Dem
51
GOP
49
The new session of Congress commenced yesterday, and the House voted three times for the new speaker. Succeeding Nancy Pelosi (D-CA) will be... we don't know, because none of the votes produced a winner.
Here are the totals for each of the three rounds of voting:
| Candidate | Round 1 | Round 2 | Round 3 |
| Hakeem Jeffries | 212 | 212 | 212 |
| Kevin McCarthy | 203 | 203 | 202 |
| Jim Jordan | 6 | 19 | 20 |
| Andy Biggs | 10 | 0 | 0 |
| Jim Banks | 1 | 0 | 0 |
| Byron Donalds | 1 | 0 | 0 |
| Lee Zeldin | 1 | 0 | 0 |
This is House Majority Leader Kevin McCarthy's (R-CA) nightmare scenario. Not only did the Republican opposition hold firm, but it is larger than previously known. Between public pledges not to vote for McCarthy, and "open letters" opposing McCarthy, there were only 14 known "no" votes, not 19. And things are heading in the wrong direction, as far as the wannabe speaker is concerned, given that he got one fewer vote in Round 3 than he did in Round 2.
The Republican members who voted for someone other than McCarthy are: Andy Biggs (AZ), Dan Bishop (NC), Lauren Boebert (CO), Josh Brecheen (OK), Andrew Clyde (GA), Eli Crane (AZ), Michael Cloud (TX), Byron Donalds (FL), Matt Gaetz (FL), Bob Good (VA), Paul Gosar (AZ), Andy Harris (MD), Mary Miller (IL), Ralph Norman (SC), Andy Ogles (TN), Anna Paulina Luna (FL), Scott Perry (PA), Matt Rosendale (MT), Chip Roy (TX) and Keith Self (TX). Donalds was the one who switched his vote from McCarthy to Rep. Jim Jordan (R-OH) in Round 3. After, Donalds took to Twitter to explain:
The reality is Rep. Kevin McCarthy doesn't have the votes. I committed my support to him publicly and for two votes on the House Floor. 218 is the number, and currently, no one is there. Our conference needs to recess and huddle and find someone or work out the next steps, but these continuous votes aren't working for anyone. When the dust settles, we will have a Republican Speaker, now is the time for our conference to debate and come to a consensus. This will take time, Democracy is messy at times, but we will be ready to govern on behalf of the American people. Debate is healthy.
We do not know if Donalds is telling us he's a "no" vote on McCarthy from here on forward, or he'll be back to "yes" now that he's made his point about the importance of discussion and debate, or if he's a "maybe" depending on what McCarthy offers.
So, what is the path forward from here? Who knows? One option that suggests itself is for Jordan to tell his colleagues that he really appreciates their support, but that he doesn't want the job, and that Team GOP should fall in behind McCarthy. The problem with this is... Jordan already did that. Twice. And the MAGA Militia is suggesting this is a major point in Jordan's favor; that he doesn't want the job speaks to his humility and his decency. Some of them even compared him to George Washington... and kept a straight face while doing it.
We would take the MAGA folks' claim here with several grains of salt. For that matter, we would take Jordan's insistence that he doesn't want the job with several grains of salt, as well. But in any event, the point is that the Ohioan does not have the power to break the logjam by ending his "candidacy," because he's already done that.
Another possibility is for the members to vote that a majority is not needed for election as speaker, just a plurality. As we have noted several times in the last couple of weeks, that rule change has been adopted twice before. However, if you examine the table above, you will observe that the winner of such an election, at the moment, would be... Rep. Hakeem Jeffries (D-NY). It is certainly possible that faced with a choice between McCarthy and a Democrat, the MAGA members will wilt and vote for McCarthy (or will just withhold their votes entirely). But it's far from a guarantee, especially since several of the MAGA crew, including Gaetz and Boebert, have apparently warned McCarthy that they would vote for a Democrat over him. We are inclined to doubt they would actually do that, but the bottom line is that as long as they stick with Jordan, or some other non-McCarthy Republican, then suspending the majority requirement will not solve McCarthy's problems.
The House adjourned for the day at 5:30, which was yet another defeat for McCarthy. His best chance at resolving this quickly was to keep voting late into the night, hoping that exhaustion prompted some sort of accomodation. Now, his whole conference will have 18 hours to reflect on what it all means, and whether it's time to move on to some other candidate. After the adjournment, McCarthy reportedly met with the leaders of the MAGA crowd. Maybe they managed to work something out, although if they had, it likely would have leaked by now. And based on the public statements that are being made, it appears that tensions are running too high right now among the Republicans for there to be a compromise. A selection:
Just in case it wasn't enough to call the MAGA crew "infidels," their colleagues in the House have apparently taken to referring to them as the "Taliban 19 (or 20)." Does this seem like a situation where cooler heads are about to prevail? Certainly not to us. And while we limited the list above to 10 entries, we actually had enough links to run the list to 30+, if we'd wanted to. Everyone has an opinion, and they're pretty much all full of vinegar.
