How Tuesday’s Primary Election in Alabama Could Shape the Future of the Senate---For the Worse

By Jordan M. Ragusa

Member adaption vs. member replacement. Source: prof. Jordan M. Ragusa.

Member adaption vs. member replacement. Source: prof. Jordan M. Ragusa.

A rare off-year special election in underway in Alabama to fill the Senate seat vacated by Jeff Sessions, Donald Trump’s attorney general, following his twenty year career in the upper chamber. According to Ballotpedia, just three off-year Senate special elections have occurred since Sessions first won election in 1996.

Although the general election isn’t until December 12, Tuesday marks the pivotal GOP primary runoff. In this deep-red state, most expect the victor to win the seat in December. Governor Robert Bentley selected Alabama’s attorney general, Luther Strange, to succeed Sessions. Despite having the governor’s endorsement, and being the de facto incumbent, Strange is facing a strong challenge from Roy Moore. Most polls indicate that Moore—the state’s controversial former chief justice—is in the lead heading into the runoff election. Polling off-year contests is notoriously difficult, however.

While the race is interesting for various reasons, I want to focus on the fact that the winner will shape the functioning of Senate for years to come. Given the power of individual senators to obstruct the chamber’s business, coupled with the GOP’s razor thin margins on key votes like the ACA repeal(s), Tuesday’s winner could decide the fate of major legislation in the 115th Congress and beyond. The victor could also tilt the balance in the ongoing feud between the establishment and anti-establishment wings of the GOP. Roy Moore is regarded as the quintessential outsider, a firebrand who has publically feuded with Mitch McConnell, while Strange is the establishment favorite. Lastly, Senate norms play a critical, albeit seldom appreciated, role in the upper chamber’s operation. Tuesday’s winner could be a key voice in institutional fights over the filibuster and the use of blue slips.

An optimistic view is that Sessions’ replacement will “fix” the upper chamber. Such claims are ubiquitous. Americans routinely claim that if we “just had new members, fewer career politicians, and term limits, Congress’s problems would be solved.”

Yet the opposite is most likely true, unfortunately.

Among people who study the institution, the consensus view is that Congress is deeply polarized and that the increase in polarization has caused problematic levels gridlock. While people tend to overstate the extent to which Congress is “broken,” as Matt Glassman argued in a recent Legbranch.com article, there is no denying the historic levels of polarization and gridlock in the contemporary Congress. On these points, see research by Poole and Rosenthal, Binder, and Mann and Ornstein.

If we think through the process by which polarization occurs, there are two possibilities: (1) member adaptation and (2) member replacement. Adaptation occurs when a lawmaker’s roll-call behavior becomes more conservative or liberal over the course of their career. In other words, lawmakers become more extreme in their behavior the longer they serve in the chamber. Replacement occurs when lawmakers retire, resign, or die in office, and are replaced by new members who are more extreme than they were. In other words, moderates leave Congress, and ideologues enter.

Which is a bigger cause of polarization, adaptation or replacement? And how does this relate to Tuesday’s election in Alabama?

If the answer is adaptation, Alabama’s special election could be a good thing for the functioning of the Senate to the extent that a senator who moved to the right over the course of his career may be replaced by a moderate. If the answer is replacement, however, Alabama’s special election may exacerbate polarization if a senator with a reliability conservative voting record is about to be replaced by someone even more conservative.

Using Nokken and Poole’s dataset, which scales the liberal and conservative direction of each senator’s roll-call record, I estimated the average size of replacement and adaptation (on the y-axis) in each decade since the 1960s (on the x-axis). For adaptation, values greater than 0 indicate the average member moved to the extremes (further left or right) from one Congress to the next (less than 0, the typical member moved to the center). For replacement, I matched each new senator in their first term with the senator they replaced. Values greater than 0 indicate the new senator was more extreme in their roll-call behavior compared to the exiting senator (less than 0, the typical replacement was more moderate).

What we see in the chart above is quite stark. Although lawmakers do indeed move to the extremes over the course of their career, that movement is gradual. In fact, the adaptation trend line is only slightly above the zero line for the entire time series. Replacement effects are large, by comparison, with the effect increasing over time.

In the 1960s, first-term senators tended to be more moderate compared to the senator they replaced. In the 1970s, there was little difference between the polarizing effects of replacement vs. adaptation. Beginning in the 1980s, however, replacement had a large polarizing effect compared to adaptation. As we can see in the chart, this disparity accelerated in the 1990s, a pattern that continued in the 2000s.

