FIVE POINTS: End of Session Blues
1. The House GOP is struggling with the end of session spending bill(s). There's a lot going on right now on a tight deadline. Spending bills for FY2018---or a Continuing Resolution (CR) providing temporary funding---needs to be passed by Friday night or the government shuts down. The Budget Control Act (BCA) spending caps need to be raised in order to allow spending to arrive at a level pallatable Parts of the FISA surveillance law expire at the end of the year. The Children's Health Insurance Program (CHIP) has expired and, unless it is extended, a lot of kids are going to lose their health care shortly. A new disaster relief package for Texas, Florida, and Puerto Rico is also awaiting passage. The tax bill needs to be exempted from PAYGO. And it's not clear to me what is going on in the House. To wit:
The crux of the problem is they eventually need Democratic votes. This has become a recurring problem for the House GOP leadership since 2011. As I discussed last week, the conservatives in the House won't vote for any bills that significantly raise non-defense spending, which means the GOP can't move any realistic bill that can get through the Senate without the help of the House Dems. Which means the final deal is going to be amenable to both the Senate Democrats (because you need 60 votes to pass appropriations bills) and the House Democrats. That's a recipe for bill that's ultimately quite centrist. (The question of how the Democrats should leverage this bargaining power is more difficult.)
Typically, the House GOP just passes a partisan dead-on-arrival show vote. The House conservatives typically have settled for a vote on a partisan package in the House, and then the ability to vote no on the final deal that comes out of the Senate after it disregards the House bill and creates compromise legislation.
The number of big-ticket side issues is complicating matters. The House GOP is negotiating various sets of bills to send over to the Senate now, and they don't really look like pure show-votes. This may be because they don't have the votes to pass any show vote, but it could also be because they'd like to assert some authority and not just eat the Senate deal. The current package at the Rules Committee includes: a CR through January 19, some additional funding for DoD anomaly items, reauthorization of FISA, extension of CHIP through March 31, money for the Veteran's Choice program, and a PAYGO waiver for the tax bill, CHIP, and the Veteran's Choice money. There's also a separate bill for the disaster relief money, not offset.
My guess is that the GOP is having coalition problems. The Democrats won't help them with the CR right now. The Texas/Florida Republicans won't vote for a CR without disaster relief. The House Freedom Caucus won't vote for a CR that *has* the disaster relief if it's not offset. So that has to be a separate bill, and will need Democratic votes. FISA has to be in the CR, because the Freedom Caucus won't vote for it stand-alone, and may need it to be watered-down to vote for it at all. The defense hawks don't want the CR without the DoD anomalies. The leadership probably doesn't have the votes or stand-alone CHIP or PAYGO waiver, so they've stuff those in too. But it's still not clear they have the votes. It's a mess.
Why not just pass a DOA partisan bill and be done with it? I suppose it could be that the House GOP has some ideas about jamming the Senate---passing a package and then leaving town for the recess, such that the Senate has to accept their bill---in order to get their priorities. Those priorities might be as simple as kicking some cans down the road---the short term CHIP extension, for example---to keep bargaining leverage open, or they may me substantive, like making sure DACA stays out or the DoD programs get in.
But this isn't a very satisfying answer. It may simply be the case that their coalition problems, combined with the things the leadership really needs to get done, are making it difficult to get to 218 without the Dems. I assume they will figure it out---I don't see any appetite for a shutdown this week---but it highlights the recurring headache the GOP House leadership has to deal with and the difficulty they have in assembling any major legislation. It wouldn't shock me if they end up with a much more simple package, even perhaps just a clean CR + FISA, with a side disaster bill.
2. Procedural Wonk Lesson of the Week: Why use an already-passed bill for the CR? If you are following the action on the CR in the House closely, you might have noticed that the legislation coming out of the Rules committee is not a fresh House bill for funding the government, but an amendment to a totally unrelated bill (H.R 1370) that has already passed the House and already passed the Senate (with amendments).
What's the procedural reason for choosing to use this bill as the vehicle? It eases the floor process in both chambers. If you use an already-passed bill as your vehicle, you get to take advantage of the procedures for amending legislation between the chambers, rather than the rules for processing new legislation in the House and Senate.
In the House, the main advantage is that when you are amending a Senate-passed bills you don't have to allow the minority to make a motion to recommit. On fresh legislation, the minority is guaranteed one chance to amend the bill on the House floor. While this amendment almost never passes, it does give the minority an opportunity to create a tough vote for some members of the majority. And in some cases, it can sink the bill, if the minority can find a germane amendment (required under House rules) that enough majority party members feel they need to support, but also such that enough (different) majority members must reject the final bill once the amendment gets in. Such a so-called poison pill then operates by the minority voting with each of the two majority factions, first to get the amendment in, an then to kill the bill. No such motion to recommit is in order when considering a House amendment to a Senate-passed bill.
