Author Archive | Sarah Binder

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

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.”

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The state of advice and consent … in charts

The Senate Judiciary Committee is preparing for hearings on the president’s three nominees for vacancies on the D.C. Circuit Court of Appeals.  Brewing GOP opposition to filling the vacancies comes on the heels of partisan disputes over Republican tactics to block Obama’s judicial nominations. Democrats argue that GOP tactics are unprecedented: Republicans have delayed confirmation votes even for nominees with bipartisan support, they have insisted on sixty votes for nearly every appellate court nominee before allowing confirmation votes, and they have heightened scrutiny of trial court nominees.  In contrast, Senate minority leader Mitch McConnell argues that “the president’s been treated very fairly on judicial [nominees].”

Can both parties’ claims be true?  Steve Benen argues that McConnell’s claims “have no basis in fact,” but I don’t think that’s entirely correct.  Because there is no single way to slice and dice judicial nominations data, the parties duel with rival statistics: number of confirmed judges, confirmation rates by president or by two-year Congress, bench vacancy rates, time from nomination to Senate action, and so on.  Absent a single metric, it’s tough to nail down whether Republicans have overstepped the bounds of acceptable behavior—relative to Democrats’ behavior in the past.  (To be clear, the GOP claim that Obama is creating a “culture of intimidation” by sending three nominees to the Hill to fill authorized seats on the most important of the appellate courts is ludicrous, given the president’s constitutional authority to nominate candidates for the federal bench.)

My preferred measure for tapping the state of advice and consent focuses on confirmation rates and duration of the confirmation process over each two-year Congress. (Senators and others often prefer to compare confirmation rates across presidents, but differences in party size and party control within a presidency confound interpretation of presidency-level statistics.)  Confirmation rates between 1947 and 2012 (80th-112th Congress) appear here:


Viewing rates by Congress, we see the basis of McConnell’s claim that the GOP has played fair on Obama’s nominees: Appellate court confirmation rates were slightly higher in the 111th (2009-10) and 112th Congresses (2011-2) than they were over the course of George W. Bush Congresses (under both unified and divided party control).  And in the last Congress, GOP treatment of Obama’s district court nominees measurably improved (albeit after Senate Democrats felt compelled to file 17 cloture motions on district court nominees balled up by the GOP).  That said, GOP treatment of Clinton nominees in 1999-2000 and Democrats’ treatment of Bush nominees in 2001-2 produced the lowest confirmation rates over the postwar period.

We can also use data on how long it takes to confirm nominees (ignoring failed nominations) to compare the parties’ records.  As shown below, GOP foot dragging on Obama nominees for both appellate and district court vacancies has far outstripped Democrats’ slowdown of Bush nominees between 2003 and 2008 (under both unified and divided party control).  But these records are beat by GOP delay at the close of the Clinton administration and Democratic opposition at the start of Bush’s first term in 2001-2.

Screen shot 2013-06-13 at 12.50.46 PMGranted, such comparisons assume that all else is equal about the nominees and the process.  That’s debatable.  Each party typically claims that they only block nominees who are ideologically out of step, but we lack a common metric for comparing nominees ideologically.  Nor do these data capture changes in the threshold for confirmation, as the GOP has insisted on sixty votes for confirming almost every appellate and some district court nominees.  Remarkably, the GOP pushed Reid to file 17 cloture motions on district court nominees in 2012, even after Senator McCain had admonished his colleagues in 2011 not to filibuster trial court nominees: “Quite often we establish precedents and you find out when you get back in the majority it wasn’t that good of an idea.”

