Power Politics in the New Congress

David Super

       Republicans will control both chambers of Congress, but only by very slim margins.  This has engendered media speculation about which parts of the Republican agenda will steamroll through Congress and which parts are likely to stall.  These questions also are crucial for critics trying to prioritize resources to push back.  This post sets out my expectations.  In short, the new Congress will see two wildly divergent legislative processes operating simultaneously, one polarized and majoritarian and the other dependent on repeated bipartisan compromises.  The parties’ relative success will depend on how well they, and their allies outside of Congress, adapt to these contrasting environments. 

      The fundamental divide in the new Congress will be between initiatives that require Democratic votes to pass and measures that do not.  Senate Democrats’ votes will be needed to pass anything subject to the filibuster.  Only a few, quite narrow, types of measures are exempted from the filibuster:  a budget resolution that sets the ground-rules for fiscal actions, budget reconciliation legislation that modifies taxes and entitlement programs, budget reconciliation legislation that raises the debt limit, resolutions of disapproval of regulations under the Congressional Review Act, resolutions of approval of proposed rescissions under the Impoundment Control Act, resolutions confirming executive or judicial nominations, and a handful of others not likely to be important in the next Congress. 

      Next year’s House will be unusual in that Democratic votes will be necessary to pass any but the most ideologically pure legislation.  This is not because of Republican moderates.  Retirements, primaries, and Democrats’ conquest of relatively moderate districts that once elected Republicans have all but obliterated moderate House Republicans.  Although several House Republicans postured as moderates during President Trump’s first term, but they virtually all fell into line whenever it mattered, as in passing the fiscally irresponsible 2017 upper-income tax cuts or voting to repeal the Affordable Care Act. 

      Republican leaders’ problems, instead, will come from the right wing of their party.  Although they can win party-lines votes on ideologically pure measures, most real-world legislation is not, and cannot be, ideologically pure.  Thus, the Republican repeal-and-replace legislation for the Affordable Care Act was anathema to Democrats for gutting effective protections for those with pre-existing conditions and those unable to afford health insurance.  But it was also anathema to some very conservative House Republicans, who fiercely objected to their party proposing to maintain major state involvement in health care, albeit far less than the ACA envisioned.  Arizona Rep. Andy Biggs, a staunch conservative and thorn in leadership’s side, voted against the ACA repeal for just this reason. 

      This means that House Republican leadership will need Democratic votes to pass appropriations bills (enough Members in their caucus will usually raise objections to one or another program being funded). And they surely will need Democratic votes to raise the debt limit this Spring.  Leadership likely can get Republican votes for a budget resolution – the precursor to budget reconciliation legislation – but likely will have more trouble passing the reconciliation bill itself unless its provisions are unfailingly extreme.  Leadership likely can also hold Republicans together to vote for resolutions of disapproval under the CRA and resolutions of approval under the ICA.  On the other hand, because Democrats’ approvals will be needed to pass any appropriations legislation, they may make a price for their support the House Republican leadership’s pledge to block any attempted rescissions of spending Democrats won as concessions on those bills. 

      Democrats’ leverage in the two chambers is likely to be mutually reinforcing.  Senate Republicans likely do not have the votes to eliminate the filibuster even if they ignore Senate rules requiring a two-thirds majority for such rule changes.  Even if they did, however, they have less motivation to try if House Democrats still can effectively block a great deal of legislation anyway.  Conversely, House Republican leaders may abandon trying to appease the fractious caucus and start working with Democrats sooner if they recognize that anything they might ram through is likely to die in the Senate. 

      In the expiring Congress, a self-defeating cycle repeatedly afflicted House Republican leaders.  First, a handful of far-right Members would scuttle attempts to pass legislation by majority vote.  Then Republican leaders would have to rewrite the legislation substantially to attract Democratic votes.  That, in turn, would lead more Republicans to abandon the legislation, increasing the number of Democratic votes required.  Eventually, the Republican leadership would be as dependent on Democratic votes as it was on Republican ones and the two parties negotiated as near-equals, much as the majority and minority parties do in the Senate.  Indeed, in the expiring Congress, Republican leaders often brought legislation to the floor under suspension of the rules – which requires a two-thirds majority and thus a raft of Democratic votes – rather than try to move legislation through the House Rules Committee, where three far-right Republicans could scuttle it. 

      If legislation does unite House Republicans, however, Democrats will have very little influence.  By tradition, House committees have lopsided majorities not remotely resembling the parties’ relative shares of the House’s membership.  Therefore, Democrats will likely need to turn more Republicans to prevail on amendments in committee than they would on the floor.  And on the House floor, however, the Rules Committee can and likely will prohibit any Democratic amendments.  (Longstanding tradition does allow the minority party one motion to recommit – the functional equivalent of an amendment – but Democrats have been thoroughly unimaginative in how to use these.) 

