If the government shutdown is going to end any time soon, it seems likely that the vehicle of its demise will be a clean continuing resolution, a bill that would fund the government temporarily without defunding Obamacare. The Senate has already passed such a bill; the vast majority of House Democrats support the plan, as do 22 moderate Republicans.
Those numbers should be enough for the bill to pass the House. House Speaker John Boehner claims a clean CR would not have the votes his chamber. It should be fairly easy to see whose calculation is right: Let the congressmen vote, and see what happens.
Not so fast. Under House procedures, the speaker controls what bills get voted on—meaning Boehner can keep the clean CR from coming to the floor. This is mostly for political reasons; if Boehner, who professes to want the shutdown to end, defied the rank and file of his party, his position as speaker could be jeopardized.
So Boehner has invoked an odd procedural tradition. It’s called the Hastert Rule, and it’s not actually a rule at all, and former Speaker Dennis Hastert has disavowed it. The idea is for speakers only to allow votes on bills that have the support of a majority of the chamber’s majority party. It’s a way to avoid upsetting the people responsible for keeping the speaker in office. In other words, the Hastert Rule is just a way for Boehner to make his selfish political hacking sound like he’s following a rule over which he has no control. He’s not.
There could be a way for Democrats to force a vote despite Boehner’s allegiance to the Hastert Rule. They could collect votes for something called a discharge petition. If a majority of Representatives sign on to the petition, a bill could be brought up for a vote even if the speaker said no.
There are two problems here: First, there’s no guarantee that Democrats could muster together the 218 votes necessary for the discharge petition. Some Republicans who support a clean CR might not be willing to go so far as to vote to enable a vote on a clean CR. They want to end the shutdown and are willing to break ranks to do so, but they won’t go so far as to undermine their own speaker.
Also, filing a discharge petition is not exactly a quick process. Once a majority have voted for the petition, the bill in question goes to the House’s discharge calendar, from which bills are removed only twice every month. By one count, the soonest a clean CR could reach the floor after a discharge resolution would be November.
Democrats seem to have found a loophole to solve that problem. Instead of filing a discharge petition for the clean CR the Senate has already passed, they would use the Government Shutdown Prevention Act, a bill introduced by Republican Congressman James Lankford in March. They would then amend that bill to make it look like the Senate’s clean CR. Democratic House leaders say this method could lead to a vote on October 14th.
Discharge petitions aren’t all that common. To find the last successful one, we have to look all the way back to 2002 when Democrats forced a vote on the McCain-Feingold campaign finance reform bill. The defied speaker at the time was one Dennis Hastert.