House process quick hit: Overthrowing the Speaker.

As rumors swirl and fade about Boehner’s removal from the speakership, it’s a good time to clarify a few things about House process and its history.

No speaker has ever been removed from office mid-Congress. If members want to remove a speaker from office, they would need to make a motion to declare the chair vacant. That motion has never succeeded.

That includes Speaker Cannon (R-IL). Several news outlets have said the motion to remove the speaker was invoked against Cannon. That’s not accurate. Cannon’s “overthrow” did not remove him from office. Rather, he was “overthrown” because his power as Speaker was significantly curtailed. In addition to being speaker, Cannon was the chair of the Rules Committee and was also responsible for assigning all members and chairs to each standing committee of the House. Both of these tools gave him exceptional power to control House business. On March 17th, both of those powers were stripped from him by a simple resolution offered by George Norris (R-NE) on a week that many of Cannon’s allies were missing from Congress largely due to St. Patrick’s Day.

After the resolution passed two days later, Cannon, to the surprise of practically everybody in the chamber, entertained a motion to declare the office the Speaker vacant. That motion failed. In other words, Republicans did not want to remove Cannon from office. They just didn’t want him exercising as much power as he had during his tenure.

The surprising part of this story is not that Cannon was not removed. The surprise was that Cannon entertained a motion that could remove him from office at all. House rules lean heavily in the speaker’s favor. This is why Boehner will likely remain Speaker in the 114th unless he voluntarily steps down.

Speakers have the right of recognition. They choose who will be recognized to make a motion from the members on the floor. Without the Speaker’s recognition, members can’t do much of anything. Speakers can also actively ignore members they do not want to make a motion. If the speaker does not like the reason the member has sought recognition, he or she can simply refuse to recognize them. Without recognition even a privileged motion goes nowhere. This makes removing the speaker through the motion to declare the office vacant highly unlikely because the speaker or his designee would have to allow the motion to be put before the House in the first place.

Procedurally, the more likely scenarios would involve intense collusion between Republicans and Democrats over the course of several votes. While it’s possible, I don’t believe Pelosi, Democrats or the faction that want a new Speaker are willing to go to those lengths. Though if it did happen, you’d be watching one of the more exception episodes in House history.

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Quick process hit: Senate will vote on a clean DHS bill. Why that looked likely last Monday.

Today Senate Republicans are moving forward on the inevitable. They will vote on a clean DHS funding bill with no immigration riders attached. With time running out they struck a deal with Democrats, which Minority Leader Harry Reid agreed to a couple hours ago.

The key point here is that DHS will come up for a clean vote. There will be no immigration vote or amendment included in the deal. Future responses to the President’s immigration action will come up for a vote through the cloture process later this week.

A clean DHS funding bill was a virtual certainty after the Senate recessed on February 12th. Failing to invoke cloture before the recess put Senate Republicans in an unwinnable situation. With time running out there was only one procedural avenue available to them to avoid a DHS shutdown: unanimous consent. That requires the consent of all 46 Democrats to proceed. If McConnell’s statement was any indication, Democratic consent was contingent on a clean DHS bill with no immigration votes.

It’s unclear if Republicans were put in this position through a botched strategy or conference politics. Democrats refused to proceed to the bill. Presumably, they would have continued to filibuster until the immigration riders were stripped. It’s possible – but certainly not clear – that if Republicans compromised earlier in the process they could have found a package that would have attracted six Democrats to invoke cloture. That’s purely speculative and we will know for sure in the coming days as McConnell moves forward on the separate bill responding to Obama’s executive action. Regardless, their current position gives them no negotiating leverage. As soon as the Senate gaveled-in Monday Republicans’ hands were tied. The next step was to either let DHS funding lapse or forego attempts to respond to Obama through DHS appropriations.

Many on the right may accuse McConnell of caving to Democrats before the shutdown. However, by blinking first he’s biting the bullet and moving the Congress closer to funding DHS. Whether the House follows suit remains to be seen.

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Democrats gained even more power in the DHS/immigration debate, and it happened last week

It’s well known that any Republican attempt to reverse Obama’s executive action would be an uphill battle. Because any congressional response required a legislative fix, Republicans face a likely insurmountable veto, even if they managed to overcome a filibuster in the Senate. All the checks of government disadvantage Republicans’, and today we see that they have been unable to overcome either obstacle.

