The Senate’s Shutdown

The government shutdown is entering its fifth week as the Senate remains gridlocked over a short-term funding bill that would end it. The shutdown began after Congress failed to finish its annual appropriations work by the September 30th deadline. The Republican-controlled House of Representatives passed legislation - the Continuing Appropriations and Extensions Act (HR 5371) - on September 19 to give lawmakers more time to fund the government. But the Republican-controlled Senate has been unable to approve the measure.

The Senate has voted 13 times on HR 5371, which would extend last year’s funding levels until November 21. However, the Senate failed to advance the measure each time because the chamber’s 53 Republicans need at least seven Democrats to join them to pass the short-term funding bill under Senate rules. And Democrats oppose HR 5371 because it does not extend enhanced premium subsidies for healthcare plans offered under the Affordable Care Act (Public Law 111-148) that are scheduled to expire at the end of the year.

Democrats want to use the ongoing shutdown as leverage to force Republicans - and President Trump - to the negotiating table. But Republicans insist that they will not negotiate with Democrats as long as the government remains closed. Instead, Majority Leader John Thune, R-SD, blamed Democrats for the stalemate on the Senate floor. “When they say that…Republicans are responsible for shutting the government down, it really defies facts. It defies history. It defies reality because as everybody who has been around here knows, we have now voted 13 times…on [HR 5371] that would open up the government.”

But Thune’s description of the Senate’s stalemate is not entirely correct. The Senate is not gridlocked over HR 5371 solely because of Democrats’ obstruction. How Republicans have managed the shutdown debate over the last four weeks has made it easier for Democrats to block the short-term funding bill.

For example, Republicans waived the Senate’s rules by unanimous consent to set a 60-vote requirement for passing HR 5371 on two of the Senate’s 13 votes referenced by Thune. In doing so, Republicans made it impossible to approve the short-term funding bill without Democratic votes. And Republicans tried to advance HR 5371 by invoking cloture under Senate Rule XXII to end debate on the motion to proceed to the measure on the 11 other votes referenced by Thune. Republicans’ reliance on cloture also made it impossible to advance the short-term funding bill without Democratic votes. This is because the rule requires a three-fifths majority of senators duly chosen and sworn (typically 60 senators) to end debate over senators’ objections.

The Senate is presently gridlocked over HR 5371 because Senate Republicans’ use of unanimous consent and the cloture process to advance the short-term funding bill instead of other Senate rules has made it easier for Democrats to obstruct the measure.

Cloture & The Filibuster

The cloture process does not give Senate Democrats the ability to veto HR 5371. Of course, a senator (or senators) may temporarily delay the Senate from voting on the short-term funding bill by speaking on the floor. This is because the Senate’s rules and practices prevent its presiding officer from calling a vote on the measure if a senator has the floor. According to Senate precedents, “When there is a debatable matter before the Senate and debate is not limited, a senator who has been recognized may proceed without interruption…a senator may keep the floor as long as he or she remains standing and continues to debate.”

Yet a filibustering senator cannot prevent the Senate from voting in perpetuity because he or she cannot speak indefinitely. This is because of the physical and opportunity costs filibustering senators must bear to speak, as well as the procedural limitations in the Senate’s rules and practices (e.g., Senate Rule XIX).

When a senator is no longer able to speak, he or she has no choice but to yield the floor. At that point, the Senate votes on the underlying question - in this case, HR 5371 - unless another senator seeks recognition and then speaks for as long as he or she is able. While the length of the delay in the Senate’s business is proportional to the number of senators who participate in the filibuster, there is no point at which HR 5371 is delayed indefinitely.

If no senator seeks recognition (i.e., no longer wants to, and can, speak), the presiding officer must call a vote on the pending question. Senate precedents stipulate, “When a senator yields the floor, and no other senator seeks recognition, and there is no order of the Senate to the contrary, the presiding officer must put the pending question to a vote.”

In recent decades, the Senate has relied on the cloture rule to advance legislation over senators’ objections instead of waiting them out. Cloture empowers a super-majority of the Senate to end debate over the objections of a minority of its members who would like to continue speaking on the underlying question.

