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PaperclipPerfector  16d ago (text post)   33189 thread views

Culture War Roundup for the week of March 31, 2025

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While eyes are on Trump and tariffs and all that, there is a minor crisis brewing in the House on proxy voting.

For background, the Constitution provides little substantive guidance for how to run the legislature other than Each House may determine the Rules of its Proceedings, which in practice has been taken to mean that they can make and remake their own rules by a majority vote at any time. One aspect of this is that they need rules to do anything -- without a resolution adopting rules of procedure, the House cannot take up any business. Another facet of the rules (as they are today) is that the Speaker sets the agenda and controls what comes to a vote (and the rules for bringing amendments and so forth). This lead famously to the "majority of the majority" calculation -- a bill must have an absolute majority to pass but it must also have a majority of the majority to be put forth by their leadership to even get a vote. A curious exception to this is the "discharge petition" -- effectively a way for a majority of Representatives to force the leadership to put a particular matter up for vote without delay. Once presented with sufficient votes, a discharge petition is privileged from being preempted by other business.

So with all that parliamentary background aside, here's where we are: a (now former) member of the freedom caucus with an solid conservative voting record is leading the charge to allow new parents to designate another member of the House as their proxy to vote on their behalf for 12 weeks after the birth of their child. The GOP leadership refused to put it up for a vote so she got 218 votes to discharge it, which means (under the current rules) the House has vote on it within 2 weeks.

Instead of taking the L, GOP leadership tried to play hardball and brought up a procedural rule to forbid the use of discharge petitions entirely. I found the text here. This apparently rankled enough republicans (changing the rules on what can be voted for because you're about to lose a vote is still frowned upon) to vote against the procedural rule, which in turn means the House is stuck. At that point, Johnson had no option but to adjourn till next week to buy time.

So basically this issue has frozen the House, right at the point where we might need a functioning Congress.

Tallying it up, I see a decent number of conservatives whose opposition to proxy voting for new parents is such that they won't accept any rules resolution in which it might come up for a vote (because they wouldn't accept losing that vote). On the other side, with Luna is is Trump who weight in saying (direct quote, because he's always quotable) "I like the idea of being able to — if you’re having a baby, I think you should be able to call in and vote. I’m in favor of that".

Editorializing a bit, for me the Article I framing firmly puts the procedural rules outside the realm of constitutional or judicial reckoning and makes it a political matter. Hence, I find the legalistic arguments on it to be misplaced -- it's not a legal matter. On the policy, it seems reasonable enough for the House to make a point of being pro-natal and I think voters can throw out any representative if they don't like her votes (by proxy or otherwise) in the next election.

I also think embedding a substantive proposal into a rule is pretty silly -- maybe I'm procedure-brained (or WEIRD) but this is just pants

SEC. 5. (a) House Resolution 23 and House Resolution 164 are laid on the table.

(b)(1) A motion to discharge a committee from con-
sideration of a bill or resolution that, by relating in sub-
stance to or dealing with the same subject matter, is sub-
stantially the same as House Resolution 23 shall not be
in order.

(b)(2) A motion to discharge the Committee on Rules
from consideration of a resolution providing a special
order of business for the consideration of a bill or resolu-
tion that, by relating in substance to or dealing with the
same subject matter, is substantially the same as House
Resolution 23 shall not be in order.

(c) A motion to discharge on the Calendar of Motions
to Discharge Committees that is rendered out of order
pursuant to subsection (b) shall be stricken from that cal-
endar.

Wait what? The chambers of Congress can change procedure with a simple majority? And presumably, the procedural changes survive elections?

This seems ripe for abuse. Say party A currently has a majority in the House, but knows that it will lose its majority after the elections. They can simply make a procedural rule saying that the speaker has to be elected with a 2/3rd majority, and until he is elected, the House can do nothing else but try to elect a speaker. (Or they might simply change the rules so that the guy with the longest beard is the speaker, if they have the guy with the longest beard.) This would prevent the newly elected majority from passing any laws until SCOTUS intervenes. I think it is good practice to require a 2/3 majority for changing how a legislature operates.

