Dark money enters the Speaker’s race.

January 5, 2023

          Kevin McCarthy failed in three more votes to become Speaker of the House. McCarthy made a smidgen of progress that may have secured an additional vote or two on Wednesday evening. But that progress came at a deeply disturbing cost that should concern every American. The details of the agreement negotiated by McCarthy are complicated and obscure—deliberately so because they involve a “treaty” between two dark money PACs that fund GOP candidates for the House. The fact that the election of a constitutional officer—the Speaker of the House—is being brokered by dark money PACs is an insult to the rule of law and an open wound on democracy.

          Here are the details: The House convened at Noon on Wednesday and held three votes for Speaker. In each vote, McCarthy fell at least sixteen votes short of the 218 necessary to be elected Speaker. The bloc voting against McCarthy is composed of so-called “Freedom Caucus” members who (a) participated in the January 6th insurrection, (b) objected to the count of the electoral vote on January 6th, and (c) are opposed to government in general and democracy in particular. After three failed votes for McCarthy, Republicans called for a three-hour recess to allow “back-room” negotiations to determine an election intended to be transparent.

          About two hours into the three-hour recess, two GOP dark money PACs released a joint statement in which they agreed on principles for funding Republican primaries and supporting Kevin McCarthy. The statement said:

          Congressional Leadership Fund (CLF)—the independent PAC endorsed by Kevin McCarthy—and the Club for Growth reached agreement on support for Speaker Kevin McCarthy.

          CLF will not spend in any open-seat primaries in safe Republican districts and CLF will not grant resources to other super-PACs to do so.

          [The Club for Growth agrees that] this agreement on super PACs fulfills a major concern we have pressed for. We understand that Leader McCarthy and Members are working on a rules agreement that will meet the principles we have set out . . . .

          No one in Congress or their staff has directed or suggested CLF take any action here.

          In short, McCarthy’s super PAC agreed not to fund primary candidates in “open-seat, safe Republican districts.” If you believe that “no one in Congress” suggested McCarthy’s PAC make a perfectly timed concession to assist McCarthy’s bid for the Speakership, you should cut up your credit cards and disconnect your computer from the internet.

The agreement was released during a recess in the voting for Speaker and references an effort by House Republicans to draft a rules agreement that implements the agreement between the Club for Growth and Congressional Leadership Fund. Any rational observer would conclude that supporters and opponents of McCarthy directed the dark money PACs to enter into a treaty favorable to the Freedom Caucus to win a handful of votes for McCarthy. 

          To use a technical term, the agreement “stinks to high Heaven.” The dark money of mega-donors like the Koch brothers, the Andelsons (Las Vegas Sands), Charles Schwab, and Bernard Marcus (of Home Depot) are being given a seat at the table in the selection of the Speaker to the exclusion of American citizens. All blame goes to Justices Anthony Kennedy, John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito. Together, they decided that corporations have unfettered freedom to influence political campaigns through massive, anonymous spending designed to overwhelm the will of the people.

          It is not yet clear how this will turn out—except to say that it bodes ill for the ability of the 118th Congress to perform its constitutional duties. No Speaker elected with a majority vote of Republicans will govern from a position of strength. Instead, he or she will be negotiating with political terrorists (in their own party) over every bill. The chaos on the House floor for the last two days gives us a glimpse into the dysfunctional future that majority rule by Republicans in the House portends. But . . . perhaps, just perhaps, some centrist Republicans will be repulsed by the impending chaos and join in common cause with Democrats who seek to govern responsibly.

          Post-script: Trump intervened on McCarthy’s behalf by releasing a full-throated statement in support of the beleaguered majority leader. Trump wrote,

It's now time for all of our GREAT Republican House members to VOTE FOR KEVIN, CLOSE THE DEAL, TAKE THE VICTORY!

          Trump also called individual members of the Freedom Caucus to urge support for McCarthy. Trump failed to flip a single vote in favor of McCarthy. Instead, in remarks on the House floor, Freedom Caucus member and insurrectionist Lauren Boebert said that Trump should have called McCarthy and urged him to withdraw from the race for Speaker. See CSPAN, Rep. Boebert Says Trump Should Tell GOP Leader It's Time to Withdraw Speaker Bid.

          As noted yesterday, the Republican Party is in the midst of a long, ugly, and unsuccessful attempt to free itself from Trump’s death grip. McCarthy believes that Trump’s endorsement is necessary to become Speaker, and Boebert believes that Trump can end McCarthy’s candidacy with a phone call. But the evidence demonstrates that Trump has no influence on the process either way.

Quick note about the powers of the Representatives-elect.

          I received dozens of inquiries from readers asking how Representatives who have been elected but not “sworn in” are able to vote for Speaker. I don’t have a technical answer but offer the following observations: The Constitution commands “the House of Representatives shall chuse their Speaker.” Obviously, that command is directed to the members of each new Congress elected every two years, in which 100% of the members are always newly elected. If those newly elected members can’t vote because they haven’t been “sworn in,” they cannot fulfill the constitutional command that they “chuse their Speaker.” Logically, they must be permitted to choose a Speaker before they have been administered their oath.

          Separately, the action that makes representatives “members of the House” is their election under Article I, Section 2 of the Constitution, which says, that the “House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” So long as a member is “chosen by the people,” is 25 years old, and is an inhabitant of their state, they are Representatives under the Constitution. The administration of an oath does not operate to make them a Representative.

