In competition of all kinds, it’s reliably true that folks on the losing side are far likelier to reach for the rule book — hoping some procedural wrinkle can be found to save them in time from a shortage of skill or good fortune.
So now a small but growing group of House Republicans, out of political anxiety or ideological distaste, have decided it’s a doomed proposition to condition reopening the government on a legislated undermining of Obamacare.
Lacking the legislative clout within their own party to win on the merits, at least on their own, these GOP quasi-moderates have been scouring the parliamentary back alleys for help advancing legislation to end the government shutdown with no strings attached. They are doing so against the wishes of Speaker John A. Boehner, R-Ohio, and a majority of their caucus.
Motions "to recommit" or to consider "the previous question" are no good to this GOP faction. There’s not a privileged motion immediately available to them, and "Calendar Wednesday" (it’s complicated) has been effectively neutralized.
All of which has led to a surge of attention to "the discharge petition," which at first blush looks to be the only procedural option available. But the cumbersome fine print that makes this vehicle so unwieldy to begin with — combined with the political peril for any member of the majority caucus who seeks to deploy it — means its current moment in the sun may have already passed.
Democratic leadership has said it would be able to muster all 200 members of the caucus to vote for a straightforward continuation of pre-shutdown spending levels for all programs, one lasting several weeks. As of Wednesday afternoon, 18 Republicans had publicly declared themselves willing to do the same, and the number looks likely to grow.
So a theoretical majority now exists to guarantee passage of a “clean” continuing resolution, which the Senate would surely embrace as soon as it was able.
But Boehner seems steadfast in promising that any legislation to end the spending impasse will merit support from a majority of his majority — and, presumably, many more than that, since a bill that closely divides his caucus would threaten the sort of rebellion on the right that he has been warding off all year.
Still, a clean CR is available and sitting in the House hopper for Boehner to call up at a moment’s notice: It's the measure that’s been back and forth across the Capitol six times since the weekend, most recently returned by the Senate on Tuesday morning.
The question stumping parliamentary experts is whether the rules permit — at least in time to do any good — those same 218 lawmakers to band together on a discharge petition that would compel the vote.
The questions captivating partisan strategists, meanwhile, include whether many Democrats would do anything to bail out anyone on the other side at this belated and bitter date, and whether enough dissident Republicans would be willing to take the risk of crossing their leadership so publicly.
The discharge rule was created 103 years ago to appease the rank and file after their revolt against the autocratic rein of Speaker Joe Cannon. If a majority of members sign a petition, a bill stuck in committee is sent straight to the House floor — but only after the measure has been kicking around for 30 days. (The CR at issue was introduced Sept. 10.) Another clause creates only a seven-day wait for discharge petitions to force measures out of the Rules Committee.
Either way, the second and fourth Mondays of each month are the only times discharge motions are allowed on the floor.
There's no clear consensus at the moment on what timetable would apply to the House-passed CR sent back by the Senate. But there is consensus that Republicans who would cross their leadership to sign such a petition will live to regret it. In the evolving code of conduct for members who hope to survive in the inside game, it can be acceptable to oppose the strategies of the speaker and to vote against the wishes of the speaker, but not to seek to usurp the prerogatives of the speaker.
That may help explain why there’s been only one time in the past half-century when a successful discharge motion led to the enactment of a law that was opposed by the House majority leadership — the campaign finance overhaul of 2002. And the maverick moderate who got 18 fellow Republicans to join with the Democrats on that petition, Christopher Shays of Connecticut, paid dearly for his apostasy: The next year he was denied the gavel of the Oversight and Government Reform Committee, which he’d been working toward chairing for 15 years.
Boehner may have won nothing more than additional heartache by stripping a quartet of the most combative tea party conservatives of committee assignments late last year. But he showed that his willingness to be disrespected had its limits. Republicans joining a united Democratic front to undermine his high-risk budget strategy could expect some sort of knuckle-rapping; those instigating such a petition drive should expect a meaningful whack upside the head.
Even without the threat of tangible reprisal, it’s easy to expect that not many Republicans will cross Boehner openly. Mostly from the Northeast, members of the clean CR crowd generally maintain sort-of-centrist voting records and represent districts that already look competitive for the Democrats in 2014, or have the potential to get that way. An internal rebellion, which would surely push the leadership further to the right, is not in their interest.
In other words, these are among the few lawmakers who may need Boehner even more than he needs them.