an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What the New Majority Will Do – And How They Will Do It
This is my third of three posts on congressional procedure.As explained in my previous post, reconciliation provides a ready vehicle for congressional Republicans to enact a radical fiscal agenda with bare majority support in both houses.Every indication is that today’s Republicans will follow essentially the same script that worked so well for their predecessors under President Reagan, Speaker Gingrich, and President George W. Bush:first, pass huge, budget-busting tax cuts tilted heavily to upper-income people that are only partially paid for with cuts in programs aiding low-income people, then decry the resulting deficits and cite those to justify additional cuts in anti-poverty and human services programs (with the support of newly reawakened “deficit hawks” who slumbered through the passage of the tax legislation but now demand “shared sacrifice” to deal with the resulting “national emergency” of large structural deficits).
The limitations on reconciliation are real and important, but they should not be overestimated.Thus, for example, although Republicans probably cannot repeal the Affordable Care Act (ACA) in its entirety through reconciliation – because many of its regulatory provisions have no substantial impact on direct spending – reconciliation can effectively destroy the Act by eliminating its Medicaid expansion and its subsidies to help low-income people afford insurance.
In addition, many initiatives that cannot move through reconciliation can move instead through other means.Efforts to defund discretionary programs, such as those relating to environmental protection or reproductive rights, can proceed on annual appropriations bills.There, all that programs’ opponents must do is omit funding from the bills written in committee.Because the legislation President Obama accepted in exchange for an increase in the debt limit imposes strict caps on discretionary appropriations, any floor amendment (in either chamber) to add money for those programs would require offsetting reductions from other programs in the same general area.(The Deficit Control Act has separate caps for defense and non-defense spending, so cuts to Pentagon spending could not, for example, pay for restoring money for Planned Parenthood.In practice, offsetting reductions likely would have to come from programs within the jurisdiction of the same one of the twelve appropriations subcommittees.)Thus, any such amendment would be opposed by both opponents of the program being restored and supporters of the program being cut to provide the offset.
Although appropriations bills are subject to filibuster, preventing them from passing eventually would cause a partial government shutdown.After savaging Republicans for shutting down the government to advance their funding priorities, Democrats may be reluctant to do so themselves to try to preserve programs dear to them.It should be noted that appropriators tend to be among the least partisan of all legislators, in large part because they all have pet projects they seek to protect.This cuts both ways.On the one hand, Republican appropriators may take less extreme positions on cutting off particular programs in order to win Democrats’ cooperation.On the other hand, Democratic appropriators, frightened about being frozen out of the whole process and losing funding for projects dear to their constituents or donors, are reluctant to adopt confrontational stances even after defeats on important issues.
Republicans could try to avoid filibusters of other controversial initiatives outside the fiscal area by moving them on appropriations bills.Both House and Senate rules create points of order against including non-appropriations provisions in appropriations bills (sometimes referred to as “authorizing on appropriations”).These points of order, however, are far weaker than those that lie against reconciliation bills:the House Rules Committee can include waivers of these points of order in the special rules that bring appropriations bills to the floor, and a mere majority of the Senate may override them as well.Thus, Congress not infrequently includes quite elaborate permanent legislation on appropriations bills (such as a harsh and controversial piece of immigration legislation passed as part of an omnibus appropriations bill in 1996).
Congressional budget rules can facilitate destruction of social programs in other ways.For example, congressional Republicans are widely expected to move legislation early in January that repeals crucial features of the Affordable Care Act with an effective date delayed two years, promising to use that time to craft a replacement.This allows them to avoid the problem that has dogged them since the ACA was enacted:their unwillingness either to adopt the mandates and subsidies necessary to make insurance market reforms work or to admit that they would cause tens of millions of people to lose coverage.
If their Members are willing to stand behind this “pig-in-a-poke” legislation, Republicans could enact a repeal without taking responsibility for its consequences.As the deadline nears for more than twenty million Americans to lose their health coverage, Republicans can use that threat to try to bully Democrats to vote for replacement legislation that is financed by still deeper cuts in other social programs.Under spending limits set by budget resolutions, any ACA replacement legislation that is not offset with spending reductions would require sixty votes and would be subject to severe criticism as fiscally irresponsible.Thus, Democrats would face the choice between voting for further cuts to programs for low- and moderate-income people or absorbing the blame for allowing millions of people to lose access to health care when the ACA repeal takes effect.Better still, from Republicans’ perspective, when the replacement legislation causes many or most of those the ACA covers to lose health insurance, Democrats will have voted for that legislation and thus can share the public’s ire.
History suggests that new majorities tend to overreach and weaken themselves in the process.Newly-elected President Clinton lost considerable time and political capital when he insisted on passing an overtly partisan, and arguably unnecessary, stimulus bill for an economy that was already growing.After leading Republicans to a dramatic sweep of Congress in 1994, Speaker Newt Gingrich weakened himself by proposing first the funding of orphanages for children he would displace with welfare cuts and then reductions in funding for school meals programs.In both instances, he exacerbated the damage by vigorously defending the proposals for weeks after they came under attack.President George W. Bush squandered his 2004 election victory with a proposal to privatize Social Security, puncturing his post-9/11 aura of invincibility and leaving him vulnerable to further damage – which he promptly sustained by praising an incompetent FEMA in the wake of Hurricane Katrina.President Obama, in turn, surrendered his credibility as an outsider and saw his approval ratings drop when he vigorously defended opulent bonuses for the AIG executives who had driven their company into insolvency.Nothing about the new majority suggests that it will show any more modesty or self-restraint.
The key question is how much structural damage the new leadership will do before they begin to lose their ability to act.Expert, sophisticated bureaucracies capable of handling complex scientific problems, such as the Environmental Protection Agency, cannot be built on the fly.If President Trump and the Republican Congress dismantle important parts of EPA, their successors will not be able to reverse the decision quickly.Low-income communities are already badly underserved with health care providers and affordable supermarkets; deep cuts to Medicaid or the Supplemental Nutrition Assistance Program (SNAP, formerly food stamps) will cause those networks to deteriorate even further, with little prospect of growing back should funding be restored.Legislation that changes the structure of how taxable income is calculated will be difficult to reverse even when the need for more revenues becomes apparent.And programs converted to block grants will rapidly be carved up among state-level special interest groups, who will bitterly contest any subsequent efforts to reclaim the funds to reconstitute the program.After a decade of legislatures diverting money from the Temporary Assistance to Needy Families (TANF) block grant to other projects, most states’ cash assistance programs responded minimally if at all to the millions of families made newly poor in the Great Recession; by contrast, SNAP (which barely escaped being block granted in 1996) more than doubled its participation as unemployment soared.