Balance of Power

Senate: 47 Democrats, 49 Republicans, 3 Independents Caucusing with Democrats, 1 Vacancy*

  • Governor Newsom appointed EMILY’s List President Laphonza Butler to serve out the remaining 15 months of the late Senator Diane Feinstein’s term.

House: 221 Republicans, 212 Democrats, 2 Vacancies*

  • Rep. David Cicilline (D-RI) resigned his seat June 1st, to become CEO of the Rhode Island Foundation. The special election will be Tuesday, November 7th. This is a safe Democratic seat.

  • *Rep. Chris Stewart (R-UT) resigned his seat September 15th. The special election will be November 21st. This is a safe Republican seat.

Top Line Take Aways:

  • We have a CR (plus disaster relief)! What a turn of events! Never been happier to be wrong about a shutdown. BUT…don’t be fooled, none of the underlying issues that created the possibility of a shutdown have been resolved. They’ve simply been punted to the Friday before Thanksgiving.

    • An interesting nugget for you… The CR was brought up as a “Suspension”. This means the rules of the House were suspended and thus the bill can go straight to the floor without requiring a rule and without being subject to amendment. The tradeoff there is passage requires a 2/3 Majority. Bringing a suspension bill to the floor the same day it was introduced requires a special rule for same day suspension authority. However…the CR was filed shortly before midnight on Friday the 29th. Which means…House leadership had this plan in their pocket when they walked into GOP Conference Saturday morning!

  • Matt Gaetz announced he will officially seek to depose McCarthy as Speaker — as we predicted – since Speaker McCarthy relied on Democrats to keep the government open. I do think there’s a chance he backs off. More on how that will work and our predictions below.

    • Bret’s pet conspiracy theory from the Fall Look Ahead — that this spending fight was really about deposing McCarthy — looks more and more like reality. Hard to look at everything that transpired this month and conclude there was some unified, principled spending strategy from the right flank as opposed to a set up to require the Democrats help to fund the government.

  • Of all the federal policy needing extensions, FAA was the lone bright spot getting three additional months. Many if not all the others will get extensions in October, the most important being the National Flood Insurance Program. Other policies like the Farm Bill largely carry on under existing authorizations creating little disruption.

  • The House has canceled its October recess and will now be in for the next four weeks. For the House, Appropriations work will crowd out anything that can’t pass on Suspension.

  • NDAA continues to be a bright spot for bipartisanship. Congress officially motioned to “go to Conference” a technicality but also a signal that the two chambers are making progress and don’t expect major issues. House Leadership has signaled floor action will wait until December but depending on how the spending fight goes on this could change is there is resolution between the House and Senate.

Where We Are – Appropriations

The House

The House GOP’s appropriations strategy still has all the fundamental problems it had last week, they just have until the Friday before Thanksgiving to turn it around. All of their bills are coming out of Committee and off the floor on party line votes. In order to boost funding levels for Defense, Homeland, VA and stay under House approved spending caps, Appropriators had to absolutely torch spending levels in other bills like Ag, THUD, and Interior making it nearly impossible to secure passage. Anyone with two functioning eyes can see we will eventually end up with an Omnibus that passes with broad bipartisan support, but whether or not that Omnibus has any House GOP priorities will largely depend on a faction of the House GOP coming to terms with the reality of divided government and developing a clear plan and strategy.

Passed The House: Defense, Homeland Security, Mil-Con-VA and State and Foreign Ops have all passed the House. All four bills passed on almost exclusive party line votes. Reps. Jared Golden (ME) and Marie Perez (OR) were the only Democrats to cross over to vote for the Defense and Homeland Security Bills. This means these are dead on arrival in the Senate. Defense, Homeland and Mil-Con don’t have funding level problems necessarily but none of the social policy riders will survive the Senate. Not to mention some Senators will look at a package of Defense, Homeland and Mil-Con as a place they could use to push through additional funding for Ukraine.

The Remaining Schedule: At GOP Conference on Saturday, House Leadership laid out the tentative floor schedule for passing the remaining appropriations bills. This is subject to change — for instance if they can’t find 218 GOP votes — but here is where it stands.

  • Week of October 2nd: Energy and Water, Leg Branch

  • Week of October 9th: THUD, Interior

  • Week of October 16th: Financial Services and General Government

  • Week of October 23rd: Commerce, Justice, Science

  • Weeks of October 30th: Labor-HHS

Some Notes and Thoughts on Schedule: You’ll notice there’s no mention of Agriculture Appropriations after failing on the floor. The competing politics at play here will make this bill very difficult. The portions of the GOP conference that have issues with Ag program funding levels, E-Verify/immigration language, and abortion policy don’t all overlap and in some cases butt into each other. This is an ill omen when thinking of putting together a full Farm Bill reauthorization. Additionally, a GOP House has not passed a stand-alone Labor-HHS bill this century. We expect at least one additional, if not more, appropriation bill to fail on the House floor.

