A few months back, I started to look at this, but butted up against the problem of not really knowing the rules too good.

That's a work in progress - but it did occur to me to float one way that the GOP might approach minority status in (let's suppose) both houses of the 110th.

Naturally, the ¡No pasarán! strategy is open to them: clearly, the Dems are not going to get any legislation enacted over Bush's veto; and they're unlikely to be able to defeat a properly managed filibuster.

But there are costs to being in-your-face obstructive - the do nothing tag reworked - that, no doubt, the GOP would rather avoid, if possible.

Note, however, that, in the aftermath of defeat, their prime concern will not be with legislative content but with treating battered morale and rebuilding their Congressional organization. They will need to count their limbs, keep their heads down and regroup: a pitched battle straight after being sworn in would not be ideal.

On the other hand, they will want to undermine Dem morale if they can do it without hurting their own position. They will have in mind a series of Doolittle Raids designed not to stymie Dem legislation but to demonstrate that they're not out for the count.

The best way to do this will be to press legislation which the Dem leadership will oppose, but which moderate Dems might be attracted to vote for.

In the House first: we know that, by dint of controlling the Rules Committee and wielding the previous question, a House majority should pretty much have a stranglehold on what legislation gets to the floor and a short circuit to passing its own.

There is the device of the discharge petition (which the Dems use for minimum wage legislation - HR 2429); but it takes an agonisingly long time to creep towards the required 218 mark, and usually ends in failure.

Of greater interest is the motion to recommit: the first great advantage of the MTR is that it comes at the end of House floor action on a bill just after the PQ and before the vote on passage: all the restrictions included in the special rule have expired, and it's a straight up or down vote.

The second is that, even when a bill is dealt with on the House floor under a closed rule, the rule normally

[p]rovides one motion to recommit with or without instructions.

to quote the rule (H Res 1042) covering the Military Commissions Act (HR 6166).

The effect of passing a MTR without instructions is to kill the bill. The MTR with instructions allows the substitution of a next text for the existing one - and the substitute text is then voted on in the vote on passage.

There is, so far as I'm aware, no reason why a MTR need be allowed in a closed rule. But, given the Dems' moaning about GOP curbs on debate, it might be a tad hypocritical of a new Dem majority to draw closed rules even tighter than DeLay and Co.

But, hey - this is politics we're talking about!

In the Senate, things are much more fluid.

Let's suppose that the GOP think they've a piece of legislation that might tempt Dem moderates. They choose a must-pass bill - not (generally) an appropriations bill - and offer a non-germane amendment. (Non-germane amendments are usually barred from appropriations bill.)

The first key vote is on the motion to table that the Dem leadership will offer - and probably PDQ. The MTT (a simple majority needed to pass) is not debatable - no filibuster! - and will give an immediate poll on the GOP amendment. You'd expect that all those favoring the substance of the amendment would vote against the MTT; plus there may be others who want to see how the land lies; and still others who want to vote for it before they vote against it.

If the MTT passes, the Dem leadership is put in the position of either pulling the bill (if time is pressing on other measures) or allowing the GOP amendment to go to a vote - with the risk that it might pass.

If it passes, and is a first degree amendment, the Dem leadership may seek to offer an amendment to the GOP amendment designed to gut the GOP amendment. (Here, my knowledge gives out: there is a strict regime of categories of amendment allowed, but often nice judgements to be made about which category a particular amendment falls into.)

The Dem fallback (I'm skipping ahead a fair bit in Congressional procedure) is a conference on the bill (assuming that the GOP haven't ensured that the text in both bills is identical - talk about Mission Impossible...); if both the House and Senate Dem leadership are agreed on a text - clearly, part of the GOP's task is to engineer things so that they aren't so agreed! - then the conference report will be a cinch and will get an up-or-down vote in each house.

My guess would be that party feeling would trump ideology at this point.

This would not be a total loss for the GOP if they've managed to test the regularity of moderates and of the Dem leadership, and find them wanting at places during the piece, if not at the end.

I think that - assuming they lose - the GOP narrative over the 110th will be all about confession and redemption, trying to be collegial and listening across the aisle and all that bollocks.

The Dem leaderships had better be ready for them.

Update [2006-10-14 13:40:17 by skeptic06]:

Just to be clear: the high ground in both houses (especially the House) is held by the majority. The minority's ability to achieve anything in the House - or more than obstruction in the Senate - is very limited.

A cookbook approach is inapplicable: there is no sure-fire recipe for success.

For example: during the manoeuvering over the detainee bill, we saw Frist adopt the tactic known as filling the amendment tree.

Basically, the Majority Leader uses his privilege (not in the Rules!) of first recognition to move amendments in all positions allowed by the Rules - this CRS Report (PDF) does its best to explain - thus barring any further amendment from the floor. He will combine this with a cloture motion to ensure a vote on passage on the text he wishes.

Once the amendment tree was filled by Uncle Harry, no GOP amendment would be in order.

Clearly, something approaching an ambush would be necessary for the GOP to work the manoeuver suggested. For example, there may be some reason why the majority leadership would want to allow further amendments - to assuage sore feelings among factions of Dem senators, say.

Once a GOP obtained the floor, though, he could offer the minority amendment, and, once offered, it would have to be dealt with as detailed above.

Of course, we expect the GOP leader in the 110th Senate to be Mitch McConnell, an altogether safer pair of hands than the butter-fingered Video Doctor. I'm sure he's way, way ahead of me on Senate minority plays. (No kidding?) In fact, I'm looking forward to an education on the subject!

Update [2006-10-14 13:40:17 by skeptic06]:

It seem that the Rules Committee is in general precluded by Rule 13(6)(a) from producing a special rule for a bill that does not make provision for allowing the minority leader to make a MTR the bill (House Rules).

The best source for CRS Reports on the House is this Rules Committee page. A two page report (PDF) on motions to recommit is available.