The Founding Fathers drew up a Constitution that empowered minority rights, but specifically steered clear of something that was common in the 18th century Polish Parliament.
Often invoked with the Latin phrase “Sisto activitatem!” (“I stop the activity!”), a single Polish lawmaker could declare the end of that particular session and nullify all laws adopted. The ensuing legislative paralysis allowed neighboring armies to invade and carve up a defenseless Poland.
Today’s Congress isn’t operating under the “liberum veto,” as scholars called that tradition, but the increasing accumulation of power by a small band of Republicans has left the House almost completely dysfunctional.
“The founders, such as Alexander Hamilton, would have looked with horror on what is happening today. The House Republicans are playing with fire,” said Daniel Ziblatt, a Harvard University professor focused on democracies.
Ziblatt and Harvard’s Steven Levitsky just released their book “Tyranny of the Minority,” an examination of how American democracy is increasingly dictated by the minority party through obscure rules, customs and traditions in Congress.
The past decade has produced a bounty of work in this field, with a huge amount of focus on the Senate’s filibuster tradition allowing some very popular pieces of legislation to get stymied.
But the past two weeks have introduced an entirely different level of minority rule. Any senator needs to find 40 other like-minded comrades to tie the Senate in knots, leaving 59 others frustrated.
In the House, with a very narrow Republican majority, rules and tradition have been so contorted that as few as five members — out of 435 districts — are controlling the chamber and dictating outcomes.
Just before the House adjourned in late July for its summer break, a small group of about 15 far-right conservatives forced Speaker Kevin McCarthy (R-Calif.) to pull the usually easy task of approving funding for the Agriculture Department. Last week, the same group forced GOP leaders to pull consideration of the Defense Department funding bill — also usually an easy bill to pass.
On Tuesday, five Republicans banded together with 209 Democrats to vote against the rules to set up debate on the defense bill, just enough to deliver a humiliating defeat to McCarthy’s leadership team.
It’s the second time in four months this small bloc of hard-right lawmakers defeated the rules vote, something that is critical but traditionally a perfunctory roll call in which the majority party votes yes and the minority votes no. Only one other rule vote has failed this century, more than two decades ago.
Moreover, that small faction has seized control of the broader House GOP agenda with threats to sabotage any future rules vote unless the legislation is drawn up precisely to the liking of this minuscule group of lawmakers.
All of this has left McCarthy legislatively impotent, unable to pass even the most basic legislation and hurtling toward a government shutdown in 10 days that he desperately wants to avoid.
“I don’t ever recall a time where the speakership is so weak. We all know what’s going on here,” said Rep. Jim McGovern of Massachusetts, a 27-year veteran of the House and the top Democrat on the House Rules Committee.
What’s going on is that, in addition to threatening to block rule votes to sabotage legislation deemed insufficiently conservative, these few hard-right Republicans are also issuing threats to use even more obscure procedural motions to toss McCarthy out of his job.
The most rational option for the speaker would normally be to negotiate with Democrats, who want to keep the government open and are ideologically disposed to like having a functioning Congress.
“They could come up with a bill that would get, not just a majority, but probably a substantial majority vote,” McGovern said, referring specifically to the defense bill but broadly on most legislation.
But McCarthy has badly damaged his ties to Democrats by, first, reneging on the debt-and-budget deal he cut with President Biden in May in an attempt to appease his hard-line faction, ordering his lieutenants to cut more than $100 billion from agency budgets that he had previously agreed upon. Then, last week, McCarthy declared an impeachment inquiry centered on the business dealings of Biden’s son, Hunter, though lawmakers have yet to produce direct evidence linking the president to those activities.
To give McCarthy help on rules votes, Democrats would demand concessions. “Look, we’re not cheap dates,” McGovern said.
And granting further concessions to Democrats would be more chum for McCarthy’s far-right antagonists to draw up a motion to vacate, as the procedure is known for ejecting speakers in the middle of their terms.
This motion has only been used once before, in 1910, by Speaker Joe Cannon, who created the motion as a means to demonstrate his power. He asked an ally to formally make the motion and Cannon then won by nearly 40 votes.
In the last decade, that motion, created to show off power, has been turned upside down to be used to threaten to oust speakers, first John A. Boehner (R-Ohio) and now McCarthy.
Boehner resigned in the fall of 2015 rather than force his members to vote on retaining his services. He also said he did not want to rely on votes from the minority to stay in power.
Ziblatt and Levitsky, who also wrote a 2018 bestseller, “How Democracies Die,” view all these machinations around customs that used to have no foundation as part of the decaying nature of Congress.
“Normally, we think the problem is constitutional but much of minority rule in the U.S. hinges on abuse of procedural rules — the filibuster in the Senate and what is happening in the House today,” Ziblatt said Wednesday via email.
The renegades imposing their will on the House have tried to say that their real goal is to allow “open rules” so that an unlimited amount of amendments can be offered. This would diffuse power away from the offices of the House speaker and Senate majority leader, who have in recent years seized an outsize amount of control.
“If we have a true open-rule process, then you empower every member in all 435 districts across this nation to have an equal say and an equal ability to participate,” Rep. Matthew M. Rosendale (R-Mont.), one of the five who blocked the defense bill, said Wednesday.
But that argument falls on its face when looking at their actions. Yes, they demanded commitments from McCarthy to have a wide-open process for considering the 12 annual government funding bills during the marathon voting session in early January.
The reality, however, is that these far-right lawmakers are only empowering themselves by refusing to allow the House to consider legislation unless it meets their ideological needs.
By a lopsided 314-117 margin, majorities of both the GOP and Democratic caucuses approved the Biden-McCarthy debt deal, which set the budget outlines for the next two years.
The small hard-right faction, less than two dozen in total, instead forced McCarthy to write those appropriation bills at dramatically lower numbers.
So much for “equal say” and “equal ability” for all 435 House members.
These lawmakers demanded so-called regular order for spending bills, but when regular order produced an overall budget number they did not like, they shut down regular order through both threats of sabotage and actual sabotage.
And now that regular order is not being adhered to, this extremely small minority is bashing McCarthy for not practicing regular order.
Democrats dealt with their own ideological flank in the last four years of the tenure of Rep. Nancy Pelosi of California as speaker, but they never lost a procedural rule vote and she never faced a call to get expelled from her post.
“Because we didn’t have any nihilists,” Rep. Steny H. Hoyer (D-Md.), who served as Pelosi’s deputy for 20 years, said Wednesday. “We didn’t have any people who are anarchists, or people who didn’t care about government operating on behalf of the American people, and thought that their cause was superior to anybody else’s, and therefore the rest be damned.”