When a Congressional Recess is Not a Recess

Here is a Zen-like question:

How can Congress be on recess – when it’s really not?

That’s the state of affairs in Washington after the House of Representatives defeated what is usually a routine “adjournment resolution” for August on Thursday. The resolution would allow lawmakers to escape the Capitol and head to their districts to campaign and attend the political conventions.

The bottom line: Congress is technically NOT on August recess.

On Thursday, the Senate voted to adjourn by unanimous consent. But the House did not, voting 265-150. All 187 Democrats who voted cast nay ballots – coupled with noes from 78 Republicans to defeat the resolution.

Why is this important?

Article I, Section 5 of the Constitution says “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days….”

So that eliminates the ability of the House and Senate to disappear for five weeks until September 10.

That means they have to meet – at least in a pro forma session – every three days from now through September.

Pro forma” is Latin meaning “as if.” So, the House and Senate may meet “as if” all members are here. But don’t expect any legislative business.

This doesn’t entail much. The House and Senate simply gavel in and gavel out after the opening prayer, the Pledge of Allegiance and some clerical business.

But you can expect a lot of carping. It’s possible Democrats may go to the House floor and try to get recognition to speak. It’s possible they could hold press conferences saying “we’re here, let’s get to work.” But in reality, few people will be here. All one needs to do is look at the jailbreak that unfolded once lawmakers took the final vote late Thursday afternoon. Scores of lawmakers poured down the House steps, racing to the airport.

Democrats carefully anticipated this vote in an effort to make Republicans look bad and to construe a talking point. House Minority Whip Steny Hoyer (D-MD) came down to the House floor and indicated that the body had just received the August Adjournment Resolution from the Senate. Thus, there would be one more vote coming. And then Hoyer kept his entire caucus together as all 187 of his members in the chamber voted no. Meantime, 150 Republicans voted to adjourn. Few realized the game was afoot and were already streaming out the door.

Democrats were able to document a vote where Republicans voted to leave, while there’s a laundry list of unfinished business on the table. Fixing the tax cuts. Undoing mandatory defense cuts known as “sequestration.” Salvaging the Postal Service. Approving a farm bill. You name it.

The Democratic Congressional Campaign Committee (DCCC) and Democratic-leaning super PACs were watching – and ready to tee up ads to run against their Republican opponents.

A Fox News analysis of that vote revealed that there were 28 Republicans from swing districts who voted to adjourn. Democrats could then target those members. Some obvious ones include Reps. Charlie Bass (R-NH), Ann Marie Buerkle (R-NY), Adam Kinzinger (R-IL), Nan Hayworth (R-NY), Joe Walsh (R-IL), Dan Lungren (R-CA) and Michael Grimm (R-NY).

By the same token a few Republicans could use this vote to their advantage as well. Rep. Jeff Flake (R-AZ) faces a primary in his GOP Senate contest against Wil Cardon in a few weeks. Flake voted to adjourn. Cardon could turn that vote against Flake if he wanted. By the same token, Reps. Ben Quayle (R-AZ) and Dave Schweikert (R-AZ) meet each other in a brutal member-versus-member primary. However, both voted to adjourn, thus not granting the other some daylight.

But there is a possible opening for Rep. Sandy Adams (R-FL). She’s pitted in a challenging member-versus-member primary against House Transportation Chairman John Mica (R-FL).  Mica voted to adjourn. Adams did not.

Less obvious is if this could mean anything for Rep. Denny Rehberg (R-MT). Rehberg faces Sen. Jon Tester (D-MT) in a Senate contest this fall. Rehberg voted to adjourn. But Tester failed to object to the unanimous consent request for the Senate to skip town. However, unlike the House, there is no roll call vote to precisely pin that vote on Tester.

In fact, Republican lethargy nearly cost Democrats the ability to record the vote. After Hoyer called for the yeas and nays (meaning you want to vote), the House nearly approved the resolution by voice vote without taking an electronic tally. Finally Chief Deputy Whip Pete Roskam (R-IL) scrambled to the microphone and demanded a recorded vote.

Mike Steel, a spokesman for House Speaker John Boehner (R-OH), lashed out at Democrats.

“House Leaders made it clear earlier this week that we will bring the House back at any time if Senate Democrats act to stop the looming tax hikes or replace the devastating defense sequester with other spending cuts.  On both issues, the House has acted – so House Democratic Leaders should direct their complaints and comments to Senate Democrats, and President Obama,” said Steel.

With the House in session, but not really meeting, it’s possible there could be some shenanigans with these pro forma sessions over the next month.

Last December, the House met in a series of pro forma sessions as lawmakers tried to figure out a path forward on renewing the payroll tax cut. Few members were here in Washington except for key negotiators. So when the House met in a pro forma session, Hoyer seized the floor and began speaking. Meantime, Rep. Mike Fitzpatrick (R-PA) quickly gaveled the House out of session and darted from the dais after only a few seconds.

But then something weird happened.

