How One Change In House Rules Made The Shutdown Inevitable
In the waning hours of September, just hours before the government shutdown was set to begin, the House Rules Committee pushed through, on a party line vote, a little noticed rule change that essentially guarantees that the shutdown will go on as long as the House GOP Leadership wants it to:
The House and Senate were at an impasse on the night of Sept. 30. The House’s then-most-recent ploy for extracting Obamacare concessions from Senate Democrats and the White House — by eliminating health insurance subsidies for Congress members and their staffs — had been rejected by the Senate. The ‘clean’ Senate spending bill was back in the House’s court.
With less than two hours to midnight and shutdown, Speaker John Boehner’s latest plan emerged. House Republicans would “insist” on their latest spending bill, including the anti-Obamacare provision, and request a conference with the Senate to resolve the two chambers’ differences.
Under normal House rules, according to House Democrats, once that bill had been rejected again by the Senate, then any member of the House could have made a motion to vote on the Senate’s bill. Such a motion would have been what is called “privileged” and entitled to a vote of the full House. At that point, Democrats say, they could have joined with moderate Republicans in approving the motion and then in passing the clean Senate bill, averting a shutdown.
But previously, House Republicans had made a small but hugely consequential move to block them from doing it.
Here’s the rule in question:
When the stage of disagreement has been reached on a bill or resolution with House or Senate amendments, a motion to dispose of any amendment shall be privileged.
In other words, if the House and Senate are gridlocked as they were on the eve of the shutdown, any motion from any member to end that gridlock should be allowed to proceed. Like, for example, a motion to vote on the Senate bill. That’s how House Democrats read it.
But the House Rules Committee voted the night of Sept. 30 to change that rule for this specific bill. They added language dictating that any motion “may be offered only by the majority Leader or his designee.”
It’s important to keep in mind some of what was going on the House floor during those waning hours of September. As the House continued to send Continuing Resolutions to the Senate that were linked to Obamacare, either by trying to delay it, defund it, or somehow attack the non-existent “Congressional Exemption” or Medical Device Tax, there were reports coming off the House floor that a small but substantial group of Republicans in the House were getting frustrated. The media described these Republican members as “moderates,” but the more accurate way to describe them, I think, is as realists rather than ideologues. After all, this is a group that included people like Peter King out of New York and Scott Rigell out of Virginia, neither one of which could be described as anything other than conservative, at least in the traditional sense of the word. While conservative, though, these members also recognized the potential damage that a shutdown over the PPACA could both do to the GOP and to the country as a whole. Most of them had publicly or private criticized the “Defund Obamacare” strategy that Ted Cruz and Mike Lee, along with groups were pushing. When the eleventh hour finally came, there were rumors that there was a large enough group of these Republicans that were ready to bolt and support a “clean” CR, including one report that as many as 30 Republicans were prepared to vote against the procedural rule for what would become the final CR that the House would send to the Senate that night. While that revolt never materialized, the danger to the GOP Leadership was clear. Under the right circumstances, the “clean” CR could have been brought to the floor, and there was a good chance that it would have passed.
It goes without saying, of course, that the House of Representatives has nearly always been an institution whose rules are firmly under the control of the majority party. Unlike the Senate, where rules such as cloture and the ability to bring Amendments to the floor far more easily than can be done in the House exist, the minority has very little power in the House of Representatives outside of noting their objections to legislation and proposing alternatives that almost never actually make it to the floor without the permission of House Leadership. At the same time, though, it used to be the practice that, in the case of a conflict between House and Senate versions of a particular bill, any member could bring the Senate bill to the floor regardless of whether they were in the majority or minority caucus. Most likely because they wanted to prevent House Democrats from bringing the Senate’s “clean” CR to the floor, Republicans changed that rule with regard only to the Continuing Resolution so that Democrats couldn’t do that.
If you’ve watched C-Span at all these past two weeks, you’ve seen this rule in action. Each time the House has passed one of its piecemeal funding bills, Democratic Members have attempt to make a motion to bring the Senate CR to the floor, only to be shot down by the Speaker (or, more typically, whomever happens to be acting as Speaker during that particular debate) with ruling that such a motion may only be brought “by the Majority Leader or his designee.” Given that most observers seem to think that a “clean” CR would be able to get the 217 votes in the House it would need to pass, this essentially means that this one rule change is preventing the government shutdown from ending.
The minority isn’t without options here, of course. As I’ve noted before, they could try to bring the matter to the floor via a Discharge Petition. In order for that to happen, though, they’d need to find 18 Republicans willing to sign on to something that would be a massive slap across the face to a Speaker that they support far more than the Tea Party group that keeps trying to push the Boehner and Cantor further and further to the right. That’s unlikely to happen.
There was, of course, nothing illegitimate about the rule change that the leadership pushed through two weeks ago. They have the votes both in the Rules Committee and on the floor to pass it and, as I noted, majority dominance in the House of Representatives is nothing new. What we have here, though, is a very good object lesson in how one minor change in parliamentary procedure can have widespread implications.