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  • Sheri Rivlin Allan Rivlin

Is a New Supermajority Ruling America?

In 2022 we wrote a book about congressional dysfunction, but the 117th Congress that closed out 2022 with a flurry of bipartisan legislative accomplishments was the opposite of a dysfunctional congress. As much as we worry that the new 118th Congress with Republicans in the majority in the House could devolve into chaos and stalemate, there is reason for hope that the coalition that passed so much legislation in 2022 will reemerge to make Congress work in 2023 and 2024.

The case is strong for the expectation of chaos and dysfunction in the 118th Congress. The current makeup of the White House and Senate under Democratic control with Republicans holding the Majority in the House of Representatives most closely resembles the 112th Congress (2011-2012). However, there are reasons for hope that lessons have been learned from past dysfunction and that bipartisanship will emerge more quickly this time around.

The Democrats lost the 2010 midterm election in what President Barack Obama labeled a “shellacking.” House Speaker John Boehner (R-OH) and the “Young Guns” in House leadership struggled to maintain unity as the newly elected “Tea Party” Republicans were clamoring for political hardball tactics in the form of threats of government shutdowns and refusal to raise the national debt ceiling. Eventually, Boehner had to surrender the Speaker’s gavel to Paul Ryan (R-WI) who similarly struggled to hold the caucus together.

At the time of this writing, Republicans have not elected a Speaker, and it looks like they may have difficulty settling on one that can unite the many factions in the GOP caucus. Kevin McCarthy (R-CA) is the only one seeking the job, but he has yet to secure the 218 votes he needs out of the 222 Republicans in the closely divided House. There are as many as 14 Members of the GOP chaos caucus expressing doubts that McCarthy could win their vote even after he made the concession to lower the threshold of votes needed to call for a vote to replace him if he disappoints any faction in his caucus. The important question is not whether McCarthy can get elected Speaker on the first ballot or subsequent votes, but whether he, or anyone else can unite the factions of the Republican Party.

There are many factions among the House Republicans, but the biggest split is between those who would like to pass conservative legislation and moderate the liberal policies being offered by the White House and the Democrats in the Senate and House, and those who want to use their majority to block the Biden agenda, investigate the Biden Administration and the Biden family, and break the US government heading into the 2024 election. The math is daunting, the extremist chaos and dysfunction wing certainly has a louder voice and may have larger numbers within the GOP Caucus, but they would come up short of a majority of the whole house in any vote to do real damage, such as placing limits on support for Ukraine, or votes to shut down government or default on the national debt. There is no majority in the House that wants to see the United States fail.

The biggest difference between the 118th Congress and the 112th Congress is the knowledge and experience our political leaders gained from having seen this movie before. When the strategy emerged that ended the shut-down standoffs of the Obama Administration Joe Biden was Vice President, Mitch McConnell (R-KY) was Senate Minority Leader, Chuck Schumer (D-NY) was in the Democratic leadership as head of the DSCC under Majority Leader Harry Reid (D-NV). The strategy, detailed in Chapter 9 of Divided We Fall, was to end-run the Speaker of the House by crafting bipartisan compromise legislation that could pass the Senate with a filibuster-proof supermajority. Because the bills arrived with enough bipartisan support to pass if they reached the House floor, only Speaker Boehner could block them by invoking the so-called “Hastert Rule” (which was never really a rule) and rather than taking the heat for single-handedly breaking the government and the economy, Boehner chose to allow the bills to reach the floor and pass with Republican and Democratic votes. This led to Boehner’s ouster as Speaker.

The underappreciated story in recent American politics is that Congress has been performing far better than either the American public or critics in the media have realized. The Real Clear Politics average rating for congressional job performance has been hovering in the mid-twenties for most of 2022 and ended the year on an uptick at 26.7 percent approval with more than twice as many 62.4 percent expressing disapproval. The truth is the 117th Congress deserved a higher rating because a remarkable volume of quality legislation passed and was signed into law by President Biden.

Biden, Schumer, and McConnell used the strategy of starting with a bipartisan compromise in the Senate to pass a long list of bipartisan bills in the 117th Congress including the infrastructure bill, the CHIPS Act, burn-pit veterans’ health, firearms safety, NATO expansion, support for Ukraine, the Respect for Marriage Act, and then the full year FY2023 budget in the Lame Duck session. The bipartisan budget deal will fund government through the end of the fiscal year (through September 30, 2023) defusing the threat to play budgetary hardball for nine months. Biden and McConnell will appear together this week in Kentucky to signal their intention to use this strategy as the roadmap for an alternative to the chaos and stalemate most are expecting in 2023.

The strategy works by avoiding areas of conflict and finding areas of common ground where Biden, Schumer, and McConnell can agree. Schumer will bring Bernie Sanders (DS-VT) and Joe Manchin (D-WV) into the negotiation to ensure the Democrats stay unified, and McConnell must bring in moderate Senate Republicans to reach a filibuster-proof supermajority. After that the only thing that will matter is whether there is a bipartisan majority in the House to pass the legislation, and whether the House Rules will block the measure or allow it to come to a vote.

The next GOP Speaker of the House may not have the power to block bipartisan legislation. Everyone is paying attention to the far-right Members of Congress that Kevin McCarthy needs to reach 218 votes to assume the gavel, but the moderate Republicans are also necessary to get to 218 so they have a lot of power, and they know how to use it. In 2019 the Democratic Members of the bipartisan Problem Solvers Caucus demanded Nancy Pelosi give up the power to block bipartisan legislation by passing the “Break the Gridlock Rule.” The Republican Members of the Problem Solvers Caucus can and should demand that McCarthy pass the same rule to get their moderate Republican support for his bid to be Speaker.

These are the issues that are being worked out in the fight to elect a Speaker but whatever gets decided this week will likely be temporary and subject to relitigation. We interpret the results of the 2022 election to suggest the attractiveness of belligerent politics to have peaked and Republicans that interpret their narrow House majority as a mandate for partisan confrontation will find themselves increasingly in an isolated minority.

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