In sum, the largest cause of the Senate’s polarization is the replacement of career lawmakers with new members who enter the institution further to the left or right than the senator they replaced. It should be noted that this pattern is consistent with established findings in the congressional literature. Sean Theriault has written about this very topic in an article (see here) as well as in his book about polarization in Congress (see here). I have written about how the Senate’s polarization is due to replacement by lawmakers who first served in the House, arguing that representatives learn partisan norms and continue those extreme behaviors after switching chambers (see here). Research by Danielle Thomsen—cited in an article on Legbranch.com the other day—finds that fewer moderates are running for election in the contemporary era and are also more likely to retire early (see here).

In closing, there is little evidence that “throwing the bums out” and the retirement of “career politicians” will help “fix” Congress’s dysfunction. If anything, the evidence suggests the opposite is true: newly elected lawmakers are typically more extreme than the members they replace, with that polarizing effect contributing to Congress’s gridlock. In the context of Tuesday’s special election in Alabama, much is at stake as far as the future of the Senate, not only in terms of legislative productivity, but also vital Senate norms. Given his reputation as a “disruptor” and favorite of the “alt-right,” a victory by Roy Moore would no doubt exacerbate the Senate’s institutional challenges. But even if Luther Strange proves the polls wrong and wins Tuesday’s runoff, there is some evidence that he would be equally if not slightly more conservative than Jeff Sessions. Two decades ago, when Sessions won his first election, it was unthinkable that a replacement could be further to his right. Yet this is where we are in American politics.

Jordan M. Ragusa is an associate professor of political science at the College of Charleston, where he directs the college's American Politics Research Team and is a research fellow in the Center for Public Choice and Market Process.

Rep. John Ratcliffe On the Separation of Powers Restoration Act

Dieterle Ratcliffe Separation of Powers 09-25-2017.png

By Jarrett Dieterle

Rep. John Ratcliffe’s (R-TX) Separation of Powers Restoration Act was introduced early this year. Unlike some bills, the act’s title precisely encapsulates its purpose: restoring the power disparity in our system of separated powers.

As close observers of our political system know well, the modern presidency has grown precipitously compared to Congress. While Congress itself deserves much of the blame for this state of affairs by over-delegating its powers to the executive branch, the third branch of our system has also been complicit. Under the judicial doctrine known as “Chevron deference,” the federal judiciary has systematically deferred to executive agencies when it comes to interpreting laws.

As R Street has noted previously, Chevron deference has become increasingly controversial in the legal community:

"[Chevron deference means that] unless an agency’s interpretation of a statute is unreasonable, courts must adhere to it. Unsurprisingly, this allows agencies significant leeway to exercise their regulatory powers.
"This level of deference to agency interpretations … has become contentious. There continues to be an ongoing debate among judges, legal scholars and practitioners about the propriety of according federal agencies such broad deference."

Rep. Ratcliffe’s bill addresses this issue by calling for an end to such deference; in its place, the bill would require courts to review agency actions de novo (“from the beginning”) and without deference.

LegBranch.com recently spoke with Rep. Ratcliffe about his bill, which he feels would provide an “immediate and profound” step forward in the effort to rein in the executive branch. As Ratcliffe put it, Chevron deference gives agencies the ability to “grade their own paper,” since their interpretation of statutes within their jurisdiction usually prevails in court.

For Ratcliffe, eliminating judicial deference to agency legal interpretations strikes at the very heart of our constitutional framework. “The wisdom of the founding fathers was that there would be a system of checks and balances,” Ratcliffe notes. “This is what Chevron deference has thrown out of balance; it should be the legislature that writes the laws, not agencies.”

Despite the relatively simply nature of his bill—its entire text barely exceeds 150 words—it remains controversial. Ratcliffe notes, however, that a version of the bill passed the House with at least some bipartisan support from several Democrats. According to Ratcliffe, President Trump has also been receptive to the bill, which puts the ball squarely in the Senate’s court.

Given the Senate’s busy calendar, it’s anyone’s guess whether it will take up and pass the Separation of Powers Restoration Act. But those interested in checking the growth of the executive branch will certainly be keeping watch.

