On to Reconciliation! Republicans have a plan but probably won’t follow it.

The Senate passed a budget yesterday. It lacked some of the typical hallmarks of a budget resolution. Namely, the chamber did not debate in any great detail discretionary spending numbers. This budget is meant for one purpose and one purpose only: repealing the Affordable Care Act (ACA).

Following the campaign congressional Republicans set out on an ambitious path, planning to repeal the ACA within the first month of being in office. Therefore, the budget passed last night includes reconciliations instructions, which puts in motion a sequence of events that need to occur in rapid succession if they want to meet their self-imposed deadline. In the case of the ACA, this means instructing the Finance Committee and the Health, Education, Labor and Pension Committee to find at least $1 billion in savings (each) over a 10-year period, and to submit those bills by January 27th. Once those committees produce those bills, it will be introduced on the Senate floor to begin the non-filibusterable reconciliation process. Only a simple majority is needed to pass this legislation.

In the midst of this debate you’ve likely heard of several Republican senators concerned with this plan. Currently, at least four Senate Republican have echoed the President-Elect’s desire for a repeal-and-replace strategy. While the repeal piece of the plan is fairly straight forward (they already passed this legislation last year), the replace part of the plan has major obstacles. The most notable obstacle is the fact that Republicans have yet to produce a replacement bill. This takes a lot of time.  The two Senate committees tasked with drafting and submitting repeal legislation are also responsible for providing guidance in a replacement bill, receiving input from experts, drafting that legislation, holding hearings, and potentially marking-up and reporting that legislation to the floor. Not to mention, all of this has to take place in the House as well. This takes a lot of time and there are only so many staff resources available.

At worst, they won’t be able to agree. At best, this likely takes well over two weeks, which means Republicans will miss their deadline.  This is one reason Senators Corker (R-TN), Portman (R-OH), Collins (R-ME), Cassidy (R-LA), and Murkowski (R-AK) introduced an amendment to push back the reconciliation deadline from January 27th to March 3rd to allow more time for the Senate to consider replacement legislation. (They later withdrew the amendment.)

The good news for Republicans is that missing the deadline will not strip the reconciliation bill’s privileged status. That’s another way of saying it does not matter if they miss the January deadline. The eventual bill can still be brought up and is not filibusterable. In fact, this happened last year when Republicans missed their self-imposed deadline to repeal the ACA in July 2015. The bill was not even introduced until October and was not passed by both chambers until January 2016. It’s also possible that Republicans move forward on the FY2018 budget, which will likely include reconciliation instructions for tax reform, entitlement spending, and other fiscal priorities, without affecting the FY2017 instructions to repeal the ACA.

If you’re confused by Congress’s disregard for their own deadlines, that’s okay. It’s confusing. It’s also pretty normal for Congress; a tradition of sorts. Regardless, the budget the Senate passed, though not a law, carries enormous weight and importance, even if they blow past their ambitious deadline.

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Ominous Omnibus: A CR is coming.

With elections over, lawmakers make their way back to DC today. They will be faced with several pieces of important business, perhaps none more important than government spending. The current continuing resolution will expire December 9th. There was some expectation that omnibus legislation was being prepared. But with an unified Republican government around the corner, that has almost certainly changed.

Prior to the election, congressional leaders were preparing an omnibus or a few minibuses (packages of 2 or 3 appropriations bills) to fund the government at the level stipulated in the 2015 Bipartisan Budget Act (BBA). All pre-election signals indicated Congress was heading in this direction. The 12 appropriations bills that emerged from committee met the FY2017 BBA numbers, $1.07 trillion. It was widely expected that the House and Senate, with an incoming Democratic administration, would write their bills to the number, likely finding Democratic votes to push it across the finish as they had in previous bipartisan agreements.

That was before the election. Republicans sweeping victory last Tuesday has changed everything. And it starts with the feasibility of the speakership under unified government.

