Can Republicans roll back Obama’s executive order? It’s hard but not impossible.

Republicans have rallied behind the idea of defunding Obama’s executive order on immigration either through the omnibus or a rescission – a bill passed after an appropriations bill. However, this plan ran into some speed bumps. As Jennifer Hing, House Appropriations Committee spokesperson, points out, Citizen and Immigration Services (CIS), the agency that processes immigration petitions and deportations, is funded through application fees. That means its funding is not subject to annual appropriations bills. And as a result, there is nothing Congress can do to defund the executive order.

However, this talking point misleads many into thinking that Congress is helpless, which is categorically wrong. Republicans could pursue several different avenues. They could attach legislative language onto an omnibus or other appropriations bill. This is a routine process that occurs basically every time an appropriations bill is passed (see here under “Legislating on Appropriations”). Even though Congress has a rule prohibiting legislative language in appropriations bills, they nonetheless ignore it all the time.

There are other ways to respond as well. The Budget Committee could grease the wheels and push the bill through the reconciliation process. Legislatively, some piece of this bill would have to do with revenue (fees), though not all necessary provisions would likely be able to pass under reconciliation. Finally, the most obvious solution is to pass a bill. Congress could simply prevent CIS from executing the order.

There is a catch, however. Any process the House could use would be subject to a 60-vote threshold in the Senate. Either the Senate would have to agree to waive the rule against legislating on appropriations, waive the Senate Byrd rule, or overcome a filibuster. That is a difficult but not impossible task. Republicans are hesitant to take this path because in order to get 60 votes they would have to pull back on reversing the executive order.

There is a deeper, underlying point that uncovers Republicans’ strategic motivations. This is not a case of inability. This is a case of inaction. There is nothing procedurally hindering Republicans from pursuing a response to Obama’s executive order. They are not held back by process. They are held back by strategy.

The real reason most Republicans do not like these options is there is no guarantee the bill they want to offer the President could get to his desk. There would be no grand showdown forcing Obama into the awkward situation of choosing between his executive order or funding the government.

In other words, without non-filibusterable, must-pass legislation, Republicans cannot force the president into accepting their terms by presenting him with a catastrophic consequences if he doesn’t. And as a result, we see a lot of hyperbolic rhetoric without much motivation to back it up with legislative effort.

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113th Congress: Arguably the least democratic in American history

The 113th Congress may very well go down as the least democratic in our nation’s history. Except probably not in the way you are thinking. This has nothing to do with how much money was spent in campaigns, gerrymandering, voter suppression laws, or other things that distort the electoral process. The 113th Congress, more than any other Congress, excluded elected representatives and senators from the ability to offer amendments. Members of the 113th Congress have arguably had the fewest opportunities to put their imprint on policy than at any other time in the nation’s history. Congress, as a deliberative institution, is increasingly failing as a representative body.

The Legislative Branch was intended to be, to varying degrees, the people’s body and a reflection of their will. At a practical level this isn’t possible. If all representatives were given equal say in the process nothing would be done. To find a contemporary approximation of this concept, just look at today’s Senate. Obstruction is rampant and passing routine measures is extraordinarily difficult. Congress has, and always will, solve this problem by giving some members more power in the policymaking process.

Party leaders (Speaker, majority leaders, whips, etc) and committee chairs are perfect examples of this. They control greater procedural power in order to push the policymaking process forward. Without them nothing would be done. While giving some members more power to shape policy is not entirely fair, it is necessary. And under the current rules, party leaders control the most power.

Today, however, these well intentioned rules have become distorted. As a result party leaders are badly undermining the deliberative process. This is not entirely new. In fact, this has occurred at increasing rates since the mid- to late-1970s. It really ramped up in the late-1980s and has been on a steady (some might suggest steep) upward trajectory since. In that sense the 113th is just the most recent Congress in a decades-long trend. That said, the 113th reached new heights (or depths).

In the 113th, Speaker Boehner set a record for the most “closed rules” in House history. At this point 74 bills (and counting) brought to the House floor have come under closed rules, passing the previous record of 61 under Speaker Pelosi in the 111th. These rules prevent any member from offering amendments to the bill, typically limit debate to an hour, and offer no policy alternatives. Representatives can either take it or leave it. In other words, this process is the most strong-handed way to bring a bill to the floor. Influential members may be able to alter the bill behind closed doors before it reaches the floor, but most often rank-and-file are forced to consider the bill as its written; a straight take it or leave it proposition.

