House Democrats’ Discharge Petition Faces Uphill Climb

An unorthodox move by three top House Democrats to use the tool called a discharge petition to force a House vote on the Senate-passed spending bill and end the shutdown is being greeted skeptically by parliamentary experts and Republican congressional staff interviewed by Government Executive.

Announced on Friday as a “new path forward,” the “Open the Government” plan trumpeted by House Budget Committee ranking member Rep. Chris Van Hollen, D-Md., is a resolution sent to the House Rules Committee that would allow an up-or-down vote on a clean continuing resolution, consistent with the funding levels passed by the Senate, if a majority of House Members sign onto a discharge petition.

It comes at a time when some 22 House Republicans, according to news outlets, have confirmed that they might be willing to break from their party leadership and end the shutdown by voting for the Senate-passed stopgap spending bill without controversial amendments.

Chamber rules allow such petitions -- if sponsors amass 218 signatures -- to bypass the House speaker to bring to the floor a bill that is stuck in committee. The rules, however, are complicated, requiring that such petitions apply only to bills that were introduced at least 30 days previous and which then must sit for seven days before backers can act.

Van Hollen --  joined by Appropriations Committee ranking member Rep. Nita Lowey, D-N.Y., and Education and the Workforce ranking member Rep. George Miller, D-Calif. -- has gotten around the 30-day requirement by attaching, as of Oct. 4, the resolution to a CR introduced last March by Rep. James Lankford, R-Okla., called the Government Shutdown Prevention Act. The Democrats' plan calls for a petition open as of Oct. 11 to bring Lankford’s bill to the floor and substitute the Senate-passed continuing resolution, which could be done by Oct. 14, they reason, after the seven-day wait.

“The only thing standing between this Congress and an open government is Speaker [John] Boehner’s refusal to allow a vote on a clean continuing resolution,” Van Hollen said. “This measure can remove the speaker’s undemocratic roadblock and finally allow a clean vote in the House of Representatives to open the government.”

Miller added that “there is a growing number of Republicans who want the opportunity to work with us to end this crisis. We have seen it in press reports. And I have heard it in my own private conversations with my Republican colleagues.”

The work-around, however, may be flawed, according to Sarah Binder, a senior fellow in governance studies at the Brookings Institution and professor of political science at The George Washington University. “There’s a timing issue because you have two legislative-day waiting periods,” she said. The first seven-day wait began on Oct. 4 with the resolution proposing a rule sitting with the Rules Committee, she said. So if the Democrats succeeded in gathering 218 signatures, fine, they could discharge the rule from the committee. But then it has to sit on the Discharge Calendar for another seven days, Binder said. Oct. 11 to 14th is only three days, she notes, plus another House rule requires the petition to await the fourth Monday of the month, which means Oct. 28.

“I think it’s moot,” Binder said. “I would like to believe we live in a world where government will be funded by Oct. 28.” She said she is puzzled as to why the Democrats didn’t draft a different rule that would have shortened the second seven-day waiting period. “It seems they’re stuck,” she said.

Also skeptical is Muftiah McCartin, former House associate parliamentarian now of counsel to the law firm of Covington and Burling. “This is a way for the Democratic leadership to deflect from the fact that they didn’t go along with the rifle shots,” or the House Republicans’ moves in recent days to pass individual appropriations bills, she said. 

But trying to "push a clean continuing resolution is more important as their way to push the conversation forward,” she added. “Their timing was brilliant in that a lot of mainstream Republicans were kind of quiet, and this tells them to put up or shut up. But does this have a chance in hell of getting 218 signatures? Heck no. But it will move the conversation along because practically speaking those 20 or so mainstream Republicans would go to Boehner and say, 'I’m getting a lot of pressure in my district to sign the petition, so you need to end this and end it now.' ”

The reasonable Republicans, McCartin added, would act in private closed-door meetings. “They are not going to throw Boehner under the bus.”

Asked for comment, spokesmen for House Republican leaders referred to previous statements from Budget Committee Chairman Rep. Paul Ryan, R-Wis., and Appropriations Chairman Rep. Hal Rogers, R-Ky., calling on Democrats to accept the Republican offer to resume budget negotiations while the government remains closed. “The Appropriations Committee does not support automatic continuing resolutions,” said Communications Director Jennifer Hing. “It is critically important that individual, annual appropriations bills be considered and approved in regular order, to provide good governance and to ensure the wise use of each and every taxpayer dollar.”

Asked about the Democrats’ use of his bill, Lankford told Government Executive, “It’s a little ironic in that they’re looking for some bill that’s germane, but I have yet to hear their support for the bill itself. The bill is the Government Shutdown Prevention Act, so this is a little like buying car insurance right after you just wrecked your car.”

Lankford added that given the games that both parties have played over shutdowns, he’d like to find a way to create new incentives other than the current law to get the appropriations process back on track. “I would be pleased to have those Democrats as cosponsors, but so far they are not,” he said.

Matt Dennis, a spokesman for House Appropriations Committee Democrats, said, “The longer we go on without Boehner acting, the more damage is being done to economy and vulnerable Americans.” But he acknowledged the uncertainty of the discharge effort. “All the Democrats who were party to it would tell you very honestly that this is not ideal,” he said. “But this is the mechanism that’s available. The speaker could put the Senate bill on the floor immediately and end the shutdown.”