In 118th Congress

As the 118th Congress prepares to reconvene for its second legislative day on January 4, 2023, the U.S. House of Representatives remains in a state of chaos, lacking a Speaker, a rules package, or a clear path forward.  The catalyst for the breakdown – which is without precedent in modern times – is an ongoing revolt by up to 20 hardline conservative Republicans against their party’s Speaker designee, Rep. Kevin McCarthy of California.  After three failed attempts to install Rep. McCarthy as Speaker, the House adjourned Tuesday evening and is set to reconvene at noon on Wednesday.

Here are some key takeaways.

  1. Kevin McCarthy’s inability to secure the votes to become Speaker of the House is shocking but not surprising.  It is the latest manifestation of what former Speaker John Boehner (R-OH) characterized as “a predictable pattern.”

In describing the dynamic of the House Republican majority during the 115th Congress, former Speaker John Boehner summarized the role played by the House Freedom Caucus (the same faction now spearheading the opposition to McCarthy) as reckless and untethered to principle.

“It wasn’t about any so-called principles—it was about chaos. But it was chaos that developed in a predictable pattern: the far-right knuckleheads would refuse to back the House leadership no matter what, but because they were ‘insurgents’ they never had the responsibility of trying to actually fix things themselves. So, they got to ‘burn it all down’ and screw up the legislative process, which of course allowed them to continue to complain loudly about how Washington’s spending problem never got solved. That kept their favorite straw man alive to take more hits.

Mark Twain wrote that history doesn’t repeat, but it rhymes.  Rep. Matt Gaetz (R-FL) was not a member of Congress during the period of 2013-2015, but it was impossible to watch him lambast McCarthy Tuesday without seeing the parallels to the same forces that brought down Boehner.

  1. There is a strong case to be made that McCarthy’s withdrawal from the race is, if not inevitable – then necessary, and in the House GOP’s best interest.

According to the Congressional Research Service, the success of modern Speakers tends to be judged, at least in part, “on the basis of their ability to use personal prestige and the powers of persuasion and bargaining to enunciate and advance his or her party’s vision and legislative agenda, as well as on success in maintaining majority control of the House.”  Above all, that means the ability to deliver the votes necessary to win a majority vote on the House Floor.

Successful Speakers employ different styles and tactics to get to that magic majority – but, by definition, they find a way to get there.

Nancy Pelosi was able to jam the Affordable Care Act through the House 219-212 in 2010.  And Dennis Hastert (with an assist from Tom Delay) was able to drag Medicare Prescription Drug legislation through the House and over the finish line 216-215 in 2003.

For his part, the late, great, Sam Rayburn prevailed 217-212 in his herculean battle to expand the size of the Rules Committee and clear a path for the President’s civil rights agenda in 1961.

The months of drama culminating in Tuesday’s embarrassing spectacle on the House Floor laid bare the possibility that Kevin McCarthy simply isn’t up to the task. It was impossible to watch the Floor proceedings without asking the question: If Kevin can’t get more than 203 members of his Conference to vote for him to be the Speaker, how is he going to be able get 218 votes to advance significant legislation?

  1. Despite seeming to unify around Rep. Jim Jordan (R-OH) during the second and third ballots, the Republican insurgents leading the opposition to McCarthy’s election have yet to credibly articulate a competing vision or identify a viable competing candidate for Speaker.  Until they do, McCarthy is down, but not out.

The message from McCarthy’s hardline opponents over the past month has seemed to suggest an openness to a negotiated solution.  While  declining to back McCarthy for Speaker, many have intimated that they would be amenable to trading their votes for McCarthy in exchange for a long list of institutional and political concessions.  That position was formalized in a December 8, 2022 letter signed by seven conservative members and members-elect, and seemingly reiterated in reporting as recently as early last weekend.  However, on Monday and Tuesday, the willingness of insurgents to accept concessions in exchange for backing McCarthy was called into question when nine conservative Republicans sent McCarthy a second letter excoriating his candidacy just one day after McCarthy agreed to accept a “cornucopia of concessions” sought by the rebels, incorporating most of the demands from their December 8th letter into the Rules Package for the 118th Congress.

While Monday’s letter rebuffed McCarthy’s overtures partly on procedural grounds, calling them “almost impossibly late to address continued deficiencies ahead of the opening of the 118th Congress on January 3rd,” it also took some direct shots at McCarthy and what the signers believe he represents: “a continuation of past and ongoing Republican failures.”  The letter also proceeded to assert that McCarthy’s 14-year presence in senior house leadership puts the burden of House dysfunction on him.  Thus, while it appears that at a minimum that the price for the votes of the hardliners has gone up since early December, it also seems possible that the McCarthy has come to so deeply embody the “problem” the hardliners perceive that they may be unable to support his election regardless of what further concessions are offered.

