After 7 years, Rule 22 blog has moved to a new home.
We will continue blogging about Congress at our new home. You can find all our content, old and new, at LegBranch.com.
After 7 years, Rule 22 blog has moved to a new home.
We will continue blogging about Congress at our new home. You can find all our content, old and new, at LegBranch.com.
There’s a lot of talk about the broken processes in the House and Senate, particularly around the health care bill. Extraordinary secrecy has been employed to push the AHCA through the House and the BCRA through the Senate. In fact, there’s so much commentary about how “broken” the institution is that people are overlooking what a disastrous strategy this is for Republicans. In short, this leader-centered process is horribly mismatched to the current, fractured Republican Party. The strategies employed by House Speaker Ryan and Senate Majority Leader McConnell’s are exacerbating tensions in the party, opening their members to damaging votes, and putting their colleagues in untenable political positions.
First, let’s assess the broken process. These arguments rest on a couple assumptions: first, that committees should hold hearings and markups, and second, that these debates should be open to the public. These components are commonly referred to as ”regular order.” But the truth is that neither of these things are completely regular. In fact, these processes barely overlap in congressional history. They are features from different legislative eras.
Committee hearings and markups have become increasingly less relevant to the language that actually passes through Congress. Committee influence is minimized and often bypassed entirely, a trend that can be traced back to the late-1970s, gained steam in the 1980s, and hit warp-speed in the 1990s. Over that time it’s become more common for bills to be pulled out of committees, significantly changed after committee consideration, or skip committees altogether. If regular order is for bill language reported from committees to receive debate and amendment on the floor, it’s been a long time since Congress has been regular. Today, it’s far more regular for party leaders to control the process from the beginning.
This brings us to the openness of the process. The period in which committees worked through bills and saw their language largely intact when these bills reached the floor is roughly the same period when their hearings were closed to the public. Decades ago, committee hearings were closed until voted open. Today, they are open unless voted closed. This has only been a feature in congressional deliberation since 1970, and it has indeed made committee action more transparent. But that transparency is accompanied by less relevance in the legislative process, not more.
As Walter Oleszek points out in his essay in the Congressional Research Service’s The Evolving Congress, regular order is a flexible construct. Things haven’t been “regular” in a long time. As a result, many current critics lament a process that barely existed. In doing so, they miss the more important point: how this strategy is potentially catastrophic for Republicans.
Leaders have taken a more central role in the process, in part, to protect their majorities. They forward bills that promote the party’s image and brand. They use their power to prevent politically damaging amendments on the floor. They use the process to accomplish policy and political goals that will, on the whole, enable their party to win the next election. In recent decades this has become the norm.
It’s safe to say we are no longer in recent decades. The health care process has accomplished none of these things. Instead, the McConnell and Ryan strategy has presented members with horribly unpopular bills. Now, Majority Leader McConnell is in the process of exposing his members to a variety of potentially damaging amendments. Senator Heller’s 2018 challenger is already fundraising off of his vote to just debate the bill.
The process changes. It always has. Getting back to regular order is a misnomer. But focusing on how different this process is misses how bad it’s likely to be for the Republican Party. Members are being forced, begged, or coerced to adopt a strategy that will likely damage them. The process is not bringing the party together; leaders are instead likely to drive an even deeper wedge between the ideological wings of the party. Conservatives like the House Freedom Caucus, Senator Lee, Senator Cruz and others are frustrated they are not getting what they want. Meanwhile, moderates are being forced to take difficult votes that could exacerbate their already vulnerable status. As a result, these tactics are creating in a loss of confidence.
It’s possible the Republican Party has become too ideologically diverse to effectively govern. If that’s the case, no process will cure its ills. But one thing is certain: this process is not helping bring the party together. Instead, leaders are intensifying intraparty tensions. And as bad as this process is for democratic norms, it’s arguably worse for the majority party.
Originally published at the Government Affairs Institute at Georgetown University
House and Senate leaders will push through an omnibus spending package this week. The bill combines 11 appropriations bills for the final months of the FY2017 calendar. Democrats walked away with some big wins in the omnibus. They struck over 100 policy riders, resisted non-defense cuts proposed by President Trump, managed to block funding for President Trump’s border wall, among other items.
However, their leverage in the budget process is being badly misunderstood. Many pundits are suggesting that fractured Republican politics are giving Democrats leverage. And while that certainly helps, it underestimates the institutional features in place that will bias budgets in favor of the minority party no matter which party is occupying it. In other words, it’s not just fractured Republican politics. It’s also existing law. So let’s look at the omnibus and how it shapes up, examine why Democrats were successful, and explain the state of play for FY2018.
