LegerdeBoehner, or “The Rules Rule.”


In a little noticed procedural move on October 1st, the House of Representatives “entered in to the stage of disagreement” with the Senate with respect to H.J.Res. 59, the “clean” continuing resolution (CR) that, as currently amended by the Senate, would reopen the government at the sequestered levels.[1]

Specifically, H.Res. 368 does two things.  The first is a tripartite bit of normal business in the “navette” system used by Congress to resolve differences between the two chambers’ versions of a bill,[2] stating that the House

      “(1) takes from the Speaker’s table the joint resolution … (2) insists on its amendment, and (3) requests a conference with the Senate thereon.”

What this means, in short, is that the House collectively asserts that it is “done considering” the Senate’s version of the CR, and requests that the two have a “sit down” to work out the details of a compromise.  This is pretty normal.

The “trickery,” which I absolutely love, is the second part, which states

      Any motion pursuant to clause 4 of rule XXII relating to House Joint Resolution 59 may be offered only by the Majority Leader or his designee.

What this little sentence does is further make discharge of a clean CR even harder.  I didn’t think about this charmingly arcane and surprisingly potent possibility when I wrote on discharge as a strategy to get a clean CR last week. (I haven’t seen anyone bring it up until this weekend, when the Democrats hit upon it.)  Under the standing rules of the House,

When the stage of disagreement has been reached on a bill or resolution with House or Senate amendments, a motion to dispose of any amendment shall be privileged.

What this means is that, conditional on the first part of H.Res. 368, under which H.J.Res. 59 reaches “the stage of disagreement,” any member of the House could at any time move that the House “recede and concur” with the Senate’s amendment, thereby approving the clean CR.

To be clear, this isn’t “undemocratic,” per se: H.Res. 368 was approved 228-199 (Roll Call 505)—an example of majority rule being used to make the rules arguably less “majoritarian.”[3]  Now let’s consider the MathOfPolitics of this move.

As I have argued before, in a variety of ways, the bargaining situation between the Democrats and Republicans in both chambers and President Obama is a decidedly “multi-player” situation and, importantly, one that the House GOP (and probably some of the House Democrats, too) would like to resolve in a nuanced manner.  In particular, voting “yea or nay” on the clean CR is a blunt and high-profile signal to members’ constituents about the members’ relative priorities.  To the degree that the House GOP leadership and/or rank-and-file wanted to negotiate something other than a clean CR (or even just wait for a combined “CR and debt ceiling deal,” this logic implies that they need to avoid the possibility of facing a “clean vote” on a clean CR.  To attempt to get a conference with the Senate,[4] the House had to enter into the stage of disagreement.  But this step also would hand a gun to the minority: they could at any time force exactly the vote the majority did not want.

So, putting the two components of the rule together—thereby meaning that the House could affirmatively “act upon the Senate’s CR” only by agreeing to hand this agenda power to Majority Leader Cantor—represents a classic example of a “credible logroll.” Note that the rule change limits the preexisting agenda powers of all members, not just those in the minority party. The Republican majority, in order to negotiate as a somewhat unified body, agreed to “bind their hands” from the potential temptation to “just agree to a clean CR.”

This type of procedural commitment strengthens the ability of Boehner and Cantor to “speak for” the House in the ensuing negotiations.  If the motion to recede and concur with the clean CR had been available to any member, as usual, then the Senate and/or President Obama could attempt to simply build a floor majority, without any special need to focus on/pay attention to the position of the House Leadership.  In a sense, the House signed away a limited, but durable, “power of attorney” to Boehner and Cantor on the CR negotiations.

With that, I leave you with this.


[1] Remember, the sequester? HAHAHAHA.  Well, the Senate Democrats do.  Note the link between this position and my recent post on how appearing to lose may help one win.

[2] It’s tripartite because each of the three parts could in theory be debated and voted upon separately, but this is rarely if ever done in the House.  (They were accomplished here, as is pretty common, through a single vote on a “special rule” from the Rules Committee.) In the Senate, the analogue of this three-step process is one of the minority party’s secret weapons against the “nuclear options.”  But I will leave this to the side….for now?

[3] Hey, it’s my blog, so I’ll remind you that I’ve written and published (i.e., something more than a blog post) on this question.

[4] This might seem like a waste of time given hindsight, but I’ll simply point out that this step was necessary for the House to make it seem like the Senate was the roadblock to reopening the government (because the Senate did not agree to the conference).  Public opinion since October 1 seems to indicate this strategy failed to impress.

One thought on “LegerdeBoehner, or “The Rules Rule.”

  1. Pingback: My Bad: Dispelling The Implied Suspension of Discharge | The Math Of Politics

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