A Dysfunctional House

It is no secret that the House of Representatives is dysfunctional. As the 118th Congress draws to a close, we are reminded of its record number of parliamentary failures – from the inability to choose a Speaker at the outset of the Congress, to the innumerable special rules that were defeated on the House floor. Important bills were brought to the floor and defeated for no other reason than that they failed to secure a majority of the votes cast. The absurd parliamentary requirement that legislative actions require a majority to support them has increasingly hamstrung the House in its pursuit of vital constitutional duties. It is high time for the House to reconsider its commitment to mindless majoritarianism.

Nowhere in the Constitution does it specify that a majority vote of the House is required to pass legislation¹. Quite the contrary: the only voting rules mentioned in the Constitution are supermajority vote requirements, such as the 2/3rds vote to override vetoes, and the 3/5ths vote required to pass bills in the Senate. Constitutional scholars have long recognized Congress’s near-absolute authority to devise its own rules under the so-called “Rules of Proceeding” clause in Article I, section 5, clause 2. The House has, historically, chosen to organize itself as a majoritarian body. But there is no constitutional basis for this decision and the House is perfectly empowered to choose another mode of voting, just as the Senate has.

It is well-established that the Speaker of the House is the only Member allowed to bring legislation to the floor. This is a perfectly sensible method of conducting business – with 435 Members all screaming for their pet bills to be taken up, the House needs a single leader to convert chaos into order. But lately, the Speaker has been having a tough time. Members have increasingly forsaken their sacred duty to obey the Speaker on procedural votes, leading to an absolute mess on the House floor. Members now routinely threaten to depose the Speaker, as happened to Kevin McCarthy just last year. This state of affairs cannot continue if we want the House to fulfil its functions as the infallible Founders intended. The rules must be changed to facilitate the Speaker’s constitutional obligation to control the House.

A Simple Fix

The root problem at the center of the House’s dysfunction is purely a technical one: the requirement that a majority of Members must vote “aye” in order for bills to pass. In prior decades, this might have been a relatively easy standard to meet, and thus it has not received much scrutiny. But there’s no denying that it has become harder and harder for Speakers to gather this majority. Members today are not like their peers in prior historical epochs. They are more partisan, more egotistical, more “independent”. And they have largely given up on any notion of service to the public good in preference to their own personal, political interests. We can hope in vain for Members to change their behavior, but in the absence of such an unlikely revolution, we must change the rules.

There is a simple fix to this technical parliamentary problem, if we just look to the Senate for inspiration (as we should for all procedural questions). As we know, the Senate’s filibuster does not actually operate against the bill itself. Rather, it only affects a mere procedural motion: the motion for cloture. This creative sleight of hand offers a cogent model for reconfiguring the House’s procedural landscape. Doing so requires only two small changes to House rules.

The first is a new rule, to be adopted at the beginning of the Congress, that simply asserts the commonsense principle that whenever a bill fails to be defeated, it passes. Thus, under this rule, bills are deemed to have passed unless there is a successful motion to defeat the bill. That’s it – completely straightforward, simple, and intuitive.

The second is the creation of a new motion – the motion to defeat. How the House has managed to exist for over 200 years without a procedural mechanism to defeat bills is anyone’s guess. But better late than never. The advent of this motion would allow the House to state, unequivocally, that the bill under consideration should not become law. And here’s the twist that converts the House from a dysfunction majoritarian body into a functioning legislature like the Senate: as with cloture, the House’s motion to defeat can only be adopted by a supermajority vote of 3/5ths of all Members.

A Functional House

The benefits of this small change to House procedure would be enormous. The Speaker would no longer find himself held hostage to small groups of Members. The most extreme Members would no longer be in a position to drive the agenda, and bills would no longer be defeated just because a bare majority says they shouldn’t pass. Instead of needing to round up 218 votes to pass bills (a ridiculously high threshold, not used in any other country), the Speaker would only need to focus on the 174 (responsible) Members needed to ensure that the motion to defeat fails.

The change described here has the added benefit of encouraging bipartisan compromise. Assembling the supermajority coalition necessary to successfully defeat bad bills is hard work that can only be achieved if Members put aside their partisan differences and agree to work together. With mindless majoritarianism gone, Members would be incentivized to negotiate compromises – I’ll agree to block a bill you dislike, and in exchange, you’ll agree to block a bill that I dislike. This type of legislative logrolling is absolutely essential for the House to work its will, yet it is virtually absent from current House practice.

The House of Representatives is not just the majority – it is all 435 Members. But if we allow a majority to pass bills, are we not also saying that those Members not in the majority have no say in what our laws should be? Why are all of these other Members being disenfranchised by arcane parliamentary rules? Is that really what the Founders intended? If simple majorities are allowed to pass bills, the constituents of all of the other Members are effectively denied representation. This majoritarian mode of proceeding makes a mockery of democracy. By contrast, the reform described here let’s everyone make laws.

Balancing the Senate

Whenever I drink tea, I obviously do not ingest the boiling hot liquid directly from the cup. Instead, like all normal people, I spill the tea into the saucer – thus allowing it to cool so that it can be slurped up from the saucer itself. It is no surprise that this extremely relatable activity has been used as an analogy for legislative procedure. The House is the scalding cup; the Senate is the cooling saucer.