Further, sixty more bills were brought to the floor under a “structured rule,” where leadership (by virtue of the Rules Committee) chooses the amendments that are debated on the floor. In most cases, this again, shuts out significant portions of House membership. Today, even large bills with histories of open deliberation eliminate hundreds of amendments from consideration.

For example, members submitted 322 amendments to the National Defense Authorization Act (NDAA) considered earlier this year. The leadership prohibited 137 of those amendments from being offered on the floor. It is true that most amendments made it to the floor. However, for most of the past 53 years this bill has passed the Congress, this bill was brought up under open rules, allowing any representative to debate and offer amendments to the bill.

And further, the NDAA is the exception to the rule. It’s common for the Rules Committee to eliminate most offered amendments. For example, 42 amendments were offered to Cyber Intelligence Sharing and Protecting Act (CISPA) in 2013. Only 14 amendments made it through the Rules Committee to the House floor. Additionally, the Rules Committee forces members to pre-print amendments to a bill 24-hours in advance of their hearing, often deterring members from submitting amendments. So far in the 113th House a full 95% of all bills brought to the floor (exempting the suspension process) were considered under these special rules.

The Senate, historically known for open debate and deliberation, did not fair much better. Majority Leader Harry Reid used his procedural prerogatives to stifle the regular amendment process. In only a hand full of occasions, Reid “filled the tree,” a process where he offers several non-consequential amendments before other senators can offer their policy amendments/ideas to the bill. Like the House, this tactic cuts out senators from the amendment process. Like the House, this is not new. However, this Senate was particularly bad. Only four bills out of the more than fifty receiving roll call votes in the 113th Congress had more than 5 votes on amendments. Obstruction and filibusters have reached an all-time high. However, it’s hard to argue that encroachments on senators’ right to offer amendments are not also reaching historic levels.

Processes that were once open for the membership to debate are now closed. Congress was intended to be a body where the nation’s representatives gathered to debate and vote on legislation. However, current practice in both chambers (and from both parties) brings the principle of open debate and deliberation into serious question. It is rarely mentioned but nonetheless important: how party leaders use the process affects how members of the parties behave within it.

The party rank-and-file share blame in this story. For the past several years they have pushed leaders to use more strong-handed tactics by abusing the privileges they once enjoy. However, this cycle is reaching dangerous depths. Party leaders are exercising more power without delivering any political or policy benefits. It has led only led to more partisanship and more dysfunction.

You will likely hear a lot about regular order over the next month. It is an overused and arguably anachronistic trope that members in both parties clamor for. However, it hasn’t been seen on Capitol Hill for over 20 years. And until members start demanding more influence in the policymaking process and creating ideological and political room to compromise, it has little to no chance of returning. With party leaders clamping down debate and bringing partisan-charged bills to the chamber floors, it is no wonder the parties no longer trust one another.

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New Republican rule complicates Rep. Paul Ryan’s future

New House Republican Conference rules prevent members seeking higher office to hold committee and subcommittee chairs. Rep. Tom Cole (R-OK) said, the “idea is not to have major committees, appropriations or subcommittees chaired by people who are running for the Senate. If you’re shuttling back and forth, that’s just a huge problem for us.”

My colleague Mark Harkins argued this rule was likely the product of Rep. Jack Kingston’s (R-GA) run for Georgia’s Senate seat. Though he lost the primary, his bid for the Senate took the Labor-HHS subcommittee chair away from his legislative duties in the 113th. Labor-HHS was the only appropriations subcommittee not to report its appropriations bill in 2014, and only one of two subcommittees not to report its bill in 2013.

Several commentators noticed the rule could have consequences for other members, specifically Rep. Paul Ryan (R-WI). In addition to his potential ambition for higher office he also has his sights on the Ways and Means gavel. If he does decide to run for higher office in 2016, he would need a waiver exempting his chairmanship from the new restriction.

However, it is unclear leadership would grant him one. Ways and Means figures to be at the center of Republicans’ legislative strategy in the 114th Congress. Without a filibuster-proof majority in the Senate, many bills will have to go through the reconciliation process, which allows bills to pass the Senate with a simple majority. This places Ryan’s political and policy ambitions at a crossroads.

Reconciliation has limited applicability. It can only be used on measures that affect direct spending, revenue, or the debt ceiling. In other words, most of the bills the reconciliation process would instigate fall in Ways and Means’ jurisdiction in the House. Since 1989, 11 of the 12 reconciliation instructions directed Ways and Means to draft and report bills. In short, the primary process Republicans will use to pass policies changing everything from Obamacare to tax reform would go through Paul Ryan’s presumptive committee.