The biggest change is Paul Ryan’s (now continuing) speakership. Under a Democratic administration, the Speaker of the House has become the least wanted job in Washington. Speakers have been forced to negotiate with Democratic president to strike deals their own conference will not support. Boehner and Ryan have both been forced into this position since 2011. And it is a big reason why Ryan and his predecessor faced coup attempts soon after they took the top job. The balance between governing (such as passing spending bills, authorizations, etc) and representing the conference in negotiations was impossible. Governing meant losing their job. Keeping their job meant not governing. If Ryan had any political ambitions beyond the House, the speakership would have been catastrophic under divided government. Four years of presiding over a conference trying to overthrow him would consume his political career, tainting any future ambitions he may have had.

This dynamic changes with a Republican president. Ryan will now have a president who will sign spending bills at Republican levels. Further, he has a president who will likely sign all of his major policy proposals. Republicans will repeal Obamacare, enact tax reform, among a whole host of objectives they’ve failed to accomplish under divided government. This not only makes the speakership a much more fun job. It also means it is no longer a career killer.

With this in mind, the budget picture comes into clearer focus. Speaker Ryan could not pass a budget this year because he failed convince the House Freedom Caucus (HFC) to support the 2015 BBA. The HFC argued they didn’t support those numbers when they were passed. Therefore, they would not support appropriations bills brought to the floor at those levels. This, along with poison pill amendments from Democrats, killed the appropriations process in the House. It’s a big reason why Congress finds itself under a looming CR deadline.

If Paul Ryan really wants to be speaker in the 115th Congress, he needs the support of the politicians who refused to vote for his budget. If they won’t support an omnibus at the $1.07 trillion number outlined in the 2015 BBA, you can bet he will not push it in this lame duck session. Speaker Ryan’s political career rests on their shoulders. And for now, that means that omnibus legislation is likely in the trash. And CR legislation is beginning to be drafted.

With a new Congress and a new president, Speaker Ryan, Majority Leader McConnell, and the Trump administration will wait until March of next year to rewrite government spending. At that time they will have to address the debt ceiling and probably sequester if the current budget caps prevent them from enacting their policy visions. The timing may change. But the beginning of next year will set a new course for government spending.

Regardless, in the short term the Bipartisan Budget Act of 2015, negotiated by Boehner, McConnell, and Obama is gone. And any chance at omnibus legislation is likely gone with it.

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How will Congress respond to a Trump win?

Republicans won both elected branches of government on Tuesday night. They will add the Third Branch soon as a SCOTUS nominee will be among the first orders of business for the new president and majority.

That said, this unified government will be an interesting one to watch. The way that Paul Ryan and Mitch McConnell addressed the media following Trump’s win yesterday you may have thought that they had won the presidency. McConnell flatly stated some pieces of Trump’s agenda are off the table. The rift between congressional leadership and the president-elect brings the potential for real tension between the Congress and President. In all likelihood, congressional Republicans will try to impose their will on the new president. The big question is if President Trump pushes back or goes with the flow.

This government will pursue lots of policies. Rather than write them down in piecemeal fashion, here’s what we can expect from a procedural standpoint.

Paul Ryan remains Speaker. Many around DC believed that if Paul Ryan wanted a legitimate shot at the 2020 nomination, he had to find a way to step down from his current position. Presiding over a unwieldy House of Representatives for four years, enduring multiple attempts to remove him from his position, and failing to enact routine business like a budgets and appropriations bills doesn’t set one up well for a run at the nation’s highest office. After Trump’s upset win everything changes. Suddenly, he has as president he can work with, a Senate majority to negotiate with, and real potential for making a lasting impact on national policy. And further, his earliest run for the presidency likely won’t happen until 2024. What looked like the country’s worst political job 48 hours ago suddenly looks much better.

The budget process will unbreak. The budget process will be critical for Republicans to enact their agenda. Tamping down spending, repealing Obamacare, cutting Medicaid, reforming Medicare will all have their roots in passing a budget resolution. The first order of business for House and Senate Republicans will be finding a way forward on this process. It all starts here.

