What would you say if one body of Congress didn’t take a formal roll call vote on a major piece of legislation – yet passed it at 2:19 on a Friday morning?
Would you try to outdo your colleagues across the Capitol Rotunda with some Congressional chicanery of your own? Perhaps by passing an equally important version of the same bill – while officially sidestepping a direct up/down vote on the measure – at 11:28 p.m. on that same Friday night.
That’s what happened late last week. The Senate scored approval from all 100 senators to pass a bill to fund most of the Department of Homeland Security for the rest of the fiscal year – but did it on a voice vote at 2:19 a.m. Friday with only five senators in the chamber.
House Republicans scoffed at this. So they passed their own bill – to fund all of DHS – just before the witching hour Friday. But technically, the House didn’t even vote directly on the legislation itself. The House voted to approve a "rule" (which manages debate for bills). With adoption of that rule, the House "deemed" the underlying DHS funding measure as passed.
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But despite all of this, the House and Senate weren’t aligned. They hadn’t approved the same bill. And despite the parliamentary antics, House Republicans then implored the Senate to pass the measure it approved Friday night on Monday morning – without a roll call vote and with just two senators in the chamber.
If you followed all of that, that is exactly what’s unfolded on Capitol Hill the past few days as lawmakers struggled to end the six-week Department of Homeland Security shutdown.
It was clear early Thursday evening that there wasn’t a path in the Sente to approve a partisan GOP bill to fund DHS after a lengthy roll call vote which started in the afternoon.
But something was afoot.
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Congress was staring at a 15-day recess for Easter and Passover on Friday. Failure to address the crisis now meant that lawmakers would leave town until the middle of April – extending the shutdown until then as airport lines swelled.
So Senate Majority Leader John Thune, R-S.D., got to work on something which could pass the Senate – and potentially pass the House – before everyone abandoned Washington for the break.
Thune suggested earlier in the week that the Senate usually has to get "to Thursday" before frozen positions may begin to thaw. He was right. There was a corridor for the Senate to approve a bipartisan bill to tackle most of the funding crisis at DHS. So Thune’s charge late Thursday night and into the wee hours of Friday morning was not necessarily to persuade bipartisan senators to support the bill he was putting on the floor. But instead, Thune’s goal was to coax skeptical senators not to object and blow the whole thing up.
There’s something called a "hotline" in the Senate. Any time the leadership wants to set up a series of votes, make particular amendments in order and perhaps allocate wedges of time to debate, it sends around a "hotline" to all 100 senators. If any senator objects, they let the leadership know. This streamlines the process ahead of time. It also ensures that senators aren’t blindsided by something called a "unanimous consent" request. Unanimous consent requests, or "UC’s," happen all the time in the Senate.
One of the most powerful tools in the Senate is "unanimous consent." If you obtain the "unanimous consent" of all 100 senators, you can make the sun rise in the west. But all it takes is one objection to block a UC – even if all other 99 senators agree.
The behind the scenes hotline takes care of this in advance. Any senator could object and block Thune’s proposal to fund most of DHS. But there shouldn’t be any problem if he cleared it with all 100 senators offstage in advance.
That’s why Thune went to the floor at 2:19 a.m. Friday. Not a single senator flagged his proposal. And so the South Dakota Republican went to the floor with a team of five senators – and passed the bill. Not by UC. But by something called a "voice vote. Those in favor shout yea. Those who oppose holler nay. The louder side wins. The Senate passed the bill. There was no roll call vote.
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So, this wasn’t something snuck by in the dead of night on the sly. If any senator had a reservation, they could have flagged it. Or better yet, come down to the floor at 2:19 a.m. and contested it. In short, there were 100 senators, 100 chiefs of staff, 100 legislative directors and 100 counsels who should have known about Thune’s plan. That’s a universe of at least 400 people – if not more. So, this wasn’t an episode of someone pulling a fast one.
By morning, Sen. Rick Scott, R-Fla., said he "opposed this bill." Same with Sen. Mike Lee, R-Utah.
Well, that’s fine. But no one objected nor pushed back on the hotline. No one went down to the floor to demand a roll call vote – or even argued that the Senate couldn’t do anything because there wasn’t a quorum present to conduct business. So anything said by Republican senators upset about the bill were simply academic or rhetorical objections. If those senators truly opposed the bill, they missed their opportunity to do something about it.
It was thought that the House might take up the bill – reluctantly – the next day to end most of the shutdown and pay TSA workers. House Minority Leader Hakeem Jeffries, D-N.Y., signaled support. So did Rep. Rosa DeLauro, D-Conn., the top Democrat on the Appropriations Committee. Granted, liberal Democrats might oppose the bill because there weren’t changes at ICE. But the bill probably would have passed with some Republicans and lots of Democrats. In fact, there may have been more Democratic yeas than Republican yeas. That would have been toxic for House Speaker Mike Johnson, R-La. Former House Speaker Kevin McCarthy, R-Calif., lost his gavel over moving a bipartisan bill to avoid a shutdown in the fall of 2023.
So by Friday afternoon, Johnson strenuously lodged his opposition to the Senate bill.
"Republicans are not going to be any part of any effort to reopen our borders or to stop immigration enforcement," said Johnson, noting that the Senate plan left out funding for ICE and the Border Patrol. "This gambit that was done last night is a joke. I'm quite convinced that it can't be that every Senate Republican read the language of this bill."
In other words, were they not dialed in on the hotline?
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Yours truly questioned the Speaker, asking why he and Thune weren’t on the same page. Johnson accused Senate Minority Leader Chuck Schumer, D-N.Y. of being behind the bill. I pointed out that Thune "was the engineer behind this."
"I wouldn’t call John Thune the engineer of this," said Johnson.
"He didn’t have the accept it," I countered.
"Let me answer the question, Chad," sighed an exasperated Johnson.
So the House forged ahead and passed its own bill to fully fund DHS Friday night. Some House Republicans then expected the Senate to break custom and pass its bill – by unanimous consent – during a brief pro forma session Monday. In other words, House Republicans ripped the Senate for what it did early Friday morning. But those same House Republicans wanted senators to approve THEIR bill on Monday the same way they criticized the Senate for passing its bill on Friday.
Note that there was no hotline for the House bill at that point.
"We’d love to see them do that," said Rep. Mike Haridopolos, R-Fla., on Friday.
But Democrats dispatched a watchdog to guard the floor against any possible GOP chicanery as the Senate met for 31 seconds with meager attendance.
The Senate gaveled in. The Senate gaveled out. Nothing happened.
"I was there to object," said Sen. Chris Coons, D-Del. "I was here just in case there were some shenanigans."
Rep. Randy Fine, R-Fla., called it "insane" that Senate Republicans "didn’t even try" to pass the House bill. But the lone Senate Republican on duty said the presence of Coons doomed that to failure.
"We don't have consent yet," said Sen. John Hoeven, R-N.D., who presided over the session. "They declined. Obviously Sen. Coons was there to do that."
But by Wednesday, the bill which Johnson trashed Friday afternoon was on its way to passage. Despite a sea of opposition from conservative Republicans, the House would accept the Senate bill and end most of the DHS shutdown. The Earth shifted. President Trump was fine with this. Suddenly, Johnson and Thune were on the same page.
So the Republican House would eat what the Senate originally cooked up early Friday morning. And the House would likely approve it with lots of Republicans spread around the country. But like Senate Republicans early Friday morning, no one would likely return to block it.
And by now, this wasn’t something engineered in the dead of night that only 400 people knew about. The entire country was more than aware what happened.
