Though the phrase means many different things to various constituencies, in principle, everyone agrees we should all “play by the rules.”  Sometimes those rules are grounded in official public documents such as legislation, regulations or state and local ordinances which have gone through established procedures before being adopted.  However, “the rules” are sometimes mere practices invoked by a group or organization to serve its own interests.

The Republican Party is particularly good at this.  Let me give you a couple of examples.  In the mid-1990s, the GOP came up with the “Hastert Rule,” named after then Speaker of the House Dennis Hastert.  Also know as the “majority of the majority” rule, it’s purpose was to block consideration of any bill by the full House of Representatives unless a majority of the majority party supported the bill.  The true objective was to ensure a coalition of the opposing party (in this case Democrats) and a few members of the majority party (i.e. Republicans)  could not pass legislation which was not on the majority leadership’s agenda.  Maybe the Hastert Rule was not the best example of good governance, but it did not violate any provision of the Constitution or existing law.

Not the case for what I have labeled the “Garland Rule” used by Senate Majority Leader Mitch McConnell to block President Obama’s nomination of Merrick Garland to fill the seat on the Supreme Court vacated by the death of Justice Antonin Scalia.  Explaining why Senate Republicans would not consider Garland’s nomination, in direct violation of Article III of the U.S. Constitution, McConnell said:

The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction.

To buttress his point, Republicans up and down the ticket in 2016 made appointments to the Supreme Court a centerpiece of their campaign rhetoric.  And the electoral college victory of Donald Trump and the inability of Democrats to retake the Senate seem to validate his view, “the American people should have a say.”

[HISTORICAL FOOTNOTE:  Earlier this year McConnell suggested Garland as a possible replacement for fired FBI Director James Comey.  And in October, Chief Justice John Roberts selected Garland to serve as chair of the Executive Committee of the Judicial Conference of the United States, which makes recommendations to Congress regarding legislation involving the judiciary.]

I raise this point because McConnell chose to violate his own rule when the Senate passed a tax bill which, according to the overwhelming majority of public opinion polls, does not have the support of the American people.  Even though McConnell admits it will have, in his own words, “profound impact on our country.”  How do I know?  Both he and Trump have publicly said so.

As with the case of the Supreme Court nomination, this scam of a “middle class tax cut” will certainly be a central issue in the 2018 mid-term elections.  And as McConnell has said, “The American people should have a say.”  But the 2:00 am Saturday morning rush to judgment ensures they will not.  Although the tax cuts are not scheduled to take place until January 2019 they will be baked into IRS forms and procedures prior to next November 6th.    According to the Garland Rule, the right thing to do would be to schedule final passage after election day 2018 and make the effective day January 1, 2020.

Speaking of public opinion, the Real Clear Politics (RCP) average of six national surveys on congressional job approval stands at 73.8 percent disapprove to 13.2 percent approve, a margin of -60.6 percent.  To restore minimal faith in the legislative branch of our federal government, I propose the “Dr. ESP Rule,” based on the same principle leading to ratification of the 27th Amendment.  Though first proposed as part of the original Bill of Rights, submitted to the states on September 25, 1989, this addition to the central U.S. governing document was not adopted until May 5, 1992 (202 years and eight months later, but who’s counting).  It states:

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

In other words, members of Congress do not have the ability to pass laws related to their compensation from which they might personally benefit without the people having an opportunity to determine whether that member should still be in office to accrue such benefits.  Interestingly, the amendment does not specify salary as the compensation in question.  Therefore, one can argue changes to the taxation of income can have equally, if not greater, effect on the net compensation of members of the House and Senate.

The “Dr. ESP Rule” would go one step farther.  We can easily see the personal impact of a change in congressional salary.  For example, the last adjustment came in January 2009 when members of Congress received a 2.8 percent increase to $174,000 in annual salary.  Understanding the effect of changes to the tax code on individual representatives is impossible without access to their individual tax situation.  Therefore, prior to voting on any legislation changing the U.S. tax code, members of Congress must make public the most recent two years of their IRS returns with an analysis of the personal benefit or cost to each respective member.  Additionally, prior to signing the bill into law, the President must provide the same information.

Senator McConnell, you have my permission to take credit for this rule by attaching your name to it.  But I’m not holding my breath.  As they always say in Mr. McConnell’s Neighborhood, “Can you say, ‘HYPOCRISY?” I knew you could.”

For what it’s worth.
Dr. ESP