Reconciliation will be used. In January of this year Republicans used the reconciliation process (which is not subject to filibuster in the Senate) to repeal Obamacare. There are some restrictions on what can be passed under reconciliation. Reconciliation bills must have a budgetary effect. And unless Republicans want to go nuclear on the legislative filibuster from day one of the 115th Congress (not likely), reconciliation offers Republicans the path of least resistance to their policy goals. This is why the budget process is crucial. Without that resolution, reconciliation can’t move forward. The biggest question remaining is what will Republicans use it for? Will they use reconciliation for just one policy (i.e. repealing Obamacare) or as a vehicle for several bills wrapped up in an omnibus. Best guess is that this process will be used for basically everything that can be justified.

Filibuster is on borrowed time. While Republicans held the Senate they lost two seats. Put differently, there are more Democrats available to filibuster bills. With a unified government the conditions are now ripe for filibuster reform. While McConnell lamented Reid’s use of the nuclear option you can also bet he took good notes on how to replicate Reid’s procedural maneuver. And if the filibuster is the only thing standing between Republicans and their entire agenda, you have to imagine that the 115th Congress will go down as the one that killed the filibuster for both SCOTUS nominations and legislation.

The legislative skids will be greased in 2017. Congress becomes more relevant than ever. The extent to which Trump actualizes his agenda will rest on Congress’s shoulders. However, the more likely scenario is Congress pushes their agenda on Trump. Trump rode a wave of populism into office. Republicans, on the other hand, lost seats in both chambers. How the public feels about conservative Republicans somewhat coopting Trump’s win, or if they’ll notice, remains to be seen. But regardless, it will be interesting.

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

Just How “Special” Are Special Elections?

[Another version of the post was published on the Washington Post’s Monkey Cage blog.  Gibbs Knotts helped write this article.]

On September 25th, 2015, Republican John Boehner shocked the political world when he announced his plans to resign as Speaker of the House and retire from Congress.  In the aftermath of Boehner’s announcement, political commentators debated who would be the new Speaker and the role of the Tea Party in causing Boehner’s early retirement.  Less attention focused on the fact that Boehner’s resignation triggered a special election in Ohio’s 8th congressional district.

In yesterday’s contest to fill Boehner’s seat, Republican Warren Davidson defeated the Democrat Corey Foister.  Local and national outlets predicted it would be a good night for Davidson.  After all, Boehner had held the seat for nearly 25 years and the 8th district is one of the most Republican-leaning districts in Ohio (Obama lost to Mitt Romney in the 8th district 62 to 36 in the district).  Simply put, yesterday’s results were not particularly surprising.

All this begs the question: Are special elections really special?

Answering this question hinges on what one means by “special.”  Special elections certainly generate a lot of media attention.  When a Member of Congress dies, retires because of scandal, or resigns for personal reasons, it is newsworthy.  Special elections may also be special because of their ability to predict future election outcomes.  In one innovative study, political scientists David Smith and Thomas Brunell found that the party that wins the most special elections between elections often gains seats in the subsequent general election.

But “special” is also a synonym for “different.”  And in this context, a key question is whether special elections are somehow unique when compared to regular congressional elections.

We examined this question in a paper that was published earlier this year in the Journal of Elections, Public Opinion, and Parties.  We were particularly interested in whether special election outcomes are structured by the same factors as their closest counterpart: regular open-seat contests.

Why might special elections be different from regular congressional elections?  First, they exist in different political environments.  Regular open-seat races occur in a national environment in tandem with 434 other House contests, about one-third of Senate elections, and, every four years, alongside a presidential election.  In contrast, special elections occur during the “off season” and may be isolated from broader electoral forces.