The omnibus spending bill is the culmination of the 2015 Bipartisan Budget Act (BBA), negotiated by then-Speaker Boehner, Majority Leader McConnell, and then-President Barack Obama. In other words, the $1.07t funding level was negotiated more than 2 years ago. Democratic finger prints are all over this budget. To some degree the omnibus is not necessarily an example of Republican weakness. Rather, it’s an example of the fact that this deal was written 2 years ago when Democrats controlled the White House. The only reason we’re still talking about it is because after the November election, Republicans decided to put in a stopgap continuing resolution (CR) to allow President Trump to put his imprint on the budget.
That was a dramatic mistake for a couple of reasons. First, defense and nondefense numbers were already written in law by the 2015 BBA. So whatever imprint President Trump and the 115th Congress wanted to make on FY2017, they had to do it within the existing framework negotiated by the 114th Republican majorities and President Obama. If Republicans wrote a bill that broke those caps, it would trigger another round of automatic cuts. Any appropriations changes would at best play around at the margins because defense and nondefense numbers for this fiscal year are already set in law. You would need to write a new law to change them, a lift that would have required an enormous amount of political capital which simply doesn’t exist when Congress is also trying to rewrite the most substantial healthcare policy in a generation.
This limited the majority’s ability to reshape funding for new things. If they wanted to cut agencies’ funding to make room for other priorities, they’d have to do it through the 2015 BBA defense and nondefense partition. In other words, to make room for a border wall, they would have had to find it in the nondefense section of the budget. But making room for priorities even within the nondefense segment of the budget is very difficult.
This brings us the second problem Republicans faced for FY2017: all appropriations bills still go through a filibuster in the Senate. If they wanted to cut EPA, NIH, State, and other agency budgets to make room for a border wall, Republicans would certainly face a Democratic filibuster. This assumes that all Republicans would support deep cuts to other nondefense agencies, an assumption that ignores the strong bipartisan support for many agencies on the nondefense side. Simply gutting some agencies to make room for other priorities ignores the realities of appropriations politics in both parties.
All of this stems from the heart of the problem. Republicans cannot reorient government by working under old budget numbers. They need a new budget. This would normally make FY2018 a critical opportunity for Republicans to remake government in their vision. In a normal budget year, Republicans would write a new budget, boost defense spending and cut nondefense through the budget process, and then write their appropriations bills to those numbers.
The problem with this is this is not a normal budget year. The sequestration caps put in place by the 2011 Budget Control Act go back into effect next year, capping defense spending at $549b and nondefense spending at $515b. Put differently, defense and nondefense spending will get an across the board cut by $2b and $4b, respectively, if Congress doesn’t ease the BCA caps (for the third time). Republicans will have to amend sequester if they want to fundamentally restructure government spending.
The irony here is if sequester had not been allowed to take effect in 2013, Republicans would be in a very strong position to fundamentally reorder government spending. They could simply pass a new budget by majority vote and rewrite defense and nondefense budgets without Democratic input. Instead, Republicans handcuffed future Congresses by triggering sequestration. The budget process cannot amend the BCA. So Republicans will again have to change the law, which will require 60 votes in the Senate, which means Republicans will again be negotiating with Democrats in FY2018. And all of this is because they allowed sequestration to take effect in 2013.
Sequestration, a policy Democrats loathed when it went into effect, is ironically their greatest ally. It forces the new Republican majorities to rewrite the law before they can pass spending bills. That requires the support of at least eight Democrats in the Senate. Democrats’ leverage will continue to give them outsized influence in the budget and appropriations process in FY2018. As long as sequester is in place, it gives the minority party leverage in budget and appropriations.
If history is any indicator, this will push back negotiations all the way up to the October deadline where Congress will either address BCA caps and sequester head on or, more likely, negotiate another two-year deal. This week Congress will pass the easy bill. It gets much harder later this month when the FY2018 budget cycle starts.
Next week, the government will run out of money to stay open. And in typical fashion, Congress has left itself an insanely small window to pass a continuing resolution (CR) to keep it functioning. (If the process plays out normally, the Senate will have approximately 5 hours to spare before the government shuts down. This is another way of saying the process will in no way play out normally). But there’s a huge difference this time around, this CR debate illuminates a deep distrust within the Republican Party.
Like other recent CR debates, members are floating policy riders in exchange for their vote. Sanctuary cities, a border wall, and, for a brief time, Planned Parenthood have all reared their heads during debate. The still unanswered question is whether these riders will be attached to the CR Congress must pass next week.
But beyond the immediate question, that these riders are even being floated is amazing in its own right. Riders like these were common the previous 6 years. In Congress if you can’t pass something on its own, you look for a vehicle to attach it to and force the opposition to accept the rider to pass the bill. And for the last 6-years, bills to fund the government or raise the debt ceiling became the must-pass vehicle of choice. Using that leverage, conservatives routinely attached controversial policy demands to various must-pass appropriations bills. Riders to repeal or defund Obamacare shut down the government in 2013. A rider to undo President Obama’s immigration order caused a very short shutdown in 2015. Some version of these shutdown threats have occurred in nearly every appropriations cycle since 2011.
