Democrats should propose a plurality rule for Speaker elections
Yesterday, the House of Representatives failed to elect a Speaker on the first ballot for the first time since 1923. Kevin McCarthy, the House Republican nominee for Speaker, lost 19, 19, and 20 votes from his own party. Since the Republicans only hold 222 seats, this denied McCarthy the outright majority he needed to be elected Speaker. Indeed, the Democratic leader, Hakeem Jeffries (D-NY) received 212 votes on each ballot, which was more than McCarthy each time.
If this pattern continues, one path forward would be for the Democrats to make a point of order at the conclusion of a Speaker ballot that a plurality is sufficient to select a Speaker of the House. This would, of course, violate a nearly-perfect historical norm. As the Congressional Research Service notes, "By practice of the House going back to its earliest days, an absolute majority of the Members present and voting is required in order to elect a Speaker."
On the other hand, the Constitution does not mandate that the Speaker requires an outright majority, and there are no House rules on the matter because the House adopts a set of rules at the beginning of a new Congress after electing a Speaker. And there is historical precedent for electing a Speaker by plurality: it was done in 1849, when no single candidate could form a majority out of competing partisan and sectional (i.e. slavery) interests (see, e.g., Fighting for the Speakership ch. 6).
Pros and Cons of a Jeffries Speakership
Why would Democrats raise this point of order? At the least, doing so would highlight the contrast between the orderly Democrats and disorganized Republicans. "Hey, if you guys can't get your act together, why not let us do it?" Second, it would put the renegade "Republicans" into the awkward (for them) position of supporting their party at the same time that they are conducting open warfare against its most basic tenet: unity on Speaker election votes.
Third...Democrats might just win. Yes, this sounds absurd when one considers the apparent gap in policy views between the parties; how could any Republican vote to allow Democrats to hold power?
In this scenario, no Republican would have to vote for Jeffries; they would only be voting on a point of order to acknowledge that Jeffries has actually been the leading candidate on every ballot so far.
Furthermore, Democrats only need a few (five or six) votes to prevail on a point of order. And while attention is focused on the "Freedom Caucus" members, there are dozens more House Republicans organized as the Republican Main Street Partnership, who bill themselves as "conservatives who get things done" and state that "Rhetoric is easy. Governing is Hard." For these members, the path forward with McCarthy (or someone more acceptable to the renegades) in charge looks like the same Freedom Caucus hostage crisis that tanked John Boehner's speakership, complete with a debt limit crisis and hard-hitting investigations into Twitter's decision to limit the circulation of graphic Hunter Biden images during the 2020 election cycle. And a McCarthy speakership would have little apparent interest in governing; Republicans campaigned on the issues of inflation, crime, and immigration, but so far there has been little public discussion of legislative proposals to address these issues. For a Republican lawmaker, the current fight over the Speakership foreshadows two years of embarrassment, of running from reporters or pretending they "didn't read the Tweet," and watching their efforts to enact policy change slowly circle the drain.
What would a Jeffries speakership mean for Republican lawmakers who want to, you know, make laws? At the least, it would mean being free from the pending embarrassment of trying to govern with a narrow majority that includes the Freedom Caucus and its demonstrative rebelliousness. At the most, it would mean a House that deviates from the last 40 years of partisan domination by prioritizing bipartisan legislation and allowing more amendments on the House floor. Either way, it would allow the House Republican Conference to fully excommunicate the members who have violated their fundamental obligation to support their party's candidate for Speaker. The Conference could strip the twenty anti-McCarthy members of their committee assignments and NRCC support, and refuse their admission to Conference meetings.
For the Democrats, claiming the Speakership would be a risk. It would bring the vast resources of majority power, but without the actual majority to back it up. Every organizational decision (rules, committee assignments) and major bill would have to be negotiated with Republicans willing to cross party lines. Democrats may find this frustrating, especially as the 2024 elections draw near. But it also would squelch any pending investigations inspired by the MAGA base and put Democrats in a position to advance budgetary legislation and any major bills passed by the Senate.