How the Government Shutdown Can End

David Super

      Although the federal government will not shut down for another five days, pretty much anyone who is paying attention has known for some time now that a shutdown is inevitable.  The machinations this week involve only Speaker McCarthy’s desperate efforts to salvage House Republicans’ abysmal public messaging.  Whether he succeeds or fails will have no impact on whether a shutdown occurs and may not even have much effect on the length of that shutdown.  The next logical questions, then, are how, when, and on what terms the shutdown will end.

     A quick review of how we got here is in order.  House Republicans threatened to force a default when the country reached the statutory debt limit in June, demanding policy concessions from Democrats.  President Biden negotiated such concessions with Speaker McCarthy, which included sharp cuts in the caps on annual appropriations for domestic programs.  Many progressives were harshly critical of the legislation codifying these cuts and of the President’s failure to circumvent or disavow the debt limit altogether. 

     The far-right House Freedom Caucus, however, was harshly critical of Speaker McCarthy for not having extracted far greater concessions and brought the House to a standstill by preventing consideration of some relatively routine legislation that they mostly supported.  To get them to relent, Speaker McCarthy renounced his agreement with President Biden and directed the Appropriations Committee to report out bills containing far deeper cuts in appropriations, particularly for domestic programs. 

     The House Appropriations Committee then spent its summer reporting out bills with extreme cuts conforming to Speaker McCarthy’s agreement with the Freedom Caucus.  These bills’ savage cuts ensured they would receive no Democratic support and made Republicans in swing seats exceedingly anxious about voting for them on the floor.  House Republicans managed to pass only one of the twelve annual appropriations bills:  for military construction and veterans’ affairs. 

     Speaker McCarthy tried and failed to bring the agriculture appropriations and defense appropriations bills to the floor, blocked by a handful of Freedom Caucus Members demanding still-deeper cuts or additional concessions.  These Members did not vote down the bills themselves:  they opposed the bill-specific “rules” that would have allowed the House to begin consideration of the bills.  Members voting down their party’s bills happens from time to time, but majority party Members preventing their party’s bill even from being considered is almost unheard of.  A few Republican opponents is all that was required to sink the rules because the extreme cuts in the underlying bills drove all Democrats to vote against them. 

     The Senate Appropriations Committee, by contrast, spent its summer writing appropriations bills that conformed with the Biden-McCarthy agreement and resulting legislation.  Appropriations in the Senate tend to be bipartisan anyway because they cannot move without the minority party’s acquiescence, but this was a particularly amicable year.  The Appropriations Committee reported out seven of the twelve bills unanimously, and among the five bills that drew dissent the closest vote was 24-4 in favor of the Homeland Security Appropriations bill.  Senator Ron Johnson (R-WI) has raised procedural objections to bringing these bills to the Senate floor, but it is clear all would pass overwhelmingly. 

     Therefore, the Senate has a complete set of bipartisan appropriations bills that conform to the Biden-McCarthy agreement and that, because they reflect Republican priorities, likely could garner significant House Republican support.  Although the Freedom Caucus and its allies would oppose the Senate bills precisely because they conform to the Biden-McCarthy agreement, willing Republicans plus near-unanimous Democratic support would be enough to pass them.  The Administration has some real complaints with these bills, including their short-funding the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), but the President likely would sign them.  By contrast, many of the House bills cannot even pass the House and would be rejected out of hand by Senate Democrats and the President both on the merits and because they renege on Speaker McCarthy’s deal of a few months ago.  (Because everyone is a repeat player and deals are essential to accomplish anything, nobody can or does tolerate reneging on deals without regard to the merits.)

     Passing the Senate appropriations bills therefore is the obvious solution to the government shutdown.  No further negotiations or midnight legislative drafting would be required.  Indeed, this could all be done this coming week, preventing a government shutdown before it starts. 

     This all seems sounds very simple – and on a purely mechanical level it is – but politically it is not.  Earlier this summer, as part of its price for lifting their blockade of the House floor, the House Freedom Caucus got Speaker McCarthy to promise not to bring fiscal legislation to the floor that would require Democratic votes to pass.  This agreement, combined with the House Freedom Caucus’s Members resistance to voting even for bills that capitulate to their demands, has left the House apparently unable to move further appropriations bills. 