Ultimately, the power to resolve the situation lies with two groups of people. The first of those is the Talib... er, the MAGA 20. Nobody seems to be clear exactly what they want. It could be that they'll be satisfied with a particularly draconian rules package, although maybe not, and in any case, the other Republicans are not likely to give them everything they want. Some of what they want may be an option, though.
It's also possible that the 20 are trying to seat their own choice for speaker. We think that Jim Jordan's chances of landing the job are not much better than ours are. He's too much of a firebrand, and seating him would cede way too much power to the MAGA crew. Further, he's got serious baggage, since he looked the other way during a serious molestation scandal back when he was employed by Ohio State. To have someone like that as the face of the GOP would be disastrous.
The MAGA 20 is often out of touch with reality, but even they must realize Jordan is a nonstarter. However, if they arrived for work today and said that Rep. Steve Scalise (R-LA) would get their votes, that would probably lead to Scalise being elected speaker. He's plenty conservative, to the point that he's been described as "David Duke without the baggage." And if the right-wingers were able to impose a non-McCarthy speaker on the house, that would be a big win for them.
There is also a non-zero chance that the speaker the hardliners really want is... Donald Trump. After all, if he somehow became speaker, he would let the inmates run the asylum, and would certainly give in to whatever demands the MAGA members made of him. We have been highly skeptical about the possibility of a Trump speakership, but there is one path that occurs to us. Recall that many House Republicans think the former president is a nitwit and a drag on the Republican Party and would love for him to just go away. However, few of them are willing to say so out loud, for fear of being Kinzingered or Cheneyed. If the MAGA members were to announce that the only person they will support for speaker is Trump, perhaps the other 200 Republicans would fall in line, for fear of crossing the base.
The other group that might plausibly resolve this mess is the moderate Republicans, however many of those there are. They could, of course, give in to some/many/all of the demands coming from the MAGA militia. This seems very unlikely, however, as it would be a clear case of trading long-term pain for short-term gain. That is to say, anything that suggests that the MAGA caucus has outsized influence, or anything that actually gives them outsized influence (like changes to the House rules that they want), will just enable Gaetz, Boebert and Co. Does anyone on the planet believe that there won't eventually be another fiasco or 10 just like this one, and probably sooner rather than later?
The other direction that the moderates could take is the one that, if they are not at least considering it, would constitute political malpractice. We've written it numerous times, but to say it again: They could—brace yourself—reach across the aisle and work with the Democrats. Some sort of arrangement could be made that elevates a moderate Republican to the speakership, and that gives the barely-a-minority blue team some voice in the House.
If you imagine that there are at least some Republicans who care about governance (and surely there are), this would be a path to get some actual things done. Joe Biden and Senate Majority Leader Chuck Schumer (D-NY) are falling all over themselves in search of bipartisan cooperation. A Senate controlled by the Democrats, and a House controlled by a moderate Republican + Democratic coalition, could hammer out legislation that gives both sides some of what they want. You know, how it used to work in the olden days, when Gippers and Tippers (well, Tips) reigned in Washington? And if said legislation was able to pass the House, it would be at least somewhat harder for the Republican senators to filibuster it. "How come it was OK for House Republicans, but not for Senate Republicans, Sen. Cruz?" would be the question that reporters would ask.
Even if you imagine that House Republicans don't care about governance, and only want to get reelected, it's clear that the clown show that Gaetz, et al., want to stage is a political loser. We are literally just 2 months removed from that sort of nonsense being soundly rebuked by voters. The very best chance that Republicans have to hold the House, and that the moderates in particular have to hold their seats, is to show they can act like grown-ups and actually do some substantive work. As it is, yesterday's performance was an embarrassment to the GOP, and has both donors and allies in the media carping about how the Party has turned into a "clown show."
So, the ball is in the Republicans' court. That's kind of how it works when you are, you know, in the majority. As to the Democrats, their basic approach to things is best summed up by this picture that Rep. Ted Lieu (D-CA) posted to Twitter yesterday:
Here's another picture that helps tell the tale:
Yes, that is Rep. Alexandria Ocasio-Cortez (D-NY) having a conversation with Rep. Paul Gosar (R-AZ), the man who posted a video to Twitter that "jokingly" implied that she should be killed. What they were talking about was whether or not the Democrats are willing to help McCarthy become speaker by voting for a rules change (i.e., from "majority" to "plurality"). AOC made clear that won't be happening, at least not to help McCarthy, because the Democrats don't want him as speaker either. The fact is that he's acted like a horse's a** over the past several years, and has taken potshot after potshot after potshot at the blue team in general, and at its most prominent members (like AOC and Pelosi) in particular. And when you make your bed, as McCarthy certainly has, you have to lie in it. We have no doubt that there are some Republicans whom the Democratic caucus could be persuaded to vote for, but McCarthy isn't one of them, and they apparently won't lift a finger to help him, even if parliamentary trickery would allow them to do so without voting for him directly.
