House Members and staff are used to getting looked down upon by their brethren over on the other side of the Capitol. Hardly a day goes by without someone exclaiming in horror that some procedural change would make the Senate “more like the House,” as if this were the worst fate that could possibly befall a legislative body. The House is derided as an oppressive “majoritarian” institution, where (gasp!) legislation can pass when a majority of its members votes in the affirmative. So much better to be the genteel Senate where minority rights are respected – and individual Senators may, in a fit of pique, bring the whole machine to a complete standstill. That’s liberty!

While the criticism of the House’s majoritarianism may have some merit – certainly the procedural rules of the House empower the majority to push through measures quickly, if it desires – the real issue is much more fundamental. It’s not that the House has (bad) majoritarian rules. It’s that the House does not even bother to abide by the rules is does have.

Unlike the Senate, whose membership changes slowly via staggered terms of office, the House is effectively a new legislative body in each Congress. On opening day of a new Congress, the House must start fresh – swear in Members, elect a Speaker, and (crucially) adopt rules of proceeding. Every year the same charade plays out: the leadership of the majority party offers a resolution to adopt the standing rules, the minority complains bitterly that they aren’t being afforded sufficient procedural rights to properly represent their constituents (a perfectly fair point), and the rank-and-file on the majority side know only that these rules give their leaders the power necessary to force through their agenda. And so the (bad) majoritarian rules are adopted, on a party-line vote.

You would think that what happens next is that the majority party utilizes these majority-friendly rules to push through its legislative agenda. With no filibuster and very few supermajority voting requirements, there is nothing (procedurally) stopping the majority from: adopting any motion it wants; defeating every minority amendment; passing all of its bills – in short, winning every vote. That is supposedly what being “majoritarian” is all about. But that is not, technically speaking, what happens. It’s worse.

While the standing rules of the House are not particularly friendly to the minority in terms of formally requiring its acquiesce to certain procedures, it is friendly to debate and deliberation, especially in the Committee of the Whole. Under the purest form of “regular order” in the House (which has not been practiced in decades), rank-and-file Members are given numerous avenues to influence a bill as it moves through the legislative process. Overall, it is a good and fair system – but with 435 Members, it is always going to be a time-consuming slog. Such is representative democracy at this scale.

The majority, however, is not content with forcing through majoritarian rules that give it full control of the agenda and the potential to win every single vote. They make a pretense at offering “regular order” rules (which are on the books), but these rules, majoritarian though they are, are not the rules that will actually be followed. Instead, the Rules Committee will step in and substitute a different set of rules, using a “special order of business.”

As you might guess, a “special” order of business is quite different from the “regular” order of business. A special order is a resolution that basically says, “The standing rules no longer apply. Instead, the following bill will be considered under the following terms.” What those terms may be is anyone’s guess, but rest assured they will not be as generous as the standing rules. Procedural motions of various kinds are rendered unnecessary, or are “deemed” to have happened automatically. Points of order are waived. Debate is tightly restricted. Amendment opportunities are eliminated. The list goes on.

So, for example, when it is announced that sometime next week, H.R. 123 will come up for debate in the House, do the Members have any knowledge of how it will be considered? They can’t rely on the standing rules, because they know the special order resolution will simply bypass them. Even rank-and-file majority Members are left in the dark – at least until they are informed as to what leadership and the Rules Committee have planned. There is a requirement that special orders must be available for 24 hours, but even this small notice requirement is routinely waived. As a result, major legislation, in whatever form the majority leadership desires, can be put on the floor with almost no notice, to be considered under procedures which no one has seen, and which could provide for practically anything.

The rules of the House represent its legal code, defining what is and is not “illegal” under its provisions. But by using special orders of business to bypass the standing rules, the House injects uncertainty and arbitrariness into its legal system. There may be a point of order available against a particular type of amendment (i.e. it is “illegal” to offer that amendment). Will that point of order be enforced, or waived? No one can say – it will depend on what the Rules Committee wants to do. So whether that amendment is “illegal” or not is never truly fixed – it is contingent on how the majority wants to proceed. And here’s the thing: ALL House rules are contingent on how the majority wants to proceed. Which raises a disturbing question: does the House abide by the rule of law?

Imagine you lived in a country where a small group of leaders had the authority to waive any law it liked, or pass new laws without notice, or selectively apply the laws depending on the circumstances. The actual laws of the country may permit X, Y, or Z, but in practice no one can say whether or not the leaders will choose to make those things illegal. What may be illegal for you may be legal for others (and vice versa), and the situation changes day to day. I don’t think anyone would voluntarily choose to live in that kind of a system – not because it would be a dictatorship (it wouldn’t matter whether that group of leaders seized power in a coup or were democratically elected) but because it did not abide by the rule of law.

The current House of Representatives is precisely this kind of country. It is a democratic system – there are free and fair elections for Speaker and party leaders. And special orders of business are always ratified by majority vote. But it is not a system where the rule of law prevails. As a result, there is no true freedom – no right that can’t be taken away, so long as a majority agrees.

John Adams famously said that a government of laws is preferable to a government of men. What the House needs more than anything is to return to governing by law. It can adopt whatever majoritarian rules it likes, but it must agree to be bound by them for the duration of the Congress. Unchecked power of the Rules Committee to change procedures on an ad hoc basis must be eliminated and replaced with a modern, workable “regular order” to be followed universally, as the law of the land.