October 6, 2015 – 5:15 p.m.

The House Transportation and Infrastructure Committee (T&I) is planning to mark up surface transportation reauthorization legislation in the last week of October, three sources have confirmed to ETW.

The House itself is not scheduled to hold votes until 6:30 pm on Monday, October 26, and the first votes of a given week are almost always held at that hour because 6:30 is considered the earliest that members who live on the West Coast can wake up at home, fly to Washington, and reach Capitol Hill. So the only way that West Coast T&I members could attend a hypothetical markup that Monday morning or afternoon would be to fly in on Sunday, and the panel usually does not force its members to do that.

And the House is scheduled to elect a new Speaker on Thursday, October 29. That will require the attendance of all members on the House Floor for as long as it takes (and that can be quite a long time – see the sidebar at the end of this article), which should preclude any business in committees that Thursday. And the House is not scheduled to be in session on Friday, October 30.

So any markup of a surface transportation bill should be on Tuesday, October 27 or Wednesday, October 28.

This markup schedule would mean that a surface reauthorization bill cannot reach the House floor until the week of November 2 at the earliest. (Congress is not in session the week of November 9 because of the Veterans Day recess, so if the bill misses the window of the week of November 2, the bill will not be on the floor until the week before Thanksgiving.)

Any November floor date means that Congress and the President must enact another short-term extension of Highway Trust Fund (HTF) taxes and expenditure by October 29 (and since the House cannot conduct business when the Speakership is vacant, this means that the extension needs to clear the House by the 28^th to avoid risk). And since Speaker Boehner announced this week that he is postponing the rest of the leadership elections (for Majority Leader and Majority Whip) until after the House elects a new Speaker on October 29, it not certain which leadership team will guide the highway bill to the House floor.

This leads us to the inevitable speculation of “how long will the next extension run?” The House inclination will again be to extend HTF programs until December 11 (since House leaders tried to do that once already this year). Senators Jim Inhofe (R-OK) and Barbara Boxer (D-CA), the chairman and ranking minority member of the Senate Environment and Public Works Committee, are expected to oppose any extension past Thanksgiving, for two reasons. First, if positive train control (PTC) deadline extension legislation moves independently through each chamber (a form of deadline extension was included in the Senate-passed surface reauthorization bill, the DRIVE Act), the Senate bill will lose some of its sense of urgency (and the backing of freight and commuter railroads). Second, the longer the process of finding offsets for new highway and mass transit continues, the greater the chance that some of the $37 billion in funding offsets (or “pay-fors”) remaining in the DRIVE Act will be taken to pay for more immediate priorities, such as increasing the discretionary spending cap in FY 2016 or as the political cost of increasing the debt ceiling.

The next short-term extension will not need to add additional money to the Highway Trust Fund to ensure its solvency, since the Federal Highway Administration now projects that current Trust Fund balances will be sufficient to last until May 2016 at current law spending rates. The decisions on the length of the extension will probably need to be ironed out during the week of October 19 at the latest, since the week of October 26 will be a short one and there is no guarantee that the House will be able to conduct any business, even by unanimous consent, on Thursday or Friday the 29^th or 30^th because of the need to elect a new Speaker.

[Here follows a long aside about Speakership elections.]

There appears to be no way that current House Majority Leader Kevin McCarthy (R-CA) can fail to get the support of a majority of the 247 House Republicans (or 246 if outgoing Speaker John Boehner (R-OH) does not vote) in the secret ballot that will be cast in the closed-door Republican Conference this Thursday, October 8. At least 124 House Republicans owe enough to McCarthy (or to Boehner, who is backing McCarthy) to get a majority of the Conference vote and then become the GOP nominee for Speaker later in the month. (For more information about the nature of internal party leadership elections in the House, see the article starting at the bottom of the front page of this Transportation Weekly issue from January 2006, which also has our epic rack-up of who got which above-the-line highway earmark in the 2005 SAFETEA-LU law.)

