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What’s behind the shutdown? Put ‘Hastert Rule’ and Constitution on your list

The ungovernable mess we’re in is rooted in the sacred U.S. Constitution and a rule that’s not mentioned in the document.

A closure sign is displayed on a barricade at the World War II Memorial in Washington.
REUTERS/Kevin Lamarque

On “Meet the Press” Sunday, as he defended the strategy that he helped orchestrate of refusing to pass a continuing resolution unless it delayed or defunded Obamacare, Sen. Ted Cruz, R-Texas, explained the great thing about the U.S. Constitution. Thus:

And the great thing about the Constitution is that it creates a system of checks and balances. And each branch has the ability to check another.

I’m not sure I agree with Cruz that this is “the great thing” about the Constitution, but you can’t disagree with him about the existence of the thing itself. Aside from a few special powers that belong only to the Senate (like, for example, confirming nominees), and aside from the ability of either house to pass a resolution expressing its feelings about something, neither the House nor the Senate can do much without the concurrence of the other. Even when they concur, lacking rare two-thirds override vote in both houses, they need the additional concurrence of the occupant of the White House.

Late last year, I drove regular readers nuts with the many ways I argued that the ungovernable mess we’re in is rooted in the sacred Constitution. And here we are again.

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Yes, it’s reasonable to argue that the direct cause of the partial government shutdown is the No Compromise attitude of the right wing of the Republican caucus of the House of Representatives. Alternatively, if you wanted to, you could argue that it’s the stubborn refusal of the Democratic majority of the Senate and the current occupant of the White House to refuse to defund or even (what could be more reasonable) delay the implementation of the big health-care law.

‘Hastert Rule’

Personally, I assign a good bit of causative power over the shutdown to the ephemeral existence of the non-rule known as the “Hastert Rule” which prevents (but not really, since it’s a non-rule by which House Speaker John Boehner is only choosing to abide) Boehner from allowing the full House to vote on a “clean” continuing resolution to keep the government operating.

The connection between the Hastert (non) Rule and the Constitution is highly attenuated, since the rule is not in the Constitution, nor are the powers of the speaker of the House enumerated. (The word “speaker” appears just once, in Art. I, Sec. 3, wherein the House is authorized to “chuse” its “speaker.”)

And yet still, all of these features are derived from the basic rulebook, the Constitution, which does indeed require agreement between the House and the Senate and (absent the override of a veto) the president for any federal funds to be appropriated, and provides no fundamental work-around whatsoever for the possibility that no such agreement might be reached.

In short, as I argued last year and still believe, the Constitution created a system that was (and most especially is) a gridlock waiting for an excuse to happen.

Framers’ problems

I’m not interested in “blaming” the Framers of the Constitution. They had their own problems compromising with one another, and those problems/compromises led directly to the system of two houses, elected on different schedules and different bases (one by state, one by population). The Framers had relatively few other historical democratic models to consider. And they surely had no ability to imagine the modern federal behemoth and its many programs.

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The Framers of other, more recently formed democracies have the benefit of our experience and, over recent decades, they have generally rejected our model in favor of others that are less susceptible to gridlock. They generally have only one house of the legislature, or one house that has most of the power and can generate a budget on its own.

The parliamentary systems, which I’m sure have other weaknesses, are designed to create a majority — even if by coalition of several parties — that can pass a bill. And since the leader of the coalition is also the prime minister, he or she is unlikely to veto the budget (even if he had the power to veto, which in most instances, he doesn’t). And if the coalition is unable to govern, the basic parliamentary system also has the ability to generate an election so the public can settle the matter.

If we were starting over with a blank parchment, whomever was empowered to design a new system would surely take some of these examples into account, plus the negative examples of gridlock and shutdown from our recent experience. But, given the difficulty (which again derives from the Constitution itself) of making even a minor tweak in the document (it requires a two-thirds majority of both houses, then ratification by three fourths of the states to amend the Constitution), we had best figure out how to make the system we have work better.