We were particularly interested in the effect of presidential approval on special election outcomes (a factor widely thought to be a strong determent of congressional election results).  In one of the few studies of special election outcomes, political scientists Keith Gaddie, Charles Bullock, and Scott Buchanan found that the president’s approval rating has no effect on who wins and losses in a special election.  Because their results show that presidential approval does have an effect in open-seat elections, they conclude that special elections are insulated from national forces.  In other words, special elections do seem to be “different” from regular congressional elections in a key way.

Notably, however, Gaddie, Bullock, and Buchanan reached this conclusion with data from 1973-1997.  In our paper we hypothesized that the effect of presidential approval would be different because of the increased polarization in American politics since 2000.  For example, we know that voters are more loyal to one political party and that the national parties have greater organizational resources today.  Research has also found a stronger connection in recent years between presidential election results and House election results.   As Jeffrey Stonecash has shown in his recent book, House elections by the mid-1990s became less candidate-centered and more party-centered.

Our analysis confirmed this hypothesis.  In the modern era, the president’s approval rating does indeed have an effect on special election outcomes.  Candidates from the president’s party perform worse in special elections when the president is unpopular whereas candidates from the opposition party perform better.  Like regular congressional elections, our results show the fate of special election candidates hinges, in part, on national forces.  A secondary result in our paper is that the 2002 midterm seems to be the point in time when presidential approval became a significant predictor of special election outcomes.

As a whole, we conclude that special elections are not that “special” because they are structured by roughly the same set of factors as regular open-seat contests.  Much like Lee Sigelman concluded in 1981, special elections do indeed seem to be national contests despite their unusual timing.  Our research, coupled with Gaddie, Bullock, and Buchanan’s work, reveals that this change in the nature of special elections is the product of significant developments that have occurred from the 1970s to today.

In the context of yesterday’s special election in Ohio’s 8th district, however, presidential approval was probably not the deciding factor.  According to Gallup polling, Obama’s approval rating sits at 51% (not enough to have had an effect in either candidate’s favor).  Instead, what almost certainly matted yesterday was the simple fact that the 8th district contained such a large volume Republican voters.  However we expect presidential approval to be a factor in future contests, particularly in more competitive districts.

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Is Paul Ryan delivering on his promise for regular order?

When Paul Ryan accepted the nomination for the speakership he promised his colleagues that he’d deliver a more regular process. He promised more inclusion in developing strategy, more opportunities for amendments, and greater representation on panels that organize the chamber. So far he has delivered on some promises but continues to struggle on others. Unfortunately for the Speaker, his failures are more likely to get press than his achievements.

Speaker Ryan has delivered in areas where he has clear control. As the de facto leader of the Rules Committee he’s clearly prioritized a more liberal amendment process. Bills are coming to the floor with more opportunities for rank-and-file to alter the language. Since January, Ryan has allowed amendments at nearly a 4-1 clip (structured v. closed rules) according to the Rules Committee website. To those crying for a greater voice on legislation this has to be a welcomed development. It’s a clear break from Ryan’s predecessors in both parties and a step toward a more regular process, though it’s still a far cry from what was “regular” a few decades ago.

Ryan has also kept his promise in regards to internal Republican housekeeping. He reformed the Republican steering committee, removing committee chairs and adding a strong conservative to the panel. This weakens the Speaker while opening a door, albeit a small one, for more conservative influence.

Ryan has also been more inclusive in developing legislative strategy. In February he held a multi-hour beer and pizza summit with conservatives to discuss budget strategy. He’s held several other meetings with members to discuss priorities, party strategy, and other business. By all accounts, he’s opened the door to his office. Members may not agree with every decision he makes, but they can’t complain that he isn’t listening.

All of this is juxtaposed with possibly Ryan’s greatest shortcoming: delivering even something remotely regular in the budget and appropriations cycles. The Budget Committee reported a resolution several weeks ago but it is effectively dead. It doesn’t have the votes to pass on the floor. Ryan has been unable to corral defense hawks and conservatives to support a single resolution. That isn’t because of a lack of trying. Some very unique plans have been floated to try and find the sweet spot between these Republican factions. However, those plans break basically every rule that has been considered “regular” in congressional history.

