The Two Insider Rules That Control Congress
Policy + Politics

The Two Insider Rules That Control Congress


The fate of immigration reform and a budget deal could hinge on a pair of insider rules that shape how Capitol Hill does business, if it does any business at all.

For all the ideological disputes—and there are plenty—the 113th Congress has tied itself in knots in recent months by following an obscure set of procedures about how a bill becomes a law.

These simple constraints—one in the Senate and one in the House—are the tools by which power gets exercised, and will shape any agreements about the status of 11 million illegal immigrants and the finances of the U.S. government.

“In this period of polarization where the two parties are not going to naturally come to the table, they both affect the end game, your ability to get to yes at the end of the day,” said Sarah Binder, a senior fellow at the Brookings Institution and a professor at George Washington University.

The two critical rules to understand are cloture in the Senate and the “Hastert rule” in the House.

Cloture is the required 60-vote supermajority needed to break a filibuster. Without a successful cloture vote, a bill will get permanently derailed. This happened in April to a gun control measure sponsored by Sens. Joe Manchin (D-WV) and Pat Toomey (R-PA) that was defeated despite getting 54 ayes.

The bipartisan Gang of Eight immigration bill cleared cloture on Monday 67 to T27, but it will face the challenge of the Hastert rule—more on that later—inside a House that has shown less enthusiasm for any form of amnesty. A budget agreement will also need to survive cloture.

The initial concept behind the cloture was to enable debate about big principles, but instead it becomes a favorite in the tool kit of the minority—Republican or Democrat—to assert its control.

“The cloture rule was not designed to deal with the volume of obstruction that the Senate now faces,” said Gregory Koger, a University of Miami political scientist and former congressional staffer who has documented the rise of the super majority

In his research about the history of filibuster threats, Koger noted that the procedure has become so institutionalized “that labeling some action a ‘filibuster’ is like handing out speeding tickets at the Indy 500.”

The labor union-backed organization, “Fix the Senate,” has pushed to eliminate the cloture restrictions on presidential nominees, writing in an April letter to Senate Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) that “it has granted a minority of 40 senators a veto power over nominees.”

Because of this rolling filibuster, it can take an average roughly 200 days to confirm a nominee for the federal bench, while positions such as director of the Consumer Financial Protection Bureau remain in limbo.

The use of cloture when vetting nominees could be put the test when Obama nominates a successor for Federal Reserve Chairman Ben Bernanke, who the president suggested in a recent television interview has been in office too long.

When Bernanke was named to a second term in 2010, he easily passed his cloture vote 77 to 23.

But recent uncertainty and a market plunge stemming from how the Fed unwinds a half-decade of economic stimulus has turned the independent central bank into a political issue. The next Fed chairman could face either greater Senate scrutiny or demonstrate the limits of cloture for a chamber that does not want to rattle the markets, Koger said.

On the House side, it’s the haphazardly enforced Hastert rule. Named after former Speaker Dennis Hastert (R-IL), it asks that the majority of the majority support any bill before it can be brought to the floor. In other words, 118 Republicans out of their 234-seat majority must back the measure.

Current House Speaker John Boehner (R-OH) has repeatedly broken this rule in recent months. Most Republicans voted against the fiscal cliff deal, aid to the victims of super storm Sandy, and the Violence Against Women Act. All three passed with support from the Democratic minority.

Boehner insisted in a news conference last week that the Hastert rule will apply to immigration reform, saying “I don’t see any way of bringing an immigration bill to the floor that doesn’t have a majority support of Republicans.”

Rep. Joaquin Castro (D-TX) told ABC News on Sunday that the Hastert rule “means that 25 percent of the body can control 100 percent of the agenda and the legislation.”

The implication is that the House immigration bill would then be designed to limit and delay what could be a decade-plus pathway to citizenship for as many as 11 million undocumented workers. This would crush Democratic support, and make it hard to reconcile the measure with anything passed out of the Senate.

“It will not pass if he uses the Hastert rule,” Castro said.

Dozens of Republicans led by Rep. Matt Salmon (R-AZ) are trying to make the Hastert rule ironclad. Salmon, with backing from leading conservative groups, has put together a petition requiring than any measure coming out of the GOP conference have at minimum support from the majority of the majority.

Salmon told POLITICO that he has more than half of the 50 Republican congressmen needed for the party’s lawmakers to meet and consider making the Hastert rule standard.

If he succeeds, it would mean Republicans would likely reject any proposal from President Obama on the budget or increasing the government’s $16.7 trillion borrowing authority this fall that is not on their terms.

It’s not impossible to reach a compromise with Obama—the 2011 Budget Control Act got 174 House Republican votes—but the process could be brutal and risky.

Binder noted that based on her research the Hastert rule usually gets broken when a vote is perceived as potentially hurting the party’s brand in the next election.  Without the freedom to disobey the rule, Republicans could inflict further damage on their already low popularity.

Lawmakers may be honoring the interests of their constituents in opposing, say, an extension of the Women Against Violence Act because it expanded protections to gays and lesbians, among other groups. But blocking a measure that protects the victims of domestic violence and sexual assault could also hurt the GOP in the 2014 election. So the Hastert rule was ignored on this particular bill.

In other words, these kinds of constraints only get relaxed when lawmakers know that a measure they disagree with must become a law, the problems of a human heart in basic conflict with itself.

“Vote no, hope yes,” Binder summarized. “The members understand that this must pass, but they don’t want their fingerprints on it.”