If Republicans thought Kingston’s absence was a nuisance to the appropriations process, Ryan’s absence would surely be intolerable, particularly in the run up to the 2016 elections. Failing to chair the preeminent committee Republicans’ political and policy strategy centers upon would fundamentally undermine their majority. Today House leaders may lay this rule at Kingston’s feet. But it is not likely an accident the rule also complicates Ryan’s political future.

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Income inequality did not affect the midterms – unless this was a very weird election.

Democrats are searching for explanations to Tuesday’s thorough defeat. Aside from obvious considerations – low turnout, 6th year election, etc. – there are several arguments that the economy was a big reason Democrats lost so thoroughly. It was polled, once again, as the most important issue concerning voters this election.

However, this stance presents a bit of a paradox. For one, the economy is not all that bad. In fact, it’s doing pretty well. The US is outperforming other economies recovering from the global recession. The US has steadily added jobs each month for several years. Unemployment is below 6% for the first time since 2008. The stock market has been breaking records in recent months and performing well generally for the last few years. Gas prices are low. The housing market is recovering. Factory production and jobs are up. Corporations are enjoying record breaking profits. Economic confidence is higher than it has been since 2008. Despite a slow recover, the economy is relatively strong.

This normally bodes well for the incumbent president’s party in election years. That was obviously not the case Tuesday.

Some argue this disjuncture is because of income inequality. Many pollsters, political analysts, and reporters are arguing that while the economy may be improving individual voters are not reaping the benefits. And therefore, they are not rewarding the incumbent party in the way that they normally would.

This is almost certainly not the case. The overwhelming majority of research shows voters are much more likely to consider the national economy than their pocketbook. Individual economic circumstances may play a small role, but for the most part perceptions of national economic conditions overwhelm other economic considerations.

Similarly, inequality is not new. The income gap started growing in the early-1970s. Unless the US has reached some unseen tipping point, it is unclear why income inequality would matter in this election and not in others. For example if inequality was to have affected voting decisions, the relationship between the economy and voting would have likely started to decouple in the 1990s when inequality increased sharply under Clinton. However, that hasn’t occurred.

It’s more likely that Democrats’ failed to affect voters’ perceptions of the national economy. As Lynn Vavreck points out, voters’ perceptions of the economy matter more in midterm elections than in presidential years. And further, partisanship has an effect on perceptions of the economy. It acts “as a lens through which perceptions of the state of the nation’s economy are filtered.” Democrats’ ability to change Republicans’ perceptions of the economy was likely minimal.

However, it is also possible they failed to convince their own partisans that the economy was, in fact, performing well. Democrats’ attempts to localize their races and distance themselves from the President also put distance between them and a solid national economy. During the campaigns we heard very little about steady growth, lower unemployment, or the other factors that could have played well for Democrats. It’s entirely possible many did not believe these trends were good enough to campaign on. It’s also likely that many states in which these races took place still had struggling economies, which according to a new paper by Ansolabehere, Meredith, and Snowberg (2014) can affect perceptions of the national economy. However, that wasn’t the case in Iowa, Colorado, New Hampshire, South Dakota, and Virginia, all of which have unemployment below the national average. It’s also possible that so many fundamentals pointed away from Democrats it was never a messaging battle they could have won.

Regardless, the key takeaway is that income inequality was almost certainly not one of the structural issues that contributed to the Democrats defeat this Tuesday.

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Can the midterm outcome “solve” Washington’s problems? No. But it can make things worse.

An old adage is that lawmakers win reelection by “running against Washington.”  According to a recent Gallup poll, just 14% of Americans approve of Congress’s job performance. So while there’s something absurd about incumbents and major party candidates running against themselves, it’s a winning strategy for sure.

In some ways Congress’s remarkably low approval is undeserved.  We know, for example, that congressional approval fluctuates along with macroeconomic conditions.  We also have an arrangement where both parties are sharing power, so everyone has a reason to hate at least half of Congress.  Research even shows that the passage of legislation has a negative effect on approval (you know, when Congress actually does its job).

Nonetheless, in running against Washington, lawmakers regularly promise to “fix Congress,” work “collaboratively” with the other side, and “break the logjam” of legislation.  Unfortunately, research suggests that none of these problems will be solved based on tonight’s midterm outcome.  In fact, there are good reasons why some problems will get worse, not better.

Polarization

Let’s start with polarization, which is part and parcel to Congress’s dysfunction.  For starters, polarization is a process whereby lawmakers in both parties move to the ideological extremes (leftward for Democrats, rightward for Republicans).  And as a theoretical matter, that process can happen in two ways: either (1) new members enter Congress to the left or right of the lawmaker they replaced or (2) continuing members drift to the left or right over the course of their career.

