Urgent: The Hitchhiker’s Guide to the CR & defunding Obamacare (Monday version)
Per Pergram-Capitol Hill
The Senate meets at 2 pm et today. Senate Majority Leader Harry Reid (D-NV) receives the House-passed bill which pays for government programs and defunds the ACA on Monday. Reid can’t simply call the bill up on his own. The Founders designed the Senate as a body of equals. Thus, obtaining “unanimous consent” (often called “UC” in Senate parlance) to do anything is the coin of the realm. Hypothetically, 99 senators may be willing to advance to the House bill. But all it takes is the objection of a sole member. Therefore, there’s no “unanimous consent” to begin debate on the government funding/defund Obamcare legislation.
In fact, it doesn’t even take an actual objection on the Senate floor. Simply the threat of an objection may suffice. Sometimes, senators tell the Majority or Minority Leaders of their intentions beforehand. In those cases, everyone knows what must happen next from a parliamentary perspective.
Regardless, the Senate is stuck on what’s called the “motion to proceed” to the bill. Reid can then file a “cloture petition” to try to bridge this filibuster. A cloture petition allows the Senate to vault such a procedural roadblock – if it can cobble together 60 yeas. But if Reid files for cloture to end the filibuster on the motion to proceed on Monday, senators must wait until Wednesday when the cloture petition “ripens” for the vote.
If the cloture petition secures 60 yeas, the majority has beaten back the demands of the minority just to debate the bill. But the Senate can’t debate the bill just yet. Opponents of starting the debate are then given the option of debating the issue for an additional 30 hours. If Sen. Ted Cruz (R-TX) and the others go to the mat, it’s possible the Senate may not even launch the debate on the bill itself until Thursday, September 26 – and funding expires at 12:00:01 am Tuesday, October 1.
Any objection to proceeding to the bill is not a “talking” filibuster in the Jimmy Stewart/Strom Thurmond sense. But it is a filibuster – and is the means by which most filibusters are executed these days. And the filibuster device is the right and privilege of every senator.
So far, Cruz and his colleagues have been circumspect about their precise strategy for filibustering defunding of Obamacare in the Senate. But Cruz and company have an important decision to make about filibustering the “motion to proceed.” Think for a moment about what they’re filibustering. On Friday, the House sent the Senate a bill to fund the government and kill the health care funding. That’s what conservatives demanded. So if they block Reid in any form from calling up that particular measure for debate, they are in fact filibustering precisely the bill they asked the House to produce.
Still, there’s a way out of this for Cruz.
On Thursday, Reid affirmed that “any bill that defunds Obamacare is dead. Dead.”
Cruz could potentially argue that Reid has already telegraphed his intentions to strip the defunding language out of the bill. Cruz’s mission is to stop that from happening. But the optics of filibustering the Senate from initiating debate on very bill which defunds the health care law could spell trouble for opponents.
Now back to the timing.
It’s quite possible the Senate might not get to the government funding bill until Thursday night, September 26. That’s when Reid’s powers as Majority Leader come into play. It’s tradition that the Senate defers to the Majority Leader when he seeks recognition on the floor. He gets to speak first. In other words, the first chance Cruz and others may have to seize the Senate floor and commence a speaking filibuster is when the actual debate on the bill begins. However, it’s doubtful Reid would let that happen as he gets first dibs. Secondly, Reid may also attempt to alter the bill by “filling the amendment tree.” In short, the Senate has an open amendment process. But it can only have two amendments on the “branches” of the amendment tree at one time. The Majority Leader is entitled to “fill the tree” first.
Presumably, Reid would fill the tree with amendments to restore the ACA funding and maybe even raise the overall cost of the bill.
And then Reid, still holding the floor, gets to do one more thing. He can immediately file another cloture petition to end debate on the bill itself. If this happens Thursday, the Senate could then vote on that cloture petition Saturday, September 28. If Reid secures 60 yeas, the package is likely on a glidepath to passage which only needs 51 yeas. However, opponents can then burn 30 hours again, potentially delaying a final Senate vote until Sunday, September 29.
So what happens next?
Believe it or not, a trademark originally held by Parker Brothers is the parliamentary exercise the House and Senate engage in to settle this. And while some traditionalists don’t like it, “Ping-Pong” is the idiomatic term most on Capitol Hill use when describing these procedural steps.
The House passed its bill on Friday, September 21 and pinged it to the Senate. Then the Senate conceivably changes the legislation and pongs it back to the House. At that point, the ball is literally in the House’s court. Perhaps on Sunday, September 29 or even Monday, September 30. That means time to avert a government shutdown is slipping off the clock. It’s presumed the Senate will send back to the House a bill which maintains ACA funding. So, it’s up to the House Republican leadership to make a decision. With the hour so late, will it accept such a measure (prospectively passing it with some Republicans and a host of Democrats)? Or will it strike the health care funding again and ping the legislation back to the Senate with just hours to spare?
“I wouldn’t stow away our ping-pong paddles in the attic just yet,” said Rep. Steve Southerland (R-FL). “When it comes to a government shutdown, it may depend on who is holding the ball at the end.”
Cruz says that the bill “may well go back and forth from the House and Senate several times.”
But with the moments ticking on the clock, one wonders how much time remains. Spend too much time on Congressional table tennis and it’s suddenly October 1 without a government funding bill. And that creates such big decisions for House Speaker John Boehner (R-OH) as to how to address the Senate bill when it’s ponged back to the House. Can his conference stomach a bill that funds Obamacare? Or does Boehner turn to pass the stripped down bill with just some Republicans and a host of Democrats?
That gambit has worked consistently for Boehner…most significantly on the bill to provide aid after Hurricane Sandy. The House approved the package with just 49 Republican yeas and 192 Democratic yes’s.
And the question then is what do the rank-and-file make of Boehner if he goes down that road?
Senior Producer for Capitol Hill