Democrats Can’t Win If They Don’t Try
The government shutdown is now in its fifth week. It began on October 1, after Congress failed to complete its annual appropriations work by the end of the fiscal year deadline. The Senate did not approve the House-passed Continuing Appropriations and Extensions Act (HR 5371), which would have given lawmakers more time to fund the government. And it is on track to be the longest shutdown in American history as the Senate remains gridlocked over the short-term funding bill.
The Senate has voted 13 times to advance HR 5371. But each vote failed because the chamber's Republican majority opted to give Democrats a say by requiring 60 votes to pass the bill by unanimous consent, and by relying on the cloture process outlined in Senate Rule XXII to end debate on the motion to proceed to its consideration. Under the rule, it takes three-fifths of the senators duly chosen and sworn (typically 60 senators) to invoke cloture, or end debate, on the motion. Republicans' decision to use cloture in their attempt to end the shutdown has effectively empowered Democrats to prevent the Senate from voting to open the government.
Almost all Democrats refuse to support HR 5371 because it does not extend expiring premium subsidies for healthcare plans offered under the Affordable Care Act (Public Law 111-148). And they believe that shutting down the government gives them leverage to force Republicans in the House and Senate, as well as President Trump, to negotiate with them to extend the subsidies.
Republicans have maintained throughout the shutdown that they will not negotiate with Democrats as long as the government remains closed. According to reports, Majority Leader John Thune, R-SD, offered Democrats a separate vote on legislation to extend the premium subsidies in exchange for their agreement to vote to end the shutdown. However, Democrats have thus far declined to accept Thune's offer.
Yet Democrats don’t need Republicans’ permission to force a Senate vote on extending the expiring subsidies. They have several ways to raise the issue under the Senate’s existing rules and practices. But Democrats have refrained from using the tools at their disposal to force action on their demands throughout the shutdown.
Forcing Votes in the Senate
Senators have three general ways to force votes on the Senate floor. They can ask for unanimous consent to set up a vote, move to proceed with a bill that includes their policy demands, and file cloture on it, or they can offer an amendment on the Senate floor.
Unanimous Consent
The most prevalent method senators presently use to set up votes on the Senate floor is asking unanimous consent to waive the Senate's rules and schedule a vote on standalone legislation or on an amendment. The advantage of the unanimous consent method is that it is relatively straightforward to implement. Its disadvantage is that it requires that no senator object to the unanimous consent request.
Motion to Proceed & Cloture
If there is an objection to setting up a Senate floor vote by unanimous consent, any senator - not just the institution's majority leader - may use Senate Rule XIV to place standalone legislation on the chamber's calendar of business and then move to proceed to its consideration. When that happens, the motion to proceed is pending before the Senate, and any senator—not just the majority leader—can file cloture on it with the support of 15 of their colleagues.
Amendments
Alternatively, a senator may force a vote on the policies included in standalone legislation by offering those policies as an amendment to another bill under consideration on the Senate floor, even if the amendment's provisions are unrelated to the underlying question—at least in most circumstances. The only germaneness restrictions on floor amendments in the Senate, as outlined in the Senate's rules, are detailed in Senate Rule XVI and Senate Rule XXII. Rule XVI bars senators from offering non-germane amendments to general appropriations bills, as well as legislative amendments (i.e., amendments not strictly limited to spending money). Rule XXII bars senators from offering non-germane amendments after the Senate invokes cloture on it.
Of course, the majority leader can use their priority of recognition under Senate precedents to "fill the amendment tree" on a bill under consideration, or offer the maximum allowable number of amendments under Senate precedent to the legislation, thereby preventing other senators from offering their own amendments. However, even when that happens, senators can force votes on their amendments. Specifically, they can ignore the majority leader's pending blocker amendments and offer their own amendment to the bill. If they do, the presiding officer would rule their amendment out of order under Senate precedents, although not under the Senate's rules. However, any senator can appeal the presiding officer's ruling and ask for a vote on whether to allow their amendment. They can offer their amendment despite the filled tree if a simple majority of senators present and voting (typically 51 senators) vote to overturn the presiding officer's initial ruling.
