Shutdown State of Play: What’s Really Going On?

CPI Staff — Sunday, August 19, 2018

In the midst of all the hysteria over a potential government shutdown, one particular question keeps popping up: why can’t the Republicans keep the government open if they have majorities in both chambers of Congress, and the White House?

The answer has to do with the nature of minority rights in the Senate. But more on that in a minute.

First, let’s talk about where things currently stand.

Late last night, the House passed a month-long funding bill (known as a Continuing Resolution). The bill funds the government until February 16 and reauthorizes the Children’s Health Insurance Program (CHIP) for six years.

The bill passed by a vote of 230 to 197, with nearly all House Democrats voting against it because it did not grant amnesty the 700,000 illegal immigrants currently protected under the Deferred Action for Childhood Arrivals (DACA).

Republicans have offered to negotiate on DACA with Democrats, but not as part of this overall spending bill. Instead, they have offered to address the issue separately, and do so with a policy that protects DACA recipients, in exchange for meaningful border enforcement.

Specifically, this includes an end to chain migration and money for a wall at the southern border. Interestingly, these are proposals that many Democrats, including the Democrat leader Sen. Chuck Schumer (D-N.Y.) have previously supported. (More details about that here.)

Democrats have rejected the offer by Republicans, and are demanding that Republicans provide amnesty for these DACA recipients in the funding bill, or they will vote against it.

Now, if Republicans have majorities everywhere, why can’t they simply pass what they want and get on with it?

In the House, Republicans can, and have. That’s because in the House, the majority rules. House majorities have incredible power to bend the minority to their will, with little consequence. Hence, the House has passed the funding bill.

The Senate, however, is a completely different animal. While the House can act quickly with an emphasis on the will of the majority, the Senate prioritizes the rights of the minority. As a result, a determined minority has the power to block most, if not all, legislative efforts by the majority. While at times this is frustrating, it’s intended to force compromise and negotiation. This is how the Founders intended it to be.

Senate rules allow the minority party to exert tremendous power, should they choose. This is why the Republicans cannot simply “pass a funding bill.”

One of the characteristics that makes the Senate unique is the feature of endless debate, also known as the filibuster. All senators have the power to filibuster, and when they do so in groups, they can grind the legislative gears to a halt.

To break a filibuster in the Senate, 60 votes are required (this is known as “achieving cloture”). It’s essentially a decision by the Senate to bring debate to a close.

However, in this current Senate, there are only 51 Republicans — not enough to break a filibuster by the Democrats, who have publicly stated their intention to filibuster the spending bill.

So, in order for a spending bill to pass the Senate, a minimum of nine of the 47 Democrats must vote in favor (assuming all Republicans vote for it).

By telegraphing their intention to withhold their support, Democrats are filibustering, knowing full well that their actions will result in a government shutdown.

Though the filibuster is considered an obstructionary tactic, it is a critical feature of minority rights in the Senate, and one that’s historically been used by both parties to protect their interests.

However, the filibuster is a tool that must be wielded carefully. Democrats certainly have the right to use it, but the larger question is, how patient will the voters be with them?

In persisting in a filibuster that, at this moment, looks likely to shutdown the government, they are taking a gamble that the voters will continue to indulge a shutdown over amnesty for illegal immigrants.

As the midterm elections approach next year, that question will likely soon be answered.