What does this portend for the fate of the D.C. Circuit appellate nominees?  Keep in mind that in addition to the unusual policy impact of the D.C. Circuit, this court of appeals is “balanced” with equal numbers of Democratic and GOP appointed active judges.  Since the early 1990s, confirmation rates have been at least ten percent lower for nominations to balanced circuits than to circuits with a party skew.  But I suspect that many GOP senators have not yet made up their minds on these nominees, and thus there’s currently no party strategy to block them.  In the meantime, the GOP will likely look for opportunities to confirm nominees they deem acceptable (witness today’s move to confirm two district court nominees and recent votes to confirm several appellate court nominees previously blocked by the GOP in the run up to the 2012 elections).  Such cooperation allows the GOP to insist that they’ve treated the president fairly—all the while dragging out the D.C. Circuit nominees.  Given continued uncertainty over whether Democrats would be able to muster 51 votes to go nuclear this summer, I doubt the conflict comes to a resolution anytime soon.

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Richard Arenberg comments on Wednesday’s Senate floor theatrics

Comments from Rich Arenberg interpreting yesterday’s Senate floor dust-up between Reid and McConnell over changing Senate rules:

Maybe the confusing label “nuclear option” which has been given to potential procedural maneuvers in the Senate which could lead to a majority-only rewriting on the Senate rules is more apropos than we thought.

During the Cold War, U.S. and Soviet intelligence each analyzed even the most subtle moves of the other side. If Soviet subs moved a few miles closer to the U.S. shores, the Air Force might move its long-range bombers outside their normal hangers and park them on the tarmac. The subs would move farther away and then the planes would roll back into their hangars. Signals had been exchanged. Most of this was invisible to most people and at best, confusing.

Watching the Senate’s leaders execute the delicate dance which is so often a part of the Senate’s approach to difficult confrontations is similarly difficult to interpret.

Yesterday, Senate Republican leader Mitch McConnell and Majority Leader Harry Reid exchanged their own signals on the Senate floor. Understandably observers were confused and interpretations varied widely.

For example, Sahil Kapur writing in TPM declared, Reid “rebuffed” McConnell’s “warning not to follow through with his threats to weaken the filibuster for nominations via the nuclear option.” The headline of Greg Sargent’s analysis in Washington Post’s Plum Line declared, “Harry Reid escalates ‘nuclear’ threat.’”

These interpretations were based on a Reid statement off the Senate floor. The majority leader said, “Despite the agreement we reached in January, Republican obstruction on nominees continues unabated. I want to make the Senate work again – that is my commitment.”

Others, like Tom Curry in NBC News First Read read the signals entirely differently. His piece appeared under the headline, “Reid appears to back away from ‘nuclear option’ on filibusters.”

That analysis, which I also heard from other sophisticated insiders in Washington, was based on Reid’s statement on the Senate floor: I am not saying we are going to change the rules, but I am saying we have to do a better job than what is going on around here. This is no threat.”

Clear right?


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How bad would the nuclear option fallout be?

Following up my early morning nuclear option post …

I appreciate Jon Bernstein’s nuanced and thoughtful response on the credibility of minority party threats to go nuclear were the majority to employ the nuclear option.  He asks the critical question:  “After majority-imposed reform is imposed, does it makes sense to carry out that threat?”  Jon’s skepticism here is well-taken.  Still, it’s remarkable how few majorities have been willing to consider taking the gamble.  Frist and many of his fellow partisans in 2005 seemed ready, but they are nearly an historical anomaly.  I think it’s helpful to keep in mind that the GOP would not actually have to blow up every bridge to impose a steep cost on the majority party’s agenda.  With apologies for quoting at length, this is how we put it it back in 2007:

Why would the threat of minority obstruction out weigh the majority party’s threat to reform-by-ruling? The minority is not helpless. If the ruling is limited to judicial nominations, as former Majority Leader Frist insisted in 2005 that it would be, the minority could filibuster any other debatable measure in anticipation of a Republican move to bring up a controversial judicial nomination. They could object to routine unanimous consent requests, which would require the majority instead to adopt a routine motion or even force the majority to secure sixty votes to impose cloture. If used widely, such moves could radically slow Senate action on all matters, a majority leader’s worst nightmare. The minority’s leverage under existing Senate rules and practices seems to counter the majority’s technical ability to go nuclear by reinterpreting existing chamber rules via new precedents.

