Getting to a Clean CR: A Tour of the Senate’s Parliamentary Weeds

The House has passed a “CR” that temporarily funds the government, but “defunds” implementation of ObamaCare.  Even Republican Senator Ted Cruz of Texas (whose badgering of the “Surrender Caucus” helped to fuel today’s House action) recognizes that the Democratic-led Senate will reject the House GOP ploy. Niels Lesniewski was first out the gate here and here explaining how Senate Democrats would strip the CR clean.  Still, I’ve seen some confusion about how the Democrats will pull this off.  So, what better way to finish up a Friday afternoon than to take a tour of Senate parliamentary weeds.  (I don’t know why I call them weeds; I quite like them.  And so apparently does the woman on the left, who came to the Capitol dressed like a weed for National Invasive Weeds Awareness Week.)

Two caveats before the tour begins.  First, I don’t know for sure of course which procedural path Senate Democrats will take. But this particular route seems likely. Second, Senator Cruz termed Reid’s plan a “gimmick” and others have called the procedures “obscure.” But this is as close to “regular order” in the Senate as it gets—if such a thing as “regular order” were to exist.  So, let’s go!

We start with the challenge faced by Majority Leader Harry Reid: getting the CR+defund bill onto the Senate floor. This is the Senate, so this could take a couple of days. Reid must first offer a motion to proceed.  Under Senate rules, this motion is “debatable,” Senate lingo for “subject to a filibuster.”  Reid will likely first try to secure “unanimous consent” to proceed to a vote on the motion to proceed. But Cruz and other ObamaCare opponents are likely to object, insisting on their right to debate the motion to proceed. Thus, Reid will have to file cloture on the motion to proceed, requiring Democrats to attract 60 votes to stop debate on the pending motion to proceed.  Would Cruz and other Republicans (Mitch McConnell, call your office) be able to muster 41 votes at that stage to block cloture? I doubt it.  In effect, Republicans would be filibustering a CR that defunds ObamaCare, risking  blame for shutting down the government. Given GOP disagreement about the House GOP’s strategy, I suspect Democrats can attract enough GOP votes to secure cloture. With 60 votes for cloture, the Senate would then vote on the underlying motion to proceed, which requires only a simple majority to pass. (See, easy!)  And, now, if you haven’t already peeled off the tour to hit the Capitol Hill cafeterias, we can move onto the bill.

Democrats have to take a few steps to set up a vote to strip the ObamaCare defunding provision from the bill.  Reid/Democrats will probably offer an amendment, in the form of a “motion to strike” the defunding language.  Counter to claims that this move exploits an obscure procedure, Senate floor amendments come in three different flavors (i.e. forms)—including motions to strike. Reid might also “fill the amendment tree,” meaning that he would  fill up all of the remaining amendment slots with inconsequential amendments to block GOP senators from attempting to amend the CR themselves.

With the motion to strike defunding pending, Reid would file cloture on the BILL. Keep in mind that the BILL is still the House bill (CR+defund). Any GOP effort to block cloture again puts the GOP on the wrong side: Republicans would be blocking a CR that defunds ObamaCare. Assuming Reid again gets 60 vote for cloture, that brings the Senate to its customary 30 hours of “post-cloture” consideration time (including time spent on debate, voting, and so on.)

This is the most important part, because this is when the Senate would vote on the motion to strike. The 30-hour time cap post-cloture means that by definition there cannot be a filibuster of any of the votes that are attempted during the 30-hour period. In other words, there would be no need for Reid to file cloture on the amendment: Any effort to talk the amendment to death would have to end when the 30 hours were exhausted. Under Senate rules, amendments only require a simple majority to pass, allowing Democrats alone to strike the defunding language from the bill. So, the motion to strike would be brought up for a vote, it would pass by simple majority, and then after 30 hours are over (or earlier if Cruz and others tire of the fight), the Senate would move to the final up-ordown, simple majority vote on the now-amended bill (stripped clean of the defunding provision). Ball then is in Boehner’s court.

That’s the long version. The short version: Senate rules—combined with the strategic context and GOP disagreement—give Democrats the upper hand. Of course, as Mayhew told us long ago, lawmakers are rewarded for the positions they take, more so than for the outcomes that result. So, from the House GOP’s perspective, there’s a silver lining (a flower amongst the weeds if you will) to this certain defeat—even if many of them concede to voting for the clean CR when it returns from the Senate. Of course, there’s a debt limit to be raised as well. But this tour’s over!

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