Canceling the shutdown, playing by the rules

By all accounts, there are enough House Republicans prepared to join with Democrats to fund the government and raise the debt ceiling without demanding provisions attacking Obamacare. The only thing stopping them is the House leadership, which is refusing to allow appropriations bills onto the floor.

But House rules give the majority a way to take this decision out of Speaker John Boehner’s hands. By signing a “discharge petition,” 218 members can force a bill onto the floor for a decisive vote. The critical date is Oct. 14, because discharge petitions can be presented only on the second and fourth Mondays in a month. That’s three days before the government runs up against the debt limit. Some commentators argue that the discharge petition route leads to a dead end. They point out that House rules don’t permit a discharge petition unless a bill has been pending in committee for at least 30 days, which serves to prevent recently submitted bills from gaining too-easy access to the House floor. But several “continuing resolution” and debt ceiling bills were submitted earlier in the session, and these could provide a bipartisan majority with the requisite leverage to overcome the resistance of the Republican leadership.

For example, Rep. James Lankford (R-Okla.) and other Republicans submitted a “clean” continuing resolution on March 14, which gives Congress four more months to reach agreement on final appropriations. If an impasse were to continue beyond this period, so would the money to run the government, with a 1-percentage-point reduction to encourage the appropriations committees to take the necessary action quickly. If a majority approved this measure now, the House would make it plain to the Senate that it was no longer holding Obamacare hostage, and thereby invite serious negotiations.

Similarly, Rep. Mike Honda (D-San Jose) introduced a measure early in the session that could serve as a basis for constructive action on the debt limit. His bill would eliminate the ability of a single chamber to veto increases in the national debt. Instead, the president could determine the amount required to avoid default on an annual basis, with both houses of Congress retaining the right to insist on a lower amount by passing a joint resolution. If this bill made it to the floor by means of a discharge petition, a bipartisan majority could demonstrate that it rejected the very idea of playing politics with the full faith and credit of the United States.

Other pending bills suggest other approaches. There is no need for us to choose among them to make the key point. If a majority signs a discharge petition for a strong initiative, it would push the House into a posture that would enable serious negotiations with the Senate to begin.


Once 218 members sign a discharge petition, a single signatory can move for the bill’s immediate consideration on the floor of the House. This motion is specially privileged. The full House must vote on it at once, and if it passes, resolutions related to it must be considered immediately and cannot be pushed off the floor by further parliamentary maneuvers. The rules explicitly require that it must remain the business of the House “until it is disposed of.”

There is no need to wait until Oct. 14 for the majority to take action. Democrats and Republicans should declare right now that they will sign a discharge petition when the moment comes. As the number of announced signatories rises, the position of the House leadership will become increasingly precarious. Even if a clean CR or a raised debt-ceiling means the Republican leadership alienates its right wing, it will suffer more from a humiliating defeat by moderate Republicans making an end run around the speaker and breaking his strangle-hold over House proceedings. The discharge petition threat alone might suffice to break the current logjam well before Oct. 14.

There are fundamental issues at stake. Since the founding of the nation, Americans have looked to the people’s House as a special place for the realization of democratic values. The discharge petition is a fundamental mechanism for sustaining this claim. In using it as a tool to break the undemocratic effort by the Republican leadership to muzzle the majority, a bipartisan House coalition would not only be acting within its legal authority, it would be redeeming a basic principle of American government.

Bruce Ackerman and Ian Ayres are professors of law at Yale, and coauthors of “Voting With Dollars.”