Hard to know for sure how much to discount a counter-threat from the GOP.

Also, Richard Arenberg—co-author, with retired Senate parliamentarian Bob Dove, of Defending the Filibuster: The Soul of the Senate—weighs in on the nuclear option here with some interesting detail and perspective.  I think his third point is worth highlighting in particular, as it reinforces questions about the precise set of parliamentary moves needed to go nuclear.  The CRS report that I mentioned in my previous post goes into nuanced detail on this matter.

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Is nuclear winter coming to the Senate this summer?


It seems the Senate could have a really hot summer.  Majority leader Harry Reid (D-NV) has reportedly threatened to “go nuclear” this July—meaning that Senate Democrats would move by majority vote to ban filibusters of executive and judicial branch nominees.  According to these reports, if Senate Republicans block three key nominations (Richard Cordray to head the Consumer Financial Protection Bureau, Thomas Perez at Labor, and Gina McCarthy at EPA), Reid will call on the Democrats to invoke the nuclear option as a means of eliminating filibusters over nominees.

Jon Bernstein offered a thoughtful reaction to Reid’s gambit, noting that Reid’s challenge is to “find a way to ratchet up the threat of reform in order to push Republicans as far away from that line as possible.”  Jon’s emphasis on Reid’s threat is important (and is worth reading in full).  Still, I think it’s helpful to dig a little deeper on the role of both majority and minority party threats that arise over the nuclear option.

Before getting to Reid’s threat, two brief detours.  First, a parliamentary detour to make plain two reasons why Reid’s procedural gambit is  deemed “nuclear.”  First, Democrats envision using a set of parliamentary moves that would allow the Senate to cut off debate on nominations by majority vote (rather than by sixty votes).  Republicans (at least when they are in the minority) call this “changing the rules by breaking the rules,” because Senate rules formally require a 2/3rds vote to break a filibuster of a measure to change Senate rules.  The nuclear option would avoid the formal process of securing a 2/3rds vote to cut off debate; instead, the Senate would set a new precedent by simple majority vote to exempt nominations from the reach of Rule 22.  If Democrats circumvent formal rules, Republicans would deem the move nuclear.  Second, Reid’s potential gambit would be considered nuclear because of the anticipated GOP reaction: As Sen. Schumer argued in 2005 when the GOP tried to go nuclear over judges, minority party senators would “blow up every bridge in sight.”  The nuclear option is so-called on account of the minority’s anticipated parliamentary reaction (which would ramp up obstruction on everything else).

A second detour notes simply that the exact procedural steps that would have to be taken to set a new precedent to exempt nominations from Rule 22 have not yet been precisely spelled out.  Over the years, several scenarios have been floated that give us a general outline of how the Senate could reform its cloture rule by majority vote. But a CRS report written in the heat of the failed GOP effort to go nuclear in 2005 points to the complications and uncertainties entailed in using a reform-by-ruling strategy to empower simple majorities to cut off debate on nominations.  My sense is that using a nuclear option to restrict the reach of Rule 22 might not be as straight forward as many assume.

That gets us to the place of threats in reform-by-ruling strategies.  The coverage of Reid’s intentions last week emphasized the importance of Reid’s threat to Republicans: Dare to cross the line by filibustering three particular executive branch nominees, and Democrats will go nuclear.  But for Reid’s threat to be effective in convincing GOP senators to back down on these nominees, Republicans have to deem Reid’s threat credible.  Republicans know that Reid refused by go nuclear last winter (and previously in January 2009), not least because a set of longer-serving Democrats opposed the strategy earlier this year.  It would be reasonable for the GOP today to question whether Reid has 51 Democrats willing to ban judicial and executive branch nomination filibusters.  If Republicans doubt Reid’s ability to detonate a nuclear device, then the threat won’t be much help in getting the GOP to back down.  Of course, if Republicans don’t block all three nominees, observers will likely interpret the GOP’s behavior as a rational response to Reid’s threat.  Eric Schickler and Greg Wawro in Filibuster suggest that the absence of reform on such occasions demonstrates that the nuclear option can “tame the minority.”  Reid’s threat would have done the trick.

