Thursday, October 15, 2015

How the Constitution Defeated John Boehner (and Kevin McCarthy)

John Boehner announced his resignation as speaker of the House of Representatives last month in the face of a threat from a bloc of renegade Republicans to depose him unless he demanded, in exchange for avoiding a government shutdown, that Planned Parenthood be prevented from receiving federal funds. Heir apparent Kevin McCarthy, the House majority leader, abruptly withdrew from the race to succeed Boehner last week after acknowledging that he lacked the votes to win the speakership on his own. Washington now awaits Ways and Means Committee chair Paul Ryan's final decision about whether to run for speaker himself, with no obvious alternative choice in the wings should Ryan decide to pass. (Boehner has announced that he will stay in office until a replacement is chosen.)

Both Boehner and McCarthy are victims of the constitutional provision that creates the office of speaker and specifies that the position be filled by the entire House. The requirement under the current rules that a single candidate must receive an overall majority of the vote on the floor of the chamber (218 of 435 members), counting Democrats as well as Republicans, gave Republican dissenters the procedural leverage to force Boehner out and prevent McCarthy's ascension. With 247 Republicans and 188 Democrats in the current House, a candidate for speaker can lose no more than 29 Republican votes, placing the rump faction in a pivotal position even though it represents, by all accounts, less than 10 percent of the total House membership.

Much of American politics today can be fairly characterized as the product of a polarized party system straining against a constitutional structure intentionally designed to operate without—and even frustrate the emergence of—strong parties: government shutdowns and near-shutdowns, threats of debt default, unfilled judicial vacancies. But Boehner's exit and McCarthy's withdrawal represent another example of venerable constitutional provisions colliding with our modern party politics in a way that produces unintended and perhaps unwelcome results. No other party leader in either house of Congress is subject to a vote of the entire chamber; instead, the responsibility for filling these other offices lies firmly in the hands of the majority of either Democratic or Republican members—who, in the case of House Republicans, continue to support Boehner and would have selected McCarthy to succeed him.

There are potential workarounds short of amending the Constitution. The House could adopt a rule providing that the speaker be elected by plurality rather than majority vote. In this case, the Republican majority is sufficiently large that either Boehner or McCarthy would likely win such a vote even without the support of the rump Republicans. If the seat margin between the parties were narrower or the renegade faction larger, however, a unified minority party could elect a plurality speaker over the votes of a divided majority. It is therefore unlikely that any future House majority would agree to such a reform.

Alternatively, the office of speaker could be made purely ceremonial, with procedural authority devolving to the majority leader. This would more or less mirror the Senate, where the vice president's constitutionally-specified role as presiding officer is not accompanied by substantive power (except for the right to vote in case of a tie, also mandated by the Constitution) and where the leader of the majority party, chosen solely by his or her fellow partisans, cannot be deposed by a cross-party alliance on the floor.

The Constitution remains a "living document" in part because its various provisions interact in fluctuating ways with a constantly evolving political environment. As long as House members consistently respected the norm that the membership of each party provided automatic support to that party's chosen leader when voting for speaker on the floor, the fact that the speaker was technically elected by the entire chamber was a procedural curiosity with little political importance. Now that a critical mass of members is threatening to discard this norm, the need for a candidate to personally assemble 218 votes to gain (or hold) the speakership becomes critical to the operation of Congress—and thus the federal government. Just ask John Boehner.