The first best option when the House vacated the Speaker’s office was that the Republican Conference would pick a candidate who could garner 217 votes. 

This, of course, hasn’t happened. And while there would never have been an opportune time for the current predicament, it comes at time when People’s House has considerable work on its plate. For example:

  • In a little over a month, the Continuing Resolution expires. The House is not moving forward on appropriations bills. It seems unlikely to do so while leadership is uncertain.
  • It is likely that this week, the White House will have a funding request to support Israel. There’s already talk of pairing it with funding for Ukraine.
  • Reauthorizations of the farm programs, Federal Aviation Administration, and national flood insurance are in limbo and need to be extended.
  • A National Defense Authorization Act must be passed.

The question now is how this work will get done.

The main solution being floated is a form of coalition government between factions. Such a model is too logistically difficult and would effectively end the political careers of participating Republicans. 

A better path is one akin to a minority government, with coalitions formed on individual issues. Frankly, this would mirror the U.S. Senate most days, just without the added burden of Unanimous Consent agreements. 

A coalition government won’t work…yet?

House Minority Leader Jeffries has called for “entering into a bipartisan governing coalition.” People have pointed to recent examples in state legislatures such as Alaska. However, this appears politically unsustainable once you consider how it would work and how coalition legislatures have recently operated in various states. Plainly put, coalition government is hard.

It took eleven weeks to negotiate the last coalition agreement in Germany. If you dig into the Alaska model, it gets complicated quickly. The Senate President is a Republican, but the Rules Committee Chair is a Democrat. The traditional leadership group had been expanded from five to eight, split equally between the parties. They had been passing budgets on a bipartisan basis because they couldn’t get enough agreement with Republicans. They built this system out of a working coalition that passed budgets in the past. This is a very important nugget for how to move forward.

Another reason why a coalition government is hard is pure politics. University of Denver Political Science Professor Seth Masket wrote on his substack about an example from the 1990s in California. After the 1994 election, the partisan balance in the California Assembly was 41-39. Three Republicans broke with their party to join the Democrats to elect coalitions. Two were recalled. Note that, after a year, the Republican caucus finally managed to unite in early 1996 and elect Republican Curt Pringle as Speaker. He is the most recent Republican Speaker of the California Assembly.

Earlier this year, there was a short-lived coalition in the Pennsylvania House where Democrat Mark Rozzi became an Independent so he could be elected Speaker with Republican votes. There was a political promise to pass a state constitutional amendment to address the Catholic Church’s sex abuse scandal in the state. However, they could not come to agreement with the Senate, and the Pennsylvania House did not even try to agree on organizing rules. Eventually, Democrats won enough special elections to get a narrow 102-101 majority in the state House. Rozzi stepped down and became a Democrat once again. And the Democrats elected a Speaker. 

We can derive a valuable lesson from these three examples: A bipartisan coalition only works if you can make it politically sustainable. That takes time. In Alaska, the working relationship and distribution of committee chairs and leadership positions across parties was predicated on the already-established trust from having worked on budgets together. On the other hand, the agreements in Pennsylvania and California politically unsustainable. In Pennsylvania, they couldn’t even organize the chamber until Democrats won a normal majority. In California, the Republicans were defeated. 

The political costs of a coalition government arrangement in today’s House cannot be understated. Even the most duty-bound moderate Republicans will balk at the idea of effectively ending their own political careers.

Ad hoc coalitions can successfully govern

The alternative is to run the floor like other countries do when they have “minority governments.” This happens when an election results in a legislature where one party or coalition cannot regularly control a majority on the floor of the legislature. For example, in Canada and Sweden, the Liberal and Social Democratic parties, respectively, lead the legislative chamber and control the agenda without a full majority of the chamber. Spain has a Speaker of the Parliament even though no party or coalition holds a majority.

