Part II: What Happens Now?

Lots of drama and even some bipartisan accomplishments await our new 118th Congress. And the Georgia US Senate runoff matters. We live in interesting times

Russian revolutionary Vladimir Lenin famously said, “There are decades where nothing happens, and there are weeks where decades happen.” They often qualify as fulfilling the ancient Chinese curse, “May you live in interesting times.”

We’re about to learn whether one or both fits the present. In the meantime, much drama awaits as the 118th Congress, probably the most narrowly divided Congress in American history, begins on January 3rd.

Some of that drama occurred last week, and House and Senate Republicans gathered to elect the leaders they will nominate candidates for Speaker, majority leader, assistant leader, and more. Those candidates will be confirmed on Day One of the new Congress, but the House, in particular, may go through some drama as it settles on a Speaker of the House. More on that later.

One of the significant differences between the House and Senate is the latter’s existence as a “continuing body.” Only a third of its membership faces an election every two years year. Meanwhile, the House has to reconstitute itself every two years, as every Member faces an election. That is why the Clerk of the House chairs the House at the beginning of a new Congress.

The first day of a new Congress is always festive. Children join Members of the House on the floor. A roll call is conducted of all 441 Members (including six non-voting delegates from places like Puerto Rico, Guam, and the Virgin Islands). These delegates (or “resident commissioner,” as the PR calls its congressional representative) have offices, staff, committee assignments, paychecks, and travel budgets like every other Member of Congress and can sponsor legislation. They enjoy voting rights in committees but not on the House floor.

One bit of drama may happen as the House determines whether an old treaty requires them to add a new non-voting delegate from Oklahoma’s Cherokee Nation. Wikipedia accurately describes the situation:

The Cherokee and Choctaw Native American tribes have treaty rights to send delegates to Congress. The right to a non-voting delegate to Congress was promised to the Cherokee by the Treaty of Hopewell in 1785 (affirmed in 1835's Treaty of New Echota) and to the Choctaw under the Treaty of Dancing Rabbit Creek in 1830, "whenever Congress shall make provision for [a delegate]". Congress has never provided for the appointment of delegates from Indian tribes. The Choctaw tribe has never appointed a delegate to Congress and the Cherokee had not until 2019.

The House Rules Committee held a hearing featuring the Cherokee Nation’s chief on the matter this past week. As reported by the Daily Oklahoman:

Now is the time to seat a Cherokee Nation delegate in Congress, the tribe’s principal chief told U.S. House lawmakers at a historic hearing Wednesday. 

Federal officials promised the tribal nation a delegate in exchange for ceding its homelands and relocating west on the Trail of Tears. That may finally happen nearly 200 years later. 

“It’s time for this body to honor this promise and seat our delegate in the House of Representatives,“ Principal Chief Chuck Hoskin Jr. said. “No barrier, constitutional or otherwise, prevents this.“

Hoskin said he was speaking not only on behalf of the Cherokee Nation's 440,000 citizens today, but the millions of ancestors who came before them. A guarantee that the Cherokee Nation would have a voice in Congress was critical before the tribal leaders agreed to the Treaty of New Echota in 1835, Hoskin said.

Interestingly, most of the Choctaw Nation is located within Oklahoma’s Fourth Congressional District and is represented by US Rep. Tom Cole, the incoming chair of the House Rules Committee. Cole is a citizen of the Choctaw Nation. The Cherokee nation was represented in the House by Oklahoma Second District US Rep. Markwayne Mullin, a Cherokee citizen. He was just elected to the US Senate. Their new Representative will be former Republican St. Senator Josh Brecheen, a Choctaw citizen.

Cherokees have already chosen their delegate to Congress, Kim Teehee.

But first, they will settle on the new Speaker of the House. With Republicans practically assured an albeit-slim (very slim) 221-214 majority, they should have the votes to elect House GOP leader Kevin McCarthy (R-CA). With outgoing Speaker Nancy Pelosi not running again, Democrats will meet in early December to choose their new floor leader. That is likely to be Rep. Hakeem Jeffries, D-NY, currently chair of the House Democratic Conference. Octinogenarian Steny Hoyer (MD, Majority Leader) is also stepping down from his number two position. Expect it to veer left.

