Ten years ago, House Speaker Nancy Pelosi (D-Calif.) infamously proclaimed that we had to pass Obamacare to find out what was in it. On Friday, she and her House colleagues enacted one of the largest pieces of legislation in American history, a more than $2 trillion bill that represented Congress’ third piece of coronavirus-related legislation, all while refusing to take a recorded position on it.
The first coronavirus bill, signed into law on March 6, provided $8.3 billion in spending to fight the virus; the second bill, signed into law on March 18, spent another $100 billion on testing, food stamps, paid family leave, and additional subsidies to to state Medicaid programs; and the third bill, which President Trump signed last Friday, contained a broader package of unemployment and economic bailouts to businesses and families.
That Pelosi would resort to such procedural chicanery should surprise few Americans. In 2010 she wanted the House to enact Obamacare without actually voting on the legislation—the so-called “deem-and-pass” maneuver—although she eventually abandoned that strategy after a massive public outcry.
But unlike the Obamacare debate, House Republican leaders and many rank-and-file members of Congress actively participated in Pelosi’s successful attempt to deny the American people a vote on the legislation. In so doing, they abdicated their responsibilities as lawmakers and leaders out of a mixture of fear and spite.
Members of Congress Are Essential
The fear came because House lawmakers did not want to travel back to Washington to vote on the “stimulus.” The combination of several representatives and senators testing positive for coronavirus (with several others in self-isolation due to potential exposure), public advisories against large gatherings and travel, the close quarters in which members congregate in the Capitol, and the advanced age of some members made them understandably nervous about a return to Washington.
But members of Congress do not have any ordinary job. Their roles as our elected lawmakers make them essential to our democracy—and Article I, Section 6 of the Constitution recognizes them as such: “They shall in all cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”
While the Supreme Court has since narrowed the scope of members’ privilege from arrest, its inclusion in the nation’s founding document shows how the Framers considered full participation by all members essential to American self-rule.
Pelosi’s Incompetence Prompted the Debacle
Much of the member frustration regarding the process came not just from the fact that they had to travel to Washington, but were asked to do so on short notice—a particular difficulty given airlines’ dramatic reductions to their flight schedules. Some members could not arrive back in Washington by the time of Friday’s debate and “vote.”
But why did members have to rush back late Thursday for proceedings in the House on Friday morning? Because Pelosi mismanaged the process and then sought to blame others for her mistakes.
For starters, House members remained in their districts for most of last week only because Pelosi had sent them there. Early on March 14, House leaders dismissed members to their districts, in an attempt (ultimately successful) to force the Senate to accept the second coronavirus bill without amendments. Had the Senate made any changes to the legislation, the House would have had to return into session to ratify the Senate amendments, holding up passage. Senate Majority Leader Mitch McConnell told his colleagues to “gag and vote for it anyway.”
Ironically enough, Pelosi not three days before dismissing her colleagues claimed, “We are the captains of the ship—we are the last to leave.” Had Pelosi kept the House in session as the Senate passed the second coronavirus bill and debated the third, members would not have needed to travel back to Washington in the first place—they would have remained here.
The speaker claimed she would give members 24 hours’ notice prior to any votes, should they become necessary. But she waited until late Thursday to tell members they would have to attend proceedings in the House beginning at 9:00 Friday morning.
Following Senate passage of the third coronavirus bill early Thursday morning, Pelosi and House Minority Leader Kevin McCarthy (R-Calif.) should have instructed all members to report to Washington the following day. Instead, they wasted most of Thursday playing a game of “chicken” with the rank-and-file—daring someone to demand all members attend, and then blaming that member, Rep. Thomas Massie (R-Ky.), when he insisted the House assemble a quorum of 216 members to conduct business.
A very similar scenario happened in Congress’ upper chamber two years ago. McConnell (R-Ky.) tried to ram through a spending bill at the last minute, but miscalculated when Sen. Rand Paul (R-Ky.) raised objections. Rather than blaming McConnell for mis-managing the Senate floor, leadership staffers—and the reporters who rely on leadership staffers to spoon-feed them gossip and stories—decided to blame Paul instead.
Rep. Thomas Massie Did Not Grandstand
House leaders took the same tack with Massie last week, enlisting President Trump to attack the congressman. On Friday morning, Trump called Massie a “third rate grandstander” for insisting that members of Congress return to Washington to vote on the legislation.
But to someone well-versed in House procedure, the facts indicate otherwise. Massie had multiple other opportunities to throw sand in the proverbial gears regarding Friday’s coronavirus bill, but did not do so:
- The House passed the rule governing debate on the bill by unanimous consent. Massie (or any member) could have objected to the House even considering the rule on Friday morning. Such an objection would have required the House Rules Committee to hold an emergency meeting, and could have postponed consideration of the bill by 24 hours. He raised no objections.
