Deadlock for Speaker? Try Looking Outside the Chamber.
If Nancy Pelosi cannot get 218 votes for speaker, and there is no apparent alternative candidate, Congress might consider electing an outside person as a reform speaker. While it has never happened before, the Constitution allows it in Article I, Section 2.
Given that we will have a divided government, prospects for significant accomplishments are low. But electing an outside speaker dedicated to reforming Congress and opening up the legislative process might provide both parties with an opportunity to test their legislative craftsmanship and reform Congress in a bipartisan way.
The voice of the voters matters, so even under this scenario, the Democrats would still be the majority party with control of all of the committee chairs. Committee control guarantees control of the agenda because only bills passed by committees can come to the floor. But a neutral speaker could work to bring balance to the Rules Committee by creating a 6-6 tie between Democrats and Republicans, with the provision that the committee has 30 days to advance legislation to the floor.
After that, the Rules Committee would be discharged from further consideration of legislation, and it would go to the House floor under the regular order of existing House rules. This process would then be wide open, with plenty of debate and open amendments. It would work best on the most controversial bills. Imagine open debate with free amendments on something like an immigration reform bill. People would actually start to pay attention to what Congress was doing.
Of course, on critical legislation, the Rules Committee might secure an agreement on the need for an expedited procedure, with perhaps a limited number of amendments. This would be okay, as long as there was some bipartisan agreement (it doesn’t have to be unanimous). Congress would then be able to respond quickly to urgent matters like budget deadlines.
The speaker’s role would change from a partisan leader to a referee on the House floor — mostly enforcing parliamentary procedures and the rules and precedents of the House. Members would need to pay close attention to floor procedures, because amendments could pop up at any time. Second-degree and substitute amendments would be in order again, and while members might not be drawing up amendments on the back of napkins as they did in the good old days, there would be a great deal more spontaneity than there used to be.
Appropriation bills would come to the floor with open amendments, as has been the tradition of the House for decades. And, if the Rules Committee could not agree on how to handle a bill on the House floor, then that bill would be subject to the standing rules of the House. For example, points of order on appropriations for unauthorized agencies could not be waived — restoring the importance of authorization committees.
The Democrat majority would still control the agenda. The difference is that they would manage control through the committee process rather than through the less transparent Rules Committee, which is sometimes referred to as “the Speaker’s Committee.” Since most bipartisan work occurs at the committee level, the odds are that a committee chair would anticipate potential floor amendments and address those issues in committee.
Sometimes, the Democrats will hold their numbers and win passage on a party-line vote. Other times they will have to accept a few amendments passed by bipartisan majorities. And sometimes there will be a wide-open process where the House can work its will. That would be real democracy.
Members would be transformed from observers back into real legislators. Public interest in policy issues would rise as the House chamber becomes less predictable, adding pressure on the Senate to take action on House-passed legislation.
A speaker who is not a partisan player would make sure this type of open debate still had the form and structure provided by parliamentary procedure and the rules of the House. Members who know those rules would become key players in their parties — not because they raised more money than anyone else, but because they know how to get things done.
This change would, of course, not have to be permanent, as Congress can always go back to electing a more partisan speaker (though it would be wise during a Congress with a reform speaker to suspend the ability for a member to make a “motion to vacate the chair”). But it might start a tradition where Congress can turn a closely divided Congress into a productive one by fixing the rules and procedures of the institution, without undermining the choice of the voters on who should control Congress.
Mark Strand is president of the Congressional Institute, a non-profit organization that examines the operations of Congress and provides guidance to members, congressional staff, and the American public on understanding how Congress works and how it can work better.