That, then, is the situation as of Tuesday. The House will reconvene this morning at 10:00 a.m., and the fourth vote (and likely fifth, and sixth...) will commence soon thereafter. If the first vote of the day (and, again, fourth overall) doesn't resolve the situation, it's hard to see how anything at all gets accomplished today.
Now, let's answer some of the many, many questions we received in the mailbag yesterday. There's a chance these questions will be moot by the weekend, and even if they're not, the information will be most useful this week, so that's why we're breaking our general format (though we have done this once or twice before):
R.C. in Lenexa, KS, asks: In the interregnum created by the adjournment of the 117th Congress, followed by the inability of the majority party to elect a Speaker to lead the 118th Congress, who would be in line to assume the presidency after Kamala Harris? Would Nancy Pelosi still be third in line as the most recent holder of the speaker's office, or does Mitch McConnell move up one position until a new speaker is elected?
V & Z answer: The office of Speaker of the House of Representatives is currently vacant. And when an office is vacant, or is occupied by someone not eligible to serve as president (e.g., someone who is not a natural-born citizen), then their spot in the order just gets skipped.
So, if Joe Biden and Kamala Harris were to die, resign, or become incapacitated today, then the presidency would devolve upon the fourth person in line. However, that is not Mitch McConnell. It is newly elected President pro tempore of the Senate Patty Murray (D-WA).
G.W. in Oxnard, CA, asks: Maybe I'm missing something. It has been suggested on E-V.com that, in the past, a deadlock in the speaker's election had been resolved by changing the rules such that the speaker would be selected by a plurality rather than a majority. In the three rounds of voting thus far, Hakeem Jeffries has received the most votes, not Kevin McCarthy, so wouldn't a plurality make Jeffries the next speaker? McCarthy is not the sharpest tool in the shed, but I suspect he wouldn't go for a deal that would make Jeffries the speaker.
V & Z answer: As we note above, that is indeed what would happen if there was a straight rule change like this, assuming that all of the parties involved stuck to their guns and kept voting as they did yesterday.
As a practical matter, instead of negotiating a rule change, what McCarthy would actually have to do is work out an agreement where some number of Democrats either vote "present" or just don't show up for the roll call. Election as speaker doesn't require 218 votes, per se, it requires a majority of those casting a vote. As things stand at the final round of voting, McCarthy would be elected speaker if 34 Democrats voted "present" (producing a result of 202 votes for him out of 401).
However, as we also note above, the Democrats are not interested in playing ball with McCarthy.
T.V. in Moorpark, CA, asks: I've heard that Kevin McCarthy has offered several concessions in an effort to secure enough votes to become speaker, including committee memberships and the implementation of specific rules. Exactly how does this work? I understand the speaker has control of committee chairs and membership, but how much control the speaker have regarding rules? If he says he will allow only five members to call for a motion to vacate, how can he make that happen? McCarthy strikes me as neither very smart or very honest, so why would anyone believe him?
V & Z answer: Once a speaker is elected and sworn in, they give a little speech and then swear in the rest of the House, en masse. After that business is concluded, then they adopt the set of rules that will govern the House for the next 2 years. Here, for example, are the rules that governed the 117th Congress (the one that expired yesterday).
Once a majority has voted in favor of the rules package, the rules cannot be changed, except by the majority (there are a couple of ways to make such changes, but they both require majority support). So, even if McCarthy is dishonest, he can't "change his mind" about, say, the number of people needed for a motion to vacate. Whatever the rules say, that's how it is.
T.B. in Leon County, FL, asks: : You have mentioned the position of Clerk of the House of Representatives, but not by name. I looked it up: Cheryl Johnson has been Clerk since early 2019. She will "Call the Members-elect to order at the commencement of each Congress; call the roll of Members-elect, and pending the election of the Speaker, preserve order and decorum; and decide all questions of order."
I find it curious that the official History of the Office doesn't mention her being re-elected to the position at the start of the 117th Congress (the one that ended on January 3, 2023 at noon), but she was. Could you write more about what she can and cannot do (prior to the election of a speaker)? Specifically, what does and doesn't "decide all questions of order" mean?V & Z answer: With the various functionaries of the House (e.g., the Clerk, the Sergeant-at-Arms, etc .) the "re-election" is usually pro forma. So, it's not surprising that it's not treated as a big deal on the various congressional websites.