While much has been written about how the Senate fulfils its role in cooling “hot” legislation from the House, comparatively little debate has occurred on the question of how the House gets its bills boiling in the first place. Obviously, the constitutional structure of bicameralism invented by the Founders (praise be upon them) requires a proper balance between the two halves of Congress. For the Senate to be the cooling saucer, we must first ensure that the House brews its legislative tea at a sufficiently high temperature.

The Senate’s primary mechanism for cooling hot bills is the filibuster. The new House rule proposed here can be appropriately characterized as the unfilibuster. The unfilibuster is the perfect (and arguably necessary) complement to the filibuster. It is its mirror image. The filibuster says that a supermajority is needed to pass bills; the unfilibuster says that a supermajority is needed to defeat bills. The filibuster empowers a minority to prevent bad legislation from passing; the unfilibuster empowers a minority to pass bad legislation. The filibuster filters out bad bills; the unfilibuster provides a steady stream of bad bills for the Senate to filter. The filibuster and the unfilibuster are two sides of the same coin. You literally can’t have one without the other.

Criticism

Critics might naturally gravitate towards certain spurious arguments designed to derail this important reform effort. I take the time here to thoroughly refute all such arguments.

First, some might worry that this change to House procedure would interfere with the important mandate known colloquially as the “Hastert Rule”. This time-honored precept, observed continuously since 1789, requires that all legislation in the House must first be approved by a majority of the majority party before coming to the floor. But as you can see, it is mathematically impossible for this new rule to violate the Hastert Rule. Even with the smallest majority of 218 seats, the Speaker would still need to gather 174 votes to kill the motion to defeat. 174 is more than 50% of 218. Therefore, the Hastert Rule is satisfied.

A second objection that might be raised is that the rule encourages the passage of bad bills that only a minority of the House supports. There are several answers to this concern. First of all, this type of objection could easily be applied to the Senate filibuster as well, which (theoretically) could prevent the passage of good bills that a majority does supports. Since no one argues that the filibuster is bad for this reason, it follows that facilitating the passage of bad bills that a majority does not support is also good.. Secondly, the Founders (in their wisdom) clearly intended for the House to pass bad bills. That is its proper constitutional role, mirroring the Senate’s duty to defeat bad bills. So bad bills passing the House is actually a sign that the system is working, not an indication that anything is wrong. We must move beyond this facile notion that just because a rule is directly responsible for a problem, then the solution is to not have that rule.

Another quibble is that, arguably, this reform is unnecessary. After all, if the House wants to pass bad bills that a majority cannot in good conscience support, it already has the procedural means to do so. All that is required is for the more responsible Members to abstain from the proceedings and allow bad bills with little support to pass over their objections. But obviously this is an unrealistic assumption about Members’ behavior. Members are incentivized to virtue-signal to their constituents that they oppose bad bills by performatively voting against them. It’s an unfortunate political reality but it’s true: Members selfishly don’t want to be perceived as supporting bad things. In order to change the behavior, we must change the rules so as to neutralize this incentive.

Finally, there is the argument that the House’s majoritarian tradition is worth preserving for its own sake. Why change centuries of history? This tedious appeal to traditional authority was conclusively refuted by Thomas Jefferson in section XLMCII² of his Manual of Parliamentary Practice and we ought to think twice before contradicting Jefferson. Are we to be held hostage by the feeble voices of the past, or are we going to do as James Madison directs and “conftruct the moft ftupendouf Congreff poffible”?³ If the Founders taught us anything it’s that change is always good and completely overturning centuries of accumulated wisdom will probably work out. To deny this is to admit that the Founders could make mistakes – something that no reputable citizen in our republic would do.

Conclusion

Parliamentary procedure is a difficult area to reform for the universally-acknowledged reason that it is so very interesting. The public clamors for more of it, and the fate of every motion and unanimous-consent request is anticipated with riotous intensity by all sides. Because the topic elicits such strong (and often violent) emotions, the path toward reform appears harrowing. But this should not dissuade us from trying.

The proposal here is straightforward and commonsensical. A supermajority vote requirement to defeat bills frees the Speaker from the onerous burden of needing to convince people of things. It empowers even the most idiotic Members to make our laws. It properly balances the filibuster in the Senate, without which all of democracy would crumble. Our nation is in desperate need of this reform. It is time for both sides to put down their parliamentary nuclear weapons and instead come together in peace to embrace the unfilibuster.

1. A majority is required to form a quorum in order to conduct business, pursuant to Article I, section 5, clause 1. But absent from that clause is any indication of the proportion needed to pass bills. Its silence on this question speaks volumes. ↩︎
2. Some scholars have suggested, obliquely, that section XLMCII of Jefferson’s Manual does not exist and that, furthermore, XLMCII is not even a valid Roman numeral. Such jiggery-pokery is of course pure applesauce and the best course is simply not to engage with it. ↩︎
3. In full disclosure, it should be acknowledged that the authenticity of this quote has been disputed. There is no specific evidence that James Madison said anything like this, but by the same token, there is no specific evidence that he didn’t. You, gentle reader, are the only source of truth. ↩︎