  1. Should McCarthy somehow secure the votes to become Speaker, he will assume office as the weakest Speaker in a generation. The rabble-rousers in the Republican Conference will be poised to walk all over him and his leadership team.  Such a dynamic would be bad for the GOP and for the country.  The House cannot function without a strong leader who is respected or feared within his or her caucus or conference.  McCarthy appears to be neither.

Article I, Section 2 of the Constitution provides that “The House of Representatives shall choose their Speaker and other Officers.”  Beyond this single sentence, however, the Constitution has remarkably little to say about the office of the Speaker, or its duties and authorities.  There is, moreover, little significant discussion of the office in the records of the Constitutional Convention.  As a recent CRS Report explains: “There does not seem to have been any grand plan or specific expectation as to how the Founding Fathers envisioned the speakership.”

As such, more than perhaps any other Constitutional office, “the speakership has been shaped largely by the various individuals who have held the post, the circumstances in which they have operated, formal obligations that have been assigned to the office by House rules and statute, the character of the House as a political institution, and traditions and customs that have evolved over time.”  Thus, there is something of a mismatch between the supple and expeditious McCarthy and the requirements of the office to which he now aspires.

McCarthy has already agreed to long list of concessions, including making it easier to depose a speaker.  Thus, even if he can strengthen his political position, the Rules Package he agreed to on Sunday would make him for practical purposes a relatively diminished Speaker.

  1. The rule changes being pushed by insurgents are designed to make it more difficult for Republican’s to leverage their House majority, and that could benefit Democrats.

One of the central arguments Republican insurgents have advanced in challenging McCarthy is that “the House leadership of both parties has increasingly centralized decision-making power around fewer and fewer individuals — at the expense of deliberation and input by the body.”  On that basis, the demands set forth by the insurgents largely aim to weaken the influence of the House Leadership.  In practical terms, however, in a majoritarian institution like the House, the beneficiaries of at least some of those changes could be the Democratic minority.

  1. The success or failure of Rep. McCarthy’s bid to become Speaker is likely to have little to no impact on financial services legislative policy in the 118th Congress – with one major caveat.

On some level, political dysfunction and turmoil in leadership discourages policymaking, and that holds true across the board – including with regard to financial services.  That being said, none of the key members of the House Financial Services Committee (HFSC) are prominently involved in the intra-party fight of the Speakership.  Indeed, the issues about which the various sides are bickering do not touch in any way on financial services policy.  Moreover, the incoming Chairman of the HFSC, Rep. Patrick McHenry (R-NC), has excellent relationships with both McCarthy and Rep. Steve Scalise (R-LA), the recently elected House Majority Leader, who many have speculated would be next in line for the Speakership should McCarthy withdraw.

The situation at this point is sufficiently fluid that we can’t rule anything out, and with that in mind, we remind readers that Rep. McHenry is not only a personal friend of Rep. Scalise, but he managed Scalise’s successful 2017 campaign for House Majority Whip, and subsequently served alongside Scalise on the House Leadership team as Chief Deputy Whip during the 115th Congress.

Rep. McHenry has stated that he is not interested in serving in House Leadership during the 118th Congress.  However, in the event the Rep. McCarthy were to abandon his pursuit of the Speakership in favor of Rep. Scalise, that would open up the post of House Majority Leader or House Majority Whip.  If that was to occur, it is certainly possible McHenry could reconsider his decision.

  1. The likelihood that the present fiasco could prompt a “compromise” agreement that leads to a “moderate” Republican or Democrat being elected Speaker is precisely zero.
  1. What else?  Where do we go from here?


  • At the moment, the conventional wisdom seems to be that if McCarthy withdraws, then Rep. Steve Scalise (LA) will be the next Speaker. Something about that doesn’t quite wash.


  • Support for Rep. Jim Jordan is real and growing. The fact that he earnestly doesn’t seem to want to be Speaker – much like Paul Ryan – is perhaps his biggest asset.


  • This is a terrible look for Republicans of all stripes. While 100 year old precedents do suggest that the House could continue to call the roll until a Speaker is elected, and while many McCarthy supporters pledged to keep voting “as long as it takes,” we don’t believe that is realistic or tenable. While we allow for the possibility to the question of who the next Speaker will be may not be resolved imminently, we do not believe Rep. McCarthy and his supporters stand to benefit from additional failed votes.


  • Remember Bob Livingston? Neither does 99.99 percent of America.  But we’re in uncharted territory, so buckle up, and expect more surprises to come.


  • Keep a close eye on the composition of the House Rules Committee. Any major concession from McCarthy is likely to come here.


  • Recall JFK’s famous admonition “to remember that, in the past, those who foolishly sought power by riding the back of the tiger, ended up inside.”








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