Tea Party Patriots Weekly Legislative Update for 03/01/15
Listen to the legislative update here:
The House will return to work on Monday, with first scheduled no earlier than 6:30 PM. They’ll stay in session through Thursday, with the last vote no later than 3 PM.
The Senate will return to work on Monday, with the first order of business being the cloture vote on the motion to go to conference with the House on H.R. 240, the Department of Homeland Security funding bill. That will take place at 5:30 PM.
On Tuesday morning, the House will host a Joint Session of Congress to hear an address from Israeli Prime Minister Benjamin Netanyahu.
AUTHORIZATION FOR THE USE OF MILITARY FORCE:
More than six months and 2,300 airstrikes ago, claiming authority derived from the Authorization for the Use of Military Force that authorized President George W. Bush to go after al-Qaeda in 2001, the Obama Administration launched military action against Islamic radicals in Syria and Iraq. A few weeks ago, the President finally requested a new Authorization for the Use of Military Force to allow him to deploy military assets against the Islamic State.
The text of that AUMF reminds me of Winston Churchill’s description of Russia – “a riddle wrapped in a mystery inside an enigma.”
One wag went so far as to say the President’s request amounts to this: “Dear Congress: I humbly request the authority to do whatever the hell I want even though I already have the authority to do it anyway. Love, Barack.”
Here’s the problem: In a town known for vague language, where qualifying phrases are tossed about like Dan Snyder voodoo dolls after a Redskins loss, this is one of the most qualified statements I’ve ever seen.
The proposed AUMF grants the President the authority to “use the armed forces of the United States as the president determines to be necessary and appropriate against ISIL or associated persons or forces.” There is NO geographic boundary to where he can choose to deploy forces or engage in operations. But there is an ambiguously-worded limitation: The AUMF “does not authorize the use of the United States armed forces in enduring offensive ground combat operations” – but it does not define what is meant by “enduring” (is that one week? One month? One year?) or “offensive” (is a counter-attack an “offensive” operation?) or even “ground combat operations” (is the use of close air support authorized, or not?).
Moreover, the AUMF authorizes these activities for three years – which would give the next president more than a year of authorization to engage however he or she saw fit.
That’s what’s got Democrats on Capitol Hill spooked – they’re worried the AUMF is drafted so broadly it could be interpreted by a future Republican President to authorize a much broader intervention.
Republicans on Capitol Hill, on the other hand, see just the opposite problem. They suspect it was written as broadly as it was because the Obama Administration basically wants to share the blame if and when it fails to work.
So Congress has begun hearings. The Senate Foreign Relations Committee held a closed Top Secret/Sensitive Compartmented Information (TS/SCI) hearing on January 29, and last Wednesday, and will hold a second closed TS/SCI hearing on Tuesday afternoon featuring the Director of the Defense Intelligence Agency. The Senate Armed Services Committee has not yet scheduled any hearings to deal specifically with either ISIS or the AUMF, but there is a hearing set for Tuesday with the new Defense Secretary, Ashton Carter, that will review the President’s FY 2016 Defense Authorization request, and I imagine the AUMF will come up for discussion there.
EX-IM BANK REAUTHORIZATION:
You’ll recall a deal was cut late last summer to extend the authorization for the Ex-Im Bank through June 30 of this year. Both House Majority Leader Kevin McCarthy and Financial Services Chairman Jeb Hensarling oppose its reauthorization.
It seems GOP presidential wannabes have figured out that the base of the party does not like crony capitalism or corporate welfare, and they’re trying to show off their street cred by bashing Ex-Im.
Over the weekend, meeting with very well-heeled GOP donors at the Club for Growth’s meeting at The Breakers in Palm Beach, Jeb Bush, Scott Walker, Marco Rubio, Bobby Jindal, Mike Pence, and Ted Cruz all came out for eliminating Ex-Im entirely.