That’s left Ryan in a difficult spot. The House is destined to a definitively irregular budget and appropriations process. Failure to pass a budget means the House is unlikely to pass appropriations bills. If conservatives remain committed to their version of the budget, Congress as a whole is unlikely to pass any of the 12 appropriations bills. This means the House is setting itself on a trajectory for either a CR into 2017, a shutdown heading into the election, or potentially both. The House’s inability to deliver a budget is a huge failure with potentially damning implications.

The reality is that Ryan can only deliver a regular process if his caucus wants one. And at this point in Ryan’s tenure it’s unclear that members who called for more regular order really want it. If they do, they don’t want it on budgetary matters. With only a few dozen legislative days left in this session Ryan’s track record is unlikely to change. The time for a full return to regular order has come and passed. However, it’s noteworthy to keep in mind the areas where Ryan has delivered as well as those where he didn’t.

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R.I.P. FY2017 Budget

The prospects of a congressional budget resolution are nearing zero. For weeks members in the House and Senate searched for a path forward. As of today, each institution is trail-blazing paths toward a budget but neither appears to meet up with the other. At this point in time, the budget process appears dead in the water.

As early as January House conservatives indicated they would not vote for a budget resolution that met the numbers outlined in the 2-year deal struck by President Obama, Speaker Boehner, and Majority Leader McConnell in October of last year (PL 114-74). Basically, any budget that meets the topline $1.07 trillion will be opposed by House conservatives without a guarantee to find $30 billion in savings in other parts of the budget, namely mandatory programs. The House Budget Committee cleared a budget resolution on Wednesday but only on the condition that the Speaker either agrees to procedural changes or commits to a procedural maneuver that would force the Senate to address a separate bill with $30 billion in savings before they vote on appropriations bills or a budget. It’s possible procedural changes assuage their demands. However, sending a CR or omnibus to the Senate with a side-car is potentially devastating and will likely be opposed by House and Senate leadership at all costs.

The Senate is in an entirely different situation. In a little reported provision included in last year’s budget deal allows the Senate Budget Committee Chairman, Sen. Mike Enzi (R-WY), to “file” appropriations numbers. In other words, the Chairman can walk on the Senate floor between April 15 and May 15 and simply insert the 2-year discretionary spending number ($1.07 trillion) in the Congressional Record. This circumvents the budget process entirely. No hearings, markups, amendments, or floor debate or votes are necessary. Essentially, the House and Senate authorized the Chairman to circumvent the FY17 budget process last November.

The key lesson here should be obvious. This 2-year deal was for the Senate. The budget deal was widely considered the Obama-Boehner agreement. However, it was not the President or the House that really needed this agreement. With seven vulnerable Republican seats in states Obama carried in 2012 (nine if you count states Obama carried in 2008), Republican senators need every opportunity to avoid politically damaging and risky votes. The budget process is one of the few bills where tough amendment votes were inevitable. Avoiding these votes will give some political cover to those vulnerable members while also reducing – somewhat – the risk of a shutdown.

The remaining question is whether House leaders can find a way forward on an omnibus spending bill or a CR. A shutdown a month prior to the November election would be catastrophic for the majority. Should that happen, Republicans would lose the Senate and the House would be up for grabs, something no one has, or should have, envisioned when the deal was struck.

In this decade a failed budget process is more the norm than exception. What is exceptional is the inability to write budget and spending bills with numbers already in place. This September Speaker Ryan may find himself between conservatives who continue to vote against large spending bills and Democratic colleagues who have heavy political incentives to watch his majority fail dramatically just a month before the November election. Finding 218 votes to prevent a shutdown is far from impossible but will require some acrobatics. The Speaker may need to limber up if he wants to hold onto his majority.

