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Reviews | How an Acting President, Patrick McHenry, Could Actually Govern

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In the first ten months of their majority, Republicans have nominated three different people to serve as Speaker of the House, and none of them currently holds the gavel. The defeat of Jim Jordan against the centrists, after the disappearance of Steve Scalise and Kevin McCarthy against the conservatives, cements the idea that no one can unify the Republican conference.

In the absence of a president, the House of Representatives remained dormant. No bill was put to a vote. New bills are not referred to committee for consideration. And while the world expects the United States to act decisively, the prospects for electing a new president are currently bleak.

House Republicans have a choice: continue their endless ritual of self-sabotage and try to propose another candidate for president, or suspend this debate and get to work without a candidate. The second option is not a lasting solution, but it is a way forward. The House has the power to legislate, and it must accept it.

In the absence of an elected president, Patrick McHenry of North Carolina has served as president pro tempore, thanks to a 2003 House rule that requires each new president to draft a list of temporary successors in the event of incapacity . Mr. McHenry was unlucky enough to be at the top of Mr. McCarthy’s list.

House Republicans may not deserve a leader like Mr. McHenry, but they are lucky to have him. He is a serious person, widely respected for his honesty and intelligence. Previously a member of House leadership, he left that path to pursue a more policy-focused role leading the important Financial Services Committee. He has also resisted the worst impulses of the current Republican conference in the House of Representatives, such as voting to certify the results of the 2020 election.

The rule that elevated Mr. McHenry was the product of a post-9/11 House task force on continuity of government, intended to ensure that the House could function in an emergency. There is some debate about what powers the president pro tempore has under the rule, but it is made clear that this person’s primary responsibility is to oversee the House’s election of a new president.

It seems absurd, in the context of 9/11, that such a rule would not allow the president pro tempore to take emergency legislative action. I have, however, spoken with people involved in drafting the rule, and they insist that the intent of the pro tempore was to only supervise the election of the president. They never even considered the idea that the House couldn’t elect one quickly.

What now if that’s not possible? There are two ways to restart the work of the House without a president. The cleanest solution is a vote of the body to give Mr. McHenry the full legislative powers of the president, perhaps for only a specified period. This was done for scheduled absences of speakers. But that would of course require the support of a majority of the House, and some Republicans can be expected to balk at that.

There is growing talk of a two-party system of government, with Democrats voting to give Mr. McHenry more power in exchange for rules favorable to the minority party. We shouldn’t give it much importance. While the House has figuratively erupted, many Republican members would rather do so literally than allow Democrats to share control of the chamber. If Democrats are looking for something in return for their votes, they will instead have to trust that Mr. McHenry will act fairly and urgently to propose legislation to benefit Israel and Ukraine, as well as to fund our own government.

Alternatively, if Republicans and Democrats can’t bring themselves to formally vote to empower Mr. McHenry, he may simply have to act on his own. In the absence of clear rules, the House operates under precedent. We are in an unprecedented situation. And the rules of the House, functionally, are what the simple majority says.

Until now, Mr. McHenry has acted under a narrow interpretation of his powers. But nothing stops him from trying to use his authority to recognize MPs who present motions to introduce a bill. For example, he could propose recognizing a member who wishes to vote on a resolution condemning Hamas terrorist attacks.

This would be a first step towards resuming the work of the House, although it would not be without controversy. Another member would likely take issue with whether a vote on this hypothetical resolution was even allowed under House rules. If the parliamentarian announced that the bill was inadmissible, the House could vote to appeal and overturn this judgment. Mr. McHenry would dare MPs to block consideration of a policy that most appear to want to support, and if they succeeded, it could break the seal on the ability to legislate under a temporary president.

From there, as more complex measures emerge, a governing coalition will need to continue to provide the votes needed to allow the House to operate on an issue-by-issue basis. In fact, the House would live or die by what the majority of its members would tolerate. Some might say that’s how it should be.

All of this is unstable and unsustainable, but so is our current trajectory. Although Mr. McHenry’s lack of legitimacy would undoubtedly be used against him by his own party as well as the Senate, allowing the House to rely more on its members for direction could be a healthy exercise.

A strong speaker is good for the functioning of the House, but it is also true that members of Congress have become too comfortable with using the speaker to shirk their own responsibilities as legislators. Rather than devoting themselves to policy-making and the legislative process, too many MPs are increasingly sitting idly by and demanding that the speaker turn their policy preferences – no matter how far-fetched – into reality.

Mr. Jordan is a perfect example of this kind of demagoguery. No bill he introduced in his almost 17 years in Congress has ever passed, although he has had no shortage of opinions and complaints about how speakers have legislated.

Reopening the House without a president does not guarantee legislative progress and normal order, but it could give members a new embrace of the body’s work. And if that fails, perhaps it will help some members understand that an authoritarian speaker is not to blame for their woes, but rather for the refusal of too many to accept what is necessary to govern.

Brendan Buck is a communications consultant who previously worked for Republican House Speakers Paul D. Ryan and John Boehner.

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