Susan Walsh/AP file photo

Analysis: Pry a tax hike from the House?

Rarely used century-old rule could come into play as lawmakers try to avoid fiscal cliff.

With so many clairvoyants gaming out scenarios for avoiding the fiscal cliff, there’s one route available to Congress that has received little attention: the discharge petition.

A century-old House rule permits rank-and-file lawmakers, if they are frustrated that leaders refuse to bring a pet bill up for a floor vote, to gather signatures to pry the legislation out of committee. A majority of 218 names is required for success and it can anger the leadership, which is why the procedure is used so rarely.

There are five such petitions currently pending in the House, according to the Office of the Clerk. This July, Budget Committee ranking member Chris Van Hollen, D-Md., launched one to force the Judiciary Committee to disgorge a campaign finance disclosure bill, but it attracted only 167 signatures. And in September, Rep. Bruce Braley, D-Iowa, introduced this type of petition to force the stalled farm bill out of the Agriculture Committee, but drew only 67 names. A discharge bill from Rep. Mark Critz, D-Pa., on China’s currency policy introduced in June 2011 topped out at 179.

The most logical vehicle for a petition during the current lame-duck session is a House version of S. 3412, introduced by Senate Majority Leader Harry Reid, D-Nev., to extend the George W. Bush tax cuts for the middle and lower tax brackets but not for the wealthy. It passed the Senate, 51-48, in July and was endorsed by the White House. House Republicans, as expected, declined to take it up -- objecting on the merits, but also noting the Constitution requires revenue bills to originate in the House.

What are the odds of a House version of this legislation being the subject of a discharge position? The office of Minority Leader Nancy Pelosi, D-Calif., declined to comment at this early stage of the in-progress budget talks. Braley’s spokesman said his boss has not considered a petition for the tax bill. But a Ways and Means minority spokesman told Government Executive that Democrats “will put pressure on Republicans at every turn to pass the Senate tax bill.”

The chances of invoking the discharge tool in this fall’s fiscal cliff drama are “slim to none as of now,” said Norm Ornstein, longtime congressional observer and resident scholar at the American Enterprise Institute, though he doesn’t rule it out.

Given that there are currently only 193 House Democrats, petitioners would need at least 25 Republicans to sign, and “there aren’t many Republicans who haven’t signed the anti-tax pledge,” Ornstein said. Many are worried about a primary challenge from their right.

Still, he ventured a scenario in which the rarely used procedure could come into play. Say, as the January deadline approaches, the Senate were to find, for example, 70 votes in favor of a bipartisan “grand bargain” deal. It could be one containing the $1.2 trillion in spending cuts and other components advocated by the bipartisan business group Fix the Debt, he said. If House Speaker John Boehner, R-Ohio, refused to bring that bill to his chamber’s floor, “there would be a major public backlash” that might make a discharge petition an option, Ornstein said.

A more skeptical take was offered by Muftiah McCartin, a special counsel at the Covington and Burling law firm and a former House parliamentarian and Rules Committee staff director. She sees a discharge petition as a “futile exercise for Democrats” because the resistance in the House comes more from the rank-and-file than from Boehner, who appears “more likely to compromise,” she said. “He doesn’t have a strong whip operation.”

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