Apparently angry at being left off the invitation list to address rich GOP conservative donors, Sen. Lindsay Graham let fly with his own thoughts on Ex-Im reauthorization: He said this week that there is “no way in Hell” he will let Ex-Im shut down. In that flowery language so many Senators find appropriate, he continued, saying opposition to the bank “makes no friggin’ sense.”
NO CHILD LEFT BEHIND REAUTHORIZATION:
In the midst of the Senate-House back and forth over DHS funding on Friday, the House GOP Leadership decided to pull H.R. 5 from the floor because they determined it didn’t have enough votes to pass – the combined opposition from Democrats and conservative Republicans was just too much.
Timing, too, played a role – House Leadership knew they needed conservative votes to pass DHS funding that would come to the floor later, and there was a concern that begging conservatives for votes right after you poke them in the eye with a sharp stick by forcing this bill down their throats might not be the smartest play.
There’s no word yet on if or when the bill will be brought back to the floor for action.
As we move closer to the oral arguments in the King v. Burwell case before the Supreme Court – scheduled for just a few days from now, on Wednesday – the left is, not surprisingly, going all out to ratchet up the pressure on the Justices by warning of catastrophic consequences should they decide that the written word means what the written word says.
Should five members of the Supreme Court decide in favor of the plaintiffs, subsidies would be ruled illegal in the 37 states that chose not to establish their own state exchange. That would affect roughly 6 million people who now get subsidies.
Losing the subsidies would not necessarily mean they would lose their coverage – it just means that the true cost of their premiums would no longer be hidden. The result would be panic, as the vast majority of those receiving subsidies have no idea just how much their insurance really costs.
McLaughlin & Associates conducted a survey that was released this week regarding public attitudes toward the issues at court in King v. Burwell.
The question was simple: “If the Supreme Court rules that the Obama Administration has been illegally paying out ObamaCare subsidies in 36 states, what do you think Congress should do in response?”
Likely voters responded as follows:
4% said, “Do nothing and let people in those 36 states lose their subsidies and perhaps their insurance.”
20% said, “Negotiate fixes to ObamaCare with the Obama White House in exchange for turning the subsidies back on.”
5% said, “Turn the subsidies back on temporarily but don’t try to fix ObamaCare.”
26% said, “Propose to effectively repeal and replace ObamaCare in those 36 states with a conservative alternative that aims to help people get coverage and reduce costs.”
25% said, “Give the states a choice between ObamaCare and switching to a conservative alternative that aims to help people get coverage and reduce costs.”
8% said they wanted “something else,” and 13% said they had no opinion.
On another front, a D.C. Superior Court Judge dismissed a lawsuit brought by Judicial Watch challenging Congress’ special exemption from ObamaCare, ruling that federal regulations allow Members of Congress and their staffs to enroll in the D.C. exchange.
This is a remarkable ruling, because of the nature of the challenge – Judicial Watch had brought the suit on the grounds that Congress is obviously not a small business, and therefore enrollment by Members and staffers is a violation of D.C. law. As part of a motion to dismiss the case in January, the D.C. government actually acknowledged that Congress is not a small business – but the D.C. government also argued that the 2013 Office of Personnel Management ruling instructing congressional employees to enroll in the D.C. exchange trumped D.C. law, and therefore enrollment could continue.
The judge sided with the D.C. government, saying the federal regulation that came out of OPM trumped the D.C. law.
The plaintiff filed a notice of appeal on Wednesday.
Sen. David Vitter of LA continues his investigation, and still has a hold on the nomination of Earl Gay to be OPM’s deputy director until he receives answers about congressional enrollment.
SENATE/HOUSE FLOOR ACTION: EXECUTIVE AMNESTY/DHS FUNDING:
Let’s start by reviewing our predictions from last week. We predicted that:
- Democrats would continue to hold firm on the fourth attempt to invoke cloture on the Motion To Proceed to H.R. 240. We were right, not a single Democrat moved off the previous three votes.
