Who’s on First? Under Boehner, It’s Always the Senate.

If someone is looking for the perfect example of how the 113th Congress functions, it doesn’t get much better than last week. The Senate beat back a filibuster to pass a popular bill with support from every Democrat in the chamber and a handful of Republicans.

The House? Oh, it took the week off.

And so the Employment Non-Discrimination Act (ENDA) joins the immigration bill in the queue for House action, with neither of them—so far—expected to move any further. Despite the fact that both would win if voted on.

But don’t blame the Hastert Rule—the informal rule in the House of Representatives that Speaker John Boehner can only bring to the floor items supported by a majority of his party. This is all about the Boehner Rule: The Senate goes first.

That’s been the way that the speaker has dealt with his next-to-impossible situation all year (as I discussed back in March). It’s a problem caused by his dysfunctional conference, which is unable to work as a normal House majority during a period of divided government. The brief version: On its own, the House is basically unable to pass serious bills intended to become laws. What originates from the House are talking points in legislative form—such as all those repeals of Obamacare—and when it really wants to or must pass something, it waits until the Senate produces a real bill.

Begin with the numbers. Republicans have ranged in their numbers in the House—from a high of 234 (out of 435) to the current low of 231 (out of 241). What that means is that without getting any Democrats, Republicans must remain unified; 16 defections will sink any bill.

That’s where the dynamics within the party kick in. Because there appear to be about two dozen radicals in the Republican conference who not only don’t want to compromise with Democrats but need—in order for their identification as True Conservatives to be meaningful—to find RINOs (Republicans in Name Only) and squishes within the GOP to disagree with.

It starts there. The next step, however, is that the bulk of the conference is terrified of being labeled RINOs and squishes and therefore avoids voting with the moderates against the radicals. That’s especially the case for anything that’s destined to become law, because that means Barack Obama is going to sign it. Anyone voting for such a bill runs the risk of aligning with the Kenyan socialist and against the True Conservatives.

Yet most of these mainstream conservatives also appear to care about the overall condition of the Republican Party and may even be concerned about their own (general) re-election situation; they don’t want extended battles that place Republicans on the unpopular side of public opinion.

What this leaves is the potential for an unusually large group within the majority party that may (privately) want bills to pass over its own (public) objections. The solution—the Boehner Rule—is to let the Senate go first and then gauge the pressure to pass the bill, comparing it with the pressure to avoid any gap developing between mainstream conservatives and the radicals.

This was most obvious during the shutdown, when reporters in the GOP-aligned press found that the bulk of the House Republican Conference wanted to accept a clean continuing resolution to keep the government open, but only about two dozen members willing to be identified as moderates would publicly admit to it.

The same thing was almost certainly true for the Violence Against Women Act and a handful of other bills that passed the House months ago with mostly Democratic votes. It’s not that the speaker moved ahead over the protests of the majority of Republicans; the majority of Republicans wanted him to move ahead over their own “no” votes.

What all of this means is, again, that Republicans have far less influence over the details of legislation than they would if the House were willing to go first, or even if it were capable of crafting alternate legislation after the Senate acted. Instead, they’ve turned control of a legislative body—a position which allows them to mold and shape the law—into little more than a veto point.

All of this works for one reason: Most mainstream conservative Republicans do not appear to have a policy agenda they care about—they are a “post-policy” party. The veto is enough; indeed, for the most part, it’s not even needed given that anything Republicans strongly oppose (such as, for example, gun legislation) is killed by filibuster in the Senate. The House never even has to consider dealing with it.

This routine is a perfectly functional solution for a perfectly dysfunctional party. The only problem? It means that the United States is robbed of the governing capacity of the House of Representatives—and conservatives are robbed of the governing capacity of the Republican Party. But then again: If conservatives wanted a party that cared about legislating conservative solutions to national problems, they would stop voting for radical Tea Party candidates.

Meanwhile, the House is starting to develop an impressive backlog of bills that are popular with the electorate at large (or at least poll well), but which they haven’t acted on, and won’t unless most House Republicans eventually prefer to have them pass with mostly Democratic votes. They now have immigration and ENDA. Prepare to see more. Could minimum wage be next? 

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