But while the House GOP Conference overwhelmingly nominated McCarthy for Speaker, 30 of his colleagues voted for US Rep. Andy Biggs (R-AZ), a leader of the House Freedom Caucus. The Freedom Caucus is the House’s GOP’s most conservative activists, and some, such as Rep. Matt Gaetz (R-FL), pledge never to support McCarthy. It looks like he’ll be joined by Biggs and Matt Rosendale (R-MT). House Freedom Caucus prevented McCarthy’s ascension as Speaker in 2015 when John Boehner (R-OH) stepped down, making way for Rep. Paul Ryan (R-WI). Ryan’s tenure was brief as he retired from Congress in 2018. Democrats won control that year.

The election of a Speaker requires a majority vote of those present and voting. McCarthy, with only a four-seat margin, can’t afford many defections. And without the election of a Speaker, little else can happen.

Could we see a replay of 1856? The US House Historical Office sets the stage.

The Speaker election that opened the 34th Congress was utter bedlam. The traditional two-party system that had dominated the House for the previous two decades no longer existed. As previous Congresses begrudgingly compromised over slavery, sectional lines in the House hardened between northerners and southerners. Existing party sympathies grew stale and new issues exacerbated lingering legislative battles. The Whig Party was on life support and the Democrats had seen their numbers in the House cut nearly in half. In 1854, a protean new group, the American Party (also called the Know Nothings), captured 51 seats behind a nativist platform, while a fledgling Republican Party hustled to build a workable coalition. Broadly speaking, the House was left with a fractured Democratic Party, a large bloc of Know Nothings, and an amorphous Opposition Party working against the administration of President Franklin Pierce. In perhaps a perfect understatement, the Baltimore Sun confessed to its readers on the eve of the 34th Congress, “It is a difficult matter to give the exact political complexion of the House.”

It’s not quite that bad in the House, but both major parties have their factions. It took 133 ballots until US Rep. Nathanial Banks (R-MA) was finally chosen as Speaker. What broke the deadlock?

In total, the House held 133 ballots for Speaker to start the 34th Congress, delaying congressional action for two months. In fact, the gridlock was so bad the House voted to lower the threshold for victory from a simple majority to a plurality for only the second time in its history. (Emphasis added)

In the end, Banks won the Speakership with 103 votes, the Republican Party grabbed a foothold in American politics, and the spread of slavery subsumed all other policy issues.

Two years later, just before the outbreak of the Civil War, New Jersey Republican William Pennington required 44 ballots to be elected Speaker. He lost reelection to his House seat two years later. Multiple ballots haven’t been required to elect a new Speaker since 1923. But at least McCarthy and the House have precedent for electing a Speaker with a plurality if the rest of the House will go along.

Hopefully, the House Freedom Caucus will save their powder and drama for more consequential policy and political battles. If not, voters may begin to conclude that the GOP can’t govern anything, much less themselves and that an angry fringe is calling the shots. That won’t end well.

Here are other things to watch for in the early months of the new Congress:

House Rules Changes for the 118th Congress

There is good news here. Their first change is to re-open access to the Capitol grounds. In some circumstances, it has mainly been shut down to visitors, former members, officers, and even elected House members. Any House member, Democrat or Republican, who votes against this will experience my undying enmity.

Of the 11 other rule changes they adopted, they addressed the thorny issue of making removing a speaker easier. It will first require a majority vote of the Republican conference. They also gave a little more power to Members over committee assignments. They prevented spending bills costing $100 million or more from the “suspension calendar,” a process to expedite “noncontroversial” legislation.

Oversight hearings and investigations

The House Republican's “Commitment to America” promises aggressive oversight and investigations on several fronts. We will likely see a new Select Committee on China and perhaps another to investigate the 2021 Afghanistan withdrawal and debacle. It will take time for new chairs to hire staff and begin their numerous investigations. Committee jurisdiction - turf battles - is likely to be fought out.