- We might lose some Republican votes this time. We were right – the vote failed by a margin of 47-46. Six Republicans did not vote. Republican Dean Heller of NV voted with the Democrats for the fourth time, and Majority Leader McConnell flipped his vote from “Aye” to “Nay” at the end so as to leave open the possibility of a motion to reconsider.
- McConnell would introduce a new DHS funding bill that strips out the language blocking the 2012 DACA program, but leaves in the language blocking the President’s executive amnesty. We were half-right – he stripped out the 2012 DACA language, but he also stripped out the language blocking the November executive amnesty. The result was a so-called “clean” funding bill, exactly what the Democrats had held out for. McConnell chose not to half-capitulate, he went all in.
- He would begin the Rule 14 process early, so he could bring that bill to the floor by the end of the week. He did.
- He would introduce a short-term Continuing Resolution. We predicted it would be good for 5-10 days. Again, we were right – though he first introduced a CR good for 3 weeks, that couldn’t pass the House. So Sen. McConnell introduced and passed a 7-day CR.
- Both the House and Senate would pass the short-term funding mechanism. They did.
So our predictions held up pretty well. Though there was a bit more drama to get from here to there than we had anticipated, in the end they arrived at the destination we thought they would.
Now, suppose I were a Republican leader in the 114th Congress. And suppose I were a moron. But I repeat myself.
Seriously … if I were a GOP leader in the 114th Congress, and a moron, I would have structured a vote that put ME between a rock and a hard place, and left the President and Harry Reid and Nancy Pelosi to giggle at my inanity. I would have gone back to December, and split a year-long funding bill into two pieces – one piece that funded 11 appropriations bills for the duration of the fiscal year, and one bill that funded an exceedingly important agency of government for just a few months. I then would have promised the conservatives in my caucus that when that short-term bill came up for renewal, THAT would be the opportunity to attach policy riders that blocked funding of the President’s illegal and unconstitutional actions. I would have assured them – and conservatives around the country, who were counting on us to block the President’s executive amnesty – that the Democrats would never risk shutting down DHS in a tug-of-war with us, and the President would just have to accept what he got from a Republican Congress.
To do that, of course, I would have had to deliberately overlook the fact that I was violating one of the principle rules of negotiating – never take a hostage you’re not willing to shoot. Because the GOP is seen as the anti-Government party, any so-called “shutdown” – whether partial, or temporary, or in name only, or a combination of all three – is blamed on the GOP, no matter whose fault it may or may not be. And that meant that NO Republican leader was going to risk shutting down DHS, even though it would have only been a partial, temporary shutdown, not even for a day.
Imagine, if you will, that instead of tying the no-funding riders to the DHS funding bill, the GOP leadership in House and Senate had left the National Endowment for the Arts – or even the Environmental Protection Agency – out of the original year-long CROmnibus. THOSE are agencies the DEMOCRATS find essential. I’d be surprised if more than half a dozen Republicans cared that much about funding either one of them.
Now, if the no-funding-executive-amnesty policy riders had been attached to a bill funding either the NEA or the EPA for the rest of the year, and had been passed through the House (as they would have been) and had been sent to the Senate … would Democrats have filibustered them with success? Would Republican Senators have felt the need to cave in to Democrat demands for a “clean” funding bill for the NEA, or even the EPA? Would the President have succeeded in stirring the mainstream media to back him up against the threat of a delay in funding either of those agencies? Doubtful.
Alas, I am not a congressional Republican leader, and they didn’t ask my advice a few months ago when they were first setting up this strategy.
So, you know what happened – Senate Democrats refused to fold. Mitch McConnell and a minority of Senate Republicans did. He split the bill in two, creating a “clean” DHS funding bill and a separate bill that blocked the funding for the executive amnesty. The cloture vote then proceeded, and passed by a vote of 68-31. Note – 31 Republicans, the majority of the Senate GOP Conference, voted against the deal. More GOP Senators followed the leads of Mike Lee, Ted Cruz, and Jeff Sessions than followed the lead of the man they had elected just six weeks earlier. And when the “clean” funding bill itself came up for a vote, it passed by a vote of 66-33, with only 21 Republicans voting “Aye.”
