http://blogs.rollcall.com/218/house-rule-boehner-dhs-appropriations-shutdown/How Obscure Rule Could Give Boehner a Way Out of DHS Mess
By Niels Lesniewski and Emma Dumain
Posted at 4:37 p.m. Feb. 28
A provision tucked deep in the House rulebook could provide the way out of the Homeland Security funding mess for Speaker John A. Boehner — without the Ohio Republican actually having to do anything.
With the Ohio Republican facing rumblings of a full-scale revolt from within the ranks should he put a funding bill on the floor that doesn’t explicitly block implementation of Obama’s immigration executive actions, there was talk Friday night from senior House Democratic aides of Republicans having found a face-saving procedural gambit that would ultimately end in full funding for DHS for the remainder of the fiscal year.
The bottom line is any House Democrat could have the power next week to force a vote on a clean DHS bill.
Here’s how:
The Senate had voted to amend the House-passed DHS funding bill — the one 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 that the motion can be filibustered. Accordingly, the Senate is scheduled this Monday evening to hold what should be an ill-fated cloture vote 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.
Paragraph 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 President Barack Obama’s desk without any of those riders designed to block his executive actions on immigration.
“Your vote tonight will assure that we will vote for full funding next week,” House Minority Leader Nancy Pelosi, D-Calif., wrote in a Friday evening Dear Colleague letter to her fellow Democrats, encouraging them to support a one-week Homeland Security CR.
If it were to prevail, Democratic aides told CQ Roll Call that Republicans think the plan could protect Boehner from blame that he “caved” to his party’s moderates. Boehner and his allies could just point to House Rules and parliamentary procedure, however obscure and arcane, to explain what just occurred ostensibly beyond his control.
It would still require a majority vote of the House, and therefore would require dozens of Republican votes and likely at least the tacit approval of House leadership. A determined House majority could also theoretically preemptively vote to suspend or amend Rule XXII via the Rules Committee to block the gambit.
On Friday night, Boehner’s spokesman, Michael Steel, denied that the speaker had made any promise to Democrats that the Senate’s clean, six-month funding bill would get a vote in the coming week.
He reiterated on Saturday that there was no deal to pass the Senate bill.
“There is no ‘deal’ or promise to pass the Senate bill in the House if Senate Democrats block a motion to go to Conference. We believe a Conference is the right, regular order way to resolve differences in House and Senate-passed bills under the Constitution.”
A senior House Republican aide told CQ Roll Call that while the procedural framework for getting a clean DHS vote sounded right, it was incorrect to say that this was Boehner’s explicit escape hatch for avoiding a mutiny.
There is no such plan in the works, the aide insisted.