However, Republicans are in an even worse position today than they were a week ago when they were in recess. Funding for the Department for Homeland Security expires Friday. Without action 30,000 DHS employees will be furloughed and roughly 200,000 DHS agents will work without pay. DHS funding needs a quick fix. The problem is Senate process doesn’t provide one.

The best possible solution has already been attempted four different times and failed. In reality, Republicans needed to invoke cloture on the motion to proceed – the motion on which they’ve failed four times – by February 9th (if they still planned to recess last week). The process of creating a cloture petition, letting it ripen, voting on the cloture petition, and letting all post-cloture debate expire takes a week’s time. On any given bill, there are two filibusterable motions. That means Republicans needed to first invoke cloture two weeks ago in order to set up another successful cloture vote yesterday. None of the steps necessary to cut off debate have been successful.

So where does that leave Republicans? They’re in a very bad negotiating position. Basically, there is not a normal process that Republicans can use to pass a clean DHS funding bill, a short-term CR, or any other DHS bill before the shutdown on Friday. The only way left to avoid a shutdown is through what’s called unanimous consent. If all senators agree on a motion or purpose moving forward, Republicans can avoid a shutdown. However, getting every Democrat (and Republican) to agree to move forward will come with strings attached.

In other words, about a week ago Republicans lost the little leverage they had in the debate to response to Obama’s executive action. Democrats have gained more leverage in the debate because all processes Republicans could have used are now gone. Their inability to craft an agreement that could get six Democratic votes has cost them the bargaining leverage they had a week ago. In sum, this week Democrats have even more negotiating power than they had the last week the Senate was in session. Now Republicans need agreement from all Democrats, not just six, on the terms moving forward.

This gives Democrats an interesting choice. Either they compromise with Republicans and find an agreement to fund DHS or they can let it expire and hang a partial government shutdown that threatens domestic security on Republicans.

Many people believed Harry Reid was an overly strong majority leader, stifling debate and preventing amendments. This week we’ll see if Harry Reid is as ruthless in the minority as he was in the majority.

Posted in Filibuster, Legislative Politics, Legislative Procedure | 1 Comment

What does DHS/immigration tell us about the power of Congress and the President?

Institutional power is more of an academic topic. Nonetheless, it has enormous ramifications. The current immigration debate is a great example of that.

Despite the rhetoric around the DHS debate, America has never had a dictator president – the current president included. However, the fight for power in the separation of powers (i.e. How big should the presidency be?) is real. The DHS/immigration debate is an interesting look into that struggle.

Much of the modern presidency’s power stems from the type of actions we are observing in the immigration debate. Reinterpreting existing law, exercising discretion on the many responsibilities under the purview of the executive branch, or writing orders and directives, presidents have ample opportunity and authority to reshape national policy unilaterally. These actions pale in comparison to actually creating law, as Congress does, but they are important nonetheless. And while Obama’s immigration action falls within precedents set by former presidents, Congress is well within its constitutional rights to correct presidential overreach.

However, Congress rarely curtails presidential unilateral actions. There have been several attempts but few are successful. The best attempt was the 1974 Budget Control and Impoundment Act, establishing the modern budget process. After Nixon impounded congressionally appropriated funds, Congress established processes and deadlines to take back budgetary control. It also established a reconciliation process that could circumvent filibusters to restore budget harmony. That process could be used to respond to executive actions if those actions fail to follow congressional intent.

As we see today even Congress’s most powerful tool cannot address executive action. It would take some creative legislative drafting in order to use reconciliation to reverse Obama’s immigration action, which prohibits provisions that have no budgetary effect. Which means today’s congressional stalemate boils down to one of two possibilities. Either it can’t be done or Republicans plan on using reconciliation -which only allows a limited amount of bills per year – for another purpose.

This is the problem Republicans currently face. They cannot circumvent the supermajority requirements of the process. Even if they could, there is no guarantee Republicans could find a Senate majority once the symbolic nature of the cloture vote was removed from the scenario. Should three moderate or border Republicans join Senator Dean Heller in blocking the bill, Congress’s response would still be deadlocked.

Historically Congress’s power has been hampered by its own processes and the political realities of forging majority coalitions. It’s often very difficult pass bills through both chambers. It’s particularly challenging to find majorities to challenge unilateral executive actions that fall within the previously accepted scope of executive authority. It’s nearly impossible to find a supermajority to do that. Without a Watergate-like scandal, where illegal actions clearly occurred, Congress rarely has the ability to tame America’s 80-year tradition of expansive executives.