The Senate

The Senate might as well be on a different planet here. For starters, all 12 of their appropriations bills sailed through committee on a bipartisan basis. The cumulative vote total was 332 yes votes, nine no votes. Senator Ron Johnson (R-WI) still has a hold on a package consisting of the Agriculture, Mil Con-VA, and Transportation-HUD bills. Senator Johnson would like a vote on Senator Lankford’s (R-OK) Prevent Government Shutdowns Act, which would automatically enact a 14-day CR every two weeks until full appropriations bills are considered*.

  • *This isn’t a new idea and has zero chance in the House where a pool of House Republicans much larger than the Freedom Caucus view at least the potential of a shutdown (even if they don’t want one) as a useful leverage point.

Before anything gets done, Leader Schumer will want to have Senator Feinstein’s replacement sworn in –Governor Newsom has appointed EMILY’s List President Laphonza Butler to the seat. It is expected that she will be sworn in sometime this week, as soon as tomorrow according to reports. The Senate is in recess next week and back for the final two weeks of October.

We are told the Senate will go back to working through nominations and continuing to package together Appropriations bills in an effort to clear the deck and avoid more shutdown drama. This can’t be emphasized enough, the Senate GOP Conference is not an ally of the House Freedom Caucus (HFC). While there are former HFC members in the upper chamber there simply isn’t the willingness to shut down the government that persists in the lower chamber. This means Speaker McCarthy finds himself stuck directly between opposing philosophies of Congressional Republicans.

Ukraine/Border Funding

Shortly after the House passed the CR on Saturday, the lack of additional funding for Ukraine became a sticking point in the Senate. Senator Michael Bennet (D-CO) briefly placed a hold on the CR, blocking its swift passage, until he received assurances from Senate leadership that a vote would be held in the near future providing additional support for Ukraine. In a statement late Saturday, Majority Leader Schumer, Minority Leader McConnell, Appropriations Committee Chair Patty Murray (D-WA), Appropriations Committee Vice Chair Susan Collins (R-ME), Senate Appropriations Subcommittee on State, Foreign Operations and Related Programs Chair Chris Coons (D-DE), and Subcommittee Ranking Member Lindsey Graham (R-SC) announced their commitment to continuing to support Ukraine and vowed to bring a bill to the Senate floor in the near future. It is anticipated that the Senate is waiting on the White House to provide a large supplemental request, as Senators believe that a single vote on one large support package will be more palatable than several votes on smaller packages.

Somewhat lost in the shuffle of last week, the House moved on a bipartisan basis a bill providing $300 million in funding for Ukraine tied to the establishment of a specific oversight office for the funding. We see a package of Ukraine/Border Security package as the most likely scenario that funding. There are simply too many Republicans (and enough vulnerable Democrats) who are looking for additional border funding who recognize that a standalone package of funding for Ukraine would have a difficult time getting through the House without the sweetener of money for the southern border.

GET SMART – How Does a Motion to Vacate Work, And What’s Going to Happen?

Remind Me, The House Changed its Rules on This Right?: Rule IX of the House Rules governs Questions of Privilege. A Privileged Question in the House takes precedent over all other business, meaning the House has to dispense with it before attending to other business. The most common in recent years has been a Motion to Adjourn. Because it is privileged all other business stops and the House must vote on whether it will adjourn. You saw this in action on Saturday when House Dems were caught off guard with the CR. It’s usually used to buy time/whip votes. In the previous Congress, Rule IX, Clause 2(a)3 stated, “A resolution causing a vacancy in the Office of Speaker shall not be privileged except if offered by direction of a party caucus or conference”. The House Rules package for the 118th Congress simply deleted this Clause, meaning anyone can bring the motion at any time, and because it’s privileged must be voted on or tabled. It’s worth noting that for the rule stating only a Caucus Chairman can motion to vacate the Office of Speaker was added in the 116th Congress under Speaker Pelosi. The current rule framework on this question is how the House has operated for most of its history.

Has Anyone Every Successfully Executed a Motion to Vacate?: No (but also technically yes). Famously, Speaker Cannon called his detractors bluff and offered a motion to vacate his own Speakership which failed. The only successful efforts have come when a Speaker has died, resigned, or for whatever reason could not continue in their capacity as Speaker. In 1936, Speaker Jo Byrnes died in the middle of session and his successor, Speaker Bankhead was elected with a simple majority resolution. Speaker Bankhead likewise died in the middle of 1940 ushering in the Sam Rayburn era who himself was first elected via majority resolution. When the office was vacated between Sessions of Congress the next Speaker was chosen viva voce (the process by which Speaker McCarthy earned the gavel). Additional Speakers have resigned mid-session upon selection of a successor (Speaker Boehner) and the successor (Speaker Ryan) were elected viva voce.  What’s important here is there is no House rule governing how a Speaker should be selected once the office is vacated. It’s simply precedent. Precedents can change (but probably won’t here).

