Forced deadline spurs drastic tactic in Congress

It used to be said, “Nothing focuses the mind of Congress more than the pressures of an  

impending deadline.” Whether it’s the threat of a government-wide shut-down or default on  

the public debt, Congress gets down to the hard business of legislating when calamity looms. Yet, even those hardwired, deadline crises have given way in recent times to short-term extensions of the debt ceiling and government funding, respectively. 

Less urgent are the softer, self-imposed deadlines to complete action on a major piece of legislation by a date certain, such as the August recess or the pre-election “district work period.” At those points, Congress digs in to finish its work rather than leave town empty-handed.

The most recent example of the latter kind of deadline was Senate Majority Leader Chuck Schumer’s (D-N.Y.) vow to force final action on a House-passed voting rights bill on or before the Martin Luther King, Jr. Holiday last Monday, Jan. 17. The symbolism of the deadline was self-evident enough, but getting there proved quite another matter given the predicted inclement weather on MLK Day and the unavailable vote of Democratic Sen. Brian Schatz (Hawaii), in self-quarantine for COVID-19.   

Nevertheless, Schumer pledged to proceed with a vote on changing the filibuster rule to pave the way for a majority vote on the bill later that week, even though Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) insisted they were still firmly opposed to the rule change, even a one-time filibuster carve-out for a single bill. 

What has been overlooked in media accounts, amidst all the speechifying, caucusing and presidential jawboning over voting rights, is the roundabout way the issue was being forced in both houses, using the drastic tactic of attaching an amalgam of election reform bills to a completely unrelated NASA leasing measure that had previously passed both chambers. The procedural sleight-of-hand was so deft that it left many legislators standing on the side-lines, scratching their heads and wondering, “What just happened? How did they do that? and, Why wasn’t I involved?”  

The irony of passing a bill purportedly aimed at bolstering American democracy using tactics that circumvented the regular democratic order in Congress was jaw-dropping. Begin with the fact that neither of the two main bills in play, the “For the People Act” (H.R. 1), and the “John R. Lewis Voting Rights Enhancement Act” (H.R. 4), had been reported by any committee of jurisdiction in this Congress. Instead, both were discharged by special rules from the Rules Committee in February and August, respectively, with 50 floor amendments allowed to the former (48 by Democrats), and no amendments allowed to the latter bill. Both measures were then passed by party-line votes. Unreported Senate companion bills to the two measures (S.1 and S.4) were brought to the floor in August and November, but did not advance further.   

When it became apparent in December that the president’s Build Back Better social spending bill was dead in the water, the president pivoted to making voting rights a priority item on his agenda. The wheels of the majority leadership began spinning out scenarios for advancing voting rights legislation at an accelerated pace. The resulting process was to combine the two main bills and a couple related minor ones, and make appropriate modifications to attract maximum Democratic support. The new 735 page package, titled the “Freedom to Vote; John R. Lewis Act,” was substituted in the House Rules Committee for the NASA leasing bill (H.R. 5746), and sent to the floor as a non-amendable motion to agree to the Senate amendment to the NASA bill with the House voting substitute. No summary of the compromise package was made available on any House web site. The rule and motion passed the House on party-line votes on Jan. 12 and Jan. 13.   

The main reason this non-germane, drastic tactic was used was to avoid the hurdle of a threatened filibuster on a “motion to proceed.” That motion is only needed on the original consideration of a bill, and not available once both houses have passed a measure and are “messaging” their alternatives between the houses. That in turn allowed the Senate to actually begin debate last Tuesday and Wednesday. An actual “talking filibuster” is a rare Senate phenomenon in modern times since most measures are stopped on failure to invoke cloture on the motion to proceed. A real, all-day debate ensued on Wednesday before a vote on cloture was taken and lost, followed by a vote on the euphemistic “nuclear option” to change the Senate cloture rule on that one bill to end debate by a majority vote. Although the Democrats could still have continued debate over a “legislative day” stretching potentially over weeks, the majority leader pulled the plug on the bill.  

As this column began, the pressures of deadlines can help force congressional action, even at the risk of failure. Although the MLK Day deadline for action on voting rights came and went, the Senate majority leader persisted in pushing the new strategy until it hit the super-majority vote wall. The unusual and robust all-day debate that did take place on Wednesday revealed how strongly both sides felt about the issue. Like scorpions, the two Senate parties were backing into combat with little foresight and no real hindsight to go by. Retreat turned-out to be the only realistic path out, for now.                             

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.