Government shutdown just managed to get ‘real-er’

If they can’t even agree on having the State of the Union speech at the Capitol, then they’ll never get anywhere ending the government shutdown.

We thought the government shutdown would get "real" after the first weekend back in December. Then we thought it would get real after Christmas. Then we thought it would get real after New Year’s. Then we thought it would get real after the new Congress started. Then we thought it would get real after Democrats tapped Nancy Pelosi, D-Calif., as House Speaker. Then we thought it would get real after government workers missed their first paycheck.

So here we are. Federal employees missing their second paycheck.

I don’t know if "real-er" is a word. But the government shutdown just got "real-er."

And you thought Democrats and Republicans were going to work together on an infrastructure package?

Keep in mind, this fight is over funding the government through the end of this fiscal year. It all expires on September 30, 2019. After this exercise, does anyone really think there won’t be an imbroglio over government funding starting October 1?

First, it’s announced there won’t be any Sweethearts candy for Valentine’s Day. Now they tell us State of the Union is off?

President Trump and Pelosi finally reached an accord on State of the Union. It won’t happen next Tuesday unless the government is open. Pelosi suggested they hold off until the sides resolve the shutdown. Trump insisted he wanted to come anyway and even considered going elsewhere for the speech. The President finally tweeted that he would wait "because there is no venue that can compete with the history, tradition and importance of the House Chamber." Trump later said it "would be very disrespectful to the State of the Union to pick some other place." He noted that what Pelosi suggested “was actually reasonable.”

OK. Not exactly “Be Mine” or “Kiss Me” on one of the candy hearts. Perhaps the president would have preferred the new style hearts with messages like “Tweet Me.” But it’s a start.

Here is the crux of the standoff between President Trump and the Speaker:

We derive the term “State of Union” from Article II, Section 3 of the Constitution. The Constitution simply says the president “shall from time to time give to the Congress Information on the State of the Union.” The Constitution doesn’t assign a date for the transmission of such “Information.” It doesn’t say it needs to be done annually. It doesn’t say it needs to be done via a speech or in writing.

House Rule IV dictates use of the chamber and "admittance." Lawmakers, Supreme Court justices, the Architect of the Capitol, cabinet secretaries and others are permitted on the House floor - as is the President of the United States. But that doesn’t mean the president gets to speak. The president may only speak for State of the Union if the House and Senate have approved a concurrent resolution, authorizing use of the House chamber for the speech and blessing the occasion for the executive’s remarks. Adoption of this resolution is usually a fait accompli by the House and Senate. But not this year.

Some political observers noted that Article II, Section 3 of the Constitution also allows the president to “on extraordinary occasions convene both Houses, or either of them.” Presidents have only deployed this prerogative a couple of dozen times in history. None since President Harry Truman in 1947 and 1948. But the “recall” provision in the Constitution implies that the House or Senate must be out of session, perhaps on a lengthy recess. That’s not the parliamentary posture now in Washington. Moreover, even if a president were to “convene” Congress, he doesn’t have the right to speak unless lawmakers adopt the concurrent resolution, authorizing him to do so.

There was some discussion at the Capitol about whether Trump could deliver his remarks from the Senate chamber. In theory, yes. The Senate could approve its own resolution to invite the president to speak. But such a measure is subject to a filibuster just to begin debate and a second filibuster to end debate. Quashing both filibusters requires two rounds of 60 yea votes. So, the Senate option was never truly viable.

There was chatter that the president may just try to come to the Capitol anyway and speak. The country may have faced a Constitutional crisis if that scenario unfolded. Pelosi and Senate Minority Leader Chuck Schumer, D-N.Y., just can’t barge in on 1600 Pennsylvania Avenue. The same with the president coming to Congress.

There’s a reason why the Founders sealed off the legislative branch in Article I of the Constitution from the executive branch in Article II. That’s why the State of the Union speech is such a unique experience. You have all branches of the government assembling in the same place at the same time.

It was critical that Trump and Pelosi defuse the friction over State of the Union. Otherwise, no one was ever going to resolve the government shutdown. With the speech off the table, the sides can now focus on substance.

Now, here’s something counterintuitive: The Senate blocked two plans to re-open the government Thursday. The first was a measure Senate Majority Leader Mitch McConnell, R-Ky., crafted at the behest of Trump. It would fund the government through fall, pay for the wall and provide cover for DACA recipients. The second was the Democrats package. It would open the government through the end of February and offer disaster relief assistance.

Both approaches required a simple majority to pass. But McConnell and Schumer agreed to skip the bills ahead to the procedural vote to halt debate. That meant both plans needed 60 yeas.

White House: 'Large down payment' on wall could end government shutdown

Here’s a little secret about the Senate: the two leaders don’t arrange side-by-side plans like this needing 60 votes unless everything is destined to fail. Everyone thought both efforts would likely score a simple majority to pass. But the 60 vote threshold would euthanize both packages.

The Republican measure secured 50 yeas. Sen. Joe Manchin, D-W.Va., was the lone Democratic yea. But Sens. Tom Cotton, R-Ark., and Mike Lee, R-Utah, opposed the measure. The Democratic plan marshaled 52 yeas. Six Republican senators backed the Democratic effort: Sens. Lamar Alexander, R-Tenn, Susan Collins, R-Maine, Cory Gardner, R-Colo., Mitt Romney, R-Utah, Johnny Isakson, R-Ga., and Lisa Murkowski, R-Ark.

Let’s fillet this for a moment:

Republicans didn’t have unanimity on their plan. Democrats did. The Democrats legislation received more votes than the Republican bill. Moreover, six GOP senators even elected to side with the Democrats.

The votes may have been an important step toward ending the government shutdown. Both tallies revealed that partisan plans can’t hit the all-important 60 vote threshold. The government won’t re-open until Congress gets the math right on the House and Senate floors.

“To see those two bills taken up and fail now puts us in a place where our leaders need to talk directly,” said Sen. Chris Coons, D-Del.

Moments later, McConnell summoned Schumer to his office. There was talk of an interim spending bill to re-open the government. The White House signaled it wanted a down payment on a wall first. But this was the most action in the Senate since it advanced a bill to fund the government on December 19 – only to have  Trump threaten a veto.

“We’re talking,” said Schumer 13 times after he emerged from McConnell’s office after their conclave and reporters dogged him down the hall.

“Well, at least we’re talking,” said McConnell when he abandoned the Capitol for the night. “I think that’s better.”

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“I am always optimistic,” said Pelosi when she left the Capitol. “Everything is an opportunity.”

There was a serious reset Thursday in the government shutdown standoff. Pushing aside the State of the Union quarrel was important. So were the failed Senate votes. And finally, after five weeks, the government shutdown finally got “real-er” on Capitol Hill.