These are desperate legislative tactics, used in situations when one party or faction wants to force a vote they otherwise cannot. But why is this happening again? It made sense in prior congresses when Democrats controlled the Senate and/or White House, and the Republican House forced them to either balk or vote on issues they otherwise wouldn’t have. But with Republicans in full control, why is Congress replaying the greatest hits in obstructive/destructive legislative tactics?
If these issues were priorities, Republicans could simply try and pass them. But that’s the problem. For many, particularly in the House, members aren’t getting their opportunities to address the bills or issues they believe are important. And as a result, they are again turning to desperate tactics to force votes.
The broader problem here is that the current institution isn’t designed for fractured internal party politics. Over the last several decades, the House has increasingly become a top-down institution. Over the course of decades, Speakers have played an increasing role in floor debate, committee assignments, committee activity, and drafting legislation. What this has meant is a decreasing role for rank-and-file members in the legislative process. This type of institution is great if the members in it agree on the leader’s direction. It is not great if there is significant disagreement in the ranks. So while this is not an inherently bad thing, in a time of intra-party dispute, we are currently observing the consequences. It can derail legislative negotiations, kill political capital, and otherwise render the president’s agenda dead-on-arrival.
Without a full-throated committee process acting as a sounding board for the factions in the Republican Party, Congress is depending on leadership to fill the void. Passing anything, major legislative rewrites or routine bills, now rests on Speaker Ryan’s ability to function as the Republican arbitrator. In a time of political upheaval in both parties and the country writ large, we have to wonder whether any one leader is up to that task. It clearly wasn’t during the AHCA debate. Next week will test whether it’s possible on what should be a routine legislation.
Regardless, the fact that these riders are being floated means there remains a deep distrust between the leaders of the Republican Party and its rank and file. After seven years, this problem looks more systemic than personal.
It’s a nuclear week in the Senate. Majority Leader McConnell has hinted that he has the votes to go “nuclear” on Judge Gorsuch’s nomination to the Supreme Court. In effect, McConnell would invoke the same process then-Majority Leader Harry Reid used in 2013 to change the Senate’s interpretation of Rule XXII. The effect would reduce the cloture threshold to break a filibuster on SCOTUS nominees from 60 to 51.
This change affects the final 9 judicial seats not already confirmed by a strict majority thanks to the 2013 nuclear option. These 9 seats are very important. And you can expect a fundamentally different style of politics on Supreme Court nominees for the rest of our lives. But this is not a fundamental change to the Senate. Procedurally speaking, it’s actually quite limited.
The broader question is will this change create a slippery-enough slope to kill the legislative filibuster? In the short-term: no. In the mid-term, also probably no. Short of something extraordinary pushing Senate majorities over the edge (maybe not that far after all), it’s likely here to stay for a while. Why? The filibuster empowers all senators. It gives senators – majority and minority alike – the ability to affect all policies that come before the Upper Chamber. If a senator doesn’t like bill language, they can filibuster, force an amendment, force a compromise, and otherwise alter the text and intent of that legislation. If a bill adversely affects their state, they have significant leverage to kill it or at least mitigate its impact.
The filibusters on judicial and executive branch nominees offered a similar power. The president had to consult the minority before making a nomination. But historically speaking this is not often a controversial process, even in the post-nuclear Senate. For example, of the 23 judges confirmed by the Senate from April 2015 to January 2017, only three received more than 10 votes against. In the 113th Congress – the original nuclear Senate – there were more judges confirmed by voice vote and unanimous support than there were votes that garnered even a little opposition. Party line votes on judicial nominees are not the norm. Nominees confirmed unanimously and voice vote are far more common.
What this tells you is senators do not consider confirmation votes critical to their reelection, at least not to the same degree as legislation. Some confirmations matter a great deal. At some point in history, a confirmation vote surely affected a senator’s reelection. But those cases are rare. The overwhelming majority of senators who voted for the current Supreme Court justices remained in the Senate after their votes. And if voting patterns indicate how important confirmations are to reelection, most senators, most of the time, have not considered them anything close to a career ender.
In short, there’s a reason the legislative filibuster has a special exemption. Giving up the ability to affect legislation would be the equivalent of a majority of the Senate (or at least 50) giving up what makes being a senator cool. Many, if not most, aren’t happy they are giving up power on nominations. The ability to force presidents to moderate their choices for someone more personally appealing is nothing to scoff at. However, the individual power to affect policy has defined the Senate. It is a fundamentally different power. Majority Leader McConnell doesn’t have the votes to nuke the legislative filibuster. And in all likelihood, he hasn’t even seriously considered it.