As a potentially nuclear Senate summer approaches, I would keep handy an alternative interpretation.  Reid isn’t the only actor with a threat: given Republicans’ aggressive use of Rule 22, Republicans can credibly threaten to retaliate procedurally if the Democrats go nuclear.  And that might be a far more credible threat than Reid’s.  We know from the report on Reid’s nuclear thinking that “senior Democratic Senators have privately expressed worry to the Majority Leader that revisiting the rules could imperil the immigration push, and have asked him to delay it until after immigration reform is done (or is killed).”  That tidbit suggests that Democrats consider the GOP threat to retaliate as a near certainty.   In other words, if Republicans decide not to block all three nominees and Democrats don’t go nuclear, we might reasonably conclude that the minority’s threat to retaliate was pivotal to the outcome.  As Steve Smith, Tony Madonna and I argued some time ago, the nuclear option might be technically feasible but not necessarily politically feasible.

To be sure, it’s hard to arbitrate between these two competing mechanisms that might underlie Senate politics this summer.  In either scenario—the majority tames the minority or the minority scares the bejeezus out of the majority—the same outcome ensues: Nothing.  Still, I think it’s important to keep these alternative interpretations at hand as Democrats call up these and other nominations this spring.  The Senate is a tough nut to crack, not least when challenges to supermajority rule are in play.

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Grading the Senate

In a thoughtful post, Jon Bernstein hands out a tentative report card on Senate reform, suggesting that the Senate deserves a passing grade based on its performance so far this year.  Jon suggests that the intent of the reforms—to streamline some of the delays endemic in the 60-vote Senate—might be taking root.  But I’m not yet convinced.  I think senators need more time to finish the test.

Jon’s key piece of evidence are the swift confirmations of four appellate court nominees to the federal bench (five if we count the nomination to the limited jurisdiction Federal Circuit), progress on a range of executive branch nominees, and handling of the gun control measure (securing cloture to debate the bill and consideration of both parties’ amendments).  I agree that partisan fires have cooled a bit in the Senate, but I’m not so sure we should attribute these changes to the adoption of reforms this past winter.  Those reforms allowed for expedited motions to proceed, a streamlined process for getting to conference, and expedited votes after cloture on nominations to the federal district courts.

So why am I skeptical?

clinton_tguideFirst, reform left untouched confirmation procedures for appellate court nominees.  The only reforms applied to judicial nominations were reserved for confirmation votes on district court nominees.  I suspect that swift action on these four appellate nominees more likely stemmed from the passing of the presidential election, making moot the GOP’s reliance on the so-called Thurmond Rule (a practice that GOP senators had used last summer to justify the blocking of Court of Appeals nominees in the run up to the presidential election).  Moreover, three of the four nominees came with strong support from their Republican home state senators.  By lifting the Thurmond Rule, GOP senators were deferring to the preferences of their own GOP colleagues—not necessarily to concerns about abiding with the spirit of reforms to speed up the Senate’s practice of advice and consent. At one point last year, it was Sen. Coburn (R-Oklahoma) who had called out his GOP colleagues for their obstruction of the 10th Circuit nominee.  The Senate, Coburn charged (without a hint of irony), was a kindergarten playground.  And keep in mind that just weeks before, Reid threatened to go nuclear “if the Republicans in the Senate don’t start approving some judges and don’t start helping get some of these nominations done.” Idle threat? Perhaps, but suggestive that this winter’s reforms might not be responsible for instilling more cooperative behavior in the GOP conference.