They accomplish this with ad hoc coalitions on key issues. In a world where any legislation would ultimately need to pass a Senate with narrow Democratic control and get signed by President Biden, it is likely that legislative deals that are intended to become law could pass on the floor–as the debt ceiling deal did earlier this year or the continuing resolution that is currently in effect. And, importantly, congressional legislation is substantially bipartisan.

So what’s the way forward? Congress should take lessons from Alaska and observe what’s worked in the House this year, use the coalition that passed the continuing resolution and debt ceiling bill, and just keep legislating on all of the big bipartisan issues.

This leaves two big questions. How do you legislate? And what do you do about the Speaker’s position?  The answer is that the Acting Speaker Pro Tempore Patrick McHenry is a good enough Speaker for now. McHenry helped negotiate the debt ceiling bill with the White House and the Senate, so we know he has the stature and experience to succeed.

Can McHenry operate as Speaker Pro Tempore? 

Mark Strand, former President of the Congressional Institute and a long-time Republican staffer, describes how Patrick McHenry could operate as Speaker Pro Tempore. 

Mark’s answer to the first one is straightforward enough:

“[M]y point is that he does not need a new resolution to act as Speaker unless there is a serious movement to limit his power made by the Democrats. But even that is an uncertain process because the only way they could curb his power would be a resolution that defines the power of the Speaker Pro Tempore, but that is not a point of privilege and would, so long as the Republicans oppose it, die a natural death in the Rules Committee.”

Logistically, someone – probably Majority Leader Steve Scalise – would simply seek recognition to move on to other business. Someone has to object. The Presiding Officer, the Acting Speaker Pro Tempore, may or may not object. (Brookings scholar Molly Reynolds has noted that there is genuinely no precedent or strong consensus on what the rule actually means). It is likely that the Presiding Officer’s ruling will be appealed. The House would then vote to either uphold or overturn the Chair’s ruling, therefore setting a precedent for the meaning and powers of the Acting Speaker Pro Tempore.

Let’s imagine that the goal was to pass an appropriations bill providing funding for Israel and Ukraine. Are there really 218 votes to demand that the House not move on to the important business of keeping the government open or supporting allies in Ukraine or Israel?

This path forward is a bet that there’s enough work to do that can get the majority of the House. 

How do bills come to the floor? 

Bills and resolutions come to the floor through a limited number of mechanisms:

  • Appropriations bills, including Concurring Resolutions, reported from Committee after September 15th are privileged. (Rule XIII, Clause 5)
  • Resolutions reported by the Rules Committee. (Rule XIII, Clause 6)
  • They are made under a Motion to Suspend the Rules (Rule XV)
  • Conference reports are privileged (Rule XXII)

Everything being discussed as ‘must pass’ likely falls into one of these categories. Continuing resolutions and appropriations bills fall under the first category, conference reports like the NDAA under the fourth, and Extensions for the FAA or the Farm Bill likely fall under the third if they are not already included in a future continuing resolution. 

For other legislation, you start to run into challenges. Does the Rules Committee have enough votes and consensus to move forward? The leaders of the House and the parties would need to figure out how to navigate the Rules Committee and get bills through authorizing committees. 

We have a model for how this would work: it’s the U.S. Senate without Unanimous Consent agreements. Once people get used to it, the day-to-day is probably easier than in the Senate. 

Why go this route?

When we examined how the state legislatures operate under a coalition government, we saw that it takes time to figure out how to work together. In California, they couldn’t manage to overcome political differences. In Pennsylvania, they didn’t even try to cooperate. In Alaska, it only worked because they had already worked together in the past.

This House must learn how to work together. Only then can it really pick a Speaker, and there’s just too much to do while they figure that out.

Under the current practice, the traditional Speaker must show a working coalition on the House floor every day. They need to pass a rule and pass the Previous Question. It is very possible that House Republicans or a bipartisan coalition will not achieve this in the near future. 

But that doesn’t mean that the work of the House has to stop. They can get to work under the Acting Speaker Pro Tempore right now. They might figure out how to work together along the way and in doing so, they might discover what the stable and politically sustainable operating model is to return to something like a regular process.