The prevailing question on Capitol Hill Thursday was not whether the federal government would shut down at midnight on Friday — most people seem to believe it will — but who is going to take the blame for it.
Democrats say that Republicans control both chambers of Congress and the White House — of course it’s their fault if they can’t keep the government open. Republicans, meanwhile, are accusing Democrats of withholding their needed votes in the Senate in order to press for a resolution to the impasse in the immigration debate, even at the expense of the Children’s Health Insurance Program.
It’s a question with a few layers — including ontology, political metaphysics, and interpretation. Even as a matter of pure procedure, there are no easy answers.
“It’s an interesting question, but I don’t think it’s really answerable as a procedural matter,” Sarah Binder, who has studied congressional procedure at George Washington University, told me by email. “‘Shutting down the government’ means of course failure to act. And there are lots of veto points within Congress and between the branches making it difficult to say who per se would be shutting down the government.”
But we can say this: Right now, it’s not at all clear whether Republicans have the votes within their own conference that would keep the government open. Until they do, it would be harder to put the blame entirely on Democrats. But Democrats have made clear that they are indeed willing to shut down the government — and their rationale can be traced back to that infamous White House “shithole” meeting.
The government shutdown scenarios — and who should get the blame
Republicans look to have averted the most embarrassing shutdown scenario: the House failing to pass a spending bill. Given that a bare majority can move a bill in the lower chamber, Republicans would have had nobody to blame but themselves in that case.
There are still, as far as I can see, two distinct ways that the federal government shuts down at midnight on Friday.
1) The Senate can’t pass a spending bill and can’t even get 50 Republican votes.
With the House pulling itself together, the action will move to the Senate, where things look especially grim.
Passing a bill in the Senate is a two-step process: First, you need 60 votes to end debate on the bill, and second, you need 51 votes to pass it. So Republicans, who have 51 senators, need at least nine Democrats in order to start debate on the bill. But they don’t, in theory, need any Democrats to actually pass it once debate begins.
But here is the problem for Republicans: They don’t even appear to have 51 Senate Republicans in support of the spending bill. Sens. Lindsey Graham (R-SC), Rand Paul (R-KY) and Jeff Flake (R-AZ) have all said they would oppose the House bill or at least are skeptical of it.
There is a hypothetical scenario where even if Democrats gave Republicans the necessary votes to at least start debate on the bill — on the “motion to proceed” vote, as it’s called — Republicans couldn’t pass it, as of now. Democrats wouldn’t really have anything to do with it. It would appear that Republicans have shut down the government.
But this is a little more esoteric. A hypothetical. Because Democrats are not going to give Republicans the votes to start debate. But it’s worth pointing out that it’s not at all clear Republicans could keep the government open on their own, even if they were given the chance. The motion to proceed could end up failing with less than 50 votes, with several Republicans joining Democrats to block the spending bill.
“McConnell has to prevent that from happening come hell or high water,” one former Republican aide told me. “But yes, if a motion to proceed only got 48, that would make it harder to blame” Democrats.
2) The Senate can’t pass a spending bill because Democrats filibuster it.
Senate Republican leaders are putting pressure on their own members to unite around the House spending bill. They know how bad it would look for them to have fewer than 50 votes for it.
Leader McConnell's aides and allies are telling GOP senators to hold steady and support the House GOP bill, "don't go off with Lindsey and start cutting some three-day deal," per one person involved— Robert Costa (@costareports) January 18, 2018
Either way, Democrats have said they have the votes to block the spending bill from advancing. They may give some freebie votes to Democrats in difficult 2018 races — Sen. Joe Manchin (D-WV), for example, told reporters that he would likely vote for a spending bill — but they have told reporters that there are not enough to start debate on the spending bill.
In this case, if Republicans are unified in trying to keep the government open and Democrats deny them the votes to do it, it would be fair to say that Democrats shut down the government.
They would be doing it because they want to force a deal on the Deferred Action for Childhood Arrivals program, the program that provides legal protections to nearly 700,000 unauthorized immigrants who were brought to the United States as children and that Trump has said he would end.
Republican leaders have known all along that Democrats would want to tie a DACA solution to a government spending bill. It is the only leverage Democrats have to ensure a fix gets passed, particularly in the more conservative House, a reality that just a week ago GOP leaders freely acknowledged.
“I think for the Democrats, the issue is making sure that there is a certain path forward for addressing DACA,” Sen. John Thune (R-SD), the No. 3 Republican, told reporters last week. “If that requires it be included in this spending bill, or perhaps an agreement that it be addressed in some other spending bill, or whatever the bill that comes up in the future, I think the main thing is they want certainty.”
This is best thought of as Trump’s “shithole” shutdown
So there is at least one way that Republicans would have unambiguously shut down the government by themselves: if it didn’t pass the House. But if the holdup is in the Senate, Democrats are likely to take a decisive vote — against the motion to proceed — that would shut the government down.
Senate Republicans are already prepping plans for the weekend, if the government does shut down, to force vulnerable Senate Democrats to take uncomfortable votes, as Politico reported.
So then why would Democrats be nevertheless willing to take this chance and try to force a DACA deal? It goes back to the immigration meeting where Trump reportedly described some poor, majority-nonwhite countries as a “shithole.”
Heading into that meeting, top Democrats and Republicans thought they were on the verge of a DACA solution. But then immigration hardliners rallied to Trump, convinced him that the emerging deal was a bad one, and then the president made another racist remark.
That has left many Democrats likely believing that they have no choice but to force the issue because Trump can’t be trusted.
“A bipartisan group of senators were optimistic that they could conclude a deal based on previous negotiations. However, the Thursday meeting also included hardline Republicans, upending the bipartisan progress,” the former aide told me. “While the inflammatory remark gained appropriate attention, the meeting itself shattered the fragile comity between the parties and has left us in a place where reaching common ground is very difficult.”
So in spite of the White House’s insistence that a shutdown would be a sign of congressional dysfunction, the president will undoubtedly bear some of the blame for the government closing down.