- Massie could have demanded a vote on the rule. Demanding that vote would have required House leaders to muster a quorum of 216 members at 9:00 on Friday—a time many members were still rushing back to Washington. Massie raised no objections.
- Massie could have demanded one or more votes on a motion to adjourn—a frequent stalling tactic the minority party in the House uses to express outrage when it feels the majority has committed a “process foul.” He never did.
If Massie truly wanted to act like a “glass-bowl,” to paraphrase a tweet by former Sen. John Kerry (D-Mass.), he could have done so. He could have wound the House in knots for much of Friday with procedural objections, parliamentary inquiries, motions to adjourn, and other dilatory tactics.
To his credit, he didn’t do any of that. Massie cared about one thing: That members of Congress have an up-or-down vote—“yay” or “nay”—on the massive, multi-trillion-dollar bill. House leaders conspired against that reasonable request.
‘Mean Girls’ Try Their Tricks in Washington
Massie, or any member of Congress, can object that the House lacks a quorum to conduct business. Article I, Section 5 of the Constitution prescribes that a majority of members (216 at present, given several vacancies) constitutes a quorum. Given Massie’s publicly stated intent to object, the House could not pass the coronavirus bill without a majority of members present in the chamber. Hence the frantic messages from congressional leaders Thursday night seeking member attendance the next morning.
But no one member can demand a roll call vote, in which each takes a recorded “yay” or “nay” position. Article I, Section 5 of the Constitution also states that “the Yeas and Nays of the Members of either House on any question shall, at the Desire of one-fifth of those Present, be entered on the Journal.”
When debate on the bill concluded Friday afternoon, Massie suggested the absence of a quorum. The presiding officer counted, and concluded that a majority of members, many sitting in the House gallery above the chamber to observe social distancing protocols, were present. But when Massie requested a roll call vote, one-fifth of members (somewhere between 43 and 85, depending on the number of congressman present in the House chamber) would not agree, meaning the $2 trillion-plus bill passed on a voice vote, with lawmakers’ positions not recorded.
Under the most charitable interpretation, members didn’t want to force a vote when at least dozens of their colleagues could not participate, either because they remained in quarantine or couldn’t get back to Washington in time. But consider Clause 10 of Rule XX of the rules of the House for the current Congress:
The yeas and nays shall be considered as ordered when the Speaker puts the question on passage of a bill or joint resolution, or on adoption of a conference report, making general appropriations, or on final adoption of a concurrent resolution on the budget or conference report thereon. [Emphasis added.]
In just about every other circumstance, House rules require a roll-call vote on an appropriations bill like the one the House passed on Friday. This requirement did not apply to Friday’s coronavirus legislation only because the House considered it as a message from the Senate, rather than as an original bill or the report of a House-Senate conference committee.
As noted above, members had to come into town anyway, to ensure the House had a quorum to conduct business. Usual practice, as indicated by the excerpt from the House’s own rules, suggests members would record their votes publicly.
They did not even need to congregate in mass groups to vote electronically on the House floor. The clerks could have engaged in an actual roll call vote, which would have allowed members sitting in the House gallery to respond verbally from their places. Rather than following this usual practice—to say nothing of giving their own voters the respect of making their positions known on a $2 trillion bill —the House instead decided to take a passive-aggressive approach, turning Friday’s session into another real-life episode of “Mean Girls.”
To put it bluntly, members did not approve a roll-call vote to spite Massie, because Massie had the temerity to force them to come to Washington and do the job they are paid to do. Pelosi, McCarthy, and their leadership teams likely instructed rank-and-file members not to “reward bad behavior” (as one senator described the McConnell-Paul incident two years ago) and to deny Massie a recorded vote.
The members, either due to their own irritation at Massie, or fear of the consequences from leadership, politely complied. In so doing, they abdicated their responsibilities as lawmakers, prioritizing revenge and anger at Massie over conducting an open, transparent, and fully recorded vote.
Do Your Job, Congress!
Early in my career, a boss of mine offered some matter-of-fact advice that members of Congress should think about: “If you don’t like the job, don’t take the check.”
As Massie noted, grocery store clerks and many others such as nurse’s aides and orderlies in hospitals get paid far less than members of Congress’ $174,000 salary. They continue to show up on the frontlines of this pandemic day-in, day-out, performing heroically in grueling conditions. But when members of the House get asked to do their duties in public for one day, they lash out like preschoolers at the individual forcing them into service.
Massie’s solitary stand against his colleagues may cost him re-election. He faces a primary challenge in June (possibly fomented by House Republican leaders), and his opponent will no doubt use Trump’s Twitter tirade against him.
But Massie acted as he did out of the belief that our elected representatives should not add more than $2 trillion to the national debt without accepting public responsibility for their actions. Of course, to many of his congressional colleagues, Massie’s actions represent a novel—and truly revolutionary—concept: Standing up for principle.
This post was originally published at The Federalist.