The "Vote No, Hope Yes" Caucus Gets a Scolding from House Leadership

In a development that should shock no one, new House speaker Paul Ryan has inherited exactly the same dilemma that bedeviled now-former speaker John Boehner: how to keep the government running without Republican hard-liners poking him with pitchforks. Congress must appropriate money in order for the government to function, but Republican members of Congress don't like to vote for appropriations bills because they're full of things that a potential primary challenger can attack them for supporting—especially since any legislation must be acceptable to Barack Obama in order to be signed into law. This dynamic repeatedly forced Boehner to bring up spending bills at the last minute, often under threats of imminent shutdown or default, and pass them with most Democrats voting yes and most Republicans voting no—a violation of the "Hastert Rule" norm restricting floor access to measures with a support of a majority of the ruling party.

The result is a textbook case of a collective action problem. Most Republicans agree that a government shutdown is a bad idea that will hurt their party. Individually, however, they believe that opposing the bill is good politics for themselves. Thus the rise of the "vote no, hope yes" caucus—or, in the words of Homer Simpson, the "Can't Someone Else Do It?" coalition—of Republicans who want these bills to pass even as they personally refuse their support. Of course, this is free-riding to a degree; if no Republicans voted in favor, the bills would fail, so the vote-no-hope-yes group is receiving the benefit of averting a shutdown while letting any political cost fall on their yea-voting colleagues. This behavior prompted a scolding from House Republican whip Steve Scalise, who recently circulated a memo to House Republicans complaining that “Too many in our conference are falling into the pattern of voting no on tough bills while actually hoping the bill passes because they know that the outcome will be even worse if the bill fails.”

Ryan ascended to the speakership while pledging a return to regular order and by assuring the House Freedom Caucus that he would not cut them out of policy-making. He's arguing now that these promises shouldn't apply to the current spending bill, which executes the overall budget plan negotiated by Boehner on his way out the door. On the other hand, the arch-conservatives aren't making things easier for him either, as they are proposing and supporting a number of policy riders that would cause Democratic support to disappear if they were actually included in the law—even though many of them will vote against the overall bill whether or not the riders are included. Ryan clearly enjoys much more good will among the hard-liners that Boehner had by the end of his speakership, and it's likely that he will resolve these matters before the government is scheduled to shut down. Clearly, however, the basic dynamics that caused Boehner such grief have not been fundamentally affected by his departure.

Another Speaker Promises "Regular Order"? This Time For Sure!

Quote #1: "We need to let every member contribute, not once they earn their stripes, but now. The committees should take the lead in drafting all major legislation: If you know the issue, you should write the bill. Let's open up the process. In other words, we need to return to regular order."

Quote #2: "We need to stop writing bills in the speaker’s office and let members of Congress be legislators again. Too often in the House right now we don’t have legislators; we just have voters. . . . That’s not right. We were each elected to uphold the Constitution and represent 600,000-odd people in our districts. We need to open this place up, let some air in. We have nothing to fear from letting the House work its will–nothing to fear from the battle of ideas. That starts with the committees. The result will be more scrutiny and better legislation."


Quote #1 is from Paul Ryan, October 29, 2015, upon being elected to the speakership. Quote #2 is from John Boehner, October 25, 2010, just before winning a Republican majority in the House that would make him Ryan's predecessor as speaker.

During his ascent to the speakership of the House, Ryan has been making assurances that he will be a different kind of speaker than Boehner. Since most House Republicans seemed to like Boehner's governing style just fine, this is perhaps a surprising pledge to make. But it is largely aimed at satisfying the demands of the House Freedom Caucus, the hard-line conservative faction that chased Boehner from office and that was initially cool to a Ryan speakership until he won them over in a personal meeting.

One of the chief complaints made by Boehner's critics was that he often circumvented "regular order"—the textbook system of lawmaking in which bills written and debated in committee are reported to the floor by majority vote for consideration by the entire House. Ryan reiterated at his first press conference as speaker that he would return to this traditional process, rather than the increasingly frequent alternative scenario in which legislation written by the leadership is sent to the floor directly, often under a short deadline in an atmosphere of crisis. “Every mem­ber will have a chance to re­view each bill and give their in­put on their pri­or­it­ies. We have nev­er done this be­fore, but that is how we should work and from now on, that is how we will work,” Ryan told the press. In fact, he said that he would be willing to risk the failure of his own favored legislation on the floor rather than use his procedural power to strong-arm his fellow members.

It is worth remembering that Boehner, too, promised to observe "regular order" when he became speaker in 2011. He was unable to deliver on this promise because Republican-controlled committees often failed to agree on legislation, especially appropriations legislation—usually because a faction of purist conservatives refused to support spending bills developed by mainstream Republican committee and subcommittee chairs. With the Democratic minority also voting no, these bills would thus lack the majority support in committee necessary to move them to the floor. Since any final agreement on government funding ultimately required support from Senate Democrats and the Obama White House, Boehner usually chose to hammer out a bipartisan compromise first, then bring it back to the House for approval—where it usually passed on the floor with mostly Democratic votes.

Ryan surely understands that Boehner adopted this approach not because he yearned to rule the House with an iron fist, but because it was the only practical way to fund the government and avoid shutdowns or other crises given the current state of the House Republican Party. So why is he making a promise that seems so unlikely to be fulfilled? Maybe Ryan believes that he possesses unique powers of persuasion that will engender agreement and compromise among Republicans, allowing for a much smoother operation of the committee system. Or, alternatively, he adopted this pledge in order to gain the speakership, and will hold to it until its failure is so immediately apparent to all concerned that most of his fellow Republicans will openly plead with him to do things Boehner's way—in which case he will "reluctantly" agree that, though he's very sorry it came to this, he has no choice but to dispose of regular order once again, leaving the next speaker with the opportunity to make the very same promise that he and Boehner did.

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.