          True, Article VI, Clause 3 of the Constitution states that “Representatives . . . shall be bound by Oath or Affirmation, to support this Constitution.” That oath imposes an obligation on Representatives to support the Constitution, but it does not operate to eleveate someone to their status as a Representative. Their election (“chosen by the people”) is the act that converts someone from a citizen into a Representative.

          That’s the best I can do in explaining why members who have been elected to the House but who have not yet taken their constitutional oath are nonetheless permitted to vote for Speaker. If anyone is aware of a scholarly treatise, statute, or rule that provides greater specificity, let me know.

Joe Biden and Mitch McConnell appear at a bipartisan event.

          As the House was engulfed in chaos, President Biden and Senate Minority Leader Mitch McConnell made a bipartisan appearance to announce funding for the Brent Spence Bridge that spans the Ohio River between Covington, Kentucky and Cincinnati, Ohio. Also in attendance were Senator Sherrod Brown, Kentucky’s Democratic Governor Andy Beshear, and Ohio’s Republican Governor Mike DeWine. The appearance was a remarkable display of bipartisanship during a deeply divided time in our nation’s history. The right-wing Washington Examiner ran a story under the glowing headline, Biden builds bridges with McConnell in Kentucky amid House speaker saga.

          The Washington Examiner includes the full video of Biden’s speech. If you can, watch the first five minutes, which reminds us why Joe Biden is so much better on the campaign trail than in the White House Rose Garden. Biden’s remarks about Mitch McConnell were kind and generous and included self-deprecating humor. Biden said,

Mitch, it's great to be with you. I asked permission if I could say something nice about him. I said I'd campaign for him or against him, whichever helped him the most.

          As many commentators noted, Biden’s speech provided a perfect “split-screen” moment in which Democrats were helping to improve the lives of Americans while Republicans were squabbling over personal power and the deployment of dark money. But it was a split-screen moment in another way, too. The celebration of the infrastructure bill occurred on the same day that the infighting among House Republicans strongly suggests that the 118th Congress will produce no legislation of significance. I dearly hope that I am wrong in that assessment, but fear that I am right.

The broken state of New York politics.

          New York is still reeling from the effects of the resignation of former Governor Andrew Cuomo in 2021 over allegations of sexual harassment. Cuomo was succeeded by his Lieutenant Governor, Kathleen Hochul, who was elected to a full term in 2022. She is New York’s first female governor. When she took over, everyone was filled with high hopes that she would usher in a new era of leadership in New York for Democrats.

          Last month, Hochul nominated a judge to fill a vacancy on New York’s highest court (called the Court of Appeals). The vacancy on the New York Court of Appeals presented an opportunity for Democrats to convert a 4-3 Republican-dominated court into a 4-3 Democratic-dominated court. But instead of nominating a liberal Democratic judge, Hochul nominated a conservative Republican Latino judge. Hochul did so despite warnings from important Democratic constituencies, including labor unions and women. See Ian Millhiser in Vox, Kathy Hochul’s disastrous nomination for New York’s top judgeship, explained.

          If you are interested in (or confused by) Hochul’s nomination of Judge LaSalle, Millhiser’s article will answer all of your questions. If you are not interested, you probably should be. There is an argument that the New York Court of Appeals is responsible for allowing Republicans to flip the House of Representatives. The details are beyond the scope of the newsletter, so check out Millhiser’s article.

          As Millhiser notes more generally:

Hochul has succeeded in dividing Democrats and potentially in uniting Republicans around a nominee that enrages many key Democratic interest groups. And she did so with more-than-adequate warning that LaSalle’s nomination would garner considerable opposition from her fellow Democrats.

Hochul nominated a relatively conservative judge, moreover, at a time when Democrats across the country are hyperaware of what can happen to them and their policies if the courts move too far to the right.

          Millhiser’s discussion of the LaSalle nomination is important because it illustrates the potential for state courts to decide control of Congress. It also illustrates a state Democratic Party finally waking up to the fact that every contested race requires attention and strategic investment. No more taking “safe seats” for granted or assuming that “moderate” Republican judges will be free of partisan influence when they are in a position to affect the outcome of elections and social issues on the right-wing’s agenda.

Concluding Thoughts.

          The inability of the House to elect a Speaker is a national embarrassment. True, it is nearly impossible to avoid feeling satisfaction that Kevin McCarthy is being punished for a lifetime of lying and backstabbing. Putting that guilty pleasure aside, the Republican dysfunction signals treacherous waters ahead for the 118th Congress. If it cannot elect a Speaker, how will it fund the government?

          But it could have been far worse: Republicans could have won a working majority in both the House and Senate. We should be thankful we avoided that fate by performing better in 2022 than expected. We should also recognize how greatly our midterm victories diminished Trump. Who would have predicted four months ago that the poor showing by Trump’s candidates in the midterms would effectively neuter him in the Speakership fight?  

          The lesson of the 2022 midterms is that we should not despair about achieving long-sought goals in the near term. Imagine what we can do if we successfully defend the Senate and the presidency in 2024 and regain control of the House. It is not too early to begin doing the hard work to achieve those goals. As we emerge from the year-end holidays, it is time for us to begin thinking about how we will invest our talents and resources over the next two years. More about that next week!

          Talk to you tomorrow!