In Re: Speaker McCarthy—Dissents & Concurrences

I’ll ask readers to indulge a roundabout introduction, as I think it useful for setting up such a rare occasion as a substantial disagreement with what Brother John has written here about the McCarthy Question.

It has become a frustrating and annoying practice of the Supreme Court to issue decisions whose summary begins as follows (in this case, Allegheny County v. Greater Pittsburgh ACLU in 1989):

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.”

So if you ask just where the hell does that jumble leave us, the answer is, Yes.

My conclusions about the protracted drama of Kevin McCarthy’s slog to the Speaker’s gavel have some of this convoluted character when laid side-by-side with John’s views, with which I agree in part and dissent in part.

So I will emulate the Supreme Court by stating the main judgment about the case before getting to the important subsidiary distinctions: the 20 House Republicans (the “chaos caucus,” the “Rebel Alliance,” the “renegades”?) were largely correct with most of their demands, and right in their general disposition about what needs to be done in the House. I do not think it was a clown show, even if some individual members did beclown themselves.

Let’s clear out the mistakes first. Some members (Gaetz and Boebert mostly) made it about McCarthy personally. This is fine, but they should have said so more directly. I share some doubts about McCarthy’s political probity, but if it’s personal then why “negotiate” with someone you don’t trust and won’t vote for no matter what? A lot of the posturing appeared to be in bad faith.

A close and related second aspect, though, is that the demands the Rebel Alliance made were pitched in such as way as to seem primarily as an attack on McCarthy, rather than an attack on the defects of the House of Representatives as it has come to operate in recent decades, with too much power concentrated in the Office of the Speaker.  I’m sure McCarthy, or any aspiring Speaker, would prefer to have the concentrated power that has accrued to the Speaker’s office in recent decades. As such, the Rebel Alliance made a mistake in not prefacing their sensible demands with the headline that these issues aren’t about McCarthy, but reversing the degradation of the House as a truly deliberative and representative body. In other words, they’d have been better off if they had said, clearly and repeatedly, “This isn’t about Kevin McCarthy; this is about restoring the proper functions of the House that Democrats have undermined and too many previous GOP Speakers have not reversed when they had the chance. We’ll demand these changes of the next Speaker no matter who he or she is.” The fact that there was no serious or credible alternative candidate (sorry—Andy Biggs wasn’t) was a big detriment to their case.

Some of the demands, like term limits (Rep. Norman’s pet demand), make little political sense. But the demands for the ability to offer amendments on the floor to spending bills, and even allowing a motion to vacate the chair from only a single member (very high risk with a close House) represent a restoration of the way the House operated before the administrative state made it attractive to Democrats to concentrate power in the Speaker’s office, especially about budgetary matters. And thus the demands for greater representation on the Rules Committee by members of the Freedom Caucus (half of whom supported McCarthy throughout remember) are also positive steps. The real disappointment here is not that 20 House Republicans “embarrassed” the GOP by these protracted votes, but that so few House Republicans joined up for this program. But also significant is that when McCarthy did finally yield to their demands, most of the Rebel Alliance fell into line behind him immediately, leaving only a tiny rump that dislikes McCarthy personally. While the spectacle may have been unedifying (though only time will tell if it leaves a lasting impression), I think this was their finest hour.

It is worth observing that one of the milestones in the transformation of the House into a cheering section or mule-boy for the administrative state was the election of 1974, when the very left Democrat “Watergate babies” overturned decades of House rules to empower the left. It’s long past time for a counter-revolution from Republicans. Gingrich made some salutary changes to the House in 1995, but didn’t go nearly far enough, and arguably went the wrong direction in some cases. Maybe we needed what I’ll provisionally call the “Trump babies” to make enough of a fuss to make some real change to how the House works.

And don’t overlook the potential delayed-fuse bomb this may set off among Democrats down the road. Recall that the progressive caucus in the House (AOC, etc) held hostage Biden’s infrastructure bill, which had passed the Senate easily, to demand passage of the giant Green New Deal. They may well regret relenting now that they’ve seen the kind of concessions a determined minority in the caucus can get. Next time Democrats have a House majority, watch for AOC and friends to embrace the model the GOP Rebel Alliance has just set. Their demands will be crazy of course, but that in itself is helpfully clarifying in American politics.

Finally (for now—there’s a lot more to say about this whole matter), one of the ironies of the American political system is that one thing the Speaker of the House doesn’t really do is speak. Our House Speaker ought to more like the Speaker in the House of Commons in Britain: someone who operates the day-to-day procedure. The legislative business should be conducted by the majority leader and party policy committees. Let McCarthy enjoy his Speaker’s chair. Let the rest of the caucus get on with the trench warfare necessary to win some battles.