How the GOP Could Break an Unwritten Rule and Pass Immigration Reform

It's known as the "Hastert Rule" and may decide the fate of immigration reform.

February 28, 2013, 5:10 PM

March 1, 2013— -- House Republican leaders eschewed a long-held principle when they held a vote on the Violence Against Women Act on Thursday. Only 87 out of 232 House Republicans backed that bill, but they still chose to bring it to a vote.

That decision made all the difference. The bill passed thanks to near-unanimous support from House Democrats and backing from some Republicans.

By allowing the bill to come to a vote, Republicans broke the "Hastert Rule" -- named after former House Speaker Dennis Hastert (R-Ill.). The basic idea: don't let something come to a vote unless a majority of the party supports it.

If the unofficial Hastert rule is no longer a precedent for House Republicans, that could have a implications for other controversial, bigger pieces of legislation this year, such as immigration reform.

The rule has been a guiding convention for House Republicans for years. Hastert coined the phrase in a 2004 speech, in which he said that the House would only bring a bill to the floor if "a majority of the majority" (i.e., a majority of Republicans) backed it. Since then, Republicans have largely operated under that rule when they have controlled the House of Representatives, including under the current speakership of John Boehner (R-Ohio).

But Thursday's vote was not the first time this year that House GOP leaders allowed a vote on a bill that did not enjoy support from the majority of their conference. A deal to avert the fiscal cliff at the beginning of the year passed the House with only 85 Republican votes at the tail end of the last Congress. And only 49 Republicans voted for a relief package for victims of Superstorm Sandy, which passed into law.

That has led some to believe the rule could be tossed aside again on key issues, a bow to the reality of divided government.

"The idea that you're going to do everything just within your party might be a good idea [for the GOP], but it's not going to last very long," said Norman Ornstein, a resident scholar at the American Enterprise Institute and a long-time observer of Congress.

Ornstein added that bills that can pass the Democrat-controlled Senate and receive President Barack Obama's signature "are probably going to require more Democrats than Republicans" to vote for them in the House.

Boehner's flock of House Republicans is uncompromising, often more so than their GOP colleagues in the Senate. For example, 35 percent of House Republicans voted for the fiscal cliff deal compared to 85 percent of Senate Republicans.

Thus Boehner may not be able to follow Hastert's mantra if he wants to ensure that the House does not become mired in gridlock and maintain his conference's credibility, argued John Feehery, a lobbyist and former communications director for Hastert. Feehery would know -- he penned the "majority of the majority" speech.

"I think John Boehner won't have much of a choice in these first several months of the 113th Congress. He has to get stuff done," Feehery wrote in a January op-ed column titled, "Rules Are Made to Be Broken."

"The Speaker doesn't have much room to maneuver," he added. "His conference is in no mood to compromise, nor in much of a mood to vote for anything that resembles responsible governance."

Boehner's office played coy as to how or if the majority-of-the-majority-principle would be applied to future votes.

"The current Speaker has never mentioned such a rule," Boehner spokesman Michael Steel said in an e-mail.

The weakened Hastert Rule could have an impact on a wide range of pressing fiscal issues, including a fix to replace the $85 billion in mandatory spending cuts this year known as "sequestration."

But it has also given Democrats hope that some of their legislative priorities, such as comprehensive immigration reform, could get through the GOP-controlled House. Obama has said that he wants a bill passed as soon as this summer and groups of lawmakers in both chambers have begun to draft legislation.

"It's clear that the Hastert Rule isn't as hard and fast as it has appeared to be over the past couple of years," Rep. Luis Gutierrez (D-Ill.), a member of a bipartisan working group in the House drafting immigration reform legislation, told ABC/Univision. "That does provide hope that if we were in a situation where the Senate passed an immigration reform bill and the president and American people were demanding a bill, that Speaker Boehner could find a way to move the legislation toward a sensible outcome if a majority of House Republicans do not support it."

Gutierrez said, however, that the aim is to come up with a bill that satisfies both a majority of Republicans and Democrats, undoubtedly a tough task.

"That would be a plan B, regardless," he added. "The best scenario is to have a bill where the Hastert Rule isn't a hindrance."

So far, Boehner has been able to bring bills to the floor without majority Republican support while not experiencing a major backlash from the rank-and-file. For example, he allowed a floor vote on a version of the Violence Against Women Act that was backed by House Republicans, but the version of the bill did not contain specific protections for undocumented immigrants, Native Americans, gays, and lesbians. That bill failed to pass and the House later approved another version with the protections included, even though the bill didn't have majority Republican support in the House.

But Ornstein said it's unclear how many more times Boehner and House leaders could accomplish that kind of maneuver before it foments a rebellion from Republicans who represent very conservative districts, which could undermine his role as Speaker of the House.

At the same time, Ornstein said, Boehner must recognize demands from top Republicans who believe the party must address controversial issues like immigration in an effort to help repair their standing with Hispanic voters. Some GOP strategists have said that will be necessary to remain competitive in national elections.

"There's no tougher job in the country than Boehner's at this point," Ornstein said.