The House GOP leadership was prepared. They knew ahead of time that no matter what happened in the Senate, they wouldn’t be left with much time before they had to vote, lest they miss the midnight Friday deadline to fund DHS.
That became clear on WEDNESDAY, when they added two paragraphs to the Rule that would be used to govern floor debate on H.R. 529 (the college savings plan bill) and H.R. 5 (the reauthorization of No Child Left Behind). Those two additional provisions in the Rule allowed the Leadership to bring any bill related to DHS funding to the floor under an expedited procedure – the first provision waived clause (6) of Rule XIII of the Rules of the House, the 2/3 vote requirement necessary to consider a report issued by the Rules Committee on the same day it’s introduced; the second provision made it in order for the Speaker to bring up a DHS funding bill under Suspension of the Rules, so they could bypass the committee process if necessary.
With their control of the floor – and their ability to move quickly – assured, House GOP Leaders responded to the Senate’s “clean” DHS funding bill by passing a motion to go to Conference with the Senate on their amended version of H.R. 240. Once they pass a motion to go to Conference, they can no longer take up the bill.
Why go to conference on the “clean” Senate bill? Because a conference report cannot be filibustered. House GOP leaders thought if they could go to conference with two competing versions of the bill – the House version, which contained the executive-amnesty-blocking riders, and the Senate version, which did not – they could add the blocking language back in conference, then send the conference report back to the floor of the House and the Senate for a simply majority vote. It would, presumably, have passed both Houses, and then be sent on to the President for his signature or veto.
Alas, Harry Reid didn’t get to be leader of the Senate Democrats because he’s an idiot. He knows the rules as well as anyone, and he recognized that House leaders were trying a legislative maneuver that would take power out of his hands. So he calmly rallied Senate Democrats to vote against cloture on the Senate’s motion to go to conference with the House, and informed Sen. McConnell of his party’s determination to fight a cloture vote on the matter. That vote will take place Monday afternoon at 5:30 PM. And again, Harry Reid will thwart the will of the majority in the Senate.
So the conference maneuver will not work, and House leaders knew it on Friday afternoon. But because they had already voted to send the amended version of the DHS funding bill to conference, there were unable to take it up again. So they had to find another way to avoid a temporary, partial shutdown.
Their brilliant idea was to punt for three weeks, by passing a 3-week Continuing Resolution for DHS. They seemed not to understand that when conservatives in their conference said they believed the President’s actions were unlawful and unconstitutional and would not, therefore, vote to fund them, it didn’t matter whether that meant funding for three weeks or three hours – they simply would not do it.
Leadership brought the 3-week CR to the floor anyway, in the hope that enough conservatives would blink. They didn’t. In fact, 52 House Republicans refused to vote for even temporary funding for DHS. Despite the leadership’s decision to hold the vote open for almost an hour while they sought more votes, the bill failed by a vote of 224-203.
That left Boehner in a real bind. He couldn’t go back to the Senate bill because he had already had the House vote to send it to conference with the Senate. And he had just proven to himself that he couldn’t move even a short-term CR with GOP votes. That meant he needed Democrat votes to get him over the top.
Luckily for him, he had had the foresight to move a Rule two days earlier that would allow him to bring any DHS funding measure to the floor under the Suspension Calendar. But because he was bringing it to the floor under a Suspension of the Rules, whatever new measure he would put on the floor would need the votes of 2/3 of the Members present and voting to pass – which meant he was really going to need lots of Democrat votes.
In the end, the bill passed by a vote of 357-60, with five Democrats joining 55 conservative House Republicans in voting against the measure. 183 Republicans and 174 Democrats voted for passage.
Nancy Pelosi told House Democrats in a letter she circulated Friday evening that under the terms of the deal she worked out with Speaker Boehner, if she rallied enough Democrats to pass a 7-day CR, they would get an up-or-down vote next week on the “clean” funding bill already passed by the Senate. Boehner’s spokesman specifically denied that any such deal had been cut.
