FIVE POINTS: A Hard Rain's Gonna Fall
1. We have officially entered the bi-partisan negotiation phase of the 115th Congress. As I guessed several months ago, the first phase of the 115th---the Unified Government Party Line phase, in which the GOP presented a legislative program and attempt to pass it without resorting to cooperation and/or negotiations with the Democrats---would be ending right about now. The centerpiece of this program was obviously Obamacare repeal via reconciliation under the FY2017 budget resolution, but also included the Gorsuch nomination to the Supreme Court and the confirmation of the executive branch officials. Note this was choice---the policy program could have centered around bipartisan infrastructure and the SCOTUS fillibuster could have been sustained---but it was not a particularly tough, or bad, choice in my view.
That phase is now officially over. Next Wednesday, the president will host the joint congressional leadership---GOP and Democratic---at the White House to begin top-level negotiations over the September action items, which are not only must-pass, but also impossible to pass on party-line votes. This new phase comes with an entire new set of politics. Obviously, must-pass bills come with their own brinksmanship politics, but the bipartisan negotiations also bring to the front a whole new set of optics. And a whole new range of individual and party goals. Some people will want policies, some people will want election issues. Some people will prefer not to hold a whole lot of recorded votes, some will demand show-votes to lay down markers.
Would-be dealmakers want to win concessions for their ideological and partisan interests, as well as appear to be good-faith negotiators and compromisers; rank-and-file groups are in some cases looking to show-off conciliatory leverage (e.g. Tuesday Group) while others will try to burnish their extreme ideological bona fides (e.g. House Freedom Caucus, Congressional Progressive Caucus). And party leaders will attempt to accommodate these goals by arranging the agenda and vote schedule in hopes of satisfying all interests, or at least not turning those interests against them.
2. The likely September deal is starting to take shape. Recall that the must-pass legislation includes (1) the debt limit; (2) the FY2018 appropriations (and related BCA caps); and (3) several reauthorizations (CHIP, NFIP, FAA). You can add to this bundle an emergency aid package for Harvey relief. Circulating around in the background are the not-must-pass items of (1) tax reform; (2) an FY2018 budget resolution; and (3) any changes to Obamacare. You can sort of see the makings of a bargain here that brings all the players on board, thanks to Harvey. A 3-month Continuing Resolution (which keeps the government running at FY2017 levels for a period of time), paired with a debt limit increase, the reauthorizations, and a first chunk of Harvey aid. This works well because, if fashioned correctly, it will (1) put off some of the biggest fights; (2) have generally not-awful optics for everyone; and (3) have more than enough votes in the House without endangering the GOP leaders too badly.
Everyone is now kinda expecting the FY2018 appropriations to be put off by way of a CR that lasts into the fall, probably early December. This prevents a government shutdown and effectively buys time on both the border wall debate and the BCA caps. House conservatives are going to be annoyed if the debt limit is linked to the Harvey aid, but with the administration in favor of a clean bill, they're probably going to save their fight for the more winnable BCA caps / Approps bill in the fall, which would be a huge victory for the congressional leadership. I'd expect the next debt limit action to either increase or suspend it such that it is pushed out past the 2018 election, effectively killing it as an issue for the 115th Congress. And Harvey aid will be grumbled about by some, but should ultimately get a big majority, with the White House backing it and the installment plan making the first chunk a manageable number. The reauthorizations will bring along a lot of Dems, and that will make a conservative revolt on the debt limit less important.
Or it could totally blow up on the leadership and fall apart in their faces. But I no longer believe the must-pass legislation has much chance of causing a shutdown or default in September. Things can obviously go wrong, but unless House conservatives begin demanding massive mandatory spending cuts to offset the debt limit or Harvey aid, this looks like a pretty easy deal, actually. The conservatives appear to believe a fight over the border wall or mandatory spending cuts is better suited for December, when the debt limit is out of the way, there's no flood ravaging a red state, and the administration has some time to improve its standing in public and clarify its positions. If they were spoiling for a fight now, they wouldn't have caved on the need for a CR so quickly.
The key question for me is how this shapes the fall agenda. The White House seems bent on tax reform/cuts still, but kicking the can down the road on the appropriations guarantees that will suck up a fair amount of oxygen between Thanksgiving and Christmas. And a budget resolution is still going to be needed if taxes is to be done on a party-line basis. The administration is gearing up to make taxes their big push for the coming months (see below), but I'm unconvinced that it's going to fit into the congressional calendar before the holidays and, if it does, that it can be dealt with without having a spill-over effect on the FY2018 appropriations deal that will need to be cut in December.
