Can the House Legislate?

post by jefftk (jkaufman) · 2023-10-05T13:40:06.649Z · LW · GW · 6 comments

Contents

6 comments

The US government is in a less functional position than usual:

We've never done this before, so it's unclear how it will go. The House does have a "Speaker pro-tempore" backup, added in 2003, but it's not clear whether they are allowed to use this position to call votes other than for a new speaker, or, if they would even if allowed:

In the meantime, other action on the House floor, including any legislative business, is likely to be halted. House staff aides believe the acting speaker may wield the gavel only to administer the election of a new speaker.

But others argue that as acting speaker, Mr. McHenry can exercise powers beyond overseeing a speaker's race, as long as a majority tolerates it.

"From an institutional House rules perspective, Speaker McHenry has the powers of the speakership, and he will continue to exercise those powers to the extent and degree that the majority party is willing to tolerate," said Josh C. Huder, a senior fellow at the Government Affairs Institute at Georgetown University. "If he does something too brash or too bold, they will rein him in. And that's really the only thing that's governing his authority."

House rules do not explicitly prohibit the interim speaker from adopting the powers of an elected speaker. But the rule that led to Mr. McHenry's ascent was developed with only temporary absences in mind, not a vacant chair, according to Stan M. Brand, the former general counsel to the House. That leaves legal room for Mr. McHenry to exercise broader powers, such as conducting legislative business, if he chooses.—NYT, 2023-10-04

I've started a prediction market, which as of this writing is at 20% with four traders:

I set the resolution conditions as:

Resolves true if McHenry uses his current pro-tempore position to allow the House to schedule a vote for anything other than a new Speaker. Resolves false otherwise, including if a new Speaker is elected quickly enough that we don't find out whether legislating would have been acceptable.

I interpret this as a combination of whether it is strictly permitted and how long it might take to elect a new Speaker: if one can be elected quickly (market) then there's much need for McHenry to call votes. I think it's probably legally allowed but socially not (yet) allowed, and the latter is more likely to change the longer we go without being able to elect a Speaker.

6 comments

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comment by benjamincosman · 2023-10-05T16:14:38.086Z · LW(p) · GW(p)

Taken together, the two linked markets say there's a significant chance that the House does absolutely nothing for multiple weeks (i.e. they don't elect a new speaker and they don't conduct legislative business either). I guess this is possible but I don't think we're that dysfunctional and will bet against that result when my next Manifold loan comes in.

comment by lsanders · 2023-10-06T02:06:42.758Z · LW(p) · GW(p)

I will be morbidly amused if this market resolves true because McHenry ultimately schedules a vote to decide whether he can schedule other business, and then the plurality result is that he cannot.

comment by M. Y. Zuo · 2023-10-05T13:41:18.407Z · LW(p) · GW(p)

Are there any historical examples of this occurring?

Replies from: Dagon, jkaufman
↑ comment by Dagon · 2023-10-05T15:19:41.734Z · LW(p) · GW(p)

Like so much we talk about here, there's a reference class problem in that question - what is the "this" that could possibly have occurred in history?  You can never step in the same river twice, and a vote never happens in the same legislature twice.

We've never had The House vote out their speaker, and we've never lost a speaker since the pro-tem position was instituted.  Past legislatures HAVE replaced speakers in session (due to voluntarily stepping down), but not for a long time, and it's easily argued that it's a different enough world that no lessons can be learned from those instances.

↑ comment by jefftk (jkaufman) · 2023-10-05T13:43:32.106Z · LW(p) · GW(p)

No: we've never voted a Speaker of the House out before. And the potential for a Speaker pro-tempore only goes back to 2003. Added to the post!

comment by jmh · 2023-10-06T03:05:40.741Z · LW(p) · GW(p)

While I should probably look for the actual legislation/rule establishing the backup person if the Speaker is removed or unexpectedly leave the position these two links suggest that the Speaker pro-tempore will have the power to keep the wheels turning.

(A) In the case of a vacancy in the Office of Speaker, the next Member on the list described in subdivision (B) shall act as Speaker pro tempore until the election of a Speaker or a Speaker pro tempore. Pending such election the Member acting as Speaker pro tempore may exercise such authorities of the Office of Speaker as may be necessary and appropriate to that end.

(B) As soon as practicable after the election of the Speaker and whenever appropriate thereafter, the Speaker shall deliver to the Clerk a list of Members in the order in which each shall act as Speaker pro tempore under subdivision (A).

https://mattglassman.substack.com/p/how-much-power-does-speaker-pro-tempore

and 

"The Speaker pro tem could stay in the chair," Josh Huder, a senior fellow at the Government Affairs Institute at Georgetown University, wrote on X, formerly known as Twitter. "There's not [a] forcing mechanism for a new election, nor are there any overt restrictions on the power the pro tem would wield. The support of the conference would dictate the durability of this."

https://www.businessinsider.com/who-leads-the-house-mccarthy-ousted-speaker-pro-tempore-2023-10?op=1

Seems to me the reasonable interpretation of the intent of this rule is to ensure that the job of governing can continue, just just to put a name on the position and the stop government until a replacement is found.