As I understand it, under the current rules the House will have to vote on some proposal X. Now people who do not want to vote on matter X introduce a proposal Y which says "we will not vote on matter X".

What I don't understand is how this would change the substantial outcome. Either a majority would support X, in which case they will surely not vote for proposal Y. Or a majority is opposed to X, in which case they presumably might support Y -- but that does not matter for the outcome because X is lacking support anyhow.

The only way this matters is if the vote itself is the problem, not the outcome -- if their base would be enraged if they voted against X, for example. However, the optics of "we specifically changed the rules so that we did not have to vote on the Stop Puppy Torture Act" does not feel substantially different from "we voted against the SPTA" -- you might keep the support of your most stupid puppy-loving constituents, but in turn you lose support from anyone who likes clean, efficient legislature instead of messy spaghetti code.

A majority can vote to remake or suspend the rules at their discretion.

But by which rules do they vote then?

Wait what? The chambers of Congress can change procedure with a simple majority? And presumably, the procedural changes survive elections?

Formally, the rules are re-made with every Congress.

A majority can, at any time, remake the rules. The rules continue to apply at the pleasure of the majority.

Instead of designating a proxy, why couldn't they cast votes over a video link?

(That also gives you the side benefit referred to in technicalese as 'continuity-of-government' and in English as 'not having your entire legislature within one blast radius'.

That would be an even more radical change to the rules of the House.

Proxy voting is seen (perhaps wrongly) as a more conservative alternative in which votes are still fundamentally cast in person with a roll call.

In the age of deepfakes? Untenable.

When it comes to political process you either go simple as dirt or giga-hardened. Either votes are only valid if emitted through some state of the art cryptography or you have to be face to face.

Otherwise you'll end up with your representatives just being video feeds.

The best security is still a locked door and an armed guard where only a few people have the key, and the guard is not one of them.

I would assume the video feed would be authenticated (in addition to everything else) by a physical token that the representative has to retrieve at the point of swearing in. But anyway, for reasons I added above, this is extremely unlikely -- far more so than the modest request for new mothers not to have to fly to DC with a newborn under 12 weeks.

The issue at stake is whether the US House of Representatives will have proxy voting, which was not allowed except, temporarily, during Covid. Once any exceptions are allowed, those exceptions will get expanded until proxy voting is fully normalized. Except for the few that plan to make statements, a Representative always has something better to do than attend the House vote (make calls to raise money, meet lobbyists). So once proxy voting gets established, there will be strong pressure against attendance.

I understand why Johnson is dragging his feet on the matter.

On the other hand, I wonder how much of the "deliberative nature" of the in-person House vote has already been destroyed by C-Span. If all statements are prepared in advance, and anything you say can and will be used against you in an edited video clip during the next election cycle, does anyone present at the current House floor deliberation change their minds on anything?

It was not allowed simply because House rules forbade it. As noted, the Constitution grants the House the right to make their own rules.

In any event, one doesn't need to be in favor of proxy voting for frivolous reasons (need to make a fundraiser) in order to support it for good ones (a newborn).

Okay, but how effective do you think the House will be at policing this boundary? Which House majority will go from "having the votes to pass a bill" to "not having the votes to pass a bill" because a member gave an invalid proxy? No, the pressure to just slippery-slope all the way down to the "proxies can be given at each member's discretion" will be extremely strong.

§2(b)(1)(A)(i) requires a valid reason be given in writing to the clerk to be verified (c)(1)(A) and returned as invalid if not conforming (c)(1)(C).

Modifying that would require another majority vote.

That just moves the pressure up a meta level for determinations to be made about what is "valid." The same arguments will be made about sick children, sick spouses, sick family members, &c. And of course things will be fabricated at a higher level than they are caught, and enforcement will be weak.