3. White House agenda setting is a disaster right now. I don't think there's any way around this. The White House has more or less completely lost control of the political agenda. I see three things go on here:
First, events are getting in their way. Charlottesville. North Korea. Bannon's firing. Arpaio's pardon. North Korea. Harvey. The drip, drip, drip of Mueller's investigation. Some of this is a recurring problem of the presidency; you have to be reactive and ready for national/global events to bump you off message. Harvey is literally an Act of God. But a lot of this is Trump's own making. If he wants to talk taxes, he didn't have to pardon Arpaio. He had easy outs to minimize Charlottesville. He was the one who arguably escalated North Korea the first time. Just wait until he decides to end DACA right in the middle of the tax push kick-off.
Second, it's really hard to stay on-message about policy when you really don't care about policy. And it's plainly obvious that Trump doesn't care about policy. And that's OK! The president doesn't have to be wonk, it's arguably better if he's not. Bush 41 barely cared about domestic policy. But Trump doesn't even appear to want to bring a basic seriousness or minimal effort to the game. He'll give a speech here or there on a topic, but then he'll forget about and get caught up in a rally, or a Twitter feud, or in turning a 24-hour story into a week-long debacle. And this stuff trickles down. If you want senior staff to work a topic, you have to make them think their efforts will be rewarded. Otherwise, why bother? Right.
Third, this really is the second face of power. There's a basic political legitimacy crisis of the Trump presidency, and one of the results is that no one feels the need to yield to his right-of-way in the policy domain. So even when the White House does try to stay on message, no one gives them the benefit of the doubt. Co-partisans don't fall in line to form a chorus of talking heads doing talking points, congressional leaders ignore or outright preempt the White House with their own plans, the press covers other stories, and the end result is that the alleged megaphone the administration has to promote the agenda looks impotent and the White House looks lost. We spend a lot of time saying things like "Jimmy Carter couldn't get any traction for his ideas, and his presidency floundered," but it's probably just as right to say his presidency was floundering so he couldn't get any traction for his ideas.
At any rate, this sums to the fact that you don't know it's Infrastructure Week (or whatever) at the White House because (1) Harvey got in the way; (2) the president doesn't care enough to make it work; and (3) his public standing and professional reputation in the public sphere is so bad no one feels compelled to listen.
4. Arpaio's pardon was ridiculous, but legitimate, but distracting, but clever, but dumb. Let me lay this one out point by point.
Ridiculous. By this I mean on the merits. This guy sucks in every way possible. The merits of his conviction aren't questionable. His sentence isn't outrageous because, well, he hasn't been sentenced yet. The president wasn't following a Justice Department recommendation, which is the common practice. It's the kind of pardon that is unconscionable and indefensible.
Legitimate. By this I mean "stop telling me the president can't do this." I know there are arguments and even some case law that points to limitations on the pardon power. But in this instance they all revolve around federal judges deciding that pardoning someone for fucking with a federal judge is outside the scope of the constitution. That smells almost as bad, or worse, than this pardon. Let it go. It's a unilateral power. The top-level restraint on pardon abuse is impeachment, not court invalidation.
Distracting. See above, item #3. What a stupid time to create this sort of politics. You want a tax cut and maybe a border wall? Stop creating media events via unilateral action and start being judicious in the exercise of your power.
Clever. I thought the smartest angle of this pardon is that it's absurd, but not in the way pardons related to the Mueller probe would be. This isn't a family member. This isn't someone convicted of a crime related to actions of the Trump campaign or the White House. It's just a dumb pardon, not really *that* different than the famous Clinton dumb pardons. In that way, it's sort of a trial balloon for the White House; a certainly survivable move that allows them to gauge what public reaction might come from future, highly-dangerous pardons.
Dumb. Trial balloon or not, this pardon is going to light up one set of actors the administration just didn't want to inflame: federal judges. As noted above, they are not going to take this well. And invalidating it as a legitimate use of the pardon would be very bad, in my opinion. But federal judges operate in the public sphere of politics as well, and if you think this isn't going to impact how they view the slew of executive power cases that come down the pipe this fall, you're nuts. Trump may be itching to flex his muscles, but this action is surely going to make Anthony Kennedy and John Roberts consider whether they need to flex theirs.
5. I highly recommend the Pepinksky/Lieberman/Mettler/Roberts/Valelly essay. This highly accessible academic paper started flying around Twitter yesterday, and I think it's worth a read. It nicely places Trumpism into the context of American political development and comparative perspective. I'm not going to comment here beyond that, but I'm planning a longer blog post with my reaction to it in the coming weeks.
See you next time (probably end of next week). Thanks for reading!