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How did Congress avert a shutdown?

Just-in-time legislating is Congress’s specialty.

- October 2, 2023

With less than an hour to spare before the start of the federal government’s new fiscal year, Pres. Biden signed a spending bill into law early Sunday morning to keep government lights humming until November 17. Prediction markets had pegged the chances of a shutdown as high as 90 percent on Friday night. So Congress’s last-minute agreement caught many by surprise.  

But in some ways, the outcome was predictable. Here’s why.

Just-in-time legislating

In an era of heightened partisanship, legislating at the brink is a staple of congressional politics: The legislative game, Yogi Berra might have said, “ain’t over till it’s over.” Majority party leaders can’t throw in the towel until the 11th hour because their own partisans – especially hardline factions – would blame them for giving in too soon.  

What’s more, House leaders typically aim to build coalitions with the votes of fellow partisans. (In contrast, Senate rules usually require a supermajority to cut off debate, leading the majority to reach out much earlier for support from the minority.) Why are House leaders loath to engage the minority party? In today’s Congress, even when a party is factionalized, intra-party cleavages usually pale in comparison to disagreements with the other party. That means leaders have to demonstrate to their partisans that they’ve tried everything they can to reach consensus before giving up to lean on minority party votes.  

Over the past month, GOP leaders struggled to write a stopgap bill (known as a “CR,” shorthand for continuing resolution) that could be passed with only Republican votes. And when leaders finally brought a CR to the floor two days before the start of the fiscal year, GOP hardliners tanked it – even though the bill met their demands for much lower spending and tougher border controls. Many thought this made a shutdown inevitable. In fact, the 20-plus renegades pushed their luck too far. A broad swath of House Republicans favored keeping the government open, not least to avoid bearing the political blame for an unpopular shutdown.

That failed vote near the deadline paved the way for House Speaker McCarthy (R-Calif.) to advance a CR that Democrats would vote for – knowing that they too did not want to risk being blamed for provoking a shutdown. True, Republicans dropped a key House and Senate Democratic priority to continue funding for Ukraine to counter Russian aggression. But Democrats extracted a price for their votes: Republicans abandoned the hardliners’ spending and immigration demands. In other words, the obstruction by hardliners on the right actually helped Democrats pull policy to the left. No wonder every Democrat (save one) voted for the CR.

Plain vanilla rules sufficed

For weeks, close Congressional observers speculated that Democrats could exploit arcane (at least to most normal people) House rules to circumvent McCarthy’s grip on the House floor agenda. If successful, these procedural tactics would force the House to vote on a bipartisan CR to keep the government open and keep funding to Ukraine flowing. 

One idea floated suggested Democrats try to convince five swing-district Republicans to sign a so-called discharge petition, a rarely successful rule that might allow Democrats to bring a stopgap bill to the floor over McCarthy’s objections. Others observed that the same cross-party coalition could take control of the floor agenda by defeating a key procedural vote and then proposing a rival stopgap CR more favorable for Democrats. 

Fancy procedural tricks did not rule the day. This makes sense. To succeed, that handful of swing-district GOP representatives would have had to break party ranks to ally with Democrats. Such disloyalty is unlikely in today’s partisan Congress, disarming the threat to undermine the speaker’s control of the agenda. True, Republican hardliners defeated an unprecedented number of rules this past year, fracturing the speaker’s de facto control (what political scientists call the speaker’s procedural majority). Their disloyalty did not win the renegades much love from fellow GOP. 

Instead, the Republican leadership relied on a plain vanilla, frequently used House procedure to “suspend” House rules and pass the stopgap CR. Bills considered via suspension require a two-thirds vote for passage, which posed a potentially high hurdle for Republicans given their slim majority. But measures considered via suspension can come to the floor immediately without any prior procedural vote, which hardliners might have defeated. So GOP leaders crafted a CR that would be amenable to Democrats and brought it up by suspending all other House rules. It passed 335-91; more Democrats than Republicans voted for it.  

Minority party power

The House minority party did not need fancy procedural tricks to wield power. Instead, it stuck together and opposed the GOP at nearly every turn. Indeed, adoption of a CR favorable to Democrats reminds us how partisan polarization can increase the leverage of the House minority party. True, House rules remain stacked against the minority party. But the minority can wield power in partisan times by voting as a bloc against the majority.

How so? Democrats voted in lockstep against GOP efforts to build chamber majorities for their off-center positions, such as limiting access to an abortion drug. In doing so, Democrats forced Republicans to shoulder the full burden of these and other positions. And when Republicans themselves splintered on many of these votes, lockstep Democratic opposition kept the spotlight on Republicans. That Democratic cohesion essentially allowed them to set the price for their votes on the CR: GOP leaders had to meet most of the Democrats’ demands to dodge a government shutdown. 

Rocky road ahead

Congress is not out of the woods. Lawmakers still need to complete a dozen spending bills by November 17, or find the votes to kick the can down the road for a few more weeks. 

Most lawmakers will want to reach a deal on the spending bills by January 1. Under this spring’s Fiscal Responsibility Act, if any part of the government is still funded by a CR on January 1, gears start turning to impose (by the end of April) a 1% cut in all federal discretionary spending – both defense and domestic spending alike. Leaders in both chambers will surely need to sideline GOP hardliners again to reach a deal. 

Is McCarthy out of the woods? Rep. Matt Gaetz (R-Fla.) has threatened to offer a resolution this week to depose McCarthy. Success would be unprecedented. And once again, how Democrats vote – or if they vote at all – would likely help shape McCarthy’s fate. What price might Democrats’ demand for their support? Stay tuned.