House Democrats’ practical transition to minority status precedes the formal transfer of power on January 5th. Speaker Pelosi has one big decision to make before she becomes Minority Leader: Will she bring up a Senate-passed tax bill for an up-or-down House vote?

Procedural summary

On Thursday the tax deal was released in legislative form, surprisingly labeled the Reid/McConnell amendment. You don’t see that every day on a big economic issue. Senate Republican Whip Kyl supports it, and in the Senate we therefore have an Obama-Reid-McConnell-Kyl alliance. That’s unbeatable and will clearly get the 60 votes needed for cloture next Monday at 3 PM EST.

Assuming the Senate invokes cloture Monday afternoon, I would expect the bill to pass no later than Tuesday. It then crosses the rotunda to the House, where Speaker Pelosi has a decision to make. She has unilateral authority to decide which bills come to the floor of the House. Technically 218 House members could overrule that authority using a discharge petition, but that takes at least a month, less time than is left in this Congress.

The Speaker’s choice

Yesterday the House Democratic Caucus held a non-binding vote in which they rejected the tax deal. Speaker Pelosi issued a carefully worded statement after the meeting which reads, in part:

In the Caucus today, House Democrats supported a resolution to reject the Senate Republican tax provisions as currently written. We will continue discussions with the President and our Democratic and Republican colleagues in the days ahead to improve the proposal before it comes to the House floor for a vote.

While it’s amusing to see her describe the Obama-Reid-McConnell bill as “the Senate Republican tax provisions as currently written,” the key language is “We will continue discussions … to improve the proposal before it comes to the House floor for a vote.”

She did not say “The bill in its current form must be changed before it comes to the House floor to a vote,” nor “I will not bring this bill to the House floor for a vote in its current form.” You should be forgiven for thinking her statement meant that, but she could have said that if she had wanted to tie herself to the mast. She did not.

In legislative parlance the Speaker is about to be jammed by the Senate. Her options are (a) bring a bill to the floor that her caucus hates and watch it pass and become law; or (b) take sole responsibility for stopping the bill, almost certainly until next year.

Jamming is when you use the legislative process, often at the end of a session, to limit someone else to a yes-or-no decision in which yes is painful and no is even worse because you get blamed for killing something popular. The Speaker and House Democrats want to escape from this binary choice, to gain leverage to change the bill to their liking. Their options for generating that leverage are:

  1. House Democrats defeat the Senate-passed bill;
  2. House Democrats amend it and send it back to the Senate;
  3. or the Speaker refuses to bring it up for a vote.

I don’t think House Democrats could defeat this bill on a straight up-or-down vote. I expect a large number of Senate Democrats will vote aye, influenced by the President, Leader Reid, and extender tax goodies contained within the bill. A big Senate Democratic vote count makes it harder for a House Democrat to vote no. Almost all House Republicans will support it. While the average voter among House Democrats opposes this bill (as we saw from yesterday’s Caucus vote), I’m fairly certain the marginal House Democrat will be an aye.

The Speaker and House Democrats would almost certainly prefer to amend the bill and send it back to the Senate. This is in their power to do (if they can unify), but I expect that doing so would face solid Senate opposition and therefore fail. It would go something like this:

Speaker Pelosi & House Democrats to Senator Reid: We’re going to improve this bill and send it back to the Senate.

Senator Reid to Speaker Pelosi: I like your improvements. Let me check with Senate Republicans.

Senator McConnell to Senator Reid: No. We have a deal with the President and you and we’re not changing it.

Senator Reid to Speaker Pelosi: McConnell said no. My hands are tied. I made an agreement with him that I can’t break. Even if I could, there’s no way I can get a modified bill through the Senate before we adjourn. McConnell will filibuster it and it will die in the Senate. I can’t accept that.

Speaker Pelosi & House Democrats to Team Obama: Mr. President, will you help pressure Senator Reid?

Team Obama to Speaker Pelosi: We’d love to help you, really we would. <snicker> Can’t. Senator Reid is right, we can’t overcome a Republican filibuster. If we had more time there might be a way to overcome that, but we must get this done before the end of the year.

Speaker Pelosi & House Democrats: $&^$@#(@*&^!

This means that, if Speaker Pelosi and/or the majority of her caucus want to kill this bill, she’ll have to do it by refusing to bring it to the House floor. That’s an impossible position for her.

If she brings the Senate-passed bill to the floor for a vote, in her last major legislative effort as Speaker before transitioning to minority status, her caucus will split on (what they perceive as) a massive legislative defeat on a top-tier issue. When you’re a legislative party leader, your caucus splitting is very, very bad. On an issues like this it’s a disaster.

If she still refuses to bring the Senate-passed bill to the House floor, then Congress will adjourn for the year and she (not House Democrats, but she, Nancy Pelosi) will be solely responsible for rejecting the broadly bipartisan bill. She will be responsible for tax increases on all income-taxpaying Americans beginning January 1, in opposition to a bill supported by the President and Congressional Republicans.

This is what it means to be jammed. We’ll see what she does.

(photo credit: Dennis Wilkinson)