Architect of the Capitol

Is a Shutdown Possible if the House Can't Elect a New Speaker?

If conservatives deny Kevin McCarthy the 218 votes he needs to win, just about anything’s possible.

Jason Chaffetz’s long-shot candidacy for House speaker is predicated on chaos.

The Utah Republican is making no claims that he—or anyone else—can defeat Kevin McCarthy when the 247-member House Republican conference gathers behind closed doors on Thursday to elect their next leader. But Chaffetz’s theory of the case is that no matter what happens in that meeting, McCarthy can’t get the 218 votes he’ll need to formally win election by the full House as speaker. At least 30 arch-conservatives in the House Freedom Caucus will oppose McCarthy during the floor vote on October 29, and then the House will be deadlocked. 

That scenario is precisely what frightens rank-and-file Republicans.

The House could become institutionally paralyzed until it found a candidate that a majority of its voting members supported as speaker. And if the Republican leader fell short on the first ballot, there’s no guarantee the party would quickly settle on someone else. “We’ve got to figure out how to get to 218 before we get to the floor. Because otherwise we could be literally doing this through the fall,” said Representative Tom Rooney, a McCarthy ally from Florida.

The last time it took multiple ballots to elect a speaker was 1923, when it took nine, and in the 19th century it took as long as two months for the House to agree on a leader. This year, the House just doesn’t have that kind of time. Congress must lift the debt limit to avoid a first-ever default within a week of the scheduled election for speaker, according to the Treasury Department, and it must pass another spending bill by December 11 to prevent a government shutdown.

“All that could be put on the back-burner because we can’t elect a speaker,” Rooney said by phone on Tuesday. Is it highly unlikely? Yes. But not impossible, Rooney insisted. “Don’t think it can’t happen. Whenever I think of what’s the worse-case scenario that can happen with this Congress, it’s not altogether wrong all the time,” he said. “Just try us.”

This nightmare scenario is one that Speaker John Boehner might actually have contemplated when he set the election for his replacement. When he announced his resignation last month, Boehner said it would become effective on October 30. On Monday, he set the floor vote for the day before, allowing for a last-minute change if the House failed to replace him. (A senior member of the Rules Committee, Representative Tom Cole, told reporters on Tuesday that if no one received enough votes on the 29th, Boehner would stay on until someone did.) Boehner also announced that he was pushing back the date of elections for the House’s other top leadership positions to November, meaning that Republicans would only vote to replace McCarthy as majority leader if he wins the floor election as speaker.

The parliamentary chess moves only underscore the chasm in the House GOP, which Chaffetz’s surprise move has only deepened. The media-friendly conservative, serving his fourth term in Congress and his first as chairman of the Oversight Committee, has offered himself as a kind of pre-emptive consensus candidate, ready to swoop in if and when McCarthy falls short of the needed 218.  But allies of McCarthy now insist that even if the hard-right members of the Freedom Caucus denied him the speakership, Chaffetz wouldn’t get it. “If Jason thinks this is going to make him speaker, I think he’s really miscalculated the feeling of the caucus,” Representative Adam Kinzinger, a McCarthy supporter, told me.

McCarthy has himself to blame for a large part of his predicament. His comments suggesting Republicans created the Benghazi Committee to bring down Hillary Clinton have drawn bipartisan rebuke. They gave Chaffetz an opening, and on Tuesday the panel’s chairman, Trey Gowdy, piled on with a more-in-sorrow-than-in-anger assessment. “Kevin is a friend, which makes the disappointment, frankly, even more bitter,” he told The Washington Post. Clinton has predictably seized on McCarthy’s remark, and in a move that could further exacerbate the anger among Republicans, plastered them all over the country in a national television ad, her first of the election. The ad prompted McCarthy to issue yet another statement disavowing his unprompted analysis on Fox News.

The mission of the Select Committee on Benghazi is to find the truth -- Period. The integrity of Chairman Gowdy, the committee and the work they've accomplished is beyond reproach. The serious questions Secretary Clinton faces are due entirely to her own decision to put classified information at risk and endanger our national security.

His supporters, meanwhile, have been forced to defend a man who a week ago was expected to easily slide into the speaker’s chair. “The guy’s been working his ass off for 10 years to be a leader in our party, helping candidates get elected, hosting dinners and everything under the sun,” Rooney said. “Everybody’s allowed to have a slip of the tongue once in a while.”

Kinzinger and Rooney are part of a group of leadership allies seeking to rein in the power of the Freedom Caucus, the coalition of 30-40 Republicans that effectively toppled Boehner by threatening to depose him in a rarely-used procedural move. Kinzinger, a third-term lawmaker from Illinois, told me he believed the Freedom Caucus wanted to create chaos on the floor so they could force their own version of a consensus candidate on the party. “There’s a number of us that’ll resist that just as well as they resisted the majority of the conference,” Kinzinger said. “They’ve got the scalp of the speaker on their mind, and we’re done giving them stuff.”

Supporters of the leadership equate the Freedom Caucus's tactics to hostage-taking. To Representative Mick Mulvaney, a leader within the group, it’s just negotiation. And he’s not shy about admitting that they are very much playing hard-ball. “I’ve said before and I’ll say again,” he told me. “We do not have enough votes to get one of our people elected. We have enough votes to influence the outcome. That’s fair.”

I asked Mulvaney if he and his colleagues would commit to supporting McCarthy in a floor vote if he won on Thursday? That depends, Mulvaney replied. “What are they offering in exchange?” he said, referring to a proposal by some Republicans to require members of the conference to support the party’s nominee on the House floor. Specifically, Mulvaney acknowledged that the Freedom Caucus wanted its members picked for slots on the leadership-controlled Steering Committee—which assigns lawmakers to the various other committees—and other process reforms that would “empower members.”

The caucus interviewed the three candidates for speaker—McCarthy, Chaffetz, and another long-shot, Daniel Webster of Florida—on Tuesday evening, and Mulvaney said they’re looking for an agreement to be struck before the House votes at the end of the month. “There’s no reason to go to the floor with this,” he said. “There’s no reason to embarrass anybody in public.”

For Chaffetz, it’s that kind of vague threat which gives his candidacy a chance. For McCarthy and his allies, however, it’s a clear signal of more trouble ahead.