel around the piles that the House leadership forces on them.
So in their demands to McCarthy, Freedom Caucus leaders promoted some rule changes that had been sought for years by many representatives, both Democrats and Republicans, who have felt ignored and smothered by the leadership of their parties. Just ask Democratic Reps. Alexandria Ocasio-Cortez, Ilhan Omar, Rashida Tlaib and Ayanna Pressley, a.k.a The Squad. Most members of Congress have been treated like third nostrils, what in the UK is known as “backbenchers.” Who can blame these rank-and-file Freedom Caucus-ers from using their leverage to try and make their efforts more relevant?
Single-subject rules for legislative bills
Another concession won by Freedom Caucus members is to allow more single-subject bills, so that members can sometimes vote on specific, narrow issues instead of thousand-page pork barrel leviathans. That makes sense to me as well. What's wrong with individual votes on programs or policies so that each one stands or falls on its own merits?
Forty-three state constitutions include some sort of “single-subject” rule, requiring that each act of the legislature be limited to a single subject (41 states apply the rule to all legislation, but Arkansas and Mississippi apply it only to appropriations bills). For example, Article IV, Section 17 of the Minnesota state constitution requires that "No law shall embrace more than one subject, which shall be expressed in its title."
But neither the U.S. Congress or the U.S. Constitution has such a rule. Consequently, the attachment of completely unrelated riders, quid pro quo and logrolling amendments to the main bill has been common throughout our federal history. Often these amendments are inserted into the bills at the last minute, and contribute greatly to the thousand-page mammoth bills that no legislator has a chance to review before actually voting on it.
Here’s a thought: maybe this seems hopelessly old-fashioned – too much of a “Mr. Smith goes to Washington” kind of thing -- but having members of Congress who are informed, have time to examine legislative bills, time to confer with colleagues and constituents, and an opportunity to consider the policies and issues on their merits, seems like a positive redesign to a very broken legislative process.
And it’s being led by the Freedom Caucus, not GOP moderates or the Democratic Party.
“Motion to vacate” – return to historical practice
There was one procedural rule change negotiated by the Freedom Caucus which received a fair amount of media coverage, probably because it fit the ongoing media narrative that these Republicans were irrational extremists and grifters. But even here the media misreported it.
The Freedom Caucus demanded that a single House member be allowed to introduce a “motion to vacate,” a procedural tool which then prompts a vote on whether to oust the Speaker. “Say what? Only a single obstructionist member could call for the speaker’s removal? Why, it will lead to legislative anarchy and embarrassment!” Or so it seemed, based on the media howling that reported about this detail.
However, it turns out that for most of its long history this has been standard procedure in the House. Hardly any member ever used it. But in 2015, then-Rep. Mark Meadows (and later Donald Trump’s White House Chief of Staff) filed a motion to try to push out Speaker John Boehner. It unleashed a ripple effect that eventually contributed to Speaker Boehner’s decision to resign.
Nancy Pelosi got the message. When she became Speaker in 2019, she put an end to that long-established rule. Henceforth in the Democratic regime, not just one member but fully half of the House members would need to support a motion to vacate.
Should the Freedom Caucus be maligned for trying to return to a long-held procedure that had for the most part worked well? Caucus members wanted to completely roll back Pelosi’s rule, but their own speaker wanna-be McCarthy was reluctant, offering instead to require five members for a motion. But after losing a few speaker votes, McCarthy caved and said he’d return to the historical practice allowing one member to offer a motion to vacate.
Internal democracy is crucial too
“Internal democracy” – that is, democracy within the legislature – is an often overlooked part of the entire package of representative government. The clearest example is the Senate’s filibuster, an outrageous abuse of internal democracy with no constitutional basis, as many have argued and documented. It undermines the rule of law, as do many of these other internal rules and procedures.
Yes, the Freedom Caucus advocates for a number of whacky policies that, if passed, would be harmful to our country. And their grandstanding “the American people believe…” bromides are eye-rollingly annoying since the GOP represents at most only half, and as individual House members only 1/435th, of “We the People.” Humility is called for, yet it is in short supply. Consequently, the GOP House's bills will find a graveyard in the Senate, and Americans are going to have to grit their teeth through the upcoming Congressional stalemate.
Nevertheless, the Freedom Caucus is waging a battle for internal democracy within the US House of Representatives. For those of us who can walk and chew gum at the same time, we should support those efforts even as we condemn their policy excesses.
Steven Hill @StevenHill1776
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