The Fear of Losing Can Trigger New Troubles

Posted March 7, 2011 at 4:37pm

Last month, House Democrats gleefully pounced on majority Republicans’ loss of two bills under suspension of the rules (and the pulling of another) as a sign of “disarray” in GOP ranks. Disarray is a sign minority parties like to pin on majorities’ backs when they temporarily lose control of their agenda.

The suspension of the rules procedure is usually reserved for noncontroversial matters because no amendments are allowed and a two-thirds vote is required for passage.

Since it is obvious some minority support is needed to pass such measures, why would the majority even think of scheduling a bill it might lose under the suspension process?

The simple answer is that they miscalculate. But the actual answer lies in a sometimes risky assumption that they will be able to peel off enough minority votes to win and thereby avoid the grief associated with alternative means of consideration. These include allowing Members to offer amendments under an open or structured amendment process, or imposing a no-amendment rule, but still being embarrassed by a clever minority amendment in its guaranteed motion to recommit.

The suspension route seems on its surface to be a worthwhile risk-avoidance gamble. After all, even if a bill doesn’t get the two-thirds vote necessary, it can still be brought back under a special rule either allowing amendments or not. Put another way, the majority is often more willing to risk a procedural loss under suspension than suffer more substantive losses if minority amendments succeed.

Another reason the majority might schedule a risky bill under suspension is that it is new to the game and doesn’t think it necessary to whip a bill before scheduling it. It is easy to fall into the circular logic that if a bill is scheduled under suspension, Members will think it is noncontroversial and therefore can’t lose — as if “suspension” is a Pavlovian response term that automatically triggers pushing the green button on the House electronic voting machine.

Last month’s defeat under suspension of a bill to extend three expiring provisions of the USA PATRIOT Act seems to fit both the above explanations. The new leadership appeared to assume that a simple nine-month extension bill would be no problem. After all, last year 315 Members, including 162 Democrats, voted for a one-year extension of the act, while only 87 Democrats and 10 Republicans voted against. The motion to agree to the Senate’s short-term extension was offered by then-Judiciary Chairman John Conyers (D-Mich.) with a promise to more thoroughly re-examine the act before the next expiration.

This year, the bill had 277 votes under suspension, just seven short of the two-thirds needed, with only 67 Democrats in favor and 26 Republicans opposed. Speaker John Boehner (R-Ohio) blamed the loss on 36 Democrats who voted for the reauthorization last year but against this time. The real story, though, is the defection of nearly three times as many Republican Members as in 2010, mainly attributable to their more libertarian, anti-government privacy views. The House subsequently passed the bill with a comfortable majority under a closed amendment rule and shortly thereafter agreed to a Senate-passed 90-day extension.

The other suspension bill that failed that same day was a measure to require the United Nations to pay back certain U.S. overpayments to the organization. The final vote was 27 votes short of the two-thirds necessary, with only 23 Democrats voting for it and just two Republicans voting against.

The main complaint lodged against the expedited consideration of both measures was that they had not been properly reported by any committee and Members therefore did not have sufficient time or information to cast intelligent votes.

Early glitches like these are to be expected as a new majority finds its sea legs. The Speaker chalked them up to “rookie mistakes.” The Majority Whip had not whipped either bill, assuming they were noncontroversial. The new Democratic majority in the 110th Congress lost 24 motions to recommit to the minority. In the following Congress, it lost 26 suspension bills (probably trying to avoid more recommit losses).

The larger issue worth watching closely is whether the majority leadership will react by putting more pressure on Republicans to support suspension measures as an alternative to allowing the more open amendment process on bills they had promised. Democrats have already made clear they intend to use motions to recommit to offer politically strategic amendments, and Republicans may already be reacting out of fear to that prospect by finding ways around such motions.

This could be the turning point at which majority Republicans decide either to keep their pledge of a more open process or return to the tried and abusive practices of past majorities. (So far, only two bills out of seven have been open to all amendments.) If they choose the latter path, they will soon learn, as they twice taught past Democratic majorities, that procedural chicanery carries a steep price — eventually resulting in the loss of majority status.

Don Wolfensberger is director of the Congress Project at the Woodrow Wilson International Center for Scholars and former staff director of the House Rules Committee.