The ambiguity of Article II means that presidential power open to interpretation, which is another way of saying that presidents’ unilateral power is mostly anything that Congress has not expressly prohibited. Given the inherent difficulties of lawmaking and the supermajority processes that have always existed in Congress, historically those prohibitions have been scarce.

As Jon Bernstein points out, every modern president overreaches at some point. With a hamstrung legislative branch, that’s likely to continue.

Posted in American Political Development, Budget, Legislative Procedure, Political Institutions | 2 Comments

Flaws in shutdown logic: It is different this time.

Republicans’ flirtation with a shutdown of the Department of Homeland Security intensified over the weekend. Boehner appears entrenched and suggested Sunday that a shutdown is possible.

On President’s Day the dynamic changed… possibly. A federal judge in Texas recently halted the President’s executive action on immigration. Several reports suggest that this could pave the way for DHS funding bill to sail through. However, it is not clear the judge’s decision greased the wheels on either side of the aisle. Republicans are likely wary that the court decision could be reversed in the coming days. Meanwhile, Senate Democrats have no incentive to back down. They’re gaining support from a large and growing portion of their base by fighting Republicans’ attempt to defund Obama’s immigration action. It is unlikely that the court’s injunction has any effect on the political dynamics embroiling this debate.

Matt Yglesias has a very good piece detailing Republicans’ perseverance despite potentially damaging outcomes from the shutdown. Essentially, Republicans felt little to no repercussions from the last government shutdown. The shutdown polled very badly for Republicans in October of 2013 but in November of 2014 they rode a wave to complete congressional control. Put simply, if the 2013 shutdown did not result in catastrophic losses, why would a 2015 shutdown of a single department be different?

Actually, there are lots of reasons to believe this time is different. The one factor in Republicans’ favor is that this strategy would only shutdown DHS instead of the entire government. After that, all advantages break toward the other party.

First, with healthy majorities in both chambers this is Republicans’ boat to crash. In 2013 Republicans shouldered most of the blame but Democrats were also hurt in the polls just not to the same extent. This time there is no Democratic majority to blame. With complete control of Congress, Republicans have been unable to pass a funding bill. Had the President vetoed the legislation, Democrats may take a hit. But at the moment, Democratic involvement in Republicans’ inability to pass legislation is obscure at best.

Yet, Democrats are at the heart of Republicans’ predicament. Their filibuster is preventing Republicans from taking a stand against the President. The problem Republicans face is that blaming Democratic obstruction is not terribly effective. Filibusters obscure accountability. If you want proof of that, just look at how effectively now Majority Leader Mitch McConnell used filibusters to retake the Senate. By increasing obstruction Republicans retook control of Congress. Most voters are unaware of the filibuster and its processes. Put differently, most people are unaware that Democrats are involved at all. Therefore, Republican attempts to blame the shutdown on Democrats will fall on mostly deaf ears. In a worst case scenario it may actually help Democrats by raising awareness and boosting their support among Latinos. This kind of blame game does not fall in Republicans’ favor.

And lastly, the 2013 government shutdown was shortened by intervening factors. The government was reopened only after an 11th hour gambit to prevent a debt ceiling catastrophe. If there was no debt ceiling threat looming on October 17th, it’s unlikely the shutdown would have ended on October 16th. In many ways the debt ceiling prevented further damage from the shutdown. Once the government was reopened, Republicans enjoyed several months of botched ACA rollout coverage. Within a few months, Republican approval ratings had rebounded.

This time there is no negative Democratic press cycle to fall back on or divert attention. There is no confusion over which chamber (or party) of Congress is causing the shutdown. The context of this potential shutdown is drastically different.

Whatever the logic is shutdown politics remain an awful strategy, particularly for a majority party. While some may view the 2014 election as an affirmation of prior shutdowns, expecting the same soft-landing in 2015 is likely a costly mistake.

Posted in Filibuster, Legislative Politics | 1 Comment

Have Republicans Gone M.A.D. (Mutual Assured Destruction) on the Filibuster?

Frustrated House Republicans lashed out against their Senate colleagues Thursday. Without a clear path forward on the DHS funding bill, Rep. Raul Labrador (R-ID) and others blamed Majority Leader McConnell for failing to save what is a bad legislative strategy. Roll Call’s Matt Fuller reports:

“Mitch McConnell can change the rules of the Senate,” Rep. Raúl R. Labrador said Thursday at a panel discussion with conservative lawmakers. “And this is important enough for Mitch McConnell to change the rules of the Senate.”

