House Republicans painted themselves and the Senate into a corner by making Department of Homeland Security funding after Feb. 27 contingent on rolling back President Barack Obama’s unilateral immigration actions. Surely, they were fantasizing a corner with a hidden trap door and safe room.
Instead, a more realistic escape route appeared out of nowhere — a rope ladder thrown down by a federal district court judge in Texas who stayed the president’s 2014 immigration action pending disposition of legal challenges to it by 26 states. Since judicial appeals from the dueling orders could take months, the judge’s injunction freed Senate Majority Leader Mitch McConnell of Kentucky to propose a compromise: a clean DHS funding bill in return for separate consideration of a bill rescinding the president’s 2014 immigration order.
While the compromise seemed reasonable, Senate Minority Leader Harry Reid of Nevada initially balked at it, before agreeing. But a group of GOP hardliners in the House remained adamant in wanting to take the confrontation to the limit, even if it meant closing down DHS. Fifty-two of them joined with 172 Democrats in defeating a three-week continuing resolution for DHS, though Democrats subsequently acquiesced in a one-week extension.
That in turn led to last week’s denouement: a bipartisan House majority (including 75 Republicans) agreeing to the Senate’s clean DHS substitute after 140 Republicans tried to table it. It was a curious move because the tabling motion would have also carried with it (killed) the underlying House bill that Republicans supported.
House leaders originally vowed there would be no shutdown and purposely scheduled a vote on the DHS bill January 15 to allow ample time for Senate action and an expected presidential veto to play out. What that scenario did not foresee was Senate Democrats blocking even bringing up the bill (though Senate Rule 22, with its pesky 60-vote cloture requirement, is no state secret). They voted four times against shutting off debate on the motion to proceed, and on a subsequent motion to agree to a conference with the House.
Meantime, Democrats on both sides of the Capitol were madly messaging the media that Republicans were endangering national security by holding the Department of Homeland Security hostage to a dispute over immigrants. Their Chicken Little cries of a sky raining-down terrorists were belied by the fact that DHS security personnel would remain on duty during any shutdown as essential government employees.
It was all reminiscent of 2002 when Republicans (including President George W. Bush) played the national security card against Senate Democrats for delaying passage of legislation creating the DHS. It became an issue in the 2002 elections, contributing to the defeat of at least one incumbent, Sen. Max Cleland, D-Ga., and to Republicans regaining majority control.
In the current dispute, Democrats were also counting on the public blaming congressional Republicans for any shutdown, as happened in 1995 and 2013. Even though Democrats were blocking consideration of the DHS bill, they knew the public was procedurally clueless about motions to proceed and cloture votes.
Two former Senate majority leaders, Trent Lott, R-Miss., and Tom Daschle, D-S.D., co-chairmen of the Bipartisan Policy Center’s Commission on Political Reform, proposed a solution to this familiar procedural dilemma last June. They suggested amending Senate rules to make the motion to proceed subject to a majority vote after two hours of debate (no filibusters) in return for a guaranteed minimum of five amendments per party debatable for two hours each. The proposal would not preclude the possibility of a filibuster on the bill itself, but would at least allow substantive debates on real issues.
If this reform had been in place for the DHS faceoff, both sides would be judged for their stands on policy choices instead of on the partisan games and messaging going on behind a wall of procedural obfuscation and obstruction. The Senate needs to return to what it once boasted of, and that is being the world’s greatest deliberative body.
Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a senior scholar at the Woodrow Wilson Center and former staff director of the House Rules Committee.
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