Speaker election falters. Should an interim post become Plan B?

After two weeks of trying to elect a new speaker with no success, House Republicans are confronting the uncomfortable possibility that perhaps no candidate will be able to win the necessary 217 supporters. On Wednesday, Ohio Rep. Jim Jordan lost a second vote on the House floor by a larger margin than before.

Some in the GOP are now casting about for a Plan B. One idea gaining currency – to let acting Speaker Pro Tempore Patrick McHenry temporarily do the job.

Like every aspect of this saga, this option, too, is fraught with uncertainty. No speaker has ever been voted out as Kevin McCarthy was on Oct. 3, and his acting successor, Mr. McHenry, is the first ever to take up the gavel under an emergency rule adopted in the wake of 9/11. The rule is not particularly clear, but some experts say it appears to limit Mr. McHenry’s powers to simply presiding over the election of a new speaker. 

“People who know the House rules inside and out disagree over what McHenry can and can’t do,” says Matthew Green, an expert on the speakership at Catholic University in Washington. “It really is a blank slate.”

Any formal effort to empower Mr. McHenry would require support from a majority of the House – meaning either the divided GOP conference would have to agree to unite around this option, or they would need to turn to Democrats for help. If neither is feasible, some suggest Mr. McHenry could just open the House for business anyway, and essentially see what happens.

The fact that we are even having this conversation, say experts, speaks to the remarkable place this Congress now finds itself in – with no real precedent and no clear guidelines. Even if lawmakers are somehow able to agree on Mr. McHenry’s role, bringing an end to the current crisis, there’s little reason to believe he’ll have any greater success than Mr. McCarthy had in leading this fractured GOP majority. An empowered speaker pro tempore would almost immediately need to deal with urgent – and highly divisive – issues, from a looming government shutdown to aid for Israel and Ukraine. 

“Electing McHenry, or someone else, as speaker pro tem does not solve the underlying problem plaguing the House GOP,” says Molly Reynolds, a senior fellow at the Brookings Institution. It may get the House out of parliamentary limbo, but it “doesn’t solve the underlying divisions.” 

McHenry’s path to this moment

First elected to Congress in 2004 at the age of 29, Mr. McHenry has repeatedly won reelection to North Carolina’s 10th congressional district with double-digit support. He previously served in GOP leadership as chief deputy whip, and more recently, was a key McCarthy ally helping the Californian win the speakership in January. 

He’s a party loyalist and insider, but also someone whom Democratic Leader Hakeem Jeffries has hinted he would be willing to partner with to reopen the House. Unlike Mr. McCarthy, Mr. McHenry voted to certify the 2020 election results, and he was a top GOP negotiator in a deal with the White House to raise the debt limit earlier this year. 

Ohio Republican Dave Joyce, chair of the moderate Republican Governance Group, is reportedly prepared to introduce a resolution to temporarily empower Mr. McHenry as speaker. And after Mr. Jordan’s failed second bid for the speakership Wednesday, more Republicans seem to be warming to the idea. Simultaneously, some Republicans are hardening against Mr. Jordan as his team’s pressure tactics backfire.

“It’s a whole different ball game when you are opposed [to a speaker] on principle and start being attacked,” Arkansas Republican Steve Womack told reporters Wednesday following his second floor vote for Louisiana Republican Steve Scalise over Mr. Jordan. “And I can speak to it, because I’ve been attacked.”

Mr. Jeffries hasn’t confirmed that his caucus would support Mr. Joyce’s resolution, but he has reiterated his support for finding a “bipartisan path” forward. And that bipartisan path, says the New York Democrat, “cannot be Jim Jordan.” 

When asked Wednesday afternoon if he would accept expanded powers, Mr. McHenry said his focus is on electing Jim Jordan. 

Many Republicans are against the idea of removing the “acting” from Mr. McHenry’s current title, both because of what it would mean for House rules, and also because they are committed to electing a far-right conservative such as Mr. Jordan. 

“In order to expand [McHenry’s] powers, you have to work with Democrats to do that,” Florida Republican Mike Waltz told reporters Wednesday following Mr. Jordan’s second failed vote.  

But the number of Republicans needed to pass the resolution will, of course, be lower if some – or all – of the Democratic caucus supports a Speaker Pro Tempore McHenry.

“It hasn’t gotten much attention, but Democrats do have an incentive to get the House up and running again,” says Mr. Green at Catholic University, given that they hold both the Senate and the White House. “At some point, they are going to have things they want to get done.”

Although a bipartisan resolution designating Mr. McHenry as speaker pro tempore “ties a bow” on ending the impasse, says Soren Dayton, director of governance at the Niskanen Center, it would also hobble Mr. McHenry from the start, given that many Republicans oppose any House leader elected with Democratic help. 

Is a vote even needed? 

This has led some rules scholars and even some lawmakers to wonder: What if Mr. McHenry just started acting as speaker? 

Former Speaker McCarthy, for one, says that since the acting speaker rule was meant to provide for the continuity of government, he believes Mr. McHenry should already have effectively the same powers as the speaker.

“Patrick should have that power right now,” Mr. McCarthy told reporters between conference meetings Friday.

“Business should go on in the House of Representatives,” agrees New York Republican Nick LaLota, who voted against Mr. Jordan both Tuesday and Wednesday. “And it does not require a vote, in my opinion.” 

The narrowest interpretation of the acting speaker pro tem position – which is the interpretation that Mr. McHenry has followed – only allows Mr. McHenry to recess, adjourn, or call for a vote on the speaker. 

But some argue Mr. McHenry could just assume the full powers of a speaker pro tem without a resolution. They could establish Mr. McHenry’s powers by forcing a “test vote,” says Mr. Dayton, on an important and largely supported measure like Israel security assistance – thereby creating a new precedent.

“You use the power of the underlying political substance to force their hand on the process,” says Mr. Dayton. In other words, dare House members to vote against Israel aid simply because they disagree with Mr. McHenry’s ability to bring the bill to the floor. 

Questions would still arise over things like whether Mr. McHenry would have a place in the presidential line of succession (the House speaker is second in line for the presidency, after the vice president), whether he can take part in classified intelligence briefings, or if he can issue the oath of office to new members who are set to be sworn in following a Rhode Island special election in November. 

And if a member disagreed with Mr. McHenry’s power to act as speaker, the member could ask for a motion to constrain Mr. McHenry’s powers. 

“This is where things get really nebulous,” says Mr. Green, because Mr. McHenry could potentially then refuse to recognize that member and instead call for a recess. 

In theory, “Mr. McHenry could become a dictator. But he was picked in part for this position because he would not do that.”

Staff writer Christa Case Bryant contributed to this report.