January 25, 2019

As the partial lapse-of-appropriations government shutdown gets ready to enter its fifth week – and with today marking the second consecutive paycheck that many federal employees have missed – Congressional leaders appear to have made the first real progress yesterday in negotiating a possible end to the shutdown, after the U.S. Senate proved that neither the current Republican plan nor the current Democratic plan for ending the shutdown have the 60 votes necessary to pass.

Yesterday, the Senate held dueling consecutive votes on “side-by-side” Republican and Democratic proposals. The Republican proposal was an omnibus appropriations bill that also included $12.7 billion in disaster funding, $5.7 billion in emergency funding for a U.S.-Mexico border wall, and several immigration policy changes. A vote to invoke cloture and shut off debate on that proposal failed by a vote of 50 yeas, 47 nays (60 yeas being necessary). Only one Democrat, Joe Manchin (WV), voted for the Republican proposal, while two Republicans (Tom Cotton (AR) and Mike Lee (UT)) voted against it. Senators Rand Paul (R-KY), Jim Risch (R-ID), and Jacky Rosen (D-NV) missed the vote.

Then the Senate immediately voted on a motion to invoke cloture on the Democratic proposal, which was just the $12.7 billion in disaster funding and a three-week continuing resolution for all agencies, reopening the government and keeping it open until February 8 (and providing back pay, which has already been authorized by law and which will occur once the government reopens). That motion failed by a vote of 52 yeas, 44 nays, with Republicans Lamar Alexander (TN), Susan Collins (ME), Cory Gardner (CO), Johnny Isakson (GA), Lisa Murkowski (AK), and Mitt Romney (UT) joining all Democrats (except Rosen) in favor. (Richard Burr (R-NC) also missed the second vote along with Paul, Risch and Rosen.)

Former Congressman Frank Annunzio (D-IL) was famously quoted in John M. Barry’s excellent The Ambition and the Power (Viking Books, 1989) describing his “Annunzio Rule” on how Congress works: “The only thing that matters around here is votes, votes, votes. Everything else is bullshit.” There really is no substitute for holding a roll call vote to prove, or disprove, conclusively that a proposal has the votes to pass. On many occasions the Senate has held side-by-side votes on competing proposals with the express purpose of demonstrating that neither one can get the necessary number of votes, because a lot of people apparently refuse to believe that their idea can’t pass until it is conclusively proven. Only then can negotiations to find a middle ground gain traction.

Accordingly, after the votes yesterday, Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Chuck Schumer (D-NY) actually sat down in McConnell’s office and discussed possible ways to end the shutdown. Early discussions centered around what could be added to the three-week CR that could gain Senate, House and presidential approval. White House press secretary Sarah Sanders tweeted yesterday afternoon that “Leader Mitch McConnell and Senator Chuck Schumer are meeting now to see whether or not they can work out of the deadlock. As was made clear to Senator Lindsay Graham, the 3 week CR would only work if there is a large down payment on the wall.”

But House Democrats this morning canceled a scheduled news conference at which they were going to announce their own plan for funding the Department of Homeland Security (with additional border security funding) for the rest of fiscal 2019. Finding any compromise that will allow the President to save face but which will also pass muster with House Democrats is expected to be difficult. The House passed three more shutdown-related appropriations measures this week:

• A “clean” CR (H. J. Res. 28) funding all unfunded departments through February 28, passed by a roll call vote of 229 to 184 (223 D’s and 6 R’s in favor, 183 R’s and 1 D opposed).
• An omnibus appropriations bill (H.R. 648) funding all unfunded departments except DHS through September 30, passed by a roll call vote of 234 yeas, 180 nays (224 D’s and 10 R’s in favor, 179 R’s and 1 D opposed).
• A “clean” CR (H. J. Res. 31) funding DHS only through February 28, passed by a roll call vote of 231 yeas, 180 nays (226 d’s and 5 R’s in favor, 179 R’s and 1 D opposed).

The handful of Republicans who vote with Democrats on measures to reopen government changes, but usually includes current Energy and Commerce ranking member Greg Walden (R-OR), former Energy and Commerce chairman Fred Upton (R-MI), and a few other members in swing districts. This time, one of the “yea” votes on H.R. 648 was Mike Simpson (R-ID), who had promised during debate on a previous bill that he would vote for an alternate version that included the truck size/weight limit waiver for sugar beet trucks going between Idaho and Oregon. H.R. 648 contained the waiver language, so Simpson had no choice but to vote yes.

The lone Democrat opposing the measures to reopen the government was Alexandria Ocasio-Cortez (D-NY), who says she will vote against any legislation that provides any funding whatsoever for Immigration and Customs Enforcement.

The GOP did have success peeling off a few Democrats for their amendment to provide full pay (current and back) for all federal workers without actually reopening the government. That amendment, in the form of a motion to recommit H.R. 648, only failed by a roll call vote of 200 yeas, 215 nays, and got ten Democrats to support it.

The House and Senate are now largely gone for the weekend and are scheduled to return Monday.

The effects of the shutdown on transportation became more visible today with air traffic controller staffing problems forcing significant delays at New York LaGuardia, Newark, and Philadelphia airports this morning. Transportation Security Administration sick-out rates are more than twice normal.

And Atlanta is bracing itself for what is expected to be a massive TSA sick-out one week from Monday – the day after Super Bowl LIII will be held in that city, and the day on which everyone who went to the game is expected to fly home out of Hartsfield International Airport (well, except for the people rich enough to take private planes, which generally leave out of DeKalb-Peachtree Airport). People in a position to get Super Bowl tickets tend to be richer and more prominent than regular people, and the sight of all of then stuck a TSA security line at Hartsfield for six or eight hours, tweeting their frustration, would be the most high-profile shutdown-related event to date.