What’s in a name? That which we call the “Hastert Rule” by any other name would ….

by Sarah Binder on June 19, 2013 · 4 comments

in Legislative Politics

shakespeare-bigPardon the morning Shakespeare.  But I think a small dose of Romeo and Juliet might be helpful in wading through recent commentary on the “Hastert Rule”—the expectation that House majority party leaders will use their leverage over the floor agenda to block measures opposed by a majority of the majority party.   The “rule” is in the news of course because the fate of bipartisan immigration reform rests in part on whether Speaker Boehner would be willing to allow passage of reform with Democratic votes, rolling a GOP majority.

Some thoughts on two dimensions of recent Hastert rule coverage:

First, many reporters delight in pointing out that the Hastert rule is not a formal rule, such as this morning’s tweet from Greg Sargent: “Someone needs to tell the @nytimes that there isn’t really any such thing as the ‘Hastert Rule.’”   In some ways, the distinction is politically important.  By naming the Hastert rule a “practice” (rather than a codified rule), rolling the majority party on the House floor (thereby “breaking” the rule) shouldn’t be seen as such a politically costly move for Speaker Boehner.  If the speaker is charged with protecting the interests of the chamber, then we should expect the speaker to allow a chamber—rather than a party majority—to work its will on the big issues of the day.  Reifying the practice as a rule potentially empowers opponents of  immigration reform.

That said, I’m not sure that the distinction between formal rule and informal practice or precedent matters in this context.  Even if we reach back to the early 20th century, we hear echoes of the Hastert rule in legislative parlance.  As Speaker Nicholas Longworth (R-Ohio) said back in 1925,

“I believe it to be the duty of the Speaker…standing squarely on the platform of his party, to assist in so far as he properly can the enactment of legislation in accordance with the declared principles and policies of his party and by the same token to resist the enactment of legislation in violation thereof.”

The key word here is duty.  Similarly, Cox and McCubbins’ model in Setting the Agenda assumes that majority party leaders “act according to a minimal fiduciary standard…they  do not use their official powers to push legislation that would pass on the floor against the wishes of most in their party” (p9).  Again, the concept is a norm, not a rule.  Leaders are expected to behave as such (and as fiduciaries, are trusted to do so), given the risk of losing their leadership positions if they violate the norm.  In other words, these accounts suggest that compliance with a Hastert “norm” is rational, and thus sustainable.  As Jon Bernstein put it yesterday, “That doesn’t need to be incorporated into any formal rule; it’s just how it is.”

That said, recent violations of the Hastert rule/norm haven’t led a majority of the conference to replace Boehner. (This isn’t surprising, given that sixty percent of House GOP voted at least once with Democrats on the three 113th Congress Hastert rule violations.) In short, I don’t think it matters whether we consider the Hastert practice a formal rule or behavioral norm: the Speaker will observe it to the greatest extent that he can, except when maintenance of the party’s reputation compels him (through the Rules Committee) to allow a bipartisan bill or conference report to come to the floor.  Again, in purely rational terms, a norm is likely to be sustained so long as the costs of compliance (however defined) don’t exceed the benefits.

Second, just a word about the efforts of conservatives (inside and outside of the GOP conference) to codify the Hastert rule.   Some report that the effort would codify the Hastert rule as a formal rule of the House. That’s not quite right: conservatives are seeking to codify the rule within GOP party conference rules.  Does the distinction between chamber and party rules matter?  Certainly the lower visibility of conference rules (and their lack of force on the House floor) might make it easier to violate or waive them.  (GOP conference rules allow a supermajority to waive party rules, and it’s not clear how a party rule would bind the Speaker’s compliance.)  Unfortunately, there is relatively little research on the politics of creating or maintaining party caucus or conference rules (at least outside of the 1970s House Democrats’ rules on selecting committee chairs). And the one piece I can think of this morning—a very nice Matt Green article in Legislative Studies Quarterly in 2002—suggested the limits of the Democrats’ famed experimentation with a binding caucus in the early 20th century.  (Binding caucus rules proved no match for internal party divisions on highly salient issues …)

That said, no one seems to expect the conservatives’ efforts to succeed.  And given that the Hastert rule/norm is only as strong as rank and file GOP’s trust that their leaders will observe it, it probably doesn’t matter whether the practice is codified or remains informal.   As Rep. Tom Cole (R-Oklahoma) reacted to the codification campaign, “I don’t think many people are apt to sign on to something like this, and at the end of the day, you trust your leaders or you don’t.”

{ 4 comments }

Dan June 19, 2013 at 3:00 pm

Ezra Klein had a n interesting take on this yesterday:

http://www.washingtonpost.com/blogs/wonkblog/wp/2013/06/18/is-boehner-bluffing-on-the-hastert-rule-even-he-doesnt-know/

He makes the point that the House Republicans actually want/need to be able to break the Hastert Rule sometimes.

