The ouster of Kevin McCarthy as speaker of the House has left a troublesome vacuum that could easily result in a more radical governance in the body, and chaos in governing. If either of the two declared candidates to replace McCarthy—Jim Jordan, defined by former Republican Speaker John Boehner as a “legislative terrorist,” and Steve Scalise, self-defined as “David Duke without the baggage”—assumes the post, the lunatic fringe of the House Republican conference will be in the driver’s seat, with no plan to do anything but impeach and obstruct.
What is the alternative? Democratic leader Hakeem Jeffries wrote an op-ed in The Washington Post calling for constructive changes in the rules, following a blueprint of the bipartisan House Committee on the Modernization of Congress, to open up the body to more amendments and more opportunities for legislation to reach the floor and command bipartisan support. But even to bring such rules changes to the floor would require the next speaker to give the effort a green light, and the odds of that happening with either Jordan or Scalise are slim to none.
There is another option, one that would not transform the House into a fully functional and bipartisan legislative body but would provide opportunities to prevent the worst nightmares from happening—namely, an extended government shutdown and the end, at the worst possible time, of funding to help Ukraine survive and prevail against the brutal Russian invasion.
That option is called the discharge petition. This rarely used rule was first created in 1910 in protest against an autocratic speaker, Joe Cannon. It was designed to be deployed if a leader—not just a speaker, but also a committee chair—ignored the will of his own party and the majority in the House, to provide an opportunity to bring a bill to the floor if enough members signed a petition to discharge it from the committee. The rule was reformed many times, in the 1930s and the 1990s; now the petition requires public signatures of an absolute majority of the House, or 218 members, to force a floor vote.
Reformed or not, it is still extraordinarily cumbersome, and hence rarely used. Since the 1993 reform that required signatures to be made public, the pressure on majority lawmakers not to bypass or embarrass their leadership has been intense. But even if the petition gets the required number of signatures, it still takes considerable time and effort. Once a bill has been introduced, it has to sit in a committee for 30 legislative days—not calendar days. If the House recesses instead of adjourning, the legislative day continues until the next adjournment, which could mean many days or weeks. After that period, a successful discharge petition gets on a calendar that allows votes only twice a month, on the first and third Mondays.
Cumbersome or not, the discharge petition is a weapon for sensible governance in the face of legislative nihilism. There is at least one such petition pending, which was introduced some time ago to have as a safety valve against a possible default, on a bill introduced by Democrat Mark DeSaulnier of California. It could be adapted, if need be, to prevent or end a future government shutdown. Democrats now need to begin other petitions, especially to ensure funding for Ukraine—something Jordan has already said he would not allow to come before the House.
The 45-day extension of funding to prevent an immediate shutdown on October 1, the measure that spelled McCarthy’s demise as speaker, removed funding for Ukraine. There is enough aid in the pipeline right now to prevent catastrophe, but the failure to add funding after the continuing resolution expires, whether there is a shutdown in mid-November or not, would give Putin and Russia a huge gift. A clear majority of the House, Democrats and Republicans, support giving aid to Ukraine. If the GOP leadership, bowing to the wishes of their pro-Russian minority, prevents it, there is thus a way around them.
Of course, discharge petitions will require at least some Republicans to sign on. If all the Democrats do, which is likely on both a possible shutdown and aid to Ukraine, it would only require five or six Republicans to bring it to the floor. Far more than that want to keep the government open at the funding levels McCarthy had agreed to with the debt ceiling deal, before he reneged, and want to thwart the brutal Russian invasion of Ukraine. But getting them to defy their leaders in public and face shunning by their colleagues and supporters, or threats of a MAGA-backed primary or even of physical violence, is no sure thing. The failure to support actions that are widely supported by the public and manifestly in the public interest would have its own costs, though, especially for those Republicans in swing districts. In any event, government by discharge petition may be our only hope of thwarting chaos.