Senators can also force a vote in relation to their amendment when the majority leader fills the tree by moving to table (i.e., to defeat) one of the pending blocker amendments with the stated intention of offering their own amendment in its place if the Senate votes to table. Motions to table are simple-majority votes.
Democrats’ Shutdown Actions
Examining Democrats' efforts to extend the expiring premium subsidies within the Senate, rather than relying on rhetoric, demonstrates that they are not utilizing all of their available tools to prevail in the shutdown debate.
Unanimous Consent
Democrats set up a final passage vote on the Continuing Appropriations and Extensions and Other Matters Act (S. 2882) by unanimous consent on September 18 - before the shutdown began. Among its provisions, S. 2882 would permanently extend the expiring subsidies in addition to giving lawmakers more time to fund the government. However, Democrats ensured that their version of the short-term funding bill would fail by agreeing with Republicans to include a requirement that the measure needed 60 votes to pass instead of a simple majority of the Senate (typically 51 senators).
Democrats asked for unanimous consent to pass legislation unrelated to extending the expiring premium subsidies 15 times between October 1 and October 31. Eight of those unanimous consent requests were to pass cybersecurity legislation. Only four of the unanimous consent requests propounded by Democrats on the Senate floor during the government shutdown related to it. And none of those consent requests related to legislation that included a provision to extend the premium subsidies. Jacky Rosen, D-Nev., asked unanimous consent to waive the Senate's rules and display three floor charts at the same time during her remarks. Four Democrats requested unanimous consent to allow their staff members to be present on the Senate floor.
Motion to Proceed & Cloture
The Senate placed S. 2882 on its calendar of legislative business by unanimous consent on September 18. Once on the calendar, Democrats tried to advance the measure by moving to proceed to its consideration and filing cloture on it five times between October 1 and October 9. After October 9, however, Democrats did not attempt to force a vote on S. 2882 by moving to proceed to its consideration and filing cloture on the motion, despite the shutdown persisting for another 23 days in October.
The Senate was often in parliamentary situations that precluded Democrats from moving to proceed to S. 2882 under the Senate's rules during this period (e.g., when the chamber was considering nominations on its Executive Calendar and when it was considering other legislation after cloture had been invoked). But Democrats also failed to object to Republicans' unanimous consent requests to set up the Senate's consideration of nominations and to schedule post-cloture debate time. Democrats similarly failed to object to almost daily unanimous consent requests by Republicans that the Senate be in a period of "morning business" with senators permitted to speak for up to 10 minutes only (i.e., with senators being prevented from making motions to proceed to the consideration of S. 2882).
Amendments
Democrats have similarly failed to use their power under the Senate’s rules and practices to force votes on proposals to extend the expiring premium health subsidies. For example, the Senate debated the National Defense Authorization Act (S. 2296) in early October when the shutdown was getting underway. Democrats offered 33 amendments to S. 2296. However, none of those amendments addressed the expiring premium subsidies. Overall, Democrats have not offered an amendment to force a vote on, or in relation to, the central issue of their shutdown strategy.
The Takeaway
Democrats oppose ending the government shutdown until Republicans negotiate with them over extending the expiring premium subsidies for healthcare plans offered under the Affordable Care Act. And Democrats have rejected Republicans' offer to schedule a separate vote to extend the premium subsidies in exchange for their agreement to reopen the government.
While Democrats do not need Republicans' permission to set up Senate floor votes on, or in relation to, the premium subsidies, they have not utilized their powers under the Senate's rules and practices to force those votes throughout the now five-week-long government shutdown. This suggests that Democrats' shutdown rhetoric is not aligned with their actions. Democrats can't win the shutdown on their own terms if they don't try.