Border funding bill highlights the problem of ‘the Senate keyhole’

One of the frequent procedural arguments made to House members is the inevitability of accepting legislation approved by the Senate. Such is the case with the pending border security bill. With the July 4^th deadline looming and the disgraceful humanitarian crises on the border mounting, Majority Leader Mitch McConnell (R-Ky.) threatened to tank the legislation unless Democrats in the House capitulate to the Senate version. And capitulate, the House did.

In such situations, senators “apologetically” point to the long delays under Senate rules required to overcome such procedural obstacles. Particularly in urgent situations, the Senate unfailingly employs the tactical argument, to the aggravation of House members: If you want your policy enacted, House members are lectured, you need to fly through the Senate keyhole.

The challenge facing House leaders is infinitely more problematic when members of the majority refuse to stand up for their own bill. In the case of the border security package, moderate Democrats, led by Rep. Stephanie Murphy of Florida, threatened to kill the House’s response to the Senate’s bill, leaving no option but to let the bill die or take the Senate package.

Nancy Pelosi (D-Calif.) has been here before. During the furious negotiations over the TARP financial rescue package in September of 2008, a combination of conservative and liberal Democrats recoiled from the costly rescue legislation; Blue Dogs argued it was too expensive and unpaid for, while liberals, including leading members of the Congressional Black Caucus, balked because it contained too little assistance for homeowners facing foreclosure. They did not want to go home to explain they had voted over $700 billion for the financial institutions that caused the meltdown but pennies for its victims.

The first TARP vote in the House on September 29 failed 205-228, in part because of Democratic defections and in part because Republican Leader John Boehner (R-Ohio), who termed the bill a “crap sandwich” on the House floor, could not deliver enough Republicans. The House failure gave the Senate leverage to add on $150 billion in unrelated tax extenders the House had opposed, and the overloaded Senate version arrived back at the House with a warning that no other version could pass the Senate in time to avert a catastrophic fiscal crisis.

Majority Leader Steny Hoyer (D-Md.) was livid. “We’re being told it’s ‘our way or no way,’” he bristled, declaring himself “a very unhappy camper” because of the way “the Senate jams us.” Pelosi acknowledged her members had “enabled” the Senate by voting down their own bill. Within a day, the House faced reality and capitulated to the Senate version, including the unpaid-for tax extenders.

The House faced a similar ultimatum a year later when the Senate passed a version of the Affordable Care Act that was anathema to many House members and key supporters, especially organized labor. Once again, however, Majority Leader Harry Reid (D-Nevada) pleaded with Pelosi to accept the Senate version, which had been passed with the razor-thin 60 votes thanks to the support of Massachusetts Sen. Paul Kirk who was temporarily replacing the late Ted Kennedy. But a few months later, Kirk had been replaced by Republican Scott Brown, costing Democrats their 60 vote supermajority. Reid told Pelosi it was now impossible to pass the House’s version of the ACA, leaving the House no alternative but to accept the Senate’s admittedly flawed bill.

This time, the House leadership dug in. An agreement on a budget resolution allowed Reconciliation instructions to be passed by a simple majority of both houses, obviating the need for a Senate supermajority and clearing the way for the House to pass a Reconciliation bill to clean up the Senate version. But the parliamentarians declared that the Senate bill must first be enacted in order to be amended by the Reconciliation bill, meaning the House must pass the disputed Senate bill and then trust the Senate to take up the Reconciliation corrections bill. Reid pledged to Pelosi that he would secure the signatures of 51 Democratic senators to prove the two-step process would proceed, but it was still a challenge to win support from a Democratic Caucus that was understandably skeptical the Senate would follow through in good faith. It did, however, in a little-understood aspect of the ACA’s historic journey through Congress.

The current challenge shares these familiar themes, although resolving the dispute is more difficult because control of the two houses today is in the hands of different parties. At least during the TARP and ACA dispute, Democrats were in the majority in the House and Senate, and there was a reasonably good level of trust between the respective leaderships. Needless to say, such comity is a distant memory among the current membership.

In addition to the policy questions involved in the border-funding bill, however, is this significant underlying institutional question: If the Senate refuses to abandon the “filibuster defense,” how does the majority-run House defy the heavy hand of the supermajority-run Senate?

If members of the House majority do not appreciate that their resistance to the House legislation empowers not only the Senate, but also the opposite party, then the House truly risks becoming not simply the “lower chamber” but the disempowered one as well.

John A. Lawrence, former chief of staff to Speaker Nancy Pelosi, is the author of “The Class of ’74: Congress After Watergate and the Roots of Partisanship” and a Fellow at George Washington University’s Graduate School of Political Management. Follow him on Twittter @JohnALawrenceDC.