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Simulating the Senate Vote to Confirm Merrick Garland

On Wednesday, President Obama appointed Merrick Garland to replace Antonin Scalia on the Supreme Court.   Senate Majority Leader Mitch McConnell (KY) and Senate Judiciary Committee Chairman Chuck Grassley (IA) have said that Garland will not receive a vote in the current Congress.

Despite McConnell and Grassley’s statements, one of the reasons President Obama selected Garland is the fact that he is relatively moderate, as indicated by this Monkey Cage post, and was thus approved by the Senate in 1997 by a vote of 76-23.  Notably, Garland was appointed to the DC Circuit in that year by a Republican controlled Senate, receiving the support of a majority of Senate Republicans (32 for, 23 against).

On the surface, this would seem to bode well for Garland’s chances of making it to the Supreme Court despite McConnell and Grassley’s obstructionist claims.  However, much has changed since 1997.

In this context (and many like it) the biggest change since 1997 has been the increase in ideological polarization in Congress.  Countless studies have documented that Democrats and Republicans have drifted further apart over the past three decades.  My work on this topic argues that a major reason for the Senate’s polarization has been the increase in the number of senators who first served in the (more polarized) House of Representatives (see here and here).

A straightforward analysis can help us adjudicate between these competing expectations about Garland’s likelihood of being confirmed (and crudely estimate how many votes he might receive).  Although this analysis has a number of limitations, it can give use a rough sense of what to expect.

I estimated a simple logit model of the 1997 vote to confirm Garland to the DC Circuit.  All data came from Keith Poole’s Vote View website.  The model includes just two variables: a senator’s ideology and whether they are from the South.  Although this is a very simple model for sure, it performs well, correctly predicting 88% of the yeas and nays in 1997.

Based on that model’s estimates, I then predicted what would happen in the current Senate.  Data on the ideology of senators in the 114th Congress also came from Poole’s Vote View website.

Figures 1 and 2 below present a senator’s predicted probability of voting for Garland (on the y-axis) by their ideology (on the x-axis).  Liberals are on the left, conservatives on the right.  Figure 1 is for the actual for Garland in 1997 (105th Congress) and Figure 2 is for the simulated vote in the current Congress (114th Congress).  Democrats are in blue and Republicans are in Red.


In the current Congress, the model estimates that 60 senators would vote for Garland and 40 would vote against his confirmation.  Looking at the figure, 60 senators are above the 50% threshold (more likely to vote for Garland than against) and 40 senators are below the 50% threshold.

All Democrats are predicted for Garland as are 14 Republicans.  The predicted Republican yes votes are: Alexander (TN), Gardner (CO), Capito (WV), Flake (AZ), Rounds (SD), McCain (AZ), Hoeven (ND), Heller (NV), Portman (OH), Hatch (UT), Ayotte (NH), Kirk (IL), Murkowski (AK), and Collins (ME).

While this prediction may seem surprising given what we know about party polarization, the two figures reveal how the Republican Party’s shift to the right changed the landscape of Senate confirmations.  Indeed, if just 14 Republicans vote for Garland that would represent a net decrease of 18 Republican votes from twenty years ago.  In the first figure above we can see how in the 105th Congress, a number of moderate Republicans have high probabilities of voting for Garland according to the model (and indeed, moderate Republicans did vote for Garland in 1997).  But as new, more extreme, senators replaced these moderates, the individual probabilities of a “yes” vote drop well below 50% line.

Let me emphasize, again, that this is a crude analysis.  It assumes that ideology and region–alone–shape how a senator votes on confirmations.  Of course, there are electoral and strategic reasons why a senator would vote for or against a president’s Supreme Court nominee.  In addition, an excellent Monkey Cage post by Kastellac, Lax, and Phillips discusses how public opinion in a senator’s state is a key piece of the puzzle.

At the minimum, however, the analysis gives use a sense of what a vote on Garland’s nomination might look like and how the landscape of Senate confirmations has been shaped by ideological polarization.  Of course, there’s a good chance we will never know if this prediction is right or wrong.

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