Oh, and the illegitimately-formed Select Committee on January 6th is finished. Hopefully, McCarthy will not repeat Pelosi’s tragic and historic error of not allowing the Democratic minority to pick their members, but there will be three exceptions: booting Reps. Adam Schiff and Eric Swalwell (D-CA) off the Intelligence Committee, and the notoriously anti-semitic Ilhan Omar (D-MN) off Foreign Affairs. Schiff notoriously lies, and a relationship with a Chinese spy compromised Swalwell. Talk of reconstituting a legitimate January 6th Committee is a fool’s errand.

The question is, how much will Biden Administration agencies and officials cooperate? Not much, I predict, taking a page from the Obama playbook after the 2010 election when Republicans romped to a significant House majority. Expect stonewalling and refusals to testify.

You’ll see new evidence for our two-tiered system of justice. While Trump Administration officials are being prosecuted for failing to cooperate with the illegitimate J6 Committee, Obama Administration officials held in contempt of Congress were never prosecuted. Do not expect the highly-politicized Biden Justice Department to prosecute any official for failing to comply with subpoenas issued by GOP-led panels. Attorney General Merrick Garland’s appointment of a special counsel to investigate Trump but not Hunter Biden proves the agency’s partisanship.

Need evidence? The Obama Administration’s corrupt “fast and furious” scandal. Attorney General Eric Holder was held in contempt of Congress. Nothing happened. Most recently, Holder has unsuccessfully led a national Democratic effort to gerrymander US House seats. A parallel effort led by Republicans Chris Christie and Mike Pompeo was more successful, especially in New York.

Debt limit ceiling and funding bills

One of the last things the expiring Congress must do by December 16th is continue funding the federal government's operations, among other things. That’s likely to happen. The question is, for how long? And then what happens with a new Congress? I’m not looking for a budget resolution or “reconciliation” bill in a profoundly and narrowly divided 118th Congress - just an endless series of “continuing resolutions,” perhaps with an exception or two (e.g., National Defense Authorization Act) It wouldn’t be the first time. The Senate failed to pass a single major appropriations bill for the fiscal year 2023, which began October 1. Instead, Congress increasingly relies on “omnibus” appropriations.

Perhaps by the end of summer 2022, we will see another debate over the debt ceiling. Currently, just under $31.4 trillion, the debt limit will need to be extended. House Republicans will likely use that to extract spending reductions and other reforms. Expect a dramatic showdown. It is not inconceivable that a GOP House Speaker will turn to Democrats to provide the necessary votes to extend the debt limit and avoid a potential political catastrophe. It has happened before. It didn’t end well.

Impeachment hearings and votes?

Many Republicans have vowed to seek impeachment of Homeland Security Secretary Anthony Mayorkis over his horrific management of the US southern border. Others may focus on the FBI’s investigation into the Hunter Biden laptop, the content of which suggests crimes not just by the President’s son (failure to register as a foreign agent) but that the President himself has been compromised, as has been outlined by investigative reporter and author Peter Schweizer. This is wrought with political risks, and it will be interesting to see how this develops.

If the GOP follows through on its aggressive oversight and investigations, we could see decades happen within weeks. Maybe months. It will be a Herculean task without intelligent planning, hiring, and execution. Again, not a historic strength of the GOP caucus.

Bipartisan Legislation?

Two and possibly three issues will emerge early in Congress that portend bipartisan possibilities. First, legislation to ban the Chinese app TikTok, which is alleged to be a data-gathering operation (I will miss the site “Libs of TikTok”). Second, Congress may finally pass a version of the STOCK Act, which will stop members of Congress from trading publicly-held stock (mutual funds will be okay).

The third issue is bipartisan calls for reform of “big tech.” There is bipartisan agreement on reforming everything from monopolistic behavior to privacy, security, and censorship. An interesting array of proponents include conservative Colorado Republican Rep. Ken Buck, newly re-elected GOP Senator Chuck Grassley (R-IA), and Senate Rules Chair and former Democratic presidential candidate Amy Klobuchar (D-MN). Watch this space for a potential breakthrough as the new House Speaker has promised to hold Big Tech “accountable.”

By the way, the Georgia US Senate runoff matters. Not because it will decide partisan control of the Senate but because it will influence committee assignments. In a 51-49 Senate, Democrats will have one additional seat per committee. In a 50-50 Senate, the committee will be equally divided. Those single votes could matter a lot.

These are, indeed, interesting times.