What Does a Motion to Vacate Need to Be Successful?: First, a Member has to file the motion, though this doesn’t do anything. In order for the motion to be considered that Member must go to the floor and announce their intention to invoke their privilege to consider the motion. Speaker McCarthy would then have two legislative (not calendar) days to schedule the motion. To pass, a quorum being present, a simple majority of votes is needed. This isn’t a “reverse” Speaker vote. Speaker McCarthy does not need 218 NO votes to successfully defeat the motion, he simply needs a majority. This is important because it makes Rep. Gaetz’s gambit more difficult to execute. The burden is on him to secure a majority of YES votes.

What Happens If the Motion to Vacate Succeeds: The House must have a Speaker to operate. The Speaker files a confidential list with the Clerk of five people to serve as Speaker Pro Temp in the event of his absence but constitutionally the office must be filled. So the first person on the list would assume the Speaker’s chair but their first order of business would be to elect the Speaker. As I mentioned earlier, tradition governs this process not a specific rule. There is nothing that requires this process to be done viva voce but in the unlikely event that this happens we would expect the House to follow that process.

Can Speaker McCarthy Derail the Motion if Called to Question?: The only option Speaker McCarthy or his allies would have is a “Motion to Table” which essentially kills the motion indefinitely. Motions to Table are commonly used when there are disputes over Members violating personal privilege and decorum precedents (e.g. impugning the character of another member on the floor, engaging in ad hominem attacks, etc.). For a Motion to Table to be successful Speaker McCarthy would need a majority.

So…..What’s Going to Happen?: First, I don’t think there’s a guarantee Rep. Gaetz offers the motion. There will be some new ultimatum about spending or some other such demand. Some of his Freedom Caucus allies are on the record in the last few days saying it’s not a good idea and will fail. As they say…”if you come at the King, you best not miss.” Going through with it and failing would embolden McCarthy and neuter the threat of vacating the chair.

  • A Quick note on the Democrats: The Democrats are in a tough spot because they won’t want to be seen as saving McCarthy by the base of the party. But, if 212 Democrats vote with Rep. Gaetz and a handful of Republican hardliners then it’d be very difficult to claim they don’t own the dysfunction in some way. A Democrat will not become Speaker and there’s no scenario the Democrats cut a deal with Rep. Gaetz. It’s fair to disagree and say the public would largely blame Republican infighting, but it’s not a guarantee that it plays out that way with the public. Minority Whip Katherine Clark (D-MA) announced there will be a special Democrat Caucus meeting to discuss the plan if/when a motion to vacate is officially announced.

First, a McCarthy ally will want to respond by offering a Motion to Table the resolution. This is the opportunity for the Democrats to register their displeasure with Speaker McCarthy. If offered, enough Gaetz allies will vote against the motion with the Democrats to force a vote on the underlying motion. It’s possible Speaker McCarthy would expect this outcome and try to avoid “losing” this vote and seek to portray strength by just going straight to the motion to vacate.

On the underlying motion to vacate, I see the most likely scenario as a large number of Democrats vote yes to vacate, and some number of Dems vote “present” or find themselves “unavoidably detained” in enough numbers that Gaetz can’t secure a majority. This allows Dems to satisfy the base, avoid voting affirmatively to save McCarthy and mess with McCarthy on the Gaetz twitter-verse. Conversely the Democrats could simply abstain from voting, point at the Republicans, and try to make the case the country simply can’t trust these people with power.

I just don’t see a benefit to the Democrats to forcing another 20 rounds of votes for Speaker that they don’t also get by simply staying out of it.  If the Gaetz motion looks like it’s going to fail, how many of his friends walk the plank and vote YES to vacate? No more than a handful, probably less. Gaetz will hit the TV circuit and howl about Democrats saving McCarthy. Oddly, the same people who will say the Democrats saved McCarthy won’t see the irony in that Rep. Gaetz’s plan relies on Democrats siding with him.

BUT, BUT, BUT, BUT… McCarthy is a juggernaut on the fundraising circuit. Even if McCarthy comes out of another 20 rounds of voting as Speaker, forcing that situation could put a serious dent in Speaker McCarthy’s ability to raise cash and defend the Majority. Something that would be awfully appealing to Democrats.

All of these things are why Rep. Gaetz’s allies will try to talk him out of going through with it. You can game this out any number of ways, but none of them end with a more conservative Speaker of the House.

Prediction: Speaker McCarthy will continue to be Speaker of the House.