Balkinization: What is Congress Doing?

What is Congress Doing?

David Super

The short answer is “confirmations, confirmations, and more confirmations.”

Examining what Congress has been doing is instructive both about our near-term fiscal and economic prospects and about the state of our democracy in general.

At this writing, we are 81 calendar days away from the beginning of Fiscal Year 2020. One or both chambers of Congress are scheduled to sit for just 32 of those days. Without new appropriations legislation, much of the federal government will shut down October 1. Although Congress could pass a short-term continuing resolution, that, too, would cause considerable damage.

We also are roughly two months and perhaps twenty session days before the federal government may reach the limit of its ability to fund current operations under the statutory debt ceiling. If corporate tax revenues continue to plummet as a result of the 2017 tax law, the U.S. Government could be facing default in early September.

Official Washington, and particularly the U.S. Senate, seems strikingly nonplused. Last month, the House passed ten of the twelve appropriations bills required for the government to operate. Left behind were the relatively inconsequential Legislative Branch appropriations bill and the bitterly contentious Homeland Security appropriations legislation. House leaders apparently see little point in forcing their Members to take difficult and divisive votes on immigration-related questions when having a House-passed bill likely will be irrelevant to the final outcome: these issues will be negotiated with the Senate and the White House and could well trigger another government shutdown.

In the Senate, appropriations legislation is going nowhere. Not one single bill has been considered even at the subcommittee level, and no committee or floor action is on the horizon. Understanding why provides important insights into our nation’s politics.

One reason appropriations bills are not moving is the lack of floor time. Although the Senate is scheduled to be in session several more days than the House, Majority Leader McConnell has jammed the calendar full of confirmations. Appropriations bills take time in the Senate as its rules leave senators considerable latitude to offer amendments. This does not, however, explain why the Senate Appropriations Committee and its subcommittees have taken no public action. In prior years, the Senate did not always finish moving all appropriations through the floor, but it had committee bills that set out its positions in September negotiations with the House on omnibus appropriations legislation.

Another reason appropriations bills are not moving through the Senate relates to the bizarre budget process that has evolved over the past decade. Under the Congressional Budget Act of 1974, the House and Senate are each supposed to pass budget resolutions that propose spending levels for the coming year. A House-Senate conference committee then merges the two chambers’ versions into a final concurrent budget resolution, which sets binding limits. Some years back, inability to reach a conference agreement forced the two chambers to devise a mechanism for proceeding with appropriations bills in the absence of a concurrent budget resolution. That work-around has become the norm ever since; despite expedited procedures for passing budget resolutions that preclude filibusters, the Senate rarely even tries to do so.

A warped version of the Congressional Budget Act process has reemerged in response to the sequestration that flowed from the Deficit Control Act of 2011, to which President Obama agreed in exchange for congressional Republicans’ passage of an increase to the statutory debt limit. The DCA requires deep across-the-board cuts if discretionary spending exceeds levels that both parties recognize are unrealistically low. To avoid the widespread disruptions that these cuts would yield, Congress and Presidents Obama and Trump have reached a series of temporary agreements to raise the sequestration triggers, typically for two years at a time.

As a result, in odd-numbered years, appropriators do not know the total amount permitted for their twelve bills until a new two-year deal on budget caps is reached. Once the overall level is set, the appropriators meet and divide available funds among the twelve subcommittees that write each of the twelve annual appropriations bills (e.g., Defense Appropriations, Labor-HHS-Education Appropriations, Transportation-HUD Appropriations). But without a deal on how much to raise the sequestration levels, neither the Appropriations Committees nor their subcommittees have any idea how much they can afford or what tradeoffs they will face.

Divisions within the Administration, and between the Administration and Senate Republicans, were preventing serious negotiations from beginning with Democrats well into June. Feeling burned by President Trump’s history of renouncing deals his aides have reached on his behalf, House Speaker Nancy Pelosi appears to have concluded that a long series of meetings with subordinate Administration officials would serve little purpose until an imminent deadline forces the President to decide what he really wants. The President publicly calling the Speaker “horrible” and “a disgrace” probably did little to improve the climate for negotiations.

In the absence of an agreement on new budget caps, House appropriators have written bills to fit within their preferred cap levels. This runs the risk of disappointing some of their supporters if, as is likely, the final bipartisan agreement results in caps lower than they are assuming and proposed appropriations must be cut.

The Senate, however, has chosen not to act at all on appropriations. If the Senate Republican leadership moves bills that conform with the existing sequester caps, it will force politically vulnerable senators to vote for draconian, indefensible cuts to popular programs. If it follows the House’s lead and writes bills to a more realistic level, it will open Republicans to attack (and possible primary challenges) from the right while effectively conceding most of the increases Democrats desire in advance of the eventual cap negotiations. Much better just to confirm more judges and worry about appropriations later.

The result of the Senate’s failure to move appropriation bills is a further erosion in transparency in an already fairly opaque budget process. No senator this year will have to declare her or himself on any appropriations issues in a meaningful way: none will propose, or fail to propose, amendments to augment or cut spending on particular programs, none will vote on amendments proposed by others, and none will vote on individual appropriations bills (as opposed to an eleventh-hour make-or-break omnibus on which they can claim their hands were tied). Once a caps agreement is reached, likely at the last minute, feverish negotiations will ensue between House and Senate appropriations chairs. Not only will the negotiations themselves be held in secret, but even the Senate’s bargaining position will be secret, known only to a few senior appropriators. The public will have no opportunity to criticize and pressure their senators over particular appropriations that seem too low or too high.

Although less obviously, this change also increases partisanship. Democrats will still have a say in the final appropriations legislation – they control both the House and more than enough votes in the Senate to block any appropriations bill – but this power will be more concentrated in the hands of a few leaders. Needing no Democratic votes in subcommittee, full committee, or on the floor, Senate Republican appropriators are free to craft their negotiating positions on their own. To have influence on an issue, Senate Democrats must go to their leaders and make the difficult case that this issue is important enough to warrant threatening a government shutdown.

All this becomes even more difficult if, as seems likely, legislation raising the sequestration caps is combined with omnibus appropriations legislation and legislation raising the debt ceiling. Treasury Secretary Steve Mnuchin seems riveted on the need to raise the debt ceiling; whether the President and the rest of his senior staff share that concern remains unclear. If the threat of default looms over House-Senate-White House negotiations, the capacity to accommodate even quite compelling concerns, or to excise outrageous special-interest provisions, will be even smaller. We likely will get bad, even embarrassing, appropriations laws with no accessible record of who promoted the offending provisions.

Yeah, but how about those judges!

@DavidASuper1

Posted 11:43 AM by David Super [link]