Second, Majority leader Reid this week stopped short of taking full advantage of the new procedure for getting to conference.  In attempting to go to conference with the House over the budget resolution, Reid availed himself of the new Senate’s new mega motion to get the Senate to conference—eliminating the need to go through three separate motions that had previously been required to get to conference.  But Reid did so by seeking—unsuccessfully—  unanimous consent to pass the super-sized conference motion.  Reid might have gone a step farther to seek cloture on the mega motion, given that the new rule brings the Senate to a cloture vote after just two hours and eliminates post-cloture debate on the motion.  But Reid had little need to attempt cloture: He couldn’t count on 60 votes and he had already made his point—blaming the GOP for inaction on finalizing a budget.  This doesn’t mean that the Senate fails the test of reform; I just don’t think they’ve finished taking the test.

[UPDATE:  A Senate procedural gnome offers the following correction.  Reid had to secure consent to advance to conference and could not have exploited the new compound motion for getting into conference; the House and Senate used different legislative vehicles (a House concurrent resolution and a Senate concurrent resolution), rather than amending the other chamber’s concurrent resolution.  The mega motion applies to situations where the two chambers have legislated on the same vehicle.  But the broader point stands. It’s too early to grade the Senate!]

Surely, the Senate deserves some credit for the cooling of partisan fires—as evidenced as well by the chamber’s completion of a fully amended and debated budget resolution (though don’t forget the Senate needed cloture to debate the CR!).  But whether the reforms have helped to instill better behavior probably remains to be seen.

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Seeking Supermajorities in the Senate

There’s been no shortage of excellent coverage of yesterday’s defeat of the Manchin-Toomey amendment on background checks for gun purchases.  These pieces include Ezra Klein’s note about the impact of Senate malapportionment, Jon Bernstein’s piece on the impact of Senate rules, Dan Balz’s column on the limits of public opinion, Jennifer Steinhauer’s NYT piece on the impact of the gun lobby, and Ryan Lizza’s post on the effects of institutional and partisan forces.

I wanted to add just a short note to the discussions on the 60-vote thresholds imposed for adoption of each of the amendments (and a concluding observation about the lessons of the defeat of Manchin-Toomey’s amendment).   Sean Sullivan posted a very good piece explaining why Sen. Majority Leader Harry Reid negotiated 60-vote thresholds for adoption of Manchin-Toomey, given that amendments typically require only a simple majority to pass.  Sullivan notes that requiring sixty votes via a consent agreement is simply less time consuming than getting to a vote via the Senate’s cloture rule (which would of course still require sixty votes).  Sullivan also suggests that Reid didn’t seek 51-vote thresholds for all of the amendments since that would have made it easier for GOP opponents of gun control to secure passage of weakening amendments.

Two minor amendments are in order, so to say, in explaining the logic of the 60-vote unanimous consent agreements (UCAs).

First, the decision to negotiate a 60-vote UCA certainly reflects the cumbersome nature of the cloture process, particularly given that there were (at least) seven amendments for which opponents would likely have demanded cloture before proceeding to up or down votes on the amendments.  UCAs with 60-vote thresholds allow the Senate to proceed more expeditiously without asking opponents to give up their procedural rights to delay or block the Senate from moving forward.   UCAs with 60-vote thresholds are attractive for other reasons as well: Such UCAs guarantee votes on substance rather than procedure, which may be attractive to senators.   Given intense median and public scrutiny of the Senate’s action on Manchin-Toomey yesterday, both parties might have preferred voting on the substance of expanding background checks rather than casting a procedural vote on whether a vote should be taken.

Second, Reid and proponents of a tougher package of gun control certainly stood to benefit from 60-vote thresholds that foreclosed adoption of weakening amendments.  Still, it’s important to keep in mind that the shape of the UCA was equally shaped by the demands of the minority leader, Mitch McConnell, and opponents of Manchin-Toomey.  Why didn’t Reid try to negotiate a UCA to set all amendments at 51-vote thresholds?  McConnell would not have consented to such an agreement.  This is a minor point of emphasis, for sure.  But it reminds us of the tough constraints faced by a majority leader in devising such agreements.  We can point to the side-benefits of Reid asking for 60-vote thresholds.  But the power in these negotiations lies equally with the minority whose consent is required for the majority to take votes that advance its policy agenda.  Reid didn’t ask for simple majority thresholds on the majority’s amendments because he couldn’t get them.