But the Speaker is an officer of the whole House, not just one party, and electing a new Speaker traditionally requires the support of a majority of the entire House, not just a plurality (i.e. the largest share of votes cast). The Speaker is traditionally elected viva voce – the Clerk calls the roll and each Members stands up and shouts the name of their preferred candidate (so there is no limit on the number of candidates).

The number of disaffected far-right House Republicans opposed to the current leadership team (the team of which McCarthy is an integral part) is not anywhere close to 124, but it may well be greater than the 29 necessary to force McCarthy’s total below 218 (a majority of the 435-seat House) if all Democrats vote for Nancy Pelosi (or even if a handful of Democrats vote for some other Democratic candidate).

What happens if no member gets 218 votes on the first ballot for Speaker? They vote again, that’s what they do. Once the Speakership is vacant, the House can conduct no more business until the chamber fulfills its Constitutional obligation to “choose their Speaker.” And how long, you may ask, can that voting go on?

For the nightmarish answer to that question, it is necessary to look back in time 160 years. The Second Party System (Democrats vs. Whigs, with a host of smaller parties) collapsed in the 1854 elections, but the Third Party System (Democrats vs. Republicans) had did not become established until the 1856 elections. The 34^th Congress was the Congress in between party systems. The House of Representatives elected in 1854 did not have a majority party – far from it. A bunch of former Whigs ran under the ad-hoc label of “Opposition Party” (opposition to President Pierce, that is) and gained 100 seats, but this was short of a majority of the 234-seat House (43 percent) The Democrats held 81 seats (just 35 percent), and the Know-Nothings held 52 seats (plus one vacancy). A parliamentary-style coalition would be needed to organize the House.

In that era, a new Congress did not convene until about 11 months after it was elected, so on December 3, 1855, the 34^th Congress met for the first time. The House took its first vote for Speaker, and it was a mess – 21 separate candidates received votes, and none of them got more than 74 votes (just 33 percent of the 225 members who had shown up so far and answered the quorum call). Under the rules of the time, an absolute majority of 113 of the 225 was necessary to elect a Speaker. The House voted three more times that day and no candidate still got more than 74 votes, so they adjourned to the next day and kept voting.

And they kept on voting. Between December 3 and February 1, the House had held 129 failed votes to elect a Speaker (plus several more failed attempts to elect a Speaker by resolution instead of viva voce). Frustration built to a point where the House finally adopted, by a 113-104 yes-or-no vote, a “plurality resolution” offered by Rep. Samuel A. Smith (D-TN) that had been rejected several times before. It resolved that “the House will proceed immediately to the election of a Speaker viva voce. If, after the roll shall have been called three times, no Member shall have received a Majority of all the votes cast, the roll shall be called, and the Member who shall receive the largest number of votes, provided it be a majority of a quorum, shall be declared duly elected Speaker of the House of Representatives for the Thirty-fourth Congress.”

The 130^th vote was Banks (KN-MA) 102, Aiken (D-SC) 93, with three others totaling 20 votes. Banks was six votes short of the 108 votes needed for an absolute majority on that vote. The 131st vote was Banks 102, Aiken 93, with others totaling 19, leaving Banks still six votes short. The 132^nd vote was Banks 102, Aiken 92, others 19, with Banks five votes short. So under the terms of the plurality resolution, the House held a 133^rd vote that was Banks 103, Aiken 100, others 11. Banks was still five votes shy of an absolute majority but had a three-vote plurality, so under the terms of the plurality resolution, Banks was selected – but then, just to make sure, the House voted to elect him via yes-or-no resolution, which was backed by a bipartisan vote of 156 to 40. Whereupon Nathaniel P. Banks, Jr., took the oath and became Speaker of the House of Representatives of the 34^th Congress.

The moral of the story: the House was never able to get a candidate past the majority threshold in a multi-candidate viva voce election for Speaker. But once they had finally determined who was the leading candidate beyond all doubt, the House then switched from a multi-candidate viva voce election to a yes-or-no, “shall this leading candidate be elected Speaker” election by resolution, and that yes-or-no question on adoption of the resolution was able to garner the tripartisan support of 80 percent of the membership of the House.