Funding the Government, Defunding Obamacare, & Innovative Procedure

As Congress steps closer to the various fiscal cliffs over the next week, the pressing question for Republican leadership is how to defund Obamacare. Several Republicans have indicated they will not support any continuing resolution not tied to the defunding the ACA. The law goes into effect on October 1st and many see this as one of the last opportunities to defund the health care law. As a result, legislative procedures are getting increasingly creative as Republicans in both the House and Senate attempt to force a vote on Obamacare.

In the House, Republican leaders want to tie either the continuing resolution or the debt ceiling to an amendment that would force the Senate to vote on Obamacare funding. This is a very unusual ploy that will likely not work out. Senate Democrats and the President have both indicated that no resolution or bill defunding the health care law will pass or be enacted. Regardless of its ultimate fate, here is what House majority leaders are attempting to do.

House leaders want to pass a rule requiring the Senate to dispose of defunding Obamacare before they vote on the CR funding the government. This would effectively tie an “enrollment resolution” to the CR or debt limit. Normally, enrollment resolutions are used for very minor fixes for bills that were already enrolled (e.g. passed by the House and Senate). For example, these are often used to correct clerical errors if the two chambers agreed to different texts of the bill, or changes in language to ensure that congressional intent matches congressional action. Once passed by both Houses, the resolution requires the bill to be re-enrolled with changes outlined in the resolution. In this case, the enrollment resolution would defund the ACA. So what is normally used to fix technical errors is now a vehicle that defunds a major law already in place.

The second part of the rule involves the House Clerk. In effect, the rule directs the Clerk not to deliver the CR bill to the Senate until they have disposed of the enrollment resolution defunding the ACA. In this way, they are forcing the Senate to take two votes. If Senate leaders want to keep the government running, or prevent defaulting on U.S. obligations, they will have to vote on the resolution defunding Obamacare.

The politics surrounding this vote are as hopeless as the strategy itself. There is no chance that the process results in defunding the ACA. Majority Leader Reid and the White House have both indicated that no bill has a chance of becoming law. Meanwhile, conservatives are refusing to support a clean CR if defunding the ACA is not a part of the deal. And on the other side, Democrats are threatening not to support a CR that does not reverse the sequester.

There is really no way for the Speaker to win this battle. He’s effectively caught between appeasing a substantial portion, if not a majority of, his caucus and economic calamity. At this point in time, it is virtually impossible to imagine a scenario where Boehner does not again break the Hastert “rule” to avoid a shutdown or credit default.

And again, there is a possible scenario where the CR and debt limit again become linked as they were roughly 8 months ago. Despite the fact that Obama has said he will not negotiate over the debt limit, it too may come in play if the politics of the CR become too complicated. Boehner may try and negotiate concessions on the debt limit in exchange for support on the CR. For example, he could significantly raise the debt ceiling or provide a law that would require a negative vote to not raise it. In other words, members would have to vote down an automatic increase in the debt ceiling, which is similar to the debt-ceiling practices for the previous 30 years (it was repealed in 2011).

In any case, the next two weeks will determine the economic fate of the country. Shutdown or short term extensions are the most likely compromises. However, I think everyone would be relieved if a more robust agreement was made and we took a giant leap away from any foreseeable fiscal cliffs.

Josh Huder is a Senior Fellow at the Government Affairs Institute

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