Ultimately, regardless of the mechanics of yesterday’s Manchin-Toomey vote, the outcome was a reminder of the weakness of a common defense of the filibuster—what Steve Smith and I once called the “little harm thesis”: Few measures supported by a majority have ever been killed by a filibuster.  Defenders of the filibuster claim that supermajority requirements moderate legislative measures, as they ensure that public policy better reflects the preferences of a popular majority.  After all, as Sen. Manchin’s predecessor, Robert Byrd, often argued, a majority in the Senate might not reflect a popular majority outside the chamber.  Given the breadth of public support for expanding background checks, the little harm thesis seems to ring a little hollow with the defeat of Manchin-Toomey’s compromise amendment.

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Corrected graph: GOP voting on Hastert rule violations

Pardon last night’s coding error:  The following shows the corrected distribution of GOP votes on the three times the Hastert rule has been violated in the 113th Congress.  Yesterday’s graph was missing 9 GOP one-time vote defectors. The mistake doesn’t change the conclusion from yesterday’s post: When you add up the percentages, forty percent always voted with the GOP and sixty percent voted with the Democrats at least once (or twice or three times).

hastert rule voting fix

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Does Boehner benefit from breaking the Hastert rule?

Years ago, I won a History Book of the Month Club contest by identifying some parliamentary lore from the 19th century House.  Back then, filling one’s head with obscure congressional procedures was worth something.  Today, with the “Hastert Rule” rolling off the tongues of Washington journalists and TV personalities alike, who needs congressional junkies?

Political science navel-gazing aside, there’s been some good discussion this week (for example, here, here and here) on violations of the so-called Hastert Rule.  As many legislative scholars have long argued, the Hastert Rule is better thought of as a behavioral norm than a formal rule: At least since the early 1980s, House leaders have used their  leverage over the floor agenda to keep measures off the floor that might divide the majority party.  Speakers have been expected to pursue measures that command the support of a majority of the majority party.  Former Speaker Denny Hastert recently made plain the costs of allowing the majority to be rolled:

Maybe you can do it once, maybe you can do it twice, but when start making deals when you have to get democrats to pass the legislation, you are not in power anymore…When you start passing stuff that your members are not in line with, all of a sudden your ability to lead is in jeopardy because somebody else is making decisions.

But as John Feehery (Hastert’s aide who coined the “Hastert Rule” label) noted this week, the unwillingness of the far right of the conference to countenance compromise leaves Speaker Boehner with few alternatives: “Boehner has no choice but to vote with Democrats” on must-pass legislation.  House conservatives, no doubt seeing the writing on the wall, this week launched two letter campaigns on immigration and gun control, threatening the speaker not to bring any measures to the floor without the support of a majority of the conference.

I think it’s worth pausing for a moment to take a closer look at GOP voting behavior on each of the three majority rolls this Congress.  The following graph shows the percentage of the GOP conference voting with the Democrats on each of the Hastert rule violations. [UPDATE: Corrected graph posted here.]

Hastert rule votes
First, note that less than fifteen percent of Republicans defected from the party to vote with the Democrats all three times.  I suspect the small set of GOP reflects in part the diverse nature of the three votes: Hurricane Sandy relief attracted a regional coalition, the violence against women bill drew moderates, and the battlefield preservation bill accrued support from across the party (and no doubt from War of 1812 re-enactors).    There might also be pressure within the conference to limit how often one defects from the majority position, leading to the small set of Hastert rule violators.  And of course, the universe of GOP who actually want to vote like a Democrat is particularly small. Less than two dozen GOP serve in districts won by Obama in 2012, and roughly half of them sided with the Democrats on all three votes.

