AN UN(c)ONSTITUTIONAL RULE

There is now a “rule” in the House of Representatives that I believe to be unconstitutional. No, it does not violate the formal provisions of the US Constitution, but it does violate the rationale that our Founding Fathers expressed for the way they set up our central government. A little background context will help us understand why the Hastert Rule offends our constitutional architecture.

Let's start with Aristotle. He pointed out that there are three types of constitutions: the rule of the one (monarchy or dictatorship), the rule of the few (aristocracy or oligarchy), and the rule of the many (democracy). Each, according to the great philosopher, has its advantages and its deficiencies. Skipping what those are, let me just point out that the Founding Fathers decided that we needed a mixed constitution comprised of a president (rule of the one), a Senate (rule of the few), and a House of Representatives (rule of the many); that is, by having each of these elements we can benefit from the respective advantages each type of constitution provides.

One of the advantages is that representatives could congregate in the Congress, talk to their colleagues and share the wishes of their constituents, their hometowns, neighbors, and friends back home, and by doing so, provide a voice for these constituents at the seat of power. From this process, policy emerges. But the process needs to reflect the will of the majority, at least in the House of Representatives – so as to be that portion of the government in which the “many” are heard. The majority will more than likely reflect the will of like-minded individuals and the institution of political parties facilitates this kind of melding of the minds and the formulation of majority positions, but not always. Actually, there are times when majorities are formulated by groups of factions and from representatives who usually disagree on most issues. For example, right now there is an initial impetus to oppose the death penalty between what we call liberal or progressive politicians and libertarians. Usually, these two groups of politicians are known for their antagonism toward each others' positions, but here is one area in which they agree. Now, I don't know whether there are enough liberals and libertarians to form a majority, but there is the possibility that if not today, maybe eventually. This potential is exactly what the Founding Fathers foresaw and I believe hoped for. But the Hastert Rule makes such an eventuality almost impossible.

Why? The Hastert Rule calls for limiting the bills that come before the House for a vote to those that are supported by a “majority of the majority.” Let me explain. The Constitution calls on each chamber of Congress to form its own rules. The formal rules of the House state that the Speaker has the role of placing on the voting agenda those bills he or she feels should be considered by the membership. So, if the Speaker is against a bill, it will not come up for a vote unless 218 members sign a “discharge” petition – a very unlikely development. In effect, this role gives the Speaker a great deal of power. An informal rule – one not voted on by the membership – states that the Speaker will not call up a bill that is not supported by a majority of the members who make up the majority party in the House – presently, the Republican members. This, in effect, can give as little as one quarter of the members veto power over any considered policy option – a far cry from the rule of the many. That is what the Hastert Rule allows. The Democrats have never implemented the Hastert Rule when they held the majority, but Republicans have, although there have been a few occasions when the present Speaker has brought up a very limited number of bills that didn't have a majority of the majority's support. The Hastert Rule is named after a former Speaker, Dennis Hastert, but it was in effect under a previous Speaker to Hastert, Newt Gingrich.

Whatever its origins, the rule counters a constitutionally conceived quality: the possibility and, hopefully, the likelihood that Congress, particularly in the House, would have rolling coalitions that form over particular issues and policy considerations. These coalitions would form over one area, dissolve, and then other coalitions would form over other considerations. In each, there would be a different collection of members. This reflects a more congregational atmosphere in our Congress and would give meaning to its name: a congress, not a parliament. The Hastert Rule belies this entire conception and, as such, it is un-constitutional with a small “c.”

With the Hastert Rule, the result has been to stifle legislation and, when added to the rules in the Senate – where any one senator can hold up many of the Senate's procedures or a minority can easily “filibuster” pending legislation, – we are going through a time when our Congress seems not to be able to get anything done. Ironically, the party that calls for constitutional purity seems to be the party apt to engage in this “unconstitutional” practice.