The Final Throes of Congress’s Ancién Regime

David Super

     Congressional Democrats and Republicans announced Tuesday night that they had reached agreement on the outlines for appropriations legislation for the fiscal year that began on October 1.  Congress will pass a stop-gap spending measure to buy negotiators an extra week to work out the details, but if all goes well this Congress will finish on December 23.  The new Congress due into town on January 3 will be dramatically different, with a Republican majority in the House. 

     Although the details of the leaders’ deal remain to be disclosed, it likely includes a figure for the total amount of discretionary appropriations for the current fiscal year, a division of that number between defense and domestic spending, and an allocation of those two figures among the twelve subcommittees of the House and Senate Appropriations Committees (“302(b) allocations”).  It seems likely that defense will receive a significant spending increase while domestic discretionary programs will reap more modest gains.  (“Direct spending” – spending on entitlements such as Social Security, Medicare, and Medicaid – is not controlled by annual appropriations legislation and is largely outside this deal.) 

     Despite exceeding expectations in the mid-term elections, both sides recognized that Democrats came into these year-end negotiations in a relatively weak position.  Passing an omnibus appropriations bill is the only means available for them to get funding to their priority programs.  Without an omnibus, the government would remain funded with a year-long continuing resolution (“CR”) that freezes all programs at their prior year’s funding levels without adjustment for inflation.  Worse, given the leverage of extremists within the narrow incoming House Republican majority, CRs would be all but certain both next year and the following year (a presidential election year):  any speaker who brought regular appropriations legislation to the floor without deep cuts in domestic programs would be promptly deposed.  Having programs’ funding erode to inflation for three successive years could do serious damage.

     In theory, the same could be said of defense programs dear to many Republicans.  The reality, however, is far from symmetrical.  The Defense Department can, and routinely does, receive supplemental appropriations during the year in response to unusual challenges abroad; many Democrats do not wish to vote down those supplemental appropriations and others regard it as politically risky to do so.  At best, Democrats can sometimes add responses to a domestic emergency to a defense-driven supplemental appropriations bills.  Thus, an omnibus appropriations bill is desirable for the Pentagon’s planning purposes but by no means indispensable.

     Since the Obama Administration, Democrats’ top priority on discretionary appropriations has been to maintain a rough sort of parity between defense and domestic spending.  (It cannot realistically be dollar-for-dollar parity because defense and domestic programs have very different typical patterns of spending:  neither WIC nor the National Park Service have bought any aircraft carriers lately.)  Republicans adamantly opposed giving domestic appropriations the same increase as defense in the omnibus and ultimately made dropping parity the price for their participation.  Democrats evidently have now conceded this point; it remains to be seen if the departure from parity will be explicit or accomplished through accounting gimmicks.  With the parties’ support for defense and domestic discretionary spending asymmetrical, it likely was not realistic to hope that the two categories would retain parity.

     Some might wonder why Republicans would agree to a deal now when they are about to gain much more power in January.  The main answer is that it was not generic “Republicans” than are making this deal:  it was Senate Republicans.  Extremist House Republicans’ talk of forcing a government shutdown over outlandish demands – either deep overall budget cuts or zeroing out funds for the investigation and prosecution of former President Trump – evidently has spooked some of the Senate’s more pragmatic Republicans. 

     These Senate Republicans are veterans of past government shutdown fights have seen their party repeatedly anger voters and lose.  Once the House Republicans trigger a showdown, Senate Republicans will have to go along as they lack the means to bypass their colleagues.  But doing so will alienate general election voters, and Senate Republicans lack the protection of gerrymandering. 

     With any new House speaker inevitably being extremely weak, Senate Republicans can worry that nobody will have the authority to end a shutdown before it did serious harm to the country and their party.  (The occasional naïve commentator speculates about Democrats making deals with House Republican moderates, failing to notice that such moderates have pretty much all died, retired, or been primaried.  And even if enough House Republican moderates survived, bringing legislation to the floor without the Speaker’s assent is extremely difficult.)  Thus, Senate Republicans are reacting very differently to the narrow, volatile House Republican majority about to take power than they have to more stable House Republican majorities in the past. 

     In addition, in the new Congress Democrats will have to negotiate with both Senate and House Republicans on appropriations bills.  At present, House Republican votes are not needed so Senate Republicans can negotiate with the Democrats alone, elevating their own priorities and keeping all concessions for themselves. 

     A large remaining question is what other legislation will get added to the omnibus appropriations bill.  Because the underlying bill can only move with bipartisan support, the same is true of any riders that might be added to it. 

     Any additional legislative business the two parties can agree upon will almost certainly have to be added to the omnibus appropriations bill to minimize Senate Republican extremists’ opportunities for delay.  Senate procedures allow a sixty-vote majority to overcome the objections of a few dissenters but exact a steep price in floor time to do so.  By packing all legislative initiatives into a single bill, the Senate leadership needs only to wait out the extremists on that one bill rather than with separate allocations of floor time for each bill.  And while extremists may not cease and desist in their obstruction for the good of the country, they can be more responsive to their colleagues’ desire to spend the holidays with their families. 

     At this writing, a tax package seems almost certain to ride to enactment on the back of the omnibus.  Corporate tax lobbyists are insisting on renewal of tax breaks for their clients; children’s advocates are seeking to revive some of the American Rescue Plan Act’s temporary expansions of the child tax credit and the earned income credit (EIC).  Under the advocates’ plan, any extension of the corporate tax provisions would have the same duration as the low-income tax cuts, paving the way for a similar deal whenever both extensions expire. 

     Various other items, large and small, are currently under discussion and may be added.  The bipartisan update of the Electoral Count Act may well be one of them.  The prospects of healthcare initiatives seem less clear. 

     Some advocates seeking to add non-appropriations provisions to the omnibus are keeping a low profile lest Republicans see an opportunity to hold the proposals hostage to advancing policies anathema to Democrats.  And no doubt some rent-seeking interests will insert their favorite provisions into the final omnibus:  clouds of lobbyists certainly are working overtime on this.

     Senate Republicans can, of course, just say “no” to all these additions.  They likely will for some proposals – such as an increase in the statutory debt limit – but remain engaged with Democrats because they expect extremist House Republicans to prevent most significant legislation from moving at all next Congress, under any terms.  If those Senate Republicans want credit for any legislative achievements before the 2024 elections, this could be their last chance.  Thus, in the near term, the House Republicans’ extremism and instability is actually driving their Senate counter­parts into the Democrats’ arms. 

     Absurdly, some progressives are still insisting that, in the remaining weeks of this Congress, “the Democrats” should end the filibuster and enact all manner of worthy proposals.  This kind of demand never made much sense because it assumed that all fifty senators who caucus as Democrats would dutifully vote for whatever their leaders put in front of them.  Senators Manchin and Sinema, among others, have different norms and also feel constrained by what they believe to be their home state voters’ preferences.  But it is difficult to take seriously any Washington-based advocate who repeats these demands now that (with Senator Sinema’s departure) the Democratic Caucus does not include fifty senators.  Crowd-sourcing political strategy may accomplish little beyond building an unfounded sense of betrayal and cynicism within the progressive base – which could undermine future voter turnout. 

     @DavidASuper1