Based on numerous studies, #1 is the larger cause of polarization.  In other words, it’s the replacement of old members with new members that has caused Congress’s movement to the extremes.

In an old post (see here), I wrote about why the logic of “throwing the bums” out is wrong.  If you read that article, the exact same logic applies here: If polarization is the “problem,” electing a large volume of “new lawmakers” will make things worse, not better.

Gridlock

Gridlock is defined as the inability of Congress to pass legislation.  We can tackle the question of whether today’s midterm results can alleviate gridlock from multiple angles.  I’m assuming that the House will remain in Republican hands (and extremely safe assumption), so the real question is what happens in the Senate (where current projections give anywhere from a 98% chance to a 70% chance).

For starters, it’s often assumed that “new members” will “break the logjam” and usher in a new era of collaboration and compromise.  Unfortunately, the lessons of polarization apply here too: At best the volume of new members is Untitledunrelated to the passage of legislation and, at worst, new lawmakers make passing legislation harder.  For those details, see here.  But see the chart to the left (click for larger image) comparing the percentage of new lawmakers elected (x-axis) and the number of landmark laws passed (y-axis):

Second, the fact that the House and Senate are controlled by rival parties is often cited as a reason for the current Congress’s gridlock.  It is certainly logical that if Republicans win the Senate tonight, gridlock should go down.  However this, too, is wrong.

Control of the Senate is what’s known as a “necessary but not sufficient” condition for breaking gridlock.  While Republicans will indeed be better able to coordinate the passage of legislation across chambers, Democrats will retain two very powerful weapons that promote gridlock.

First, baring an upset of epic proportions, Democrats will maintain the ability to filibuster Republican proposals.  Second, remember that President Obama has the power to veto any laws that survive a Democratic filibuster.  I know that’s painfully obvious, but Republicans could circumvent the filibuster in two important ways: (1) by using a procedure known as “reconciliation” or (2) by eliminating the filibuster altogether.  Both are very real possibilities, making Obama’s veto power that much more consequential.  And according to these data, there have been 2564 vetoes dating back to George Washington’s presidency.  Among these, only 110 have been overridden by Congress, a success rate of just 4%.

But also, there is empirical research exploring these very questions.  In a paper published in the American Political Science Review, Sarah Binder tests the effect of “quasi-divided government” (defined as when the parties share control of Congress) on the occurrence of gridlock.  She finds that periods of quasi-divided government have absolutely no effect on the volume of important legislation Congress passes.  In sum, Binder’s research suggests that tonight’s outcome in the battle for control of the Senate won’t have much of an effect on the passage of legislation in the next Congress.  What does matter, according to Binder’s results?  “Pure divided government” (when the president opposes Congress, so see above), polarization (also see above), and the ideological distance between the House and Senate.  While the final one could be alleviated by tonight’s outcome, the result of a race or two won’t move the location of the median senator enough to make a sizable difference on the occurrence of gridlock.

Conclusions

Politicians are not “bad” for running against Congress and for over promising to “fix” Washington’s dysfunction.  And the public isn’t “stupid” for buying into these promises.  But we tend to have unrealistic expectations in even numbered years, focusing myopically on the idea that a single election is the antidote legislative paralysis and hyper partisanship.  Washington wasn’t broken over night, and it won’t be fixed this evening.

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Vote Scores are hurting Vulnerable Senate Democrats

Several Senate Democrats are running their campaigns as far away from the President as possible. Democrats are defending six states that Mitt Romney won in 2012. Three Democratic incumbents find themselves in toss-up races in states Mitt Romney won by landslide margins. The President’s approval numbers in those states are dismal, forcing Democrats to deny policy agreement the Chief Executive.

However, many Democratic incumbents have had difficulty doing so. Unsurprisingly, many of them are tripping over their voting records. In 2013 Sen. Mark Pryor (D-AR) was the Democrat who voted with the President the least- and his presidential support score is 90%.

To many liberals, Sen. Pryor barely counts as a Democrat. So why is his presidential support score so high? In many ways the combination of gridlock and legislative campaigning in the 113th has limited conservative Democrats’ ability to distance themselves from Obama.

First, gridlock over policy has pushed Reid to schedule executive nominee confirmation votes. When the House and Senate are controlled by different parties it often stymies congressional production. That effect is particularly pronounced when the parties are polarized. The 113th Congress, so far, has passed 98 fewer laws than the 112th, which was the least productive Congress since the Civil War. Gridlock, in part, pushed Democrats to shift their governing strategy. After the nuclear option was invoked last November, the Senate could confirm executive nominees by a simple majority. This procedural change gave Democrats a useful outlet to accomplish some of their governing goals in the face of legislative gridlock.

