Pelosi just rejected two Republicans for the Jan. 6 investigation. Here are three takeaways.

Pelosi just rejected two Republicans for the Jan. 6 investigation. Here are three takeaways.

Yes, the speaker can do that

By 

Sarah Binder

Contributor, Monkey Cage

Yesterday at 7:45 a.m. EDT

This week, Congress is scuffling over whether and how to investigate the violent insurrection at the U.S. Capitol on Jan. 6.

Congress watchers know there will be no outside bipartisan investigation, after Senate Republicans filibustered and killed such a proposal last month. So House Democrats created a Select Committee — a temporary 13-member panel — to handle the job. This week, House Minority Leader Kevin McCarthy (R-Calif.) announced his five picks for the panel, including Reps. Jim Banks (R-Ind.) and Jim Jordan (R-Ohio) — widely known for supporting the “big lie” that President Donald Trump won the 2020 election, and for defending the rioters.

Pelosi shocked much of D.C. by rejecting those two for spreading disinformation about the riot itself.

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McCarthy pulled all five off the panel and vowed the House GOP would conduct their own inquiry. Pelosi has already appointed seven Democrats and one Republican, Liz Cheney (Wyo.), who not only voted to impeach Trump for inciting the insurrection, but has continued to criticize him publicly. The speaker hasn’t ruled out appointing more Republicans.

Here are three takeaways from the week’s partisan fireworks.

Yes, the speaker can do that

Republicans charged Pelosi with an “egregious abuse of power,” tagging her as “a radical authoritarian speaker.” But she was exercising a core parliamentary right. Since 1880, House rules have authorized the speaker to “appoint all select, joint, and conference committees ordered by the House.”

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House rules treat differently those committees that are “standing” (all-but permanent panels, such the Armed Services and Ways and Means committees, whose turf is written into House rules) and “select” (temporary panels charged with a particular assignment). The speaker originally made appointments to both types. But a bipartisan coalition in 1911 stripped that parliamentary right from Speaker Joseph Cannon (R-Ill.) on the grounds that “Czar Cannon” wielded the power to reward friends and punish enemies, even fellow Republicans. Today, the full House appoints members to standing committees, typically adopting slates nominated by each party, while the speaker retains power over select panel assignments.

Then, as now, standing committees are far more important to lawmakers’ electoral and policy pursuits than a typical select committee assignment. While fellow Republicans helped strip Cannon of some of his power, it’s hard to imagine a similar bipartisan move — especially in today’s far more partisan era — to strip the speaker of her right to decide the makeup of temporary committees.

A drama of constitutional hardball and beanball

In both the House and Senate, a norm of forbearance operates to varying degrees. Leaders and lawmakers are expected to refrain from fully exploiting all of their formal procedural rights. When politicians do take extra advantage of the rules, we often call it “constitutional hardball,” which legal scholar Mark Tushnet described as “playing for keeps in a special kind of way.” Both parties in Congress have at times been willing to play hardball, even knowing the other party will benefit when the tables turn.

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It’s important to put Pelosi’s hardball in context. Legal scholars David Pozen and Joseph Fishkin argue that the parties play hardball asymmetrically: Republicans are more likely to play than Democrats, as we’ve seen with such maneuvers as when then-Republican Senate leader Mitch McConnell (R-Ky.) and the GOP-led Senate refused to consider President Barack Obama’s Supreme Court nominee for nearly a year because of the approaching presidential election, and then confirmed Trump’s nominee in a record amount of time in 2020 just days before voters went to the polls. Second, legal scholar Jed Shugerman argues for a difference between hardball — sliding hard to reach the base — and beanball — trying to hit the batter in the head.

Both conservative and liberal observers are suggesting that Republicans McCarthy, Banks and Jordan are playing beanball, not hardball: They aim to attack any reckoning with Trump’s (and possibly their own) part in encouraging the Capitol attack. McCarthy reportedly threatened to take away committee assignments if first-term members accepted Pelosi’s invitation to join the Select Committee. McCarthy can now complain that the Select Committee has a partisan slant — after throwing pitches intended to knock out his own party’s members. That surely falls in the beanball category.

Republicans are all-in with Trump

McCarthy’s move challenges GOP rank-and-file to choose sides in the party’s internal battle over Trump’s role in their party.

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That’s not a big change. So far, that’s happened with a number of this year’s votes — including opportunities on Jan. 6 itself to object to electoral college slates; Trump’s second impeachment; and proposals for, first, a bipartisan commission and then a Select Committee to investigate the attack on the Capitol. Each vote has revealed how few Republicans are willing to side against Trump.

McCarthy’s attack on the Select Committee is just another step in his purge of the party’s anti-Trumpers. And while Republicans have already voted Cheney out of leadership, they could banish her still further by voting her out of the GOP party conference entirely.

All this will be fodder for the midterm elections. A statement from the House GOP campaign arm suggests Republicans will surely fundraise off Pelosi’s rejection of Banks and Jordan. And Republicans will surely add Pelosi’s actions to their litany of charges against Democratic control of the House.

Democrats, meanwhile, are running for office on what they deem Republicans’ complicity in the Jan. 6 violence. The campaigns have barely begun.