Question:  “How many Congressmen does it take to pass major legislation?”

Answer:  “Only ten if they game the system.”

There are 435 Members in the House of Representatives, but a mere ten approved passage of the controversial two-month extension of the “payroll tax” in December.

It was a prime example of why the public loses confidence in Congress; that procedure should never be allowed to happen again, especially on major legislation.  It was a bad ending for 2011; now Congress owes America a better start for 2012.  The Senate may be hopelessly dysfunctional but the House can and should do better. 

On Friday morning, Dec. 23, the House was gaveled into session on short notice, which is why so few were present.  The others had left for the holidays.  Instead of a roll call vote on a controversial two-month lowering of the “payroll tax,” the bill passed by “unanimous consent” voice vote of the handful who were there.  It was a bad procedure, but had been approved in advance by House members.

Only at 5 p.m. on Thursday had the Speaker informed the scattered Members that he would re-convene the House and conduct this vote at 10 a.m. Friday -- clearly insufficient time for most of them to return to Washington. The short notice was possible only because the House a few days before had adopted a “martial law” procedure that removed the normal requirement for greater notice in advance.

As counted by the Washington Times, only ten House Members were present for the vote -- four Republicans and six Democrats. 

Any lone congressman could have stymied the vote if they had jetted to Washington in time to object to the unanimous consent procedure, or to challenge the absence of a quorum.  None did so. Rep. Tim Huelskamp, a Kansas Republican, told CNN he had considered objecting but the Speaker’s quick action made it impossible.  "By the time we were notified that the unanimous consent agreement would be offered, where I come from in Kansas, I can't get to Washington quick enough on this short notice," he said.

The rush was purely political.  Had Members been told to return after Christmas, no deadline would have been missed and the public could have had the accountability of a regular roll call vote.  Many Republicans had publicly opposed the two-month extension that was approved, but we will never know how they would have voted. 

Media reported that the notice from House Speaker John Boehner to his Republican colleagues occurred at 5 p.m. Thursday.  During a conference call that allowed them only to listen to the Speaker, not to respond, they were informed that it was the “Speaker’s decision,” not theirs, and the vote would be at 10 a.m. Friday.  The protocol was opposite from a call five days earlier, when Members sounded off at length to Boehner and pushed him to oppose the Senate’s and President Obama’s positions on the bill. 

Some were angered that their own GOP leaders then out-maneuvered them with a quick vote. FOX News reported that unnamed Republicans were incensed and believed the action could put Boehner’s speakership at risk in 2012.

However, Speaker Boehner was exercising special authority that almost every GOP Member had approved of in advance.  As The Heritage Foundation has documented previously, the Speaker of the House only possesses whatever powers the other Representatives choose to give to him.  The so-called “martial law” protocol he utilized was adopted by the House on Dec. 14, empowering the Speaker to schedule quick action by simply giving notice on the prior calendar day.  

Using that special authority, Boehner gaveled the House into session that Friday morning without being limited by the usual three-day delay required before acting on new legislation.  The House clerk’s official website shows the legislation, HR 3765, was introduced and passed by voice, all within five minutes and 15 seconds.  The Senate and Obama also quickly approved HR 3765, extending by two months a lowering of the Social Security tax also known as the “payroll tax.”  That sets the stage for a continuing fight in 2012 over a longer extension.

The vote, for now, has ended a stormy political battle that featured President Obama pounding Republicans every day in the media, a rift between House and Senate Republicans and internal differences among the House GOP.  Many Republicans wanted to link the tax holiday to reductions in the federal workforce plus several reforms.  The quick vote dropped that effort. 

The House also faces the serious challenge of dealing with a do-nothing Senate that protects President Obama’s aggressive liberal agenda.  Even if House Republicans were totally united, their task would be herculean.  But short-cutting the regular order of the legislative process became too common in 2011.  It undercuts public trust when promises of open and transparent government are not kept.

By design, the House should have power flowing from the bottom-up, not be controlled from the top down.  Both leaders and rank-and-file should seek a fresh start as 2012 dawns, primarily by avoiding the unseemly process that we witnessed as they ended 2011.

Ernest Istook is a fellow at The Heritage Foundation.