But it turns out there’s an obscure provision in the Rules of the House that could allow the “clean” DHS funding bill to pass, without Speaker Boehner having anything to do with it. So it could well be that they are both telling the truth – no explicit deal has been cut, but the Democrats will get a vote on the “clean” bill next week.
This is more than a bit complicated, so I’m going to quote directly from Roll Call:
The Senate voted to amend the House-passed DHS funding bill — with immigration policy riders — and replace it with a “clean,” six-month spending bill. The House, in turn, voted to “disagree” with the Senate’s amendment to the House’s proposal, thereby sending the bill back across the Rotunda and requesting a conference committee (the theory being that, in that scenario, the House could negotiate with the Senate to reinsert some of the immigration riders back into a final product).
But Senate Minority Leader Harry Reid, D-Nev., had already rejected the notion of a conference.
Going to conference is debatable in the Senate, meaning the motion can be filibustered. Accordingly, the Senate is scheduled to hold what should be an ill-fated cloture vote Monday evening to limit debate on an agreement to go to conference with the House. If the Senate then returns the papers to the House, it could provide an opening for Democrats to test a seldom-invoked provision of the chamber’s rules.
Clause four of House Rule XXII (not to be confused with the more-often cited Senate Rule XXII) provides: “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.”
As the Congressional Research Service explains, “A chamber enters the stage of disagreement by formally agreeing to a motion or a unanimous consent request that it disagrees to the position of the other chamber, or that it insists on its own position.”
In other words, any House lawmaker, arguing that a conference scenario is moot and won’t be resolved before the clock runs out on the current extension of DHS funding, could take to the floor and move that the House recedes from its previous position and concurs in the Senate amendment.
Because such a motion is “privileged” that would then trigger a vote on sending the Senate-amended full year Homeland Security appropriations bill to Obama’s desk without any of those riders designed to block his executive actions on immigration.
So the question is, is there anything that can be done to prevent this? And the answer is “Yes, there is.” As the Roll Call article continues, “A determined House majority could also theoretically preemptively vote to suspend or amend Rule XXII via the Rules Committee to block the gambit.”
Yes, that’s pretty obscure. But it’s been done before, and in the not-too-distant past. In October 2013, when we were in the midst of our last temporary, partial government shutdown, the House GOP Leadership wanted to ensure that Speaker Boehner didn’t lose control of the floor. So they passed a resolution prohibiting anyone except the Majority Leader or his designee from invoking Clause 4 of Rule XXII.
All it takes is a simple majority vote – remember, in the House, 218 Members can do anything they want at any given time.
So we’ll know early in the week if the Speaker is really determined to deny funding, or if he’s just as happy to end this charade and let the President get the full and “clean” DHS funding bill he wants, so long as the Speaker doesn’t have to leave his fingerprints on it.
One last thing we like to ponder – why did that piece show up in Roll Call? Trust me, it’s not like some reporter for Roll Call is such an expert in the Rules of the House that he sees what’s going on on the House floor and writes it up himself. That piece showed up because someone WANTED it to show up. The question is, who? Who wanted us to read that piece?
Does it benefit Boehner to have us all be reminded that this obscure provision buried deep in the House Rules could get him off the hook? No, not really. In fact, if he were actually trying to maneuver with this sleight of hand, he would NOT want anyone to be aware of it before it’s too late to stop it.
Which means it most likely was planted by a Democrat staffer. But again, why? Publishing the article about the maneuver – and the way to block the maneuver – means there may well be an attempt to block the maneuver. Of course, that wouldn’t really bother Nancy Pelosi, because either way, it’s a win for her and House Democrats – either she gets the vote on the “clean” funding bill she wants, or House conservatives are given another reason to want war with their Speaker.
My best guess? It came from a Democrat looking to make trouble for Speaker Boehner.