I'm willing to make a substantial bet that will not happen.

I hate researching anything related to Congressional Rules.

The closest thing I could find for standing Rules of the House is this package prepared for the 118th Congress (the previous Congress) which I believe is modified by House Resolution 5, which does not actually contain anything related to Rule 15 clause 2 (which is about discharge petitions). There's also a Congressional Research Service article on discharge petitions. The relevant paragraph here seems to be (c)(1):

(c)(1) A motion to discharge that has been on the calendar for at least seven legislative days (except during the last six days of a session of Congress) shall be privileged only at a time or place, designated by the Speaker, in the legislative schedule within two legislative days after the day on which a Member whose signature appears thereon announces to the House an intention to offer the motion. When such a motion is called up, the House shall proceed to its consideration under this paragraph without intervening motion except one motion to adjourn. Privileged motions to discharge shall have precedence in the order of their entry on the Journal.

The way I have heard this rule interpreted is that the Speaker is required by the Rule to schedule a vote on the motion within the two legislative days. The motion being privileged means no other motions (excluding adjournment) can be considered before the privileged motion is. Anna-Luna announced her intention to offer the motion on Tuesday, so by the Rule Johnson had two legislative days after then to put it to a vote. Arguably, that limit ran out yesterday and they are already in violation of the rule. Ordinarily even a day during a "district work period" (what Johnson declared the week until this coming Monday as) is a "legislative day" even if the House does nothing but adjourn. One might notice, reading H.Res 5, that it amends the rules of the House so that those days are not counted as legislative days for the purposes of certain rules. Ex:

“(c) Each day during a district work period described in paragraph (a) shall not constitute—

...

“(2) a legislative day for purposes of clause 7 of rule XIII;

You can read the full list of exceptions at my link above and while there is a clause mentioning Rule XV, it's specific to clause 7 (Consensus Calendars). Clause 2 on discharge petitions is not mentioned.

The above is all academic, of course. There is no mechanism I'm aware of (short of a motion to vacate the chair) to compel the Speaker to actually follow the rules. Although in some sense all rules exist only by our willingness to abide them. If the House wanted to ignore Johnson's scheduling they could. Interestingly, in the vote on H.Res 282 (the one to get rid of the discharge petition without voting on it) enough Republicans (9) voted Nay on it that they could also get a privileged resolution to declare the chair vacant (kick Johnson out) going. Is this sending a message?

There is no mechanism I'm aware of (short of a motion to vacate the chair) to compel the Speaker to actually follow the rules.

Is it not possible to appeal from the decision of the chair, or some equivalent, in the House?

I believe it is, although in the instant case I'm not sure what that looks like. How do you appeal the Speaker to not scheduling a vote on a motion?

I think when the House moves on to other business, you raise a point of order that this business is not properly before the House until it votes on your privileged matter. If the Speaker refuses, the appeal goes to the full House for a vote.

Since you had a majority for the DC in the first place, this vote presumably goes your way and the other business cannot be done.

I'm not very familiar with House procedure specifically; I just know a bit about general parliamentary law. Wouldn't any member simply be able to make a point of order to take the vote once the parliamentary situation is in breach of the rules? And if the chair then rules the point of order not well taken, then one would appeal.

I hate researching anything related to Congressional Rules.

And yet here we are :-)

The above is all academic, of course. There is no mechanism I'm aware of (short of a motion to vacate the chair) to compel the Speaker to actually follow the rules.

Well both the rules and the Speaker are products of a simple majority vote. A Speaker that doesn't follow the rules and refuses to entertain a point of order to enforce it that would be supported by the majority can be voted out. That's also nice, in that it gives Johnson an out to punt the question to the House more generally where the point of order can be sustained by a majority and the resolution changing the rules passed.

Anyway, I share your view that this is all academic in the sense that the matter will be resolved between the parties, not as a parliamentary point.

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