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The Fear of Losing Can Trigger New Troubles

Last month, House Democrats gleefully pounced on majority Republicans’ loss of two bills under suspension of the rules (and the pulling of another) as a sign of “disarray” in GOP ranks. Disarray is a sign minority parties like to pin on majorities’ backs when they temporarily lose control of their agenda.

The suspension of the rules procedure is usually reserved for noncontroversial matters because no amendments are allowed and a two-thirds vote is required for passage.

Since it is obvious some minority support is needed to pass such measures, why would the majority even think of scheduling a bill it might lose under the suspension process?

The simple answer is that they miscalculate. But the actual answer lies in a sometimes risky assumption that they will be able to peel off enough minority votes to win and thereby avoid the grief associated with alternative means of consideration. These include allowing Members to offer amendments under an open or structured amendment process, or imposing a no-amendment rule, but still being embarrassed by a clever minority amendment in its guaranteed motion to recommit.

The suspension route seems on its surface to be a worthwhile risk-avoidance gamble. After all, even if a bill doesn’t get the two-thirds vote necessary, it can still be brought back under a special rule either allowing amendments or not. Put another way, the majority is often more willing to risk a procedural loss under suspension than suffer more substantive losses if minority amendments succeed.

Another reason the majority might schedule a risky bill under suspension is that it is new to the game and doesn’t think it necessary to whip a bill before scheduling it. It is easy to fall into the circular logic that if a bill is scheduled under suspension, Members will think it is noncontroversial and therefore can’t lose — as if “suspension” is a Pavlovian response term that automatically triggers pushing the green button on the House electronic voting machine.

Last month’s defeat under suspension of a bill to extend three expiring provisions of the USA PATRIOT Act seems to fit both the above explanations. The new leadership appeared to assume that a simple nine-month extension bill would be no problem. After all, last year 315 Members, including 162 Democrats, voted for a one-year extension of the act, while only 87 Democrats and 10 Republicans voted against. The motion to agree to the Senate’s short-term extension was offered by then-Judiciary Chairman John Conyers (D-Mich.) with a promise to more thoroughly re-examine the act before the next expiration.

This year, the bill had 277 votes under suspension, just seven short of the two-thirds needed, with only 67 Democrats in favor and 26 Republicans opposed. Speaker John Boehner (R-Ohio) blamed the loss on 36 Democrats who voted for the reauthorization last year but against this time. The real story, though, is the defection of nearly three times as many Republican Members as in 2010, mainly attributable to their more libertarian, anti-government privacy views. The House subsequently passed the bill with a comfortable majority under a closed amendment rule and shortly thereafter agreed to a Senate-passed 90-day extension.

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