The House wrapped up votes for the day Wednesday without taking up a temporary spending bill that's needed by Friday at midnight in order to avert a partial government shutdown.
Top lawmakers and others familiar with the talks nonetheless expressed confidence a shutdown would be averted, despite calls from some GOP conservatives to force a funding lapse if Democrats won't add language to the continuing resolution that would bar funds for the Biden administration's private sector vaccine and testing requirement.
"Negotiations are underway; there's no interest in shutting the government down," House Appropriations Chair Rosa DeLauro, D-Conn., told reporters Wednesday.
House leaders had initially hoped to file the stopgap funding measure Tuesday night in advance of a floor vote as early as Wednesday. But the text wasn't yet available, and House leaders announced the last vote series of the day would take place around 4 p.m.
"It's incomprehensible to me that we can't pass a simple CR to keep the government open," House Majority Leader Steny H. Hoyer, D-Md., said Wednesday afternoon.
GOP and Democratic leaders were still haggling over the end date for the stopgap bill as well as what funding "anomalies," or exceptions from the typical restrictions in temporary spending bills, might be included.
Democrats' latest pitch was to extend interim funds to Jan. 28, while Republicans want Feb. 18, according to a Democratic leadership source. Both dates are somewhat problematic, however, since the House is out the week of Jan. 24 and again starting on Feb. 10.
The newest wrinkle appeared to be GOP demands to "defund" an Occupational Safety and Health Administration rule requiring private employers with 100 or more workers to ensure staff are either fully vaccinated against COVID-19 or tested weekly.
"Don't fund a government that is tyrannically forcing people to get a vaccine that they don't want to get," Rep. Chip Roy, R-Texas, told Fox News on Wednesday.
House leaders can probably muscle a CR through their chamber more or less along party lines. But the real problem lies in the Senate, where 15 Republicans last month issued an ultimatum to Senate Majority Leader Charles E. Schumer, D-N.Y., over the vaccine-or-test rule.
"Look, you know, every member can get up and say, I want to shut down unless I get my way on something. And we'll see what happens," Schumer said Wednesday. "It's up to the leaders to make sure there's not a shutdown. I'm making sure, and I think [Senate Minority] Leader [Mitch] McConnell wants to try to make sure too. Let's hope."
The Nov. 3 letter spearheaded by Sen. Roger Marshall, R-Kan., says "we will not support — and will use all means at our disposal to oppose —legislation that funds or in any way enables the enforcement of President [Joe] Biden’s employer vaccine mandate." The letter goes on to say the senators will not "vote for or support cloture on any continuing resolution in the absence of language protecting Americans from this action."
Fifteen "no" votes on cloture isn't enough to stop the measure from advancing, which is a 60-vote hurdle. But any senator can object to speeding up the process, which could theoretically force at least a temporary shutdown over the weekend and into early next week.
Marshall suggested that was his plan, unless Schumer relents on the vaccine issue.
"As long as he makes sure we don't fund that unconstitutional mandate, we'll be OK with unanimous consent," Marshall said Wednesday. "So it's totally on his back."
It seems unlikely Democrats would cave into such demands, and sources familiar with the discussions expressed confidence that McConnell, R-Ky., would tamp down a revolt on his side of the aisle.
"Yeah, we won't shut down," McConnell told reporters Tuesday. "I think we'll get there, and certainly, nobody should be concerned about a government shutdown."
One option is allowing critics of the vaccine-or-test rule an amendment vote, which occurred during Senate debate on the current CR enacted Sept. 30. Marshall's amendment at the time fell short on a party-line 50-50 vote, since 60 votes were required.
Marshall said Wednesday he might be amenable to a deal that lowers the bar for his amendment to a simple majority vote.
Another option, according to Sen. John Cornyn, R-Texas, is negotiating a stand-alone vote on a resolution to overturn the OSHA rule using the Congressional Review Act, which currently has 50 GOP supporters and needs just one Democrat to bring it to the floor.
"The vote I wouldn't think has to be on the CR itself," Cornyn said, referring to proposals to block the vaccine requirement. "But the fact is, when you cram all this stuff is up against Christmas, then it empowers individuals to basically say, 'I'm not going to give consent.'"
If critics aren't assuaged, a brief shutdown could ensue, along the lines of what occurred in January 2018 when the two parties were fighting over immigration policy. A partial shutdown began Jan. 19 at midnight and was lifted the following Monday, Jan. 22, when lawmakers cleared a two-week CR.
Under long-standing Office of Management and Budget guidance, if passage is imminent, agencies can hold off on shutdown preparations for a day. But if not, agency staff would have to turn off their work-related devices and report to work on Monday — for those who aren't teleworking — for only a few hours needed to wind down their duties and grab what they need.
Asked how the vaccine issue could be resolved, Senate Appropriations ranking member Richard C. Shelby said: "Well, it'll have to be done on the battlefield, I guess — the floor."
The U.S. Court of Appeals for the 5th Circuit ordered a stay of the vaccine-or-test rule on Nov. 12, after which the case was moved to the U.S. Court of Appeals for the 6th Circuit. Parties wishing to file motions in the case, known as BST Holdings v. OSHA, had until Tuesday to comply. By Dec. 10, all responses to motions and replies must be submitted.
That means the case won't be decided until sometime later this month, at the earliest, which means even if the stay is lifted employers won't meet their Dec. 5 deadline to have their compliance plans in place. The legal limbo also could jeopardize a Jan. 4 deadline for companies to ensure their workers are vaccinated or regularly tested.
Sen. Tommy Tuberville, R-Ala., signed Marshall's letter last month. But he said Wednesday he's satisfied now that the OSHA rule is tied up in court and won't object to speeding up the stopgap bill vote.
"That was my whole deal, it was let's get the right people to do their job, let the federal judges look at it," he said.
Similarly, Sen. Mike Braun, R-Ind., lead sponsor of the Congressional Review Act resolution, said he wouldn't object to a swift CR vote, though he'll oppose it on final passage.
A Senate GOP aide said the vaccine requirement issue was the main hang-up at the moment. But the length of the CR has proven to be an intractable issue thus far.
Democrats want a shorter duration to keep the pressure on to wrap up fiscal 2022 appropriations quickly. Republicans argue there are too many outstanding divisions on the full year spending bills to be resolved quickly.
"I doubt we'll have a shutdown, but you never know," said Shelby, R-Ala., who was headed to a meeting with McConnell. "We're talking."
Another sticking point, Shelby said, was a waiver of statutory pay-as-you-go rules.
Unless overridden, a 2010 law intended to rein in deficits could require mandatory spending cuts totaling more than $388 billion early next year even if the Democrats' budget reconciliation package doesn't pass before Dec. 31. Including a waiver this week in the CR could require lawmakers to vote again by early next year to override another roughly $160 billion in cuts that the current House reconciliation bill would trigger, if enacted before year's end.
But if the CR pushes out the deadline for a fiscal 2022 omnibus to February, it's not clear whether there would be a vehicle to enact a pay-as-you-go waiver to head off cuts of such a magnitude that dozens of federal programs could be completely wiped out.
"Let's wait and see," Shelby said. "Today's just Wednesday. Y'all will have some long nights."
Lindsey McPherson, Jennifer Shutt, Laura Weiss, Niels Lesniewski and Mary Ellen McIntire contributed to this report.