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How The Senate’s Absurd Rules Could Allow Ted Cruz To Shut Down The Government

By Ian Millhiser  

"How The Senate’s Absurd Rules Could Allow Ted Cruz To Shut Down The Government"

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Ted Cruz

CREDIT: AP

Unless the House and the Senate agree upon a resolution by next Monday, the federal government will shut down next week. That’s just seven days to push a bill through the lumbering hulk that is the Senate, convince House Republicans to abandon their demand to defund Obamacare that the President will never agree to, pass the resolution funding the government in the House and deliver the bill to President Obama’s desk to be signed.

Meanwhile, Sen. Ted Cruz (R-TX) the leader of the faction demanding that the government be shut down unless President Obama agrees to dismantle his signature legislative accomplishment, plans to filibuster his own bill as part of a complex maneuver intended to force the Senate to defund health reform. He’s unlikely to succeed at this goal, but Cruz could very well succeed in shutting down the government thanks to the arcane procedures senators will have to navigate in order to defeat his gambit.

Republican leaders want to avoid a shutdown, largely because both polls and the outcome of the 1995 standoff between Speaker Newt Gingrich and President Bill Clinton suggests that the political outcome of another shutdown would be a disaster for the GOP. Cruz, however, spent much of the summer rallying Republican base voters behind the idea that Democrats will somehow give up and agree to defund Obamacare if congressional Republicans are strident enough in their refusal to fund the government without such a concession. Fearing a revolt from Cruz’s allies in the House, Speaker John Boehner eventually agreed to pass a resolution to fund the government that also cuts off Obamacare.

Few people believe Boehner is under the illusion that this resolution will become law. To the contrary, the resolution will likely do little more than allow the Senate to prove that they will not support defunding Obamacare by stripping that language from the resolution and passing it without the attack on health reform. At that point, Boehner is widely expected to pass a “clean” resolution that funds the Affordable Care Act.

But the Senate’s arcane rules erect a number of roadblocks that will slow the path this resolution must take before it will be ready for the President’s signature. For starters, the Senate cannot even begin debate on the resolution to fund the government unless at least 60 senators vote to cut of Cruz’s filibuster. The reason why Cruz is filibustering his own proposal to defund Obamacare is because, once the Senate takes the first procedural step to pass the resolution, Democrats can amend it to strip the health care defunding language by a simple majority vote. Cruz hopes to avoid this outcome by holding the entire funding package hostage until Democrats agree to impose a supermajority requirement on all amendments.

Assuming that Cruz does not get the votes his needs to filibuster his own resolution — an outcome that is likely but not entirely certain given GOP primary voters’ well-established willingness to use primary challenges to punish incumbents who stray even slightly from conservative orthodoxy — the Senate rules still give him ample opportunity to delay a final vote.

Under normal Senate procedures, Cruz and his allies can force up to 30 hours of time to be wasted after the Senate agrees to begin debate on the resolution, and then force another 30 hours of wasted time after the Senate agrees to a final vote on the resolution — although his ability to force the full 30 hours of wasted time will depend upon how many supporters he has in the Senate. And that’s not counting the fact that the Senate must wait approximately two days between when Majority Leader Reid files a motion to break Cruz’s filibuster and when the vote to break the filibuster can actually take place. Add up all that time, and it doesn’t leave much room to pass the resolution through the Senate, devise a plan to pass it anew in the House, iron out any differences between the House, and the Senate bill and get the bill to President Obama before the government shuts down next week. (It should be noted that Senate Minority Leader Mitch McConnell (R-KY) can ease this path if he joins with seven of his fellow Republicans to do so, although McConnell is facing a primary challenge of his own so he may be reluctant to defy Cruz’s tea party faction.)

The Senate, with its rules that give an unusual amount of power to the minority, simply wasn’t designed for the kind of swift action that needs to occur this week in order to prevent a government shutdown. If a shutdown does occur, it may happen not because Democrats and the required number of Republicans cannot agree on a plan to fund the government, but because the Senate’s rules place far too much power in the hands of nihilists like Ted Cruz.

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