Democrats gained even more power in the DHS/immigration debate, and it happened last week

It’s well known that any Republican attempt to reverse Obama’s executive action would be an uphill battle. Because any congressional response required a legislative fix, Republicans face a likely insurmountable veto, even if they managed to overcome a filibuster in the Senate. All the checks of government disadvantage Republicans’, and today we see that they have been unable to overcome either obstacle. However, Republicans are in an even worse position today than they were a week ago when they were in recess. Funding for the Department for Homeland Security expires Friday. Without action 30,000 DHS employees will be furloughed and roughly 200,000 DHS agents will work without pay. DHS funding needs a quick fix. The problem is Senate process doesn’t provide one.

The best possible solution has already been attempted four different times and failed. In reality, Republicans needed to invoke cloture on the motion to proceed – the motion on which they’ve failed four times – by February 9th (if they still planned to recess last week). The process of creating a cloture petition, letting it ripen, voting on the cloture petition, and letting all post-cloture debate expire takes a week’s time. On any given bill, there are two filibusterable motions. That means Republicans needed to first invoke cloture two weeks ago in order to set up another successful cloture vote yesterday. None of the steps necessary to cut off debate have been successful.

So where does that leave Republicans? They’re in a very bad negotiating position. Basically, there is not a normal process that Republicans can use to pass a clean DHS funding bill, a short-term CR, or any other DHS bill before the shutdown on Friday. The only way left to avoid a shutdown is through what’s called unanimous consent. If all senators agree on a motion or purpose moving forward, Republicans can avoid a shutdown. However, getting every Democrat (and Republican) to agree to move forward will come with strings attached.

In other words, about a week ago Republicans lost the little leverage they had in the debate to response to Obama’s executive action. Democrats have gained more leverage in the debate because all processes Republicans could have used are now gone. Their inability to craft an agreement that could get six Democratic votes has cost them the bargaining leverage they had a week ago. In sum, this week Democrats have even more negotiating power than they had the last week the Senate was in session. Now Republicans need agreement from all Democrats, not just six, on the terms moving forward.

This gives Democrats an interesting choice. Either they compromise with Republicans and find an agreement to fund DHS or they can let it expire and hang a partial government shutdown that threatens domestic security on Republicans.

Many people believed Harry Reid was an overly strong majority leader, stifling debate and preventing amendments. This week we’ll see if Harry Reid is as ruthless in the minority as he was in the majority.