Johnson can't actually do all that much, other than, well, preside over the House and decide questions of order. As she does this, she must follow a modified version of Robert's Rules of Order, which were put to paper by U.S. army officer Henry Martyn Robert about 150 years ago. In layman's terms, what she does is: (1) decide who gets to speak, (2) tell people who speak out of turn to shut up and (3) manage and record the voting process.
G.M.K in Mishawaka, IN, asks: How many times in U.S. history has the speakership been vacated by the membership?
V & Z answer: The short answer is "zero."
However, that's not the whole story. The mere threat of a motion to vacate, assuming it is credible, is the equivalent of a vote of no confidence and is very bad news for a sitting speaker. For example, then-speaker John Boehner (R-OH) was threatened with a motion to vacate in 2015. Rather than endure that embarrassment, since the motion would likely have been successful, he resigned.
Even when a speaker survives an initial threat, their days are usually numbered. Newt Gingrich was threatened with a motion to vacate in late 1997, and though he managed to nip it in the bud, he was out of office in a little more than a year. The last time a motion to vacate was actually filed and brought to a vote was back in 1910, against Joseph Gurney Cannon. Like Gingrich, Cannon survived that assault, but was out of office about a year later.
D.K. in Stony Brook, NY, asks: Can you please explain more about how the new representatives cannot be sworn in until the Speaker of the House has been elected? If the new representatives are not yet sworn in, are they nevertheless members of Congress?
V & Z answer: We got many versions of this question yesterday, basically wondering how the newly elected representatives—like, say, George Santos (R?-NY?)—can do anything official before they have been sworn in. The answer is that while we (and all other people who write about politics) use "Rep.-elect" to describe members who have just been elected, and "Rep." to describe members who were already serving and were reelected, the fact is that all of them are actually "Rep.-elect" at the moment. That is to say, unlike the Senate, the House is not a continuing body. All of the bureaucratic stuff that took place last term—oaths, adoption of rules, election of functionaries—has vanished.
Of course, it's necessary to have some structure in place, so the Clerk of the House is allowed to keep doing her job, even though she hasn't technically been renewed yet. And while the members could theoretically be sworn in by someone else, custom dictates that they be sworn in by the speaker. So, all of them vote for a speaker, even though none of them (even the reelected members) have yet fully assumed their elected offices.
Note that while the courts have not looked at the question, this arrangement is probably legal and constitutional. First, the Constitution specifies that a new Congress takes its seats on January 3 (barring a congressional resolution that changes that to some other date). So, the members are clearly "in office" on some level, even if they haven't been sworn in yet.
Second, the general understanding—though again, there isn't a lot of jurisprudence—is that a duly elected or appointed officeholder who hasn't taken their oath still occupies their office, they just can't exercise their constitutional powers. However, voting for speaker is not exactly exercising constitutional powers, it's more like bookkeeping. It probably wouldn't be OK for a non-sworn-in member to vote on an actual law, but voting on something procedural like this is probably acceptable.
J.L.H. in Los Altos, CA, asks: Obviously, the newly-elected House members can vote for speaker even though they have not been sworn in. But what else can they do? Can they move into their offices (and who assigns the offices)? Hire staff? Collect salary? Get benefits (gym, health insurance, etc.)? Get clearances? I am guessing the answer is they can do everything not requiring committee assignments.
V & Z answer: New members are allowed to do logistical things, like hire staff, choose offices, and move into those offices, since it would be impractical to wait until Jan. 3 to take care of those things.
The process of assigning offices is overseen by the Architect of the Capitol, and while there is some nuance and some politicking, the basic procedure is that members are divided into classes based on the year in which they were first elected. The most senior class draws lottery numbers, and then they work their way down the list. The person who drew #1 can choose to keep their existing office, or to move into any vacant office. Then the person who drew #2, etc. Once the most senior class has been accommodated, then the second most senior class does the same thing. And then the third, and so forth. When they get to the new members, of course, there's no option to keep their current office because they don't have a current office. If they are smart, however, new members consult with more senior members for strategic tips. For example, experienced members avoid the fifth floor of the Cannon office building like the plague because the offices are small, the building is far away from the House, and there aren't enough elevators to accommodate demand.
New members are granted access to the various amenities of the Capitol as soon as their victory is certified. So, they can use the gym, the libraries, the cafeterias, etc. However, they do not draw a salary or enjoy any employment benefits (service time toward pensions, health insurance, etc.) until their time in office actually commences.
And, as we actually noted in this weekend's Q&A, members of Congress do not require security clearances.
The speakership election was the big, big, big news of the day, which is why we wrote 6,000 words on it. We'll resume our regularly scheduled programming tomorrow. (Z)