In this particular case, Republicans can best enforce the norm by demonstrating their willingness to retaliate proportionally.
Kevin McCarthy has moved to bar Adam Schiff and Eric Swalwell from the House Intelligence Committee and Ilhan Omar from the House Foreign Affairs Committee. Omar’s ouster would require a vote of the full House, but Republicans’ majority means that they could remove her on a party-line vote if they remain united (which they may not); the sensitive nature of the Intelligence Committee gives the speaker more leeway. Democrats are crying foul, as if this is not precisely what they did when they had the power to do so in 2021.
This is political payback. Democrats broke with the traditional norms of the House when then-speaker Nancy Pelosi refused to seat Jim Jordan and Jim Banks on the January 6 committee on grounds considerably flimsier than those cited by McCarthy against Schiff and Swalwell, and when the Democrats voted on a party-line basis to deny committee assignments to Marjorie Taylor Greene. McCarthy has cited plausible justifications for each of his moves, but nobody has any illusions that he is taking extraordinary steps on principle due to the urgency of Schiff’s abuse of his position to spread misinformation, Swalwell’s relationship with a Chinese spy, or Omar’s notorious record of antisemitism. He is retaliating proportionally for a breach of norms by the other side. Democrats were warned that this would be the particular outcome of breaking this particular norm, just as they were warned by Mitch McConnell what would happen if Harry Reid changed the rules of the Senate on judges. Those threats are hollow if not carried out.
Should McCarthy take this step?
It is cheap and easy to oppose “whataboutism” and insist that Republicans should just always do the right thing no matter what Democrats do. It is not always that simple. To start with, a supposed norm is not a norm at all if it is frequently ignored. Moreover, some norms of behavior, and even some rules, outlive their usefulness; if they are breached by one side, they are better left for dead. I felt that way when Senate Democrats abolished the filibuster for executive-branch and appellate-judge nominees, and Republicans followed suit by doing away with the filibuster for Supreme Court justices. Unlike the legislative filibuster, there is not a good reason to require a supermajority vote for confirmations, especially for the president’s own subordinates in the executive branch.
But when a norm serves a valuable function and is violated, how to respond? One school of thought says that two wrongs don’t make a right, and so a party that believes in a norm should follow it even if the other side doesn’t. Another school of thought says that the only way to stop your political opponents from violating a norm is to give them a downside for doing so by imposing consequences — which may be meted out in kind. Both of these arguments have a point. Which to follow in a particular situation depends in large part upon what moral value the norm serves.
By tradition, the size of each caucus determines how many committee seats its members have in the House, and each party picks who fills that share of the seats. The majority does not use its power — which no rule of the House could constrain — to dictate which members of the minority may sit on which committees. There is no constitutional constraint involved, because the Constitution says nothing about committees and invests each house of Congress with plenary powers over its own rules.
Three values are served by the norm of the majority restraining itself from booting members of the minority from committees. The primary value is that it prevents a vicious cycle of retributions when each side takes its turn in the majority. Another value is that it respects democracy: The people of each district elect representatives, and even if those representatives are seriously sketchy people, seating them on committees is done out of respect for the people they represent and their right to a say in the places where the House uses its lawmaking and oversight powers. The third value is that leaving the discipline of wayward members to each caucus promotes political responsibility: If a party won’t remove a Marjorie Taylor Greene or an Ilhan Omar from sharing the benefits of its caucus, it can be made to pay an electoral price, whereas if it becomes customary for the House majority to discipline members of the minority, the minority can always just wash its hands of the matter.
The first of these values obviously carries little weight once one side has chosen to break the seal; all that can be done to deter further violations is to respond in kind — and then, having done so, refrain from escalating in the hopes that the message is sent and the cycle stops at each side taking its pound of flesh once. If Democrats go back to the well a second time after Republicans retaliate proportionally, that shows that they were going to keep at it anyway.
The other values should give us some pause, as they appear to trouble Republicans such as Ken Buck and Victoria Spartz. But stripping voters of representation happens whether committee assignments are stripped by the party (as Republicans did to Steve King) or by the House. If retaliating against Democrats will deter future breaches of the norm, it is worth doing so now. That is especially true in the case of Schiff, who is attempting to leave the House anyway after this term to run for the Senate.
At the end of the day, norms collapse unless they are enforced. In this particular case, Republicans can best enforce the norm by demonstrating their willingness to retaliate proportionally. They have chosen deserving targets. That is how power politics is supposed to be played in order to promote rather than degrade the functioning of the institution.