This is a catchy talking point that would have more bite if it wasn’t also certainly wrong. McConnell can’t go nuclear on the filibuster alone. He needs the support of his conference. Unless some dramatic, earth shattering shift has occurred behind closed doors, McConnell likely does not have the votes to eliminate the filibuster.

The reality is that going nuclear on the legislative filibuster is not very popular on either side of the aisle. All senators gain influence from the filibuster. Today, the filibuster is commonly perceived as the minority’s tool to obstruct business. That’s true but unlimited debate also bolsters the rank-and-file in both parties. Threatening to filibuster a bill gives all senators enormous leverage in the negotiating process. For this reason most majority senators, even insurgents like Sen. Ted Cruz, are unwilling to eliminate the legislative filibuster.

In the process of promising victories they cannot deliver, Labrador and his colleagues are also feeding a couple of underlying problems in the Republican Party. Statements like these set up unrealistic expectations. Many constituents likely believe McConnell is standing between conservatives and their immigration battle with the President. That is not the case.

Further, failing to understand (or acknowledge) leaderships’ limitations makes McConnell’s and Boehner’s jobs harder. Congressional leaders are only effective if others are willing to follow. Framing Republican leaders as weak, not conservative enough, or cowardly deters colleagues and constituents from following leaders’ cues. After all, why would a true conservative follow a weak, liberal Republican? Put simply, comments like these throw their party leaders, and the majority’s capacity to enact laws, under the bus.

Whether it’s principle, stubbornness, or an inability to grasp legislative process, House conservatives have gotten into a bad habit of shooting themselves in the foot and then blaming their leaders when they can’t walk. For whatever reason leadership-bashing has come into vogue in the Republican Party. These tactics undermine credibility and the policymaking process. The only real winners in this scenario are fundraisers and those that do not want the Republican Party to exist in its current form. Because at this rate, it is hard to imagine this majority enacting much of anything resembling a conservative vision for the country.

Posted in Filibuster, Legislative Procedure | 1 Comment

Obama wants filibuster reform. Would it help polarization?

Obama had some interesting things to say about polarization and the filibuster in his interview with Vox. When the question of if government can work in the midst of polarization was posed, Obama mentioned the filibuster:

“Probably the one thing that we could change without a constitutional amendment that would make a difference here would be the elimination of the routine use of the filibuster in the Senate… The filibuster in this modern age probably just torques it too far in the direction of a majority party not being able to govern effectively and move forward its platform.”

It’s important to note that this is an answer about governing, not reducing polarization. If you watch the video from the interview, you might assume that Obama’s answer on the filibuster is a response on how to solve or ameliorate polarization. It’s not. This is an important point because reforming the filibuster and reducing polarization are at odds with one another.

For all its faults the filibuster is an inclusive political instrument. It forces majorities to listen and compromise with the minority. However, a new breed of stubborn politics has crippled the honest pursuit of bipartisan compromise. Filibusters are currently used at rate that essentially prevents Congress from addressing problems. While stalling a bill’s progress is hardly new to Congress, the frequency with which they are used today has undermined the filibuster as a means for compromise and transformed it into a means of complete obstruction.

This doesn’t have to be the case. The filibuster could be a process that incorporates minority policy opinions without serving as an insurmountable roadblock. Done properly, filibuster reform could create a system that reduces dysfunction while also assuaging polarization. For example, placing a greater burden on minority senators to sustain a filibuster would make it more politically costly to wage one. This would preserve minority rights while also greasing the wheels of policy productivity.

Unfortunately, those options are not on the table. Presently the most likely reform to the filibuster would be its effective termination. This change would make it easier for a majority to govern in a polarized situation but it would also make the Senate a much more partisan institution. It would eliminate minority debate rights, almost certainly prohibit minority amendments, and undermine the political inclusiveness that has characterized the Senate for most of its history.

Filibuster reform is not likely to occur in the near future. However, the way the politics of filibuster reform shake out, it is a near certainty that changes to the filibuster will not reduce polarization. It will worsen it.

Governing in polarized times is a problem that needs to be addressed. But we should weigh if change is worth the cost of further distancing already outlying political parties.

Posted in Filibuster, Legislative Politics, Legislative Procedure, Polarization | 1 Comment