Republicans in the House Freedom Caucus got a stamp of approval from House Minority Leader Kevin McCarthy (R-Calif.) on a last-ditch strategy to throw a wrench in Democrats’ tax, climate and health care bill that passed the House on Friday.
While the tactic failed, it provided some encouragement about the Freedom Caucus’s prospects of working with House GOP leadership in a potential majority next year.
“It didn’t work, but I have to tell you, here’s what I thought was amazing — because it’s the first time I saw it happen — was leadership and the Freedom Caucus working together on something,” said Rep. Marjorie Taylor Greene (R-Ga.). “In our conference, that was a really big deal.”
Members of the confrontational conservative caucus devised a plan to try to turn the House’s proxy voting rule, a pandemic-era feature that allows members to vote remotely due to the coronavirus pandemic, against the Democrats.
If they could get a majority of members to vote by proxy on the legislation, they thought, it would allow future challenges to the law based on the fact that there was not a physical quorum present when it passed.
House rules for the current Congress allow proxy votes to count toward a quorum, but those in the Freedom Caucus saw a path for a constitutional challenge based on physical presence.
“It would still pass, but we would be able to test in court whether you can establish a quorum – you know, make-believe that a quorum means something that it doesn’t. And a quorum means physically present,” said Rep. Warren Davidson (R-Ohio).
An absence of members physically present during the House’s single-day return from August recess to pass the bill created an opportunity to test the plan.
“It became evident just in the last couple days that there was an opportunity to sow a fatal defect potentially, in the Democrats legislative centerpiece,” said Rep. Dan Bishop (R-N.C.).
Republicans have criticized the rule and promised to eliminate it if they take back the majority. The Supreme Court declined to take up a lawsuit led by McCarthy over the rule earlier this year, after an appeals court ruling found that federal courts do not have jurisdiction to hear such disputes between lawmakers. This line of legal challenge would be different, they hoped.
The plan ultimately failed, with only 187 members having filed proxy letters as of Friday afternoon. At least 216 would have been needed to constitute a majority voting by proxy.
But it gave some Freedom Caucus members encouragement about prospects for working with leadership, should the GOP take over the house after the 2022 midterms.
“It gives me a lot of hope for the majority that’s coming up for the 118th Congress,” Greene said. “You’ve never heard me say things like that before.”
McCarthy met with House Freedom Caucus Chairman Scott Perry (R-Pa.), Bishop, Greene, Rep. Matt Gaetz (R-Fla.) and Rep. Chip Roy (R-Texas) in his office on Friday morning to discuss the plan. Rep. Thomas Massie (R-Ky.), who is not a member of the House Freedom Caucus, was also involved, Greene said.
“I think [McCarthy] had some misgivings about it playing out in a way that would have members just walking and not leaving Washington, or not coming to Washington. But it was a question of having more proxy votes so that the quorum issue would be laid bare. He decided he could get behind that,” Bishop said. “He and his staff helped to popularize that among the Congress.”
As members and their staff scrambled to reach Republicans about the plan, they ran into resistance.
“Unfortunately, the problem at the end was that Republicans wouldn’t embrace it,” Bishop said. “The will to win fell short, and we’ve got to correct that. We have to be prepared to seize opportunities like this.”
Not all Republicans appeared aware of the proxy voting plan.
“I’ll be really honest, I didn’t hear anything about it,” said Rep. Kevin Brady (R-Texas). “We’ve been battling the bill, so, yeah, no one talks about that process.”
And Democrats blasted the effort by their colleagues across the aisle.
“It’s a McCarthy-led shenanigan that again demonstrates his continued willingness to put politics over people,” Rep. Hakeem Jeffries (N.Y.), a member of Democratic leadership, told The Hill.
Rep. Jim McGovern (D-Mass.) knocked the effort as “a pain-in-the-ass tactic, which that’s all they do.”