The cameras and microphones in the chamber remained on. And Hoyer, who was off-camera at that point, morphed into a sports announcer. The video showed an empty rostrum and Fitzpatrick retreating to the door. Hoyer then executed a play-by-play call that sounded like Mike Emrick at Joe Louis Arena.

“As you walk off the platform! You’re walking off the platform! You’re walking away just as so many Republicans have walked away from middle class taxpayers and the unemployed!” shouted Hoyer.

For hockey fans out there, about the only thing Hoyer didn’t say was that Fitzpatrick was “pitched along the boards” or that he “knifed” his way out of the chamber.

The House Recording Studio (which controls the TV coverage) then killed the video and microphones. But Democrats had the video they wanted: Republicans “walking away” while the payroll tax cut hung in the balance.

Democrats could set up a similar scenario for pro forma sessions this August and ask Republicans presiding why the House isn’t tackling major issues. And Republicans could help themselves from embarrassment if they flip the off switch on the A/V equipment.

There is also an operational hurdle to clear. Since the House didn’t agree to adjourn, the Senate will have to meet at three-day intervals, too. But there’s a problem. The Senate chamber is scheduled to have its carpet replaced this month.

The Senate will meet for the first of its 11 pro forma sessions in August and September in the chamber on Friday. But after that, the rest will be moved to room 216 of the Hart Senate Office Building. This is a large room where big events like confirmations for cabinet secretaries and Supreme Court justices unfold. The Constitution doesn’t require the House or Senate to meet in any particular place. In fact it was August 2011 when the Senate last met outside the Senate chamber. The Senate was scheduled to meet in a pro forma session when a 5.8 magnitude earthquake rocked the Capitol shortly before the gavel. So, the Senate met instead at the Postal Museum just a few blocks away. At the time, there were questions about the structural integrity of the Capitol.

Now here’s a question about meeting in 216 Hart. The Senate staff gym is located right next to 216 Hart. They sometimes prop the door open so the clanging of kettle bells and the dropping of weights is audible down the hall. It’s unclear if they will suspend gym use during those meeting times of the Senate.

Finally, adjournment resolutions aren’t defeated very often. The last such resolution to go down was five years ago. That’s when the House voted 218-184 against adjourning sine die (which essentially means the Congress is done for the year) to end the first session of the 110th Congress on December 20, 2007.

Of course, none of this zaniness should surprise anyone. Shakespeare may have written about the Ides of March. But in politics, there is nothing stranger than the “Ides of August.” Most in Washington plan to go on vacation in August and anticipate a quiet month. But they shouldn’t. Scores of seminal events which shape the body politic seem to hit in August. Sometimes they alter the political landscape.

Hurricane Katrina ravaged New Orleans and the Gulf Coast – and whipsawed the rest of the Bush presidency in August, 2005. Iraq invaded Kuwait in 1990, sending the U.S. to war a few months later. The U.S. dropped atomic bombs on Hiroshima and Nagasaki in August, 1945, effectively ending World War II. President Richard Nixon resigned in August, 1974 after Watergate spiraled out of control. The East German government began erecting a wall around West Berlin in August, 1961. More than 200,000 people gathered in front of the Lincoln Memorial on August 28, 1963 to hear Dr. Martin Luther King Jr. deliver his “I Have a Dream” speech. The late Sen. Strom Thurmond (R-SC) seized the Senate floor for a record 24 hours and 27 minutes as he filibustered against civil rights legislation in August, 1957. Republican presidential nominee Sen. John McCain (R-AZ) selected former Alaska Gov. Sarah Palin (R) as his running mate in August four years ago. House Republicans commandeered the House floor each day during the August, 2008 recess, demanding that lawmakers come back to town to drive down gas prices.

In that instance, Republicans simply used a similar August gambit to their advantage. During that August recess, Republicans held rump sessions each day in the House chamber, without the cameras and microphones because the House wasn’t in session. But that didn’t stop them from excoriating Democrats for “shutting off the lights” during these daily conclaves. Many took on then-House Speaker Nancy Pelosi (D-CA).

“This is the people’s House,” hollered then-Rep. Thad McCotter (R-MI). “This is not Pelosi’s politburo.”

Even though the democratically-elected House had voted to adjourn.

By August, 2009, Democrats made sure the House chamber wasn’t available during the August recess. They pre-emptively informed lawmakers that the chamber wouldn’t be available. Then-House Administration Committee Chairman Robert Brady (D-PA) wrote a memo to all lawmakers.

“Access to the chamber and gallery will be restricted during the period of construction activity,” Brady wrote.

He also reminded members that Rule IV of the House provides that “‘The Hall of the House shall be used only for the legislative business of the House and for caucus and conference meetings of its Members, except when the House agrees to take part in any ceremonies to be observed therein. The Speaker may not entertain a motion for the suspension of this clause.’”

So the failure to approve the adjournment resolution isn’t typical at all.

But it’s August and weird things happen around here at this time of year. In Washington, beware the Ides of August.