Obamacare defunding: Will there be a filibuster?

Egged on by fellow conservatives in the House, Sen. Ted Cruz now says he's willing to lead a filibuster that would defend the 'defund Obamacare' effort.

Jonathan Ernst/REUTERS
Sen. Ted Cruz (R) of Texas greets attendees as he arrives to speak at the Tea Party Patriots' 'Exempt America From Obamacare' rally on the west lawn of the US Capitol in Washington, Sept. 10, 2013.

Is there going to be a big, tag-team, talk-till-you’re-hoarse filibuster in the US Senate next week? We ask that question because Sen. Ted Cruz (R) of Texas is threatening one, and right now it seems likely to happen.

Here’s the state of play: The House on Friday almost certainly will pass a spending bill to keep the government running after Oct. 1, when current spending authorization expires. But that bill will contain a provision that attempts to defund Obamacare – something that’s anathema to most Democrats and would face a certain slash from President Obama’s veto pen.

Enter the Senate. The House will send the spending bill over to the other side of Capitol Hill, where it faces a future that is a mix of certainty and unpredictability. The certainty is that the Obamacare defunding provision will be stripped from the bill, as sure as the sun rises in the East and lobbyists wear blue suits. How that happens? That’s where the unpredictability comes in.

It’s possible that Senate majority leader Harry Reid (D) of Nevada tries the straight-up approach: He just brings the bill to the floor, musters 60 votes to begin debate, strips the amendment with a simple majority, then gets 60 votes for cloture and eventual passage.

This would require five or so GOP senators to vote with Senator Reid, but it’s likely he can get those votes. A number of Republicans have said they’re not in favor of shutting down the government over the Obamacare issue, given there is a snowball’s chance in a pizza oven that it will become law. Senator Cruz acknowledged as much on Wednesday when he said in a statement, “Harry Reid will no doubt try to strip the defund language from the continuing resolution. And right now he likely has the votes to do so.”

Have you followed these preliminaries? Because this is where the filibuster part comes in.

It became clear on Thursday that conservative House Republicans were mad at Cruz for what they felt was a very premature admittance of defeat. He’d been the one out front, leading the defund-Obamacare charge, urging House conservatives to stand fast against the GOP leadership’s attempts to delink the Obamacare provision from the spending bill. Yet here he was, apparently putting the onus on his House colleagues to stand and fight.

So on Thursday, Cruz stood with House colleagues at a hug-and-make-up news conference, saying that he wanted to “commend House conservatives for sticking their neck out” and that he now stood shoulder-to-shoulder with them.

This interplay makes a real Senate filibuster more likely. Why? Because now Cruz needs to do something to prove he’s really not just sitting on the sidelines, cheering other players on.

In March, Sen. Rand Paul (R) of Kentucky energized tea party conservatives with his impromptu 13-hour talking filibuster against Obama administration drone policies. Now many in the House GOP would like to see Cruz, Senator Paul, and fellow tea party favorites Sens. Marco Rubio (R) of Florida and Mike Lee (R) of Utah join in a similar effort to defend the defund Obamacare effort.

“The hope is that it might inspire Republicans the same way the March filibuster did, and perhaps start a wave of public opinion in support of defunding,” writes well-connected conservative Byron York in the Washington Examiner.

Cruz says he’s game. Asked by NBC’s Luke Russert whether he’d be willing to filibuster, he said, “Yes, and use any procedural means necessary.”

The problem is that Cruz and his allies would only be able to talk to a certain point. Republicans don’t have the votes to sustain the filibuster. Far more than the six GOP senators that the Democrats would need have indicated they won’t support a defunding filibuster, according to Mr. York.

Paul himself on Thursday said the effort would not, in fact, end Obamacare funding – pointing out that his own filibuster failed in the end.

“They have to realize that my filibuster delayed things for 13 hours, but didn’t stop things,” Paul said in a Fox News interview.

Of course, to some extent the purpose of the filibuster would be to simply take a stand. Unless Reid does not give Cruz et al. a chance to stand up and talk.

Roll Call legislative procedural expert Niels Lesniewski on Thursday outlined a method whereby the Senate majority leader might be able to do what he wants without a single GOP vote to help. It involves bringing the bill up and calling for a vote to proceed to debate before stripping out the Obamacare defunding provision. Then it gets complicated: You can read it in full here. Didn’t we say the whole process might be unpredictable?

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