In the Senate, the main advantage is that using an amendment to an already passed bill is that the motion to proceed to consideration of the bill is non-debatable. This just saves time, because you don't have to get cloture (i.e. 60 votes) on the motion to proceed, just on the underlying bill once it is already on the floor. The strategy is also very common in the Senate when the Senate wants to move legislation that affects revenues. Under the Constitution, all revenue-raising measures must originate in the House; that is, the final bill that goes to the president mus be an H.R. bill, not an S. bill. The Senate can get around this requirement by taking any already-passed House bill that is sitting in the Senate, stripping out all of the House language and amending in their own bill.
When using these techniques, there's no pretense that the original legislation in the bill matters at all; the amendment just removes the entire original bills an substitutes the new language. The subject matter of the underlying bill is irrelevant. This does result in some nomenclature problems, as the title (and co-sponsors) of the original bills cannot change. But the tactic is totally routine. One unfortunate side effect is that the underlying bill, which has already passed one or both chambers, is effectively destroyed. If Congress wants to continue considering *that* legislation after it is used as a vehicle for something else, they need to start again.
3. What's new on tap in 2018? Not much of anything. I think Molly Reynolds is 100% correct that it is going to be very difficult for the GOP to use the reconciliation process in 2018 to pass legislation by majority vote in the Senate. I'll go even further: I will be surprised if they even try to pass a budget resolution, nevermind one with significant reconciliation instructions. Just today, Majority Leader McConnell has been quoted as ruling out entitlement reform and/or welfare reform in 2018.
So what will be on the agenda in 2018? Well, a lot of the same high-stakes items they considered and put off from this year. They will have to raise (or abolish) the debt limit at some point. They will have to complete the FY2018 appropriations. They will have to start the FY2019 appropriations process and produce a CR prior to October 1. If CHIP only gets extended to March 31, they will have to revisit that. DACA is waiting in the wings for adjudication. Alexander-Murray may also make an appearance.
Beyond that, what is on the Republican agenda? As soon as you ask that question, someone invariably says "infrastructure." I'm skeptical. I don't think the Democrats are much in the mood for a bipartisan infrastructure package during an election year unless it is greatly tipped in their favor; in most cases, they'd just much rather have a stalemate through November to highlight their electoral case. And I just can't see the GOP leaders crafting the infrastructure package the Dems will go for; the conservatives could very well revolt in the House. The wild card, of course, is the president. He's talked a lot about infrastructure, but he didn't approach 2017 in a manner that suggest a bipartisan package; I doubt he'll change his tune in 2018.
4. National public opinion is not aggregate congressional opinion. There was a nice Vox piece a couple of days ago asking political scientists why the Republicans were passing an unpopular tax bill. There are a variety of good answers to this (I lean toward a theory that parties have other goals than simply winning elections). But there's also some confusion about how national public opinion translates to congressional opinion. The short answer is: it doesn't. Congress can often produce outcomes at odds with national opinion, even when every Member is faithfully reflecting district opinion in their vote.
People seem to intuitively grasp this with the electoral college, but not with the House of Representatives. Seats in the House are winner-take-all, so you can theoretically collect a majority in the House with quite a small percentage of the national population, just 50%+1 of one-half +1 of the districts, about 1/4 of the voters. Obviously, that's an extreme case, but it can often be true that you can put together a majority in the House in which the issue is popular in the district of every member voting for it, but quite unpopular nationally. It's not clear if this was true of the tax bill, but it was almost certainly true of the ACA, where I'm pretty sure every single representative voted with their districts opinion on the bill, creating a majority for a bill that was majority unpopular nationally.
Furthermore, trying to match national public opinion to the Senate is just nonsensical. The Senate wasn't designed to reflect popular opinion in any sense; it is apportioned to reflect equality of state opinion, and can easily create large majorities for legislation in which the issue is unpopular nationally but very popular with the constituencies of every Senator who votes for it.
There are forces that constrain these sorts of outcomes. Members certainly can (and do) take national opinion into consideration, not just the opinion of their districts. And the parties are national entities in some sense, so there are motivations for member to consider national opinion for the purpose of maintaining or promoting the party brand. And members often vote *against* their district opinion, because they have policy or power goals competing with their reelecction incentives. And all of this sets aside agenda-setting and how voter opinion is developed. But the bottom line is that people often attribute the reality of congressional output not matching public opinion to insidious forces or congressional malpractice, when it's often just reflective of the aggregation process of representatives faithfully representing their constituents.
5. Reminder: We started a podcast! My colleagues at the Government Affairs Institute and I will be regularly talking congressional politics on our new podcast, Congress, Two Beers In. Our hope is to fit into the niche of smart and entertaining analysis at the intersection of congressional policy, process, and politics. And we're always on our second beer when we start talking. We're recording a new episode today. Our episode from last week is here. You can subscribe on iTunes here. And our RSS feed is here. We have some great guests lined up for January, but are always looking for more. If you think you'd make a good fit, let me know.
See you next time (probably end of next week). Thanks for reading!