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How to Avert Fiscal Cliff-mas: Use Speaker Powers and House Rules to Swiftly Pass Plan C

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As a former senior House staffer, I watch and comment on the goings-on in the Congress with a mixture of fondness, nostalgia, and nausea. And it is with mostly nausea that I watch the nation race toward the fiscal cliff because the House Republicans seems to be putting ideology above country.

With the debacle of Plan B, most pundits and commentators are focused on the fact that Boehner is in a no-win situation. He has a Caucus that won't give him the 218 votes he needs for any tax increase, and that emasculates his bargaining power with an increasingly popular President. If we go off the fiscal cliff, many predict that Boehner will be forced to take a deal that will skew favorably toward the President and Democratic position, possibly costing him his speakership. If we don't go off the cliff because he accepts the President's current Plan A, it will most probably cost him his speakership.

The President yesterday threw Boehner a lifeline with Plan C -- a modified "kick the can" scenario that would a) cancel the tax increase for those earning less than $250k; b) extend expiring unemployment benefits for 2 million Americans; and c) everything else, including sequestration, would be postponed and decided in a framework in early 2013.

But if Boehner can't get votes from his members for a millionaires' tax increase, how can he get votes for Plan C?

The answer: he can pass a bill without ANY Republican votes. Including his own.

Here's how: Boehner allows Plan C to come to the floor next week. He finds volunteers from his Caucus, members with safe districts, immune from Tea Party challenges, who will join with Leader Pelosi's Democrats to constitute a quorum. Plan C comes up, the Democrats vote Yes, all Republicans vote No, a majority of those voting means the bill passes, no fiscal cliff, no Republicans have voted for a tax increase, and peace and goodwill reign on earth -- for a few days.

Here's the nitty gritty: The Constitution says that when a majority of members present in the Chambers constitute a quorum (218), the House may conduct business. That includes legislation. There is no requirement that an absolute majority (218) of the entire House (435) (save a few exceptions not applicable here) be required to pass legislation.

There are currently 191 Democratic members of the House (remember, we're talking about the present congress, not the one with 8 shiny new pickups). That means 27 Republicans are required to show up to constitute a quorum. And so long as all 218 vote, nothing requires those 27 Republicans to vote yes on anything to enact any legislation, including Plan C.

Under this minority-majority scenario, Boehner still preserves his Caucus' ability to leverage its power on the much more important tax reform / entitlement reform / deficit reduction issues in the new Congress, particularly as we inch closer to another crisis involving raising the debt ceiling limit sometime in February. He, and the nation, live to fight another day. Or, more accurately, we lurch toward Cliff II, the sequel.

From one perspective, is this a craven and cowardly strategy for the Republican Speaker? Probably. By providing just enough members to make a stand in a potential 191-27 vote for Plan C, it is patently obvious that this was rigged to ensure that no Republicans would have to vote in support of tax increases on the very rich. As Speaker, he has control of the entire process. Indeed, he could even stage the bill whereby Republicans could vote in favor of amendments extending tax increases on the rich via a "King of the Hill" rule, whereby the last amendment voted on would effectively eliminate the prior, wealthy-friendly amendments and simply substitute in Plan C. But the net effect would be to play with procedure to obtain a desired outcome that protects his members from a tax vote, and still pass Plan C (by the way, laying it all on the feet of the Democrats. Which means the President would have to deal with a Leader Pelosi who will want some guarantees on the deal down the line because of her willingness to participate in this pas de deux. And Pelosi may want/allow some members of her Caucus to vote no, making the vote closer).

Would the American people care about this St. Vitus' dance of legislation? In the end, I don't think they would give a flying fig about the parliamentary gobbledy-gook that the pundits and politicos would be trying to explain. More importantly, the markets, investors, manufacturers, and analysts would welcome the stay of execution. The end result is no cliff, no apocalypse, and a Happy New Year for all.

I'm sure the naysayers, the nitpickers, and those disappointed in the Mayan Apocalypse fail, will point out the this requires a) some cleverness b) some guts, and c) some leadership from John Boehner, all of which seem to be in short supply. Modern medicine has done wonders, but they haven't figured out how to install a steel backbone in a person whose vertebrae seems to be composed of putty.

In addition, there is no guarantee that Boehner could convince 200 unruly members of his Caucus to sit in their offices (or, more accurately, staying in their Districts) while this kabuki performance occurs on the Floor. On the other hand, if they truly don't want to vote on a tax increase AND don't want the nation to Thelma-and-Louise off the cliff, staying home is the best option.

And who knows -- maybe Boehner just decides to throw Plan C to the floor, his speakership be damned, and let his Caucus blow up and disintegrates into its moderate, conservative, and right-wing factions while Leader Pelosi calmly marshals her 191 votes to leverage its passage. That could happen, but it would be noisy, bloody, and uncontrollable. And it could still lose. And we all lose.

Using the powers of his Speakership to stage-manage passage of Plan C could be John Boehner's Profiles in Courage moment. Let's see if he takes it.