C. Jarrett Dieterle is a governance project fellow with the R Street Institute. 

ICYMI: House Goes to Court to Protect Secrecy of Records

US House Official Seal 09-2017.png

Politico's Josh Gerstein reports:

"The House of Representatives is taking legal action to make sure that federal agencies don’t release congressional records to the public through the Freedom of Information Act.
"The move, which came Friday evening in a lawsuit demanding access to discussions about health care reform between the Trump administration and Congress, threatens to cut off a mechanism liberal watchdog groups were using to gain insight into closed-door negotiations on a variety of policy issues.
"In legal papers filed in U.S. District Court in Washington, House General Counsel Thomas Hungar said the move to protect congressional correspondence was authorized by a House body known as the Bipartisan Legal Advisory Group. While the panel of top House leaders has divided in the past on sensitive issues, Hungar wrote that they 'voted unanimously to authorize this intervention … to protect the institutional interests of the House.'
"Hungar complained that last week the Department of Health and Human Services and the Office of Management and Budget gave the liberal group American Oversight four documents that originated with the House Ways and Means Committee. He argued that legal precedents established that congressional documents were exempt from disclosures pursuant to FOIA...."

Read more at http://www.politico.com/story/2017/09/15/house-moves-to-block-access-to-records-foia-242791

ICYMI, Michael Stern, former senior counsel for the House of  Representatives, explains the legal aspects of this story at  http://www.pointoforder.com/2017/07/08/can-house-committees-exempt-their-oversight-correspondence-from-foia/.

ICYMI: Why Are Moderates Disappearing from Congress?

Source: Prof. Danielle M Thomsen.

Source: Prof. Danielle M Thomsen.

Whither moderates? Well, analysis by Danielle M. Thomsen, an assistant professor of political science at the Maxwell School at Syracuse University, finds that fewer moderates are running for Congress, and those elected often leave because they find the work unsatisfying.

Read more at https://www.washingtonpost.com/news/monkey-cage/wp/2017/09/12/this-is-why-charlie-dent-and-other-moderates-are-disappearing-from-congress/

 

Congress's Death Is Greatly Exaggerated

Chafetz Congress's Constitution 09-2017.jpg

By Matt Glassman

Lamenting the underperformance of Congress has a long history in American public life. Nineteenth century cartoonists portrayed Congress in terms familiar to modern observers: dysfunctional, corrupt, and unable to meet the needs of a modern society. Washington has been quoted as vowing never to go back to the Senate after procedural actions made his first visit there functionally useless. Robert E. Lee famously quipped (perhaps apocryphally) that the Joint Committee on the Conduct of the War was worth two divisions to him. And Andrew Jackson argued, as would most of his successors, that Congress was hopelessly provincial, a national legislature incapable of seeing the national good.  

Such criticism continues today. The laundry-list of alleged dysfunction is familiar even to the most casual observer of congressional politics.  The policymaking process is mired in gridlock. The appropriations process lurches from deadline to deadline. The budget process is completely broken. Members are divided into deeply polarized partisan camps. Capacity is on the decline, with resource and staffing cuts for Members and committees. Oversight of the executive branch has largely withered. Washington, DC is a swamp of crooks that must be drained.

The intellectual roots of most contemporary criticism can be traced to another president, Woodrow Wilson. He was among the first to propose the entire separation of powers system was a relic. The Founders had not anticipated political parties, and their rise overwhelmed Madison’s vision of institutions in competition, ambition checking ambition. Had American democracy bloomed a century later, Wilsonians argue, it would have been self-evident a parliamentary system—with a sovereign legislature and executive drawn from its ranks—was the superior arrangement. Unfortunately, such a system was a non-starter for the 18th century Framers, leaving us with a clumsy copy of Tudor England’s mixed system, long after the world moved on.

For such critics, a greater problem is that even within this second-best system, Congress can no longer compete.  Its power has been eroded by the other branches, which have shown themselves capable of adapting to the demands of modernity. Congress, meanwhile, has either passively stood by or, worse yet, actively aided the other branches in strategic attempts to shirk responsibility. This has, in turn, further reduced Congress’s power and prestige. What remains is an institution both vestigial and vital; a large, complex organ through which all the blood must flow but which serves little purpose for the body politic.

For Wilson, the solution was to graft parliamentary democracy onto our separation of powers constitution. Encourage disciplined parliamentary-style parties, strengthen leaders, eliminate anti-majoritarian roadblocks (the filibuster, committees), and shift deliberation and policy leadership from the legislature to the executive and the parties. Championed by generations of progressive intellectuals, this vision of responsible parties, presidential-centered policymaking, and a hollowed-out, majoritarian arena legislature continues to captivate contemporary observers. With everyone in agreement that Congress is useless at this point, why not take Wilson’s advice and reform this lemon into some lemonade?