     The government shutdown therefore cannot end until enough House Republicans become sufficiently alarmed about voters’ anger that they fear losing their seats in the general election more than they fear losing primaries to far-right allies of the Freedom Caucus.  At that point, those frightened Republicans’ votes, along with those of all Democrats, would be enough to pass the Senate appropriations bills or something very similar.  Unfortunately, these vulnerable Republicans are sufficiently inexperienced, and sufficiently scared of being primaried, that veteran Republicans’ warnings about the dangers of a government shutdown have been insufficient to get them to act now. 

     We can hope that the voters’ anger becomes apparent quickly after the shutdown begins.  Few observers will have any doubt about whom to blame:  House Republicans want to breach an agreement they made only a few months ago, they are unable to pass more than one appropriations bill, and so far Freedom Caucus Members have also blocked even a far-right version of a continuing resolution (CR) to keep the government open. 

     Even if Speaker McCarthy succeeds in passing a CR that meets his colleagues’ ever-escalating demands, it will be so extreme that it will garner no serious consideration in the Senate.  For any CR to become law, it would have to be a simple, straight-line extension of existing funding – which the House Freedom Caucus would never accept.  So the CR he is struggling mightily to pass through the House will have no effect on whether a government shutdown occurs.  With several Freedom Caucus Members and now former President Trump expressing an affirmative desire for a government shutdown, it should not be surprising that one has become inevitable.  Speaker McCarthy knows this but is hoping desperately that the House passing a CR, even an absurd one, will prevent quite so many voters from blaming Republicans for the crisis.  Reporters treating the possible passage of the extreme House CR as a real step toward preventing the shutdown seem desperate to find suspense and drama where none exists. 

     It is instructive that few Republican senators, apart from Sen. Johnson, have done anything at all to support House Republicans in this fight.  Indeed, those on the Appropriations Committee have actively undermined the House Freedom Caucus by moving bipartisan spending bills.  Clearly Senate Republicans are hoping that House Republicans will feel the heat quickly enough that they fold before voters start to blame the party as a whole. 

     How legislation based on the Senate appropriations bills could reach the House floor even once it has the votes to pass is another question.  Speaker McCarthy gave three of the nine Republican seats on the Rules Committee to Freedom Caucus Members and allies, which is enough to prevent action if, as is customary for minority Members, all four Democrats vote “no”.  But a clean CR or legislation adopting wholesale the Senate bills should be something Democrats could support. 

     If Speaker McCarthy does instruct his loyalists on the Rules Committee to advance appropriations legislation depending on Democratic support, the House Freedom Caucus will almost certainly file a motion to vacate Speaker McCarthy’s chair.  His fate then would depend, again, on the Democrats, who can probably save him if they abstain on the motion to vacate. 

     Some commentators have suggested that House Republicans who fear general election voters could circumvent their Speaker, who fears the Freedom Caucus.  In theory, these dissident Republicans would do this by filing a “discharge petition” to bring to the floor bipartisan appropriations legislation.  The problem with this route is time:  House Rule XV.2 allows discharge petitions only for bills that have been stuck in committee for 30 legislative days or to force the Rules Committee to send to the floor special rules for consideration of bills when it has been sitting on a proposed special rule for at least seven legislative days and the underlying bill has either been reported out of a committee or has been stuck in committee for 30 legislative days.  Thus, to discharge legislation to enact the Senate Appropriations Committee’s twelve bills, someone would have to introduce such legislation (which nobody has as of yet), wait well over a month (as not every calendar day is a legislative day), file a resolution to create a special rule bringing that legislation to the floor, and then wait more than a week until it becomes timely to discharge that resolution from the Rules Committee.  That discharge petition would need to be signed by at least five Republicans and all Democrats.  Some creative interpretations of the rules might expedite that process, but Speaker McCarthy is not without capacity to influence the parliamentarian’s rulings on those interpretations. 

     Therefore, as a practical matter, the government shutdown will end when Speaker McCarthy determines that Republicans have angered voters so much that continuing the shutdown is more frightening than angering the House Freedom Caucus by reaching a deal with the Democrats.  He will need Democratic votes for a continuing resolution, Democratic votes for final appropriations legislation, and Democratic abstentions to retain his gavel after he makes a deal on appropriations.  The government shutdown will last until the Speaker accepts that reality.  We have never had a government shutdown where the substantive terms of the resolution were more clearly apparent from the start.  But that does not mean it may not last for a while until enough of his Members put the Speaker into a box he cannot escape.

     @DavidASuper1