Early afternoon on April 16, a small bloc of GOP House moderates broke ranks and voted to pass legislation protecting Haitian refugees. About 12 hours later, a small bloc of far-right Republicans broke ranks to sabotage a procedural vote on an intelligence surveillance bill.
Neither of those things is supposed to happen, not when lawmakers are observing the unwritten rules of the congressional road.
The moderates defied Republican leaders on a discharge petition, a procedural move to go around the usually all-powerful speaker of the House. And the staunch conservatives bucked party leadership on a rules vote that is normally a perfunctory party-unity measure that sets up debate on the actual legislation.
Over 28 years, from 1995 till early 2023, only eight rules votes got rejected, including 20 straight years without one failing, according to research by Tom Wickham, a senior congressional expert at the U.S. Chamber of Commerce. And over that same time frame, only three discharge petitions got the requisite 218 signatures to overcome the majority’s leadership objections.
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In the last three years, House leaders have lost the rules vote 11 times and seven discharge petitions hit the magic number to overcome opposition from House Speaker Mike Johnson.
“There are no rules anymore,” said Rep. Ryan Zinke, a veteran Republican who is retiring at the end of this term.
Zinke, who first won election in 2014, wasn’t talking about official rules of Congress, but instead the disappearing norms of the institution.
These are the long-held traditions that help assure that the House and Senate can ultimately produce legislation.
“The rules Congress adopts for itself cannot force effective processes. Rather, constructive norms are required to set boundaries around excesses,” Olympia Snowe, a moderate Republican who served 36 years in the House and Senate, wrote in “The Folkways of Congress,” a new book about the importance of these unwritten rules.
In the House, even before new lawmakers get sworn in, senior lawmakers and aides explain such norms: In the first vote of the new Congress, vote for their party’s leader to be the House speaker; always vote for the rule because it’s considered just parliamentary and sets up actual legislative debate; if you tell leadership you’re a yes on the “whip check,” you aren’t allowed to change your mind and vote no. If you are going to vote against your party’s legislation, speak directly to the committee chair advancing the bill to explain it in person.
And, finally, never sign a discharge petition that the minority party is circulating.
The Senate has fewer rigid norms, but they do exist, such as the idea that new senators should spend their first few months quietly observing and learning the ropes before they deliver a floor speech.
Instead, over the last 15 years, norm-breaking has started to become its own norm.
“Negative norms have also developed and taken hold. The further evolution of norms in the years to come remains to be seen. We may indeed be on a precipice: If norms of conflict continue to expand, dysfunction will only grow worse,” Dan Lipinski, who served 16 years in the House as a Democrat from Illinois, wrote in the “Folkways” book, a collection of essays from experts on Congress.
The recent debate over the surveillance legislation serves as an example of how legislative behavior has changed.
The Senate and House were at loggerheads over how to reauthorize the law, with a small but vocal group of libertarian-minded conservatives in the House pushing for big reforms.
As votes showed over the course of a few weeks, a vast majority of House Republicans were all right with the leadership-negotiated compromises, and Johnson could probably count on a decent amount of Democratic support.
But those far-right renegades opposed the plan, and they defeated the procedural rules vote on a bill that would have extended the existing surveillance authority by just 18 months.
Longtime observers see all this as a further erosion of the powers of congressional leaders, who at times seem in complete control of what passes their chamber but also incapable of getting must-pass legislation approved.
“This unusual procedural activity is indicative of a breakdown in party discipline in the House that had largely held for the past three decades,” said Wickham, who served for 25 years in the House parliamentarian’s office, the nonpartisan office overseeing procedure in the House.
Asking Democrats to support the rule vote is against the long-held norms of the House — and, to do so, House Minority Leader Hakeem Jeffries would have demanded key concessions.
Moreover, those far-right Republicans would view that as a deep betrayal by the speaker, raising the possibility of a motion to vacate the speakership and oust Johnson.
Until three years ago, such motions were only threatened but never brought to a vote, because House norms held that a speaker should only be ejected midterm if members discovered deep corruption or other serious scandal.
But in October 2023, eight Republicans forced a vote to depose House Speaker Kevin McCarthy, as Democrats stood by their norms and voted against the Republican. He became the first speaker ever ousted in the middle of a term, not even making it nine months holding the gavel.
Every GOP aspirant to the speaker’s gavel now has to consider whether they would face a similar revolt.
So, when the far-right faction still wouldn’t budge on a compromise for the terrorist surveillance bill, Johnson was so constrained that all he could do was try to pass a short-term bill to extend existing law by 45 days.
Just 25 Republicans voted against the bill, demonstrating there’s broad support for the overall legislation if they could just get back the unwritten rules of every GOP member supporting the initial rules votes.
Not so long ago, derailing your leadership’s agenda would have been met with punishment. After a turbulent first two years of leading GOP majority in 2011 and 2012, then-Speaker John Boehner’s team booted four Republicans off their most critical committee assignments for, among other norms violations, opposing the party’s annual budget outline.
In today’s hyperpartisan political media world, such punishment would likely elevate the profiles of those Republicans, earning them prominent social media attention and maybe even a spot on a prime-time show on Fox News.
So neither McCarthy nor Johnson turned to that type of discipline to tame rebellious rank-and-file lawmakers.
The Senate’s norms, in comparison, seem to be holding strong, and the overall comity among the smaller group of 100 is much better.
But the so-called upper chamber has been in an increasingly hostile war over handling presidential nominees to the federal courts and executive branch, which started with a unilateral move by Democrats to change rules back in November 2013.
Before that, Senate majority leaders had almost always followed the standard that it would take a two-thirds majority to change standing rules of the chamber, the type of bipartisan support that gave the place stability.
Then Democrats, furious at what they considered unprecedented obstruction of judicial nominees, detonated the “nuclear option,” as veteran senators called it, changing rules to confirm appointees on a simple majority rather than first clearing a 60-vote hurdle.
Republicans returned their political fire by dragging out the process for even the most low-profile nominations from the Obama White House — a process that Democrats dragged out even further during President Trump’s first term.
Past norms would have allowed many of these nominees to win confirmation without a formal vote, saving precious time on the Senate floor for debating important legislation.
Instead, by 2018, a study by The Washington Post and Pro Publica found that nominations had grown from only about 5 percent of Senate votes in 2008 to 55 percent of roll calls less than a decade later.
With House gridlock and the Senate consumed with processing nominations, some of the most basic congressional tasks became harder to accomplish, like the annual bills funding federal agencies.
According to Wickham, the government shutdown days for this fiscal year — 43 days for every federal agency in the fall and 75 days for the Homeland Security Department this spring — are more than the combined total shutdowns in the previous three decades.
In “The Folkways of Congress,” Snowe warned about the “downward spiral in norms” and the consequences.
“Simply put,” she wrote, “it seems that Congress more often defaults to conflict.”
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