As he puts it: “But most House Republicans don’t want to make the Hastert rule into an actual rule. And the reason, as they’ll tell you behind closed doors, is that it’s not Boehner who breaks the Hastert rule. He’d never send a bill to the floor if a majority of House Republicans didn’t want to see it on the floor. It’s the House Republicans who break the Hastert rule. The reality of the House is that sometimes a majority of House Republicans want a bill to pass even if they don’t want to vote for it.”

So, while I understand the sense of “duty” you describe here, regardless of the formality of the practice, Klein’s description suggests that this is sometimes still just a smokescreen anyway, in cases where the GOP wants to have its cake and eat it too. More Kabuki theater?

Sarah June 19, 2013 at 9:56 pm

Dan– Good point. I think the important aspect to keep in mind here is that the Hastert rule violations are the exceptions, rather than the rule. And when those exceptions occur, yes, I suppose there’s a little bit of Kabuki theater. Major bills only go to the floor under a special rule approved by a chamber majority. So each of the big recent Hastert Rule violations (fiscal cliff, sandy aid, violence against women act) came to the floor with the consent of a GOP majority. And so, yes, in that sense one might say that there’s broader support for violating the Hastert rule than meets the eye.

Dan June 20, 2013 at 2:27 pm

So, just to unpack this one step further, it seems that maybe the Hastert exceptions aren’t really exceptions after all? What is the special rule that allows these bills to go to the floor, and why wouldn’t that qualify as adhering to the Hastert rule?

In any case, this whole situation seems to point to the tensions within the GOP. (Yes, JG below, Boehner has been between a rock and a hard place ever since Obama’s first election. Harder and rockier with ever passing day.) You could subdivide the GOP House caucus into three pieces (I’d love to know the numbers here):

(1) pure far-right (“purist”)
(2) moderates-in-the-clear (“safe RINO”)
(3) moderates-in-tough-spots (the “Swing” or “stealth RINO”)

The Swing (which presumably forms a majority in combination with either of the other wings) is where the Kabuki takes hold: fearing primary challenges from the far-right, they can’t be seen to vote against the far-right positions without being painted as a RINO and getting big money poured into a purist challenger campaign in the next cycle.

But in these exception cases, it would appear that the RINOs (both safe and stealth) are in the majority of the GOP, whereas the votes on the actual bills still would reflect the majority combination of purists and stealth RINOs.

The stealth RINOs seem to be directly in the rip-zone of The Rack that the purists are putting the GOP onto. That is, would it be fair to say that the brinksmanship that the GOP is using against the Democrats is actually being driven by brinksmanship within the GOP?

The purists are driving the hard line, which could threaten the GOP majority in the House (and push the GOP out of filibuster zone in the Senate) if some of these bills pass, because they would tarnish the entire GOP in such a way as to marginalize the party overall in a sort of national-wave manner. The moderates (RINOs of both flavors) put the priority on keeping majority power, while the purists seem publicly willing to accept a minority on behalf of ideological purity.

But isn’t that the real bluff here? The moderates want to keep the party unified, and because of that they are vulnerable to being held hostage/blackmailed by the purist wing that claims to put the values first rather than the power (because the purists understand that the moderates value power and will do whatever it takes to retain it, even if it means being “too extreme” in the values department — the purists are counting on the moderates to behave according to precedent).

One wonders what would really happen if the Hastert Rule became formally unbreakable in some sense. Then the Kabuki option would be taken away, and the purists would be able to press their strategy to maximum effect. One wonders if they would finally succeed in breaking the GOP in two, or in finally marginalizing it, because that would seem to be the only option if they were to proceed with the hard line. If all those stealth RINOs were flushed out into the open and replaced by purist candidates in general elections, they may lose a lot of swing districts to moderate Democrats. It seems that the moderate Republicans understand this and the purists don’t care, at least in public rhetoric.

Should Democrats be hoping that the Hastert Rule becomes formalized within the GOP caucus, in order to bring this internal tension to a head? Many outside observers thought the Tea Party movement would crack the GOP apart more quickly than this. That Boehner has held it together this long is fairly impressive.

But I guess there are still more RINOs than purists in the House GOP, so as long as that’s the case (and as long as they don’t all have to go publicly on record saying so), it seems unlikely there would be a formalization of the Hastert Rule. The Kabuki seems to be the safety valve that releases the tension of The Rack, at this point.

Is this basically what’s going on here? Or am I misreading something?

JG June 20, 2013 at 8:33 am

Boehner really seems to have been “between a rock and a hard place” since he became Speaker.

Sure, majority rolls mean that majority party members are not getting the outcomes they desire but it is also the role of the party leadership, especially the Speaker, to protect the party label. With the divisions we have seen manifest within the GOP over the past several years it is no surprise that Boehner occasionally acts as a “strict father” and allows rank-and-file to be on the losing side of a vote. Not to be overly cliche but many, if not most, of the House Republicans are still learning to govern and in the Congress that means employing the C-word: compromise.

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