The Rule Worse than the Filibuster that Is about to Prevent Immigration Reform

 

“Complaints are everywhere heard . . .  that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”  —James Madison, Federalist #10 

Denny Hastert, the longest-serving Republican Speaker of the House in American history, will probably always be best known for the policy that now bears his name: the “Hastert Rule,” an informal guideline which stipulates that no legislation will be allowed to come to a vote in the full House of Representatives unless it is supported by a majority of the majority party.

The current speaker, John Boehner, has paid a steep price for setting aside the Hastert Rule to vote on things like Hurricane Sandy relief and the Violence Against Women Act. But he has pledged not to bring the Senate’s immigration reform bill—passed by a huge 68-32 majority—to the House floor unless a majority of Republicans support it (which they don’t). It is very likely, therefore, that legislation favored by 2/3 of the members of both the House and the Senate—a supermajority sufficient for a Constitutional amendment—will die in the House without so much as a procedural vote or a floor debate.

Unsatisfied with Boehner’s assurances, however, Republican conservatives are now attempting to write the Hastert Rule into the bylaws of the House Republican Conference. It would be difficult to imagine an act more hostile to the spirit of the Constitution or more destructive to the ends of a self-governing republic, for the Hastert rule has only one purpose: to prevent the majority party from every having to compromise on anything.

Anyone who has studied the Federal Convention of 1787 knows that America’s Constitution was the product of deep—and often painful—compromises among people who didn’t agree with each other about very much. Compromise gave us the Constitution, and the Constitution gives us a government where compromise is the only way to get things done. In a country of 300 million people, compromise is a no-brainer; the only other option is complete legislative paralysis.

But legislative compromise means that every member of a legislature has to matter at least a little bit—not enough to drive the agenda, of course, but at least enough to be able to participate in the debate and help to shape the compromise that makes legislation possible. The 53 million Americans who voted for Democratic representatives—about half a million more than those who voted for Republicans—have a right to some minimal level of actual representation in Congress.

The Hastert rule, however, severely limits the minority party’s ability to represent its constituency according to the terms of the Constitution. It makes discussion, debate, and compromise contingent on an extra-Constitutional vetting vote by the majority party. It is one thing to say that the minority can’t win. That’s how democracy works. It is another thing entirely to say that the minority can’t even vote. That’s how democracy fails.

And the failure of democracy (or at least of republican government) is virtually guaranteed by the Hastert Rule. The current House of Representatives has 234 Republicans out of a total membership of 435. This means that, with an officially encoded Hastert Rule, 118 Members of Congress—or 27% of the total House membership—could prevent the majority from even debating or voting on a piece of legislation. By contrast, the Senate’s filibuster rule—which gives 40% of the Senate the ability to block a vote—seems downright democratic.

The fear that things like this might happen caused most of our Founders to take a dim view of parties and factions. In his magisterial Federalist #10, for example, James Madison laments legislation passed “not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.” But perhaps Madison goes too far. Majorities are probably always going to be overbearing. What the Hastert Rule does is allow minorities to be overbearing too, as long as they are in the majority party.

Perhaps the best rebuttal to the Hastert-Rule problem comes from the words of a House Speaker who came into office pledging to be a compromiser and proved it by the unprecedented action of handing the Speaker’s gavel to the opposition party leader while he gave his acceptance speech from the House Floor. In that speech, he said:

Solutions to problems cannot be found in a pool of bitterness. They can be found in an environment in which we trust one another’s word; where we generate heat and passion, but where we recognize that each member is equally important to our overall mission of improving the life of the American people.

This foresighted Speaker’s name was Dennis Hastert. And he said these words in January of 1999–five years before bowing to pressure from his own party to create the infamous “rule” that now bears his name.