A funny thing happened in the House of Representatives the other night: The Hastert rule was broken. Again.
The Hastert rule isn't an official rule of the House. It refers to former speaker Dennis Hastert's practice of bringing bills to the floor only if a majority of the Republican Party -- his party -- supported them. It means a bill that has 125 Democrats' support but only 100 Republicans' support never comes to the floor, even though it would pass easily if it did.
Speaker John Boehner has typically followed the Hastert rule. But he broke it -- with the assent of his members -- when he brought the fiscal cliff deal to the floor. And he broke it again on Tuesday, when he brought the Hurricane Sandy relief bill to the floor. The Sandy bill passed with 241 votes -- but only 45 of those votes came from Republicans. Hastert isn't pleased. "Maybe you can do it once, maybe you can do it twice," he told Fox News Radio, "but when you start making deals, when you have to get Democrats to pass the legislation, you are not in power anymore."
Ditching the Hastert rule might be one way to make the House work again. As Jonathan Chait writes, "Republicans can keep going on this way, using Democrats to pass bills they want to pass (or can’t afford the consequences of blocking) but don’t want to go on record supporting." Or, as Taegan Goddard puts it, "Democrats may have finally found a way around their biggest obstacle to passing legislation."
I doubt that'll happen. Boehner's members would turn on him, and quickly, if he began permitting bills to pass with mostly Democratic votes. Boehner isn't so much forcing his members to follow the Hastert rule as he's being forced by his members to follow it. But there is an alternative to the Hastert rule that doesn't require Boehner's assent.
Under the rules of a "discharge petition," an absolute majority of the House can bring a bill to the floor whether or not the speaker of the House wants it there. Democrats have 200 votes already, so all they would need are 18 Republicans who support that bill to agree that it should come up for a vote.
This doesn't happen because those 18 Republicans would find themselves quite unpopular in their conference. Boehner would likely try to punish them. Conservative groups would mount primary election challenges. Fox News would scream about their betrayal. And yet, the discharge petition is still probably an easier lift than convincing Boehner to regularly ditch the Hastert rule. It might even be something Boehner could encourage tacitly, as it gives his conference even more deniability if a bill only reached the floor because 20 vulnerable dissidents in swing districts voted to put it there.
Which is all to say that if the Hastert rule survives, it's because Boehner and virtually every Republican member of the House wants it to survive. If even 20 House Republicans decided they were fed up with the partisanship and the effective veto wielded by the conservative wing, they could break the lower chamber wide open.