The House of Representatives Is In A Really Weird Place Right Now
How Freedom Caucus Obstruction Is Making The House More Like The Senate
The House is unlike the senate in a lot of ways, but the biggest difference is that the Speaker of the House should be able to move legislation relatively easily with 50%+1 of the votes, while the Senate requires 60 votes for many things.1 “Should” is the key word though. Right now, most House legislation requires 2/3rds majorities to pass, and it’s having strange effects on policy. Let me explain:
Most House legislation passes through the Rules Committee before becoming law. After a regular committee votes to advance a bill, the Rules Committee will decide under what rules the bill is debated. They can limit debate on a bill, set the amount of amendments which are considered, and decide when or even if a bill is put to the floor. These powers are substantial, and accordingly every past Speaker has stacked the Rules Committee with staunch loyalists. The Rules Committee has disproportionately high representation for the majority party, and it is an expected norm that the Members on the committee will be loyal to the party and specifically the Speaker. Most Rules Committee votes have historically been strictly party line.
When Kevin McCarthy gave the Freedom Caucus seats on the Rules Committee in a bargain to become Speaker, he was effectively giving the Freedom Caucus veto power over his legislative agenda. Perhaps he believed they wouldn't use that power. Perhaps he knew they were asking for the power because they wanted to use it, but he thought the tradeoff was worth it to become Speaker. Either way, the Freedom Caucus got what they wanted and began using that power to regularly spike Rules votes — even on conservative priorities — as a way to express their displeasure with McCarthy (and later Johnson). Prior to this Congress, the last time a Speaker lost a rule vote was 2002. But in just this two year session of Congress alone, Republican Speakers have lost seven rule votes.
If a Speaker cannot reliably pass legislation through the Rules Committee, he can alternatively pass it under suspension of the rules. Many laws are noncontroversial and command broad bipartisan support.2 For such laws, a bill can be passed with a 2/3rds majority, with no amendments considered and limited time for debate. Most major bills under Speaker Johnson have passed under suspension of the rules, because unruly Freedom Caucus hardliners are regularly voting against Johnson in the Rules Committee.
This creates very weird incentives. If legislation needs a simple majority, then Republicans can win a floor vote with only Republican votes. But if legislation needs a 2/3rds majority, then they need substantial Democratic support. Bills that pass through the Rules Committee require simple majorities, and bills that pass under suspension of the rules require 2/3rds majorities. Which means that the Freedom Caucus’s obstruction of the Rules Committee has the direct result of more bipartisan legislation being passed. Speaker Johnson —by any measure an extremely conservative Republican — doesn’t want to cooperate with Democrats. But if he can’t pass legislation through the normal route, he is forced to pass legislation with Democratic votes.
The clearest case study for this is Ukraine aid. House Republicans initially demanded immigration policy concessions in order to pass military aid for Ukraine. Joe Biden and Senate Republicans drafted a bipartisan compromise which was extremely conservative and gave House Republicans many of their policy priorities. However, Freedom Caucus members revolted. By this point, they were already regularly voting against Speaker Johnson on Rules votes, and they made their displeasure with the immigration compromise known. Johnson read the writing on the wall and signaled that he wouldn’t bring the immigration compromise forward.
Fast forward to April, when Ukraine aid did eventually pass. The Freedom Caucus voted against Speaker Johnson on the Rules Committee, and he was forced to rely on Democratic votes to pass the rule.3 This highly unusual step meant that conservatives were unable to get major policy concessions in exchange for Ukraine aid.
To put a fine point on this: the Freedom Caucus killed a very conservative immigration/Ukraine compromise, and instead caused a relatively moderate Ukraine bill with no immigration concessions to pass. They used their leverage to create a situation where their priorities did not pass and their opponent’s priorities did pass. That is a weird choice!
More broadly, if the Freedom Caucus continues to block Johnson’s priorities in the Rules Committee, they are forcing him to continue using suspension of the rules. Which requires him to pass legislation using Democratic votes. Which tends to make legislation more liberal. They are basically creating a filibuster for the House. The mechanics and procedure are different, but they have made it so that major legislation cannot pass with a simple majority and instead requires a 2/3rds majority.
Most interestingly though, Republicans have unilaterally created this barrier for themselves alone. When Democrats regain control of the House, they will be able to pass legislation with a simple majority. There is no Democratic equivalent of the Freedom Caucus. The far left of the Democratic caucus, e.g. The Squad, rarely use the sort of procedural hostage taking that the Freedom Caucus specializes in. This creates a mini ratchet effect, where it is more difficult for Republicans to pass legislation than for Democrats to do so. In the long run, you could easily see this helping to push public policy broadly to the left.
In the long run, you might also expect the Freedom Caucus to realize this effect and stop, but that would require a) introspection b) admitting that they’ve made a mistake, and c) giving up the opportunity to be the center of attention. I wouldn’t bet on it!
Programming Notes
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Next Friday: another different way the House of Representatives has gotten really weird really fast (so weird! so fast!)
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The filibuster ensures that most legislation passed in the Senate requires 60 votes. There are exceptions where legislation can be passed with reconciliation under certain limited circumstances.
Think: naming a post office.
Technically, in this very unusual case, Johnson didn't use suspension of the rules, but rather passed the rule with Democratic votes. So it only required 50% support, but nonetheless required Democratic votes. The key to both suspension of the rules and using Democratic votes on rules votes is that they both require minority party support for legislation to move. I believe this is the first and only time that a rule has been passed with the minority party providing the decisive votes over the objection of members of the majority.