Winter is coming. And if House Democrats don’t want to spend it in a government shutdown, they should start laying the groundwork now for a procedural measure that will allow the government to reopen even if the new Speaker of the House refuses to bring a bill funding the government to the floor.
The Senate voted 78–20 on Wednesday to continue funding the United States government through December 11th, a resolution that is also expected to pass the House — in no small part because conservative hardliners in can no longer threaten to take away Speaker John Boehner’s (R-OH) job now that Boehner has decided to retire from Congress on his own. On the day that Boehner announced his plans to step down, many observers hoped that a one-year spending bill would be his final gift to a grateful nation. Now it looks like we’ll only get a little more than two months before the next shutdown crisis.
The next shutdown fight, moreover, is much more likely to end in an actual shutdown than this one. Though Boehner is currently negotiating with President Obama over a two-year framework for government spending, he’s shown little ability to actually get his caucus to support such bargains. Boehner’s speakership was marked by cyclical battles between the speaker, who believes that shutting down the government is a bad political tactic that backfires against Republicans, and hardliners within his own party who believe they can use a shutdown to leverage policy concessions from President Obama. The next speaker will face the same group of hardliners — except that those hardliners will be emboldened by Boehner’s recent departure. There’s also no guarantee that the next speaker, like Boehner, will be willing to end a shutdown by bringing a government funding bill that most of his caucus opposes to the floor. The 2013 shutdown ended only after Boehner agreed to hold a vote on a bill that nearly two-thirds of House Republicans voted against.
Democrats, however, are not entirely defenseless if the next speaker decides to run the run the house through a legislative cartel — that is, if the speaker refuses to allow a vote on any measure that doesn’t enjoy majority Republican support, even if it is supported by a majority of the House as a whole. More than a century ago, the House created a process called a “discharge petition,” which can be used as a last resort method to force a vote on a bill that the speaker does not want to bring to the floor. This process is rarely used, and it is hardly an optimal vehicle to bring a shutdown to a speedy close. Nevertheless, it could be the only option for House Democrats to keep the government open if they can convince a sufficiently large minority of the Republican caucus to reopen the government.
Bringing a discharge petition is a slow and cumbersome process. To use a discharge petition, House Democrats would need to identify a bill that has spent at least 30 days in committee without receiving a vote. They then need to convince 218 members of the House — a majority — to sign the petition demanding that this bill be brought to the floor. Currently, Democrats hold 188 seats in the House, so they would need to convince at least 30 Republicans to cross over to support the petition.
Even after supporters of the petition obtain the requisite number of signatures, however, they still must wait a considerable amount of time before they can force a vote. According to the Brookings Institution’s Molly Jackman, once the signature threshold is reached, “the petition is placed on the Discharge Calendar, where it waits for at least 7 days. At that point, it becomes privileged business on the second and fourth Mondays of the month (except during the last 6 days of the session).” So, depending on timing, House Democrats could wait a week or more before they can end a shutdown, even if they’ve already convinced a majority of the House to support their effort.
They will wait a whole lot longer, however, if they do not lay the groundwork for a discharge petition in advance. Recall that only a bill that has waited at least 30 days in committee is eligible for such a petition. So, if House Democrats want to be able to use this tactic, they need to introduce legislation well in advance of December 11 — the day when the next bill funding the government is due — or else they could wind up adding an entire month to the shutdown. That bill would have to be something with broad enough appeal that at least 30 Republicans would sign onto it, without being so favorable to Republicans that it validates their tactic of using government shutdowns to extort policy concessions. Legislation continuing government funding at current levels, possibly with adjustments for inflation, would probably fit this bill.
Admittedly, this kind of government-by-continuing-resolution is widely viewed as sub-optimal by budget experts. As the Center for Budget and Policy Priorities points out, a continuing resolution would “lock in the low sequestration levels” and potentially trigger caps on domestic spending. It also would prevent Congress from completing the ordinary budget maintenance that is supposed to occur every year, the annual process of trimming programs that have been determined to be overfunded and expanding programs deemed worthy of more money.
If the only other option is a shutdown that could last for much of 2016, however, a continuing resolution suddenly doesn’t look quite so bad by comparison.