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The DHS funding endgame: How can Congress get to yes?

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The U.S. Congress remains gridlocked in its efforts to fund the Department of Homeland Security for the remainder of fiscal year 2015, with the Department’s funding scheduled to lapse after this Friday, Feb. 27th. In the latest development in this saga, the Senate failed again today to achieve the 60-vote threshold for a motion to proceed to the House-passed bill. News reports today in the New York Times and Politico provide in-depth updates on the current state of play.

Recent statements by members of Congress from both parties indicates that very few members of Congress see a partial shutdown of the Department of Homeland Security as being a desirable outcome. A shutdown will not halt the President’s recent immigration orders; instead it will perversely punish the very people who are on the front lines of protecting our nation’s borders including those serving at CBP, ICE and in the Coast Guard. And it would come at a time when the nation faces a significant terrorist threat to the homeland, most recently exemplified by al Shabaab’s stated threat this weekend against shopping malls.

But both parties are so dug into their respective positions on the immigration policy provisions that it is extremely unlikely that one side will simply cave in and accede to the other’s position. Therefore it is time for Congress to consider alternate solutions to try to resolve this impasse. One option currently being weighed by Sen. McConnell is including a narrower set of policy riders that he hopes may win over a handful of Senate Democrats.

Another option is to decouple DHS appropriations from the immigration debate, by passing a “clean” DHS appropriations bill (not a CR) in exchange for a unanimous consent (UC) agreement for a clean Senate process to advance immigration and border security legislation in the 114th Congress. All of this could be accomplished quickly via Senate passage of the House DHS Appropriations bill (as modified, with immigration policy riders removed) concurrent with a UC agreement in the Senate that includes the following provisions:

  • The Senate Majority Leader would be provided with the authority in the 114th Congress to bring a motion to proceed to broad-based immigration and border security legislation (as defined by the Senate Parliamentarian) to the floor (either from the House or the Senate Judiciary Committee) at a simple majority vote threshold, instead of at 60 votes per normal procedures
  • The Senate could proceed immediately to consideration of the bill after the passage of a motion to proceed, without needing the cloture motion to “ripen”;
  • Each side would be guaranteed at least 15 amendments (as determined by the Majority Leader and Minority Leader) at a simple majority vote threshold, and not subject to filibuster;
  • Final passage of the bill would be subject to a simple majority vote threshold, and not subject to filibuster;
  • Other dilatory tactics currently allowed under Senate rules (e.g. the clerk reading the bill) would not be allowed under the terms of the agreement.

Such an agreement would also need to be conditional on the House actually passing the clean Senate-passed bill without further changes, so that it could then be signed by the President.

This unanimous consent agreement would provide a much clearer procedural path for the House and the Senate to advance immigration and border security legislation in the 114th Congress than currently exists, giving them a direct legislative pathway to address this set of issues. At the same time, the agreement would preserve the President’s ability to veto any legislation, which hopefully would provide the basis for a constructive negotiation between the two parties on these issues and lead to immigration and border security legislation that has bipartisan support.

This is optimistic on my part, to be sure. But the consequences of allowing DHS funding to lapse are so serious that it is time to consider options such as this one, or any other face-saving outcomes that allow both sides to “get to yes” on funding the Department.


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