      In the Senate, the margin is more comfortable for Republicans:  they can lose three of their senators and still prevail.  With only two Senate Republicans – Lisa Murkowski (AK) and Susan Collins (ME) – making any pretense of moderation, it is hard to imagine what other two senators would reject legislation for being too right-wing.  Amending or defeating legislation on the Senate floor thus will be quite difficult.  Most legislation is subject to the filibuster – thank goodness Senate Democrats failed to gut it in 2022 – but amendments likely will fail. 

      On the other hand, because the minority party can filibuster the resolution organizing the Senate at the beginning of a Congress, the two parties must negotiate allocations of seats on Senate committees and likely will agree to something relatively proportional.  This will allow Democrats to prevail in committee by turning just one Republican vote; at a minimum, flipping one Republican will tie the vote, preventing the Committee from moving forward.  Except for reconciliation legislation and a few other special types, floor amendments in the Senate are relatively easy to offer.  Democratic amendments that unambiguously make legislation more progressive likely will fail, but more creative amendments to protect popular vulnerable groups, to change funding formulas in ways that benefit some Republican senators’ states, or to appease special interests that also have sway among some Republicans, could well pass.

      The parties’ effectiveness will depend on adapting to this dichotomous environment.  Most extreme non-fiscal legislation (e.g., closing the Department of Education or gutting environmental regulation) will fall to the filibuster in the Senate.  Less extreme versions will be unable to unite House Republicans, requiring full negotiations with Democrats.  Whether Republicans are interested in moving negotiated legislation on their priority concerns remains to be seen.  Discretionary appropriations will decline, but the need for Democratic votes in both chambers will temper the rate of decline. 

      When legislative leaders must negotiate, unsophisticated fringe legislators and outside interests for which they perform often become sharply critical.  This criticism springs from the simplistic fallacy that their side’s leverage allows it to “just say ‘no’” to any bill that does not meet their liking.  This ignores the other side’s ability to say “no” as well, with the result that both sides will ultimately have to accept provisions they oppose unless passing nothing is a viable alternative.  Democrats criticized Speaker Pelosi for agreeing to huge, highly discretionary, largely unaccountable corporate subsidies in coronavirus relief legislation; Republicans criticized Senate Majority Leader McConnell for that legislation’s dramatic liberalization of unemployment compensation.  But the only reason Democrats got the unemployment expansion was because the Republicans got the corporate subsidies, and vice versa. 

      In our current political climate, both parties’ activist bases have convinced themselves that betrayals by their political leaders, not their failure to persuade half of the U.S. electorate, is the crucial reason why public policy is not moving further in their favored direction.  They thus undercut their negotiators whenever the proposed deal disappoints their unrealistic ambitions.  This invariably strengthens the hand of their opponents, resulting in a worse final agreement.  President Trump rejected some offers that significantly advanced his agenda on the eve of the 2018-19 government shutdown; once the shutdown occurred and it became clear that the electorate blamed Republicans, he ended up with far less.  Progressive activists pressured President Biden into walking away from the transformational agreement he had reached with Senator Joe Manchin on the Build Back Better legislation; they almost lost the whole thing and ended up salvaging only its climate investments.  I will be submitting an article that disentangles budgetary brinksmanship in the New Year. 

      At this writing, President-elect Trump, Elon Musk, and Vivek Ramaswamy have blown up the bipartisan stop-gap appropriations deal negotiated by House and Senate Republican leaders.  By most accounts, they gave Speaker Johnson no advance warning of this attack.  The draft legislation contains few high priorities for either side:  Republicans anticipating unified control of the federal government did not ask for much and thus did not need to make many concessions.  Many observers regarded it as one of the more mundane year-end continuing resolutions of recent times. 

      Trump, Musk and Ramaswamy likely have overreached.  With Republicans publicly excoriating their own Speaker, whom the public will blame for any shutdown is little mystery.  Democrats can safely justify their refusal to make further concessions by insisting that Republicans honor their own agreement.  And after running on the slogan “Trump will fix it”, the incoming President begins his second Administration by making government even more dysfunctional.  This could weaken him in much more consequential fights, fights in which he will need to portray Democrats as obstructionists.  One also could question the wisdom of launching a pitched battle over a bipartisan appropriations bill when appropriations is one area of policymaking that will have to remain fully bipartisan even after the transition.  Triggering a battle over the speakership will likely slow the Republican legislative agenda.  And although essential government employees can ensure that President Trump is sworn in and protected, they cannot provide much pomp and circumstance for the inauguration.

      How the second Trump Administration will differ from the first is a hot topic in Washington.  If this episode is any indication, bad political judgment in situations requiring bipartisan cooperation may be one constant.   

      @DavidASuper1/DavidASuper.bsky.social