Cloture Alternatives

Thune blames Democrats for the ongoing government shutdown because they are blocking the Senate’s efforts to invoke cloture on the motion to proceed to HR 5371.  But the cloture process empowers Democrats to prevent the Senate from voting on the short-term funding bill only if Republicans choose to use it exclusively to advance the measure.

Republicans may use other Senate rules to make it harder for Democrats to obstruct HR 5371. For example, they can enforce Senate Rule XIX on the motion to proceed. Rule XIX prohibits senators from speaking twice on the motion in the same legislative day. Senate precedents define a legislative day as a “day, which continues from the beginning of a day’s session following an adjournment until another adjournment.” A legislative day can therefore continue throughout an entire year-long session of the Senate. According to Senate precedent, “a senator is not entitled to speak more than twice in the same legislative day on the same question and when called to order during his third speech will lose his right to the floor.”

Rule XIX therefore empowers Republicans to vote on the motion to proceed to HR 5371 without first invoking cloture on it. The Senate can vote whenever the Democrats who are committed to filibustering the short-term funding bill have given the two speeches allotted to them under the rule. When that happens, the Senate’s presiding officer must call a vote on the motion to proceed to HR 5371 if no Republicans also seek recognition to speak. Adoption of the motion to proceed requires a simple-majority vote.

The Republican Strategy

The Senate is presently gridlocked over HR 5371 because of Democratic obstruction and how Republicans have managed the debate throughout the shutdown. Instead of using Rule XIX to advance the short-term funding bill, Republicans have opted to give Democrats a veto over the measure by using unanimous consent to schedule final passage votes with a 60-vote requirement. And Republicans have relied on the cloture process to end debate on the motion to proceed to HR 5371 over Democrats’ objections without forcing them to filibuster the bill and pivoting to the consideration of other business after each failed cloture vote.

For example, the Senate proceeded to consider the nomination of Hung Cao of Virginia to be Under Secretary of the Navy after it failed to invoke cloture on the motion to proceed to HR 5371 on October 1. And Thune gave Democrats a reprieve from filibustering the motion after the failed vote on October 3 by asking unanimous consent that the Senate “be in a period of morning business, with senators permitted to speak therein for up to 10 minutes each.”

Thune similarly made it easier for Democrats to obstruct HR 5371 on October 6 after the Senate failed to invoke cloture on the motion to proceed to the short-term funding bill by asking unanimous consent that the Senate be in a period of morning business and that it resume consideration of various nominations when it convened on October 7. And Republicans resumed consideration of the National Defense Authorization Act (S. 2296) on October 8 after failing once again to invoke cloture on the motion to proceed to HR 5371.

Republicans also made it easier for Democrats to obstruct HR 5371 by routinely leaving town on the weekends. After failing to invoke cloture on the motion to proceed to HR 5371 on Thursday, October 9, the Senate agreed by unanimous consent to convene “in pro forma session only, with no business being conducted, on Friday, October 10, at 11:30 a.m.; further that when the Senate adjourns on Friday, October 10, it stand in adjournment until 3 p.m. on Tuesday, October 14.”

After failing yet again to invoke cloture on the motion to proceed to HR 5371 on October 14, the Senate considered the nomination of Harold D. Mooty III of Alabama to be United States District Judge for the Northern District of Alabama. And the Senate considered the nomination of Bill Lewis of Alabama to be United States District Judge for the Middle District of Alabama after failing to invoke cloture on the motion to proceed on October 20.

In each instance, Republicans made it easier for Democrats to obstruct HR 5371 by taking the bill off the Senate floor and pivoting to other business.

The Takeaway

Both Democrats and Republicans are responsible for the ongoing government shutdown. Democrats’ strategy of using the shutdown as leverage to force Republicans to negotiate with them over the expiring healthcare subsidies has prevented the Senate from advancing HR 5371. But Republicans have made it easier for Democrats to obstruct by relying on the cloture process instead of using other rules to advance the short-term funding bill and by not forcing Democrats to filibuster the measure.