Rep. Kevin McCarthy is campaigning very hard to become the next speaker of the House, making all sorts of promises as he tries to round up the votes he needs. Yet it remains the case that anyone would struggle to do the job as currently constructed.
That’s not necessarily because of the narrowness of the Republican majority, or even the kooky behavior of its kookiest members. The underlying reason is something known as the “Hastert rule,” after former Speaker Dennis Hastert, who articulated it: Legislation only gets a vote on the floor of the House if it is supported by the majority of the majority.
In other words, according to the Hastert rule, even if a bill has the support of 99% of Democrats and 49% of Republicans — that would be 321 of the 435 members of the House in the 118th Congress — it still wouldn’t reach the floor for a vote.
This is, to be clear, not a rule found in any book. It is a political norm, and neither former Speaker John Boehner nor Hastert himself applied it consistently. But ever since the reign of Newt Gingrich, who became speaker in 1995, Republican Party speakers have mostly followed it. (Paul Ryan, the last Republican speaker, followed it even though he promised not to.) The presumption is that they will keep everything off the floor unless it is backed by most House Republicans, and the majority of GOP House members treat any exceptions as a kind of betrayal.
During the presidency of Barack Obama, the Hastert rule helped the GOP secure a political and policy win on immigration. But it’s mostly brought nothing but trouble, tending to disrupt the orderly operation of government while making it harder for non-hardcore Republicans to win their races and putting pressure on mainstream GOP backbenchers to vote for bills they don’t want to vote for.
McCarthy, or whoever Republicans choose, should realize that a successful speakership will depend on overtly disavowing the Hastert rule. That doesn’t mean the next speaker needs to commit to bringing anything to the floor that has majority support — no legislative leader anywhere in the country acts like that. It means using party cartel power selectively, when it confers a genuine advantage.
For an example of a better path forward, look at a signature moment from early in the speakership of Hastert’s successor, Nancy Pelosi.
Former President George W. Bush surprised the country by responding to the Republican Party’s losses in the 2006 midterms not by backing down from his unpopular policies in Iraq, but by calling for a “surge” of additional forces. This generated significant backlash from the left, which called on Pelosi to use her authority to block any vote on wartime appropriations unless Bush committed to withdrawing from Iraq.
Pelosi realized, rightly, that attempting to cut off appropriations for the military while troops were in the field would be a political fiasco. She also understood that, even as her rank-and-file members knew that refusing to pass war appropriations would be disastrous, few of them actually wanted to give the administration a blank check and expose themselves to opportunistic primary challenges. Her answer was simply to allow the bill to go to the floor, where it passed with the overwhelming majority of Democrats voting “no.”
In practice, Republican speakers have repeatedly found themselves doing the same thing on “must pass” bills, such as resolving the fiscal cliff standoff in 2012 or emergency assistance for Hurricane Sandy in 2013. But because Boehner was notionally committed to the Hastert rule, each time he acted in the best interests of his caucus he paid a price with that very same caucus.
At the end of the day, he had no choice.
In periods of divided government, the orderly function of government requires bipartisan dealmaking. Members of Congress from purple districts generally welcome this reality, since it gives them opportunities to vote for bipartisan deals while also assuring their base they support more far-reaching policies. But members with safe seats — in other words, the overwhelming majority of House members — often refuse to vote for these kinds of compromise bills. At the same time, neither safe-seat nor front-line members really want to lose their majority by forcing government shutdowns or other crises.
What’s the solution? It’s to do what Pelosi did and make it clear from the start that the speaker is going to exert his or her judgment about what to bring to the floor, and there’s no hard-and-fast “rule” about it. This approach — call it the Pelosi principle — still lets you keep lots of stuff off the floor.
Democrats would probably love to have a vote, for example, on raising the minimum wage. Either such a bill would pass, which Democrats would welcome, or it would fail, in which case Democrats would have forced front-line Republicans to take an unpopular vote. A party cartel acting to prevent floor votes on that kind of wedge issue isn’t political cowardice — it’s responsible leadership of a legislative caucus.
By the same token, a party cartel can use its control of the floor to secure genuine policy wins. In 2013, a bipartisan immigration reform bill passed the Senate with overwhelming support and almost surely could have passed the House had a vote been held. Boehner refused, which was bad for the country, but it was a calculated risk that turned out to be good for Republicans.
The idea of a systematic “rule” is ahistorical and unworkable. Hastert himself first articulated it because he was trying to come up with a high-minded reason for blocking a floor vote on a campaign finance bill, instead of just admitting to an act of opportunistic partisanship. The virtue of opportunism, though, is flexibility — the sort of flexibility Pelosi enjoyed to help avoid embarrassing crises while still maintaining control of the House.
The Pelosi principle — I’m going to allow votes even if they lack majority support within my party if I think they will help my party — sounds … unprincipled. But part of the job of the party leader is to take the heat for bare-knuckled partisanship in order to let other members articulate more high-minded views.
Trying to manage the workaday reality of partisan control of the floor with a rigid rule has made the House ungovernable. The path forward for the next speaker to abandon the Hastert rule and let conservative members take their principled stands without plunging the country into chaos.