Second, compare the percentage of GOP always voting with the majority of the conference on the three rolls to the percentage of GOP who voted at least once with the Democrats:  Roughly forty percent of the conference never crossed the aisle, while just under sixty percent voted at least once (or twice or three times) with the Democrats.  A majority of the majority might in fact support the Speaker’s willingness to loosen the Hastert rule.  Instead of compromising the Speaker’s authority, bending the rule might bolster it.  So long as 218 GOP can’t find common ground on salient measures—and can’t count on Democrats to vote for conservatives’ proposals—Boehner might continue to afford his rank and file the chance to cross the aisle in pursuit of their policy and political goals.

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Rolling a House majority, again

Kudos to the NYT’s Derek Willis for catching the latest Hastert Rule violation on the floor.  A majority of the House Republican conference was rolled when the House voted to suspend the rules and pass Democrat Rush Holt’s (D-NJ) bipartisan bill to expand federal support for preserving American battlefield sites.  Requiring a two-thirds vote for passage, the House adopted the bill by a vote of 283-122: All Democrats voted in favor of the bill, with Republicans spliting 101 in favor and 122 opposed.  The bill reauthorizes a federal grant-making program for the protection of Civil War battlefields and extends the program to Revolutionary War and War of 1812 battle sites.

Is this minor bill worthy a Monkey Cage post? Maybe not.  But it’s certainly an important bill to Jeff Fortenberry (R-Nebraska) who joined Holt as an original sponsor of the bill.  (I’m not aware of any Revolutionary War battlefields in Nebraska, but Fortenberry is a Civil War buff and a member of the Congressional Battlefield Caucus. So there you go: Members’ backgrounds matter.)

So why the majority r0ll?

First, the House has previously passed Holt’s bill, each time by voice vote. This time, a Republican supporter of the bill from Virginia requested a recorded vote, perhaps to signal to senators the bill’s bipartisan support.  If supporters knew that the majority might be rolled, perhaps that would provide an even stronger signal to Senate Democrats seeking floor time for the bill. More likely, supporters cared most about establishing support for the bill: Doing so by recorded vote would generate more attention for their cause.

Second, Republican opposition was no doubt generated on the right by Heritage Action’s decision to score the vote when it rates members’ voting records for 2013.  On such a low salience bill, no surprise to see a majority of the GOP conference vote against the bill to help brand themselves as true conservatives.  (I suppose a true “conservative” would favor conserving historical sites, but whatever.)  When I gin up a simple model of Republican votes on the bill, not surprisingly more conservative GOP were more likely to vote against the bill, even if their state is home to an 1812 or Revolutionary war battle site.  (I count as “more conservative” the two dozen or so GOP who voted against the leadership on a set of high profile votes this year.)  Meanwhile, GOP from districts with greater Obama support were more likely to vote in favor.

battlesIf there’s anything interesting at all here … it’s the potential impact of the Heritage warning on GOP from electorally marginal districts.    As simulated in the figure to the right (in blue), GOP with comfortable electoral margins were more likely to vote for the bill than their colleagues (in red) who barely squeaked into office last November.  (I’m not color blind, just trying to be historically sensitive.)  To be sure, most GOP opposed the bill, as captured by the low simulated probabilities of voting for the bill.  But if the Heritage warning mattered, it appears to have had its greatest effect on marginal GOP—presumably those more likely to be looking for opportunities to bolster their conservative credentials. We tend to say that all members run scared.  For the handful of GOP in marginal seats, they’re running even harder.

Finally, this week’s Hastert rule violation suggests that rank and file majority members might not necessarily care about being rolled, especially if the party’s broader reputation is not at stake.  (Did GOP leaders know the vote would be tagged by Heritage before they allowed it to be placed on the suspension calendar?)   The roll call vote provided a presumably unexpected opportunity for GOP to show their conservative bona fides by opposing a bill that would authorize additional federal spending. It was an easy vote and beneficial for Republicans seeking to burnish their conservative appeal and handy as well for GOP aiming to moderate their image.   And so far as I know, veterans groups sat out the vote—having no active members who could recall their service in these wars.

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