However, this tactic had a downside. It had the effect of boosting presidential vote scores of many vulnerable Democrats. Votes on confirming nominees made up the overwhelming majority of votes in the Senate. Fifty-two percent of all votes cast in the 113th Congress were on presidential nominees. In the 2nd session a whopping 182 out of 270 votes (67%) confirmed (in most cases) presidential nominees. And in many cases those nominees were confirmed on party line votes. This boosted presidential support scores for many conservative Democrats who were seeking distance from the president, not demonstrate a cozy relationship.

Second, as is often the case in election years, the Senate scheduled campaign votes. Majority parties have political incentives to make their majority party look good at the expense of the minority party. Therefore, majority leaders (or the Speaker in the House) schedule votes that highlight that distinction. Campaign votes were prominent in the 113th Congress. In 2nd session (2014), 26 of the 88 non-nominee votes in the Senate, just under 30-percent, were for bills that had practically no chance to pass the Senate and zero chance at passing the House. Votes on a constitutional amendment to limit money in politics, the Paycheck Fairness Act, raising the minimum wage, and the Sportsman’s Act are all bills that had little opportunity to become law in this Congress. If you are outraged that seemingly common sense measures had no chance of becoming law, then scheduling these votes had their desired effect. These bills were never intended to pass. They were scheduled for members to use on the campaign trail. Yet again, they pulled many vulnerable Democrats’ vote history closer to the President’s agenda.

The remaining votes in the 113th Congress were on must pass or important legislation (such as WRDA, Highway funding extension, the FARM bill). These were bills the president may not have liked but did not outwardly oppose or threaten with a veto.

The legislative schedule, affected by gridlock and campaign incentives, artificially boosted many Democrats’ voting scores in an election year when that trend is very damaging. The irony here is Harry Reid’s attempt to protect his vulnerable colleagues – preventing difficult amendments and scheduling messaging bills – inadvertently pushed them closer to an unpopular president. In hindsight many may have like an opportunity to illustrate policy differences with Obama. Regardless, today many Democratic candidates in red states are now forced to stringently highlight a mere 5-10% “policy” disagreement between them and the President.

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Congressional Abdication at its Finest

Ebola is the most recent “crisis” (footnote: “crisis” is a loose term given Ebola’s relative lack of impact on the health of individual Americans) is highlighting a severe abdication of duty. Rather than produce a solution to the “crisis,” both parties appear content to campaign on the issue.

Republicans’ talking points mirror those that arose during the immigration debate: solving the problem relies on preventing people in the affected regions from getting access to the US. Sen. Marco Rubio (R-FL) plans to introduce a bill that will suspend issuing travel visas to those traveling from affected areas. The Senate Judiciary Committee Republicans wrote a letter urging President Obama to ban travel visas through executive action. Rep. Pete Session (R-TX), Chair of the House Rules Committee (the one committee responsible for bringing bills to a vote on the floor), has recommended the same. These calls for executive action come on the heels of a House authorized lawsuit against the President for taking executive action.

Democrats have geared up their appropriators and staff to push for additional funding that may or may not be necessary to stem a currently non-existent Ebola outbreak in the U.S. Democrats are arguing that drastic budget cuts have reduced agencies’ ability to deal with the problem, despite $88 million in supplemental funding passed in the September continuing resolution and $750 million in reprogrammed money to mobilize over 3,000 troops to Ebola stricken regions. Democratic senate candidates, in turn, have attempted to paint their opponents as budget extremists failing to provide government with the means necessary to combat the Ebola crisis.

The broader point is there is a lot of talk and little real action. This Congress in particular has been all too happy to cry wolf while passing responsibility to an executive branch that is overburdened, underfunded, and often legally incapable of doing what it requests.

The only real certainty in this story is that absolutely nothing will be done before the midterm election. And, in all likelihood very little will be done after the election outside of some hearings and possibly a small funding package. Of course, all of that is contingent on Ebola remaining in the news cycle after the election. If the child migrant crisis is any precursory indication, that is far from a guarantee.

The last time Congress seriously debated NIH and CDC funding (i.e. not as part of a giant omnibus package or CR) was 2006. Ebola is a serious issue and should be treated that way. However, a long history of failed process combined with a historically unproductive legislative branch is likely to deter legislative action when it’s needed.

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