The Boehner Rule

flickr/Talk Radio News Service

After months of Republican resistance, the House of Representative finally renewed the Violence Against Women Act (VAWA) late last month. What many casual political observers may not know is that there were always enough votes in the House for the bill to pass, but it couldn’t get a vote because of something called the “Hastert Rule”—an informal practice in the House by which only legislation supported by a majority of the majority party (in this case, Republicans) is allowed to come to a vote. How Speaker John Boehner got VAWA passed tells us a lot about what the next two years is going to be like in Washington.

The Hastert Rule was coined during the speakership of Republican Denny Hastert, who said he would bring nothing to the floor of the House of Representatives unless a majority of the Republican conference supported it. As University of Miami political scientist Greg Koger explains, the logic behind such a rule is basically one of "an organizational conspiracy"—one that allows members to avoid certain types of tough votes. Take a bill that is popular with the majority of constituents in a legislator’s district but would be unpopular with voters in his or her primary. By invoking the Hastert rule, that bill never comes to a vote, and so members avoid a vote that would anger their base. That’s what happened to the Violence Against Women Act in 2012. When the Senate passed a version that was generally popular but which most House Republicans opposed, Boehner invoked the Hastert rule.

Notice that this is a relatively weak form of a legislative cartel. A stronger “conspiracy” would not only prevent items unpopular with the Republican conference, but guarantee passage of anything that the majority of the majority wanted by having all Republicans pledge to support everything the speaker brought to the floor (or, perhaps, a subset of measures which are designated as particularly important). Generally, however, legislative parties in the United States have never been that strong; individual members, for a variety of reasons, find strong partisan commitments against their electoral interests.

The current speaker, however, has abandoned the Hastert Rule in three key votes over the last few months—the fiscal-cliff vote at the end of the 112th Congress, the Hurricane Sandy relief bill, and, eventually, the Violence Against Women Act. In each case, a majority of Republicans opposed the bills. But Boehner allowed a vote nonetheless. A floor coalition of a small group of Republican moderates and most of the Democrats were able to pass the bill. Why did the speaker allow this to happen?

What each of these measures has in common is that most Republican members probably wanted them to pass—but without their votes. They believed that failure to pass the bills would be damaging either for the Republican Party as a whole or for them in their districts. But voting for them would be dangerous, too, and would risk alienating the conservative base. 

What Speaker Boehner has devised to get around obstruction in the House is really pretty ingenious. It’s a two-track system. Most bills are simply opportunities for Republicans to established their conservative credentials, which is done by alienating Democrats and keeping the most conservative members on board if possible. Of course, given divided government, those bills are dead on arrival in the Democratic Senate, but they aren’t intended to become laws—just to make statements.

However, sometimes the Republican leadership in the House really does want something to pass. For these bills, as George Washington University’s Sarah Binder has said, the speaker has instituted a “new Boehner Rule”: Make the Senate go first. After all, given the 60 vote Senate (thanks to filibusters on everything) and a 55 Senator Democratic majority, nothing can get through that chamber without support from both parties. That is, it will generally require some sort of deal between most or all of the Democrats and at least some of the more moderate Republicans. After a bill passes in the Senate, Speaker Boehner calls up that product for a vote and, at least so far, has been able to get a similar result in the House—that is, lots of Democrats and enough Republicans to put it over the top. Hastert Rule violated, replaced by the Boehner Rule.

The advantage in making the Senate go first is twofold. First, House Democrats are willing to settle for whatever their counterparts in the Senate agreed to; if they negotiated a deal with House Republicans, they might be more aggressive. That makes the math for passage work. But it also removes the risk of a really ugly vote in which some House Republicans wind up casting that tough “RINO” vote without actually getting a bill to pass as a result. That could happen if Republicans tried to originate bills from the House, which would have to be written to welcome Democratic support and an eventual signature from the Democrat in the White House. But since Republicans have no control over what happens after the House acts (if it acts first), they might wind up with the risks of supporting that relatively moderate legislation without the reward of actually making law. No, waiting for the Senate to act first is a lot safer.

What Republicans sacrifice in all of this is, basically, influence over policy. When Paul Ryan submits a pie-in-the-sky budget and Republicans pass it, the Senate will react by ignoring the House version of the budget entirely. Similarly, when House Republicans simply accept whatever the Senate has worked out on the fiscal cliff bill, they don’t get to fight for their own preferences.

Which suggests a second condition, along with antagonism towards compromise, which makes the Boehner Rule work: indifference to policy outcomes. If most members of the House conference really cared a lot about policy details—either out of personal preferences or because of constituency demands—they would be reluctant to delegate negotiations over details to the Senate. That they are willing to do so, and in fact that they pressure Boehner not to get involved in negotiations, suggests that once they get beyond the headline issues they just don’t really care what happens. As long as they can avoid that RINO tag.

What makes John Boehner a first-rate Speaker of the House is that he’s apparently able to deduce these member goals, and accommodate them, even if it requires unconventional and even innovative strategies. So my guess is that we’ll see more “Make the Senate Go First” over the next two years.

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