How to get rid of the Hastert rule: Go back to the old rules for discharge petitions

I'm a lifelong Republican, but if you ask me, it ought to be an impeachable offense* for speakers of the House of Representatives to follow the GOP's so-called Hastert rule, the way John Boehner seems to have done until virtually the last minute in the recent "fiscal cliff" negotiations.

The House Democrats should aggressively attack the Hastert rule by pushing to go back to the old rules for discharge petitions. If the House GOP won't go along, the Dems should file suit in federal court to enjoin Speaker Boehner from applying the Hastert rule. The threat of the Speaker being dragged into court and forced to explain his bill-management decisions might be enough to get the GOP to cooperate on restoring the discharge petition rules to the way they used to be.

* Yes, I know impeachment would be a practical impossibility: Under the Constitution, the House itself would have to approve articles of impeachment, and it's hard to imagine any situation in which the majority would vote to impeach its own leader.

The Hastert "rule" can disenfranchise the House minority

In a nutshell, the Hastert "rule" says that the speaker of the House of Representatives will not allow the House to vote on any bill even one that's supported by a majority of House members and therefore would pass if it were brought up for a vote — if the bill does not have the support of a majority of the Republican caucus.

The Hastert rule, of course, isn't actually a rule at all, or at least certainly not a rule of procedure duly enacted by the House pursuant to its constitutional power to do so. No, the Hastert rule is a ruthless political practice followed by recent Republican speakers, notably Newt Gingrich, Dennis Hastert, and John Boehner.

One notable recent exception to the Hastert rule: As New Year's Day drew to a close, the House finally voted on the Senate's fiscal-cliff bill, approving it 257 to 167, with 64% of House Republicans voting "no." A couple of days later, former speaker Hastert reportedly warned on Fox News Radio that Speaker Boehner allowed more bills to come up without the support of the House's GOP majority, hewould be giving up his power; Hastert was quoted as saying:

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. The president is making decisions, [House Minority Leader Nancy] Pelosi is making decisions, or they are making the decisions in the Senate. All tax bills and all spending bills under the Constitution start in the house. When you give up that responsibility you really give up your responsibility to govern, and that is the problem. [Emphasis added.]

Jesus. Does Dennis Hastert really think that the responsibility to govern, on any issue, lies with just the majority caucus of the House?

The Constitution gives the House's power to the whole House, not to the Speaker or the majority caucus

Certainly it makes sense for the Speaker to have some discretion to decide what bills will be brought up for a vote; somebody has to manage the work flow.

But the Hastert rule grossly abuses that discretion. The constitutional authority to approve or reject a bill lies with the House as a whole, not with any particular caucus.

It's outrageous that recent GOP speakers have abandoned their fiduciary duty to the House — and to the nation — by abdicating to their caucus majorities the power and duty to decide whether a given bill will get a vote.

One way to restore checks and balances here: Go back to the old rules for discharge petitions

House rules do allow members to sign a discharge petition to force a vote on a bill. In theory, that provides a check to the power of the Speaker, or of the majority of a committee, to control which bills are brought to the floor for a vote.

But a discharge petition is a toothless remedy against abuses of that power. That's because any discharge petition needs the public signatures of an absolute majority of the House, namely 218 members. This means that at least some members of the majority party must sign on to any discharge petition. And given all the power wielded by the speaker and other House leadership, how many members of a majority party would be willing to risk retribution from the leadership by signing a discharge petition? That's right: Not many.

A better rule would be that:

• signatures to a discharge petition are kept secret until the requisite number of signatures are gathered, as was the case before 1993, and
• a smaller number of signatures is needed: either one-third, as was the case before 1935, or perhaps the number of signatures corresponding to one-half of the minority caucus. For example: As I write this, 113th Congress was sworn in today, with the House now containing 234 Republicans, 200 Democrats, and 1 vacancy. If a half-the-minority number were used, then a discharge petition could succeed with only 100 signatures.

This would provide an appropriate check and balance: The Speaker can follow the Hastert rule if he or she chooses, but a significant number of rep­re­sent­a­tives can dynamite the log jam if they so choose, with less fear of repercussion.

Some might complain that this could allow the minority caucus to flood the House agenda with demands for votes on bills that are supposedly doomed to defeat. I say, fine — if a reasonable number of House members are willing to sign their names to a discharge petition, then the presumption ought to be that the bill should get an up or down vote. There would seem to be no more risk of abuse by the minority than by the majority.

Oops — there's another problem: Providing the minority with more power to overcome stonewalling by the majority might lead to more genuine nego­ti­a­tion between the parties about important bills. And we certainly can't have that, can we?

The House GOP won't change the discharge rules voluntarily, so House Democrats should sue to enjoin the Hastert rule

Clearly the existing GOP majority in the House won't change the discharge-petition rule. So what about court action by House Democrats? I won't try to address the constitutional issues in any depth here, in part because the judicial precedent simply isn't clear on this point.

• The Supreme Court has often been reluctant to allow the federal judiciary to get involved in "political" questions, partly on the theory that the demo­crat­ic process is better equipped than the judiciary to address such questions.

On the other hand, the Court has been willing to wade into a number of cases that arguably turned on political-type questions, such as Baker v. Carr (one person one vote), Powell v. McCormack (Congress's power to expel members), and more recently, Bush v. Gore (Florida recount in the 2000 presidential election).

• Another obstacle to a lawsuit: The Supreme Court has taken a restrictive view of the "standing" of individual members of Congress to bring suit to overturn an enacted law. See Raines v. Byrd, 521 U.S. 811 (1997) (holding that individual senators and congressmen did not have standing to challenge the Line Item Veto Act).

On the other hand, the Court might be more receptive to the standing of House minority-caucus members who in effect were stripped of their right to pass a bill that was supported by a majority of the House, just because the opposing minority happened to constitute a majority of the ruling caucus.

• Finally, the Court might not want the federal courts to get involved with the Hastert rule on prudential grounds: It would be difficult for a district court to grant and enforce injunctive relief. Suppose Speaker Boehner were to block a bill, but didn't say why — how is a district court supposed to discern whether he did so because of the Hastert rule, or for some other, legitimate reason? Is the district judge supposed to summon the Speaker into court to have him testify about his motives? That could invite abuse by the minority party. And will the minority party have to demonstrate to the district court that the blocked bill would have passed if brought to a vote? How exactly are they to do that?

So clearly a court challenge to the Hastert rule would not be without difficulties. Even so, for the sake of streamlining the dysfunctional political process on Capitol Hill, it would be good to see House Democratic leader Nancy Pelosi bring such a challenge in federal court.

If nothing else, the mere filing of the lawsuit — and the prospect that House speakers might someday have to testify in court about their reasons for blocking a bill — might help motivate the GOP majority to cooperate in reforming the discharge-petition rules.