How an Obscure Rule Could Give Boehner a Way Out of DHS Mess (Updated)

(Tom Williams/CQ Roll Call)

Updated 5:57 p.m. | A provision tucked deep in the House rule book could provide a way out of the Homeland Security funding mess for Speaker John A. Boehner — without the Ohio Republican actually having to do anything.  

With rumblings about a full-scale revolt from within the ranks should Boehner put a funding bill on the floor that doesn't explicitly block implementation of President Barack Obama's immigration executive actions, there was talk Friday night from senior House Democratic aides of Republicans having found a face-saving procedural gambit that would ultimately end in full funding for Department of Homeland Security for the remainder of the fiscal year.  

The bottom line is any House Democrat could have the power next week to force a vote on a clean DHS funding measure. Here's how:  

The Senate voted to amend the House-passed DHS funding bill — with immigration policy riders — and replace it with a "clean," six-month spending bill. The House, in turn, voted to "disagree" with the Senate's amendment to the House's proposal, thereby sending the bill back across the Rotunda and requesting a conference committee (the theory being that, in that scenario, the House could negotiate with the Senate to reinsert some of the immigration riders back into a final product).  

But Senate Minority Leader Harry Reid, D-Nev., had already rejected the notion of a conference.  

Going to conference is debatable in the Senate, meaning the motion can be filibustered. Accordingly, the Senate is scheduled to hold what should be an ill-fated cloture vote Monday evening to limit debate on an agreement to go to conference with the House. If the Senate then returns the papers to the House, it could provide an opening for Democrats to test a seldom-invoked provision of the chamber's rules.  

Clause four of House Rule XXII (not to be confused with the more-often cited Senate Rule XXII) provides: "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."  

As the Congressional Research Service explains, "A chamber enters the stage of disagreement by formally agreeing to a motion or a unanimous consent request that it disagrees to the position of the other chamber, or that it insists on its own position."  

In other words, any House lawmaker, arguing that a conference scenario is moot and won't be resolved before the clock runs out on the current extension of DHS funding, could take to the floor and move that the House recedes from its previous position and concurs in the Senate amendment.  

Because such a motion is "privileged" that would then trigger a vote on sending the Senate-amended full year Homeland Security appropriations bill to Obama's desk without any of those riders designed to block his executive actions on immigration.  

"Your vote tonight will assure that we will vote for full funding next week," House Minority Leader Nancy Pelosi, D-Calif., wrote in a Friday evening Dear Colleague letter to her fellow Democrats, encouraging them to support a one-week Homeland Security CR.  

If it were to prevail, Democratic aides told CQ Roll Call that Republicans think the plan could protect Boehner from blame that he "caved" to his party's moderates. Boehner and his allies could just point to House Rules and parliamentary procedure, however obscure and arcane, to explain what just occurred ostensibly beyond his control.  

It would still require a majority vote of the House, and therefore would require dozens of Republican votes and likely at least the tacit approval of House leadership. A determined House majority could also theoretically preemptively vote to suspend or amend Rule XXII via the Rules Committee to block the gambit.  

That's what happened in October 2013, when Republicans adopted a resolution prohibiting anyone except the majority leader or his designee from invoking clause four of Rule XXII.  

On Friday night, Boehner spokesman Michael Steel, denied that the speaker had made any promise to Democrats that the Senate's clean, six-month funding bill would get a vote in the coming week.  

He reiterated on Saturday that there was no deal to pass the Senate bill.  

"There is no 'deal' or promise to pass the Senate bill in the House if Senate Democrats block a motion to go to Conference.  We believe a Conference is the right, regular order way to resolve differences in House and Senate-passed bills under the Constitution."  

Hugh Halpern, staff director for the Rules Committee, acknowledged the potential for Rule XXII to be invoked.  

"That rule provides one avenue for the House and Senate to work out disagreements over legislation. The best way, however, is through the regular order of a conference committee. If the Senate Democrats refuse to go to conference, there is no 'deal' to pass the Senate bill by other means."  

A senior House Republican aide also told CQ Roll Call that while the procedural framework for getting a clean DHS vote sounded right, it was incorrect to say that this was Boehner's explicit escape hatch for avoiding a mutiny.  

There is no such plan in the works, the aide insisted.  

During the 2013 shutdown debate, Rep. Chris Van Hollen, D-Md., objected to Republicans' shutting down Rule XXII. In the words of Van Hollen, Republicans were "rigging" the rules to keep the government shut down.  

Matt Fuller contributed to this report. The 114th: CQ Roll Call's Guide to the New Congress Get breaking news alerts and more from Roll Call in your inbox or on your iPhone.