In Congress’s Constitution: Legislative Authority and the Separation of Powers (Yale University Press, $45), Cornell law professor Josh Chafetz forcefully and persuasively answers these critics. Separation of powers is not antiquated, it is not second-best, and Congress is neither doomed to third-fiddle nor necessarily as far behind as often portrayed.  Chafetz, unsurprisingly, does not argue Congress has distinguished itself in recent times or that it is currently at an apex of power. Instead, he builds a conception of the separation of powers system that challenges congressional critics to reassess much of how we think about power within the system. Part of the problem, it turns out, is critics have been using the wrong metrics and frames of analysis. Seen through the proper lens, Congress not only has the tools necessary to compete with executive power, but actually does compete more often than it is credited.

Fundamental to Chafetz’s vision is what he calls a multiplicity-based view of our constitutional system. Unlike formalists who view institutional power as a predictable consequence of institutional design, Chafetz argues “political power is largely endogenous to politics.” That is, the relative power of the branches is contestable, varies over time, and is adjudicated through substantive battles over specific political issues. The Constitution assigns certain rigid static powers­—only the president can nominate a Supreme Court justice and the threshold to override a veto is exactly 2/3 of both chambers—but most of the important questions of power are not formal inquiries into mechanical authorities. Rather, they are substantive questions of informal power. “How much money should the government spend on hurricane relief?” and “Under what terms should the debt limit be raised?” are not discoverable by constitutional analysis.

Whether the answers are shaped mostly by the president or Congress is a function of the current balance of power, which itself has been shaped by the outcomes of previous contestations, and which will in turn shape a new equilibrium going forward. As Chafetz notes, in most interbranch fights there are many weapons available to each side and numerous opportunities to escalate or concede defeat. Congress can ignore the president’s budget; the president can veto appropriations acts; Congress can override the veto; the president can impound funds; Congress can seek court relief under the impoundment act; the president can assert the impoundment act is unconstitutional; the court can rule, perhaps for Congress; the president can ignore the court order; and Congress can impeach the president. 

Crucially, however, these power contests occur in the public sphere. The ultimate adjudicator is the voters. That no appropriations fight in history has resulted in an impeachment speaks to the public’s role. Actors in all branches seek to preserve the public’s trust; it not only affects reelection chances in the political branches, but also the future power of their institution. To impeach the president over an appropriations veto risks not only your seat, but also Congress’s public standing in all future fights. Properly gauging your current public standing and your ability to win a battle in the public sphere becomes paramount.

Thus, the key to increased institutional power is not aggressively asserting authority at all times, but judiciously asserting authority where it is both likely to prevail and likely to enhance your future power. Congressional power can easily be lost by overplaying your hand in the public sphere. Picking a fight you are sure to lose is not always bad politics, but skipping a specific substantive fight that might create a longstanding public precedent against you is often the correct strategic course for long-term power. Chafetz does not assert Congress has made particularly judicious use of its tools, but he does show that the inverse—Congress appearing to not make use of its tools in a particular interbranch conflict—is often interpreted as congressional impotence, rather than as wise strategic behavior.

Attentive readers will recognize in this strands of Neustadt’s Presidential Power (Wiley, 1960) argument.  The power of the presidency, he asserted, is not found in the written text of the Constitution. Instead, it is derived from skillful maintenance of professional reputation and public prestige, two public sphere resources that allow him to persuade others that their best interests lie in going along with him. Chafetz’s conception also recalls the American Political Development tradition within political science, with its overlapping institutions in conflict for authority and legitimacy, and its careful attention to how the strategic resources and choices of actors reflect previous conflicts and inform future ones.

Chafetz’s application of these arguments to the analysis of constitutional power will be jarring to many readers. After all, many of us were taught to believe that the Constitution, while open to interpretation, is a definitive adjudicator of political authority, not a set of tools for contesting a less tangible power that actually resides in the public sphere. Chafetz’s clear writing and careful argumentation, however, should convince even the most skeptical reader of the merits of his separation of powers conception. It also doesn’t hurt that he happens to be correct.

Much of Congress’s Constitution is an examination of the history, development, and application of six of the powers individual members, or chambers, of Congress have at their disposal as they engage in interbranch conflict. Chafetz divides these tools into ‘hard’ and ‘soft’ powers, the former composed of coercive powers (purse, personnel, and contempt) and the latter those that protect or enhance its reputation in the public sphere (freedom of speech and debate, internal discipline, and cameral rules). Each chapter follows a similar structure. The history of the power is traced from its origins in English legislative development through colonial and U.S. history. A structural discussion of the power, and its application in contemporary context, follows. The crisp writing throughout the volume makes for easy and enjoyable reading.

The detailed tracing of the English history is somewhat puzzling at the outset, but by the