Voting Against Defunding to Vote for Defunding: Cannibalism and the CR

The Senate’s procedural and strategic contexts may create an interesting irony for some Republicans this week. The Senate’s conservative Republicans may filibuster their own bill. If this seems like procedural cannibalism, it’s likely not. However, if they are successful, it may be unintended tactical cannibalism.

Democratic Leader Harry Reid has repeatedly said that no continuing resolution (CR) that also defunds Obamacare will leave the Senate. Therefore, Democrats are expected to strip the defunding language from the CR and send a “clean” CR back to the House to fund the government through Dec. 15th. While Democrats have the upper hand procedurally, conservative Republicans can still make a stand.

Senators Ted Cruz (R-TX) and Mike Lee (R-UT) are floating a strategy to make that stand. In brief, they want to filibuster the motion to proceed – i.e. prevent the bill from being formally considered – on the House CR pass last week. Why would conservative Republicans want to do this? After cloture is invoked on the bill, and during the 30 hours of post-cloture debate, Democrats can strip the defunding-Obamacare language with a simple majority vote. In other words, Democrats do not need Republican votes to strike the defunding language from the House CR. However, to get to this point, they have to pass cloture on the motion to proceed and the bill itself should Republicans choose to object. Therefore, filibustering motion to proceed and the bill itself are the last points in the process where the minority can filibuster to prevent the language from being stripped. In short, Republicans will be forced to argue against the consideration and the final passage of their own bill, as it will stand unamended prior to cloture. All of this falls well within the bounds of “regular order.”  If you’re in a more in depth take on Senate process, read Sarah Binder’s great post over at the Monkey Cage.

So the showdown over defunding Obamacare will come down to the motion to proceed and the bill itself. If Republicans object to unanimous consent agreements to bring the bill to the floor and to vote on the bill, which can be done by a single Senator, Reid will be forced to file a cloture petitions to move the CR toward final passage.

Filibustering may be a good messaging point for some Republicans, but it has serious implications for their colleagues in their own chamber and in the House. Timing is one consequence. The cloture petition has to “mature” two days before it can be voted on. Then, if cloture receives 60 votes, 30 hours of debate and amendments follow (pending there is no un-objected motion to shorten this period due to the extenuating circumstances). If Republicans filibuster both the motion to proceed and the CR itself, the Senate passed CR could drag out for the better part of two weeks. This leaves the House with very little time to pass the clean Senate CR before the shutdown begins. Without some UC agreements or senators yielding back all or most of their post-cloture time, the CR will not make it to the House prior to the shutdown. This leaves House Republicans in a very tricky position with very little time to pass or send back the CR. Depending on how Boehner chooses to proceed, he will have to alienate at least one faction of his conference if he wants to avoid a shutdown.

Second, a handful of Senate Republicans will be put in the crosshairs. At some point in this process Reid will need Republican votes to proceed. Senators uninterested in exchanging government funding for a vote on Obamacare are in a terrible position. Either they shut down the government or cast a de facto vote that funds conservatives’ most hated law. While Cruz and Lee likely believe their strategy is effective from a messaging standpoint, for other Republicans it may take some political acrobatics to avoid serious challenges on their left and right. Those Republicans that vote to proceed will effectively risk their seats in order to keep the government running. While they will not have to support the amendment stripping the defunding language from the bill, they will have voted for it by voting to proceed on cloture, which as Cruz and Lee point out, is good enough to hold Democrats accountable.

The CR debate is developing into series of self-inflicted wounds for Republicans. While several conservative senators will vote against their bill to vote for defunding Obamacare, other senators and representatives will hope their filibuster tactic falls short so they can avoid taking the blame should a shutdown occur. Nobody wins in these standoffs. The winner just loses by less. While Cruz and Lee may gain something from this tactic, other Republicans likely feel stuck between a very ugly rock and a really uncomfortable hard place.

Huder_100x100Josh Huder is a Senior Fellow at the Government Affairs Institute.

Follow him on Twitter at @JoshHuder