Balkinization: Procedural Implications of the Midterm Elections

Procedural Implications of the Midterm Elections

David Super

Well before the recent election, activists and pundits were hard at work shaping expectations for what would change in light of anticipated Republican losses. Many of these predictions reflect considerable naivete about the operations of Congress. Although many questions remain open, it seems useful to review what we know to this point. This is the first of two posts; the second will focus specifically on budgetary issues.

First, as to leadership. The Senate is unlikely to see meaningful changes at the top: Majority Leader McConnell led his caucus to larger-than-expected gains. Democrats’ losses seem hard to attribute to Minority Leader Schumer, and having won his position by acclamation just two years ago he has no obvious challenger. House Majority Leader McCarthy was easily elected minority leader after having worked tirelessly, and reasonably successfully, to minimize his party’s losses. He also had the President’s support, which insulated him against the conservative critics who denied him the speakership previously. To prevail, he only needed a majority of the Republican Caucus.

House Democrats are another story. Rep. Pelosi was one of the most skilled and effective speakers of modern times; if anything, she demonstrated even more acumen as minority leader. Her ability to force Republicans into difficult votes while often shielding her own Members has a lot to do with Democrats’ reconquest of the House. She also shrewdly leveraged situations when the Republican Caucus was split to extract substantial policy concessions from the Speakers Boehner and Ryan in exchange for the necessary Democratic votes. The minority leader risks blowing up a deal of this kind if she dances a jig upon its completion, but her successes in defanging the devices Republicans had used to leverage cuts in domestic programs – the debt limit, sequestration, the need to adjust Medicare physicians’ reimbursement rates, etc. – merit a full ballet.

Republicans have, however, succeeded in making her a lightning rod and frequently tried to tie Democratic candidates to her. Her path to the speakership is considerably more difficult than Rep. McCarthy’s path to becoming minority leader was because she not only needs to win a majority of the Democratic Caucus – which she likely will secure in the next two weeks – but also to have 218 Members vote for her to be speaker on the first day of the new Congress. That would require several Democrats who pledged not to vote for her to reverse their positions. She is a superb vote-counter, and if she does not have those votes will withdraw on her own. If she does step down, the rest of the House Democratic leadership, which currently has regional and factional balance, may be upended. For example, if Democrats choose a more moderate candidate for speaker, progressive members may demand that one of their own become majority leader rather than retaining Minority Whip Hoyer. Sorting this out could take quite some time.

Senate Republicans may claim that their modest gains entitle them to shift the partisan balance in committees’ membership, presumably to create an 11-to-9 Republican advantage on the typical committee. Democrats in theory could filibuster the organizing resolution that sets up Senate committees at the start of the new Congress but likely would only do so if the Republicans overreach sufficiently that the Democrats feel confident that the public will not blame them for obstructionism. During the George W. Bush administration, Republicans (relying on Vice President Cheney’s tie-breaking vote) insisted upon a one-seat advantage on all committees when the Senate was evenly divided between the parties, and Democrats acquiesced. In the current situation, one can imagine negotiations leading to two-seat Republican majorities on more powerful committees and one-seat majorities on others.

A two-seat Republican majority still would allow Democrats to block legislation or nominations if they can stay together and persuade one Republican. It does mean, however, that Democratic amendments to legislation will fail in committee unless they can attract two crossovers, which seems unlikely given the near-total disappearance of Republican moderates. A two-seat majority also would allow Republicans to advance legislation when one of their Senators is ill or otherwise absent.

House committees historically provide the majority party considerably larger margins than their overall numbers would dictate. Nonetheless, because of the ideological range of the caucus, some committees may prove unreliable for the leadership’s priorities. And with relatively tenuous control of the House and many new Members from Republican-leaning districts, Democrats cannot even consider passing over more conservative Members who are in line to chair committees.

Some Democratic activists have rejoiced that Democrats will have a voice in policy for the first time under President Trump. This is incorrect: the threat of a filibuster required all legislation apart from budget reconciliation bills to be negotiated with Senate Democrats, and fractures in the House Republican Caucus often gave House Democrats leverage on important legislation such as appropriations and legislation raising the debt limit. Democrats’ taking over the House should, however, prevent Republicans from threatening to resort to budget reconciliation. That, in turn, will strengthen the hand of Senate Democrats despite their somewhat diminished numbers by forcing all legislation to go through the regular order.

The House Democratic leadership may have considerable difficulty controlling the floor. Although control of the gavel and committee supermajorities initially may succeed in bottling up problematic legislation, Republicans amended House rules to facilitate petitions discharging committees from the further consideration of particular bills. If a majority of representatives signs a discharge petition for a particular bill or resolution, the leadership must bring it before the House promptly. Republican seem likely to exert strong pressure on vulnerable Democrats to sign discharge petitions on politically seductive legislation, including bills to further harm the environment and to intensify pressure for budget cuts by extending or expanding the 2017 tax cuts.

One result of a Democratic House majority that activists most eagerly anticipate, and that Republicans most fear, is the ability to subpoena executive branch witnesses to investigate what the Administration has been doing. This process is not nearly as simple as many seem to believe.

Rule XI(m) of the House’s standing rules allow committees and subcommittees to issue subpoenas, either by a majority vote or through committee rules delegating the subpoena power to the chair. One might hope that the issuance of such a subpoena would be decisive, but the current Administration may not be inclined to comply routinely,

The Senate has a special statute allowing its legal counsel to bring a civil contempt action in federal district court to compel compliance with its subpoenas. The House, unfortunately, lacks such a statute (and certainly is unlikely to obtain one under this Administration).

Should an Administration official (or anyone else) ignore a subpoena, the House may pass a resolution asserting that that individual is in contempt of Congress and referring her or him to the appropriate U.S. attorney for prosecution. Jefferson’s Manual § 299 at 143-44 (2017). The first such case against a sitting executive branch official involved EPA Administrator Anne Gorsuch in 1982.

The President, however, controls the Justice Department, and his appointees can decline to take action against those ignoring House subpoenas. The President has repeatedly asserted that the Department of Justice should act to further the current Administration’s policy; it therefore remains to be seen whether this aspect of the Department’s historical and statutory role will survive. The House occasionally has passed resolutions authorizing the Sergeant at Arms or other officers of the House to retain counsel to assert the interests of the House, Jefferson’s Manual § 291b at 135 (2017), and in theory it may direct its Sergeant at Arms to detain any recalcitrant witness. Jefferson’s Manual § 297, at 140 (2017). When compared with the resources of the Administration, however, these seem rather underpowered.

Should the Administration both refuse to comply with a lawful subpoena and direct the Justice Department to take no action to enforce the House’s subpoena, the House in theory could commence impeachment proceedings against the official refusing to comply, against the attorney general, or against the President. The minimal prospects of obtaining the required two-thirds majority in the Senate to convict – indeed, with no assurances that Senator McConnell would even convene an impeachment trial at all – this is a rather limited threat.

These practical limitations may be part of Democratic leaders’ motivation in insisting that House committees limit and coordinate their oversight efforts. If subpoenas may only be effectively enforceable in the court of public opinion, Democrats will want to avoid the perception that they are overreaching.

One possible deterrent to blatant disregard for the House’s subpoenas is the possibility that an individual doing so could be prosecuted under the next Administration should the President not be re-elected. Although prosecutions under the statute for contempt of court carry a one-year statute of limitations, contempt of Congress is criminalized under a separate law and thus would appear to fall under the general five-year federal statute of limitations. Of course, any Administration official refusing to comply with a House subpoena facing that prospect could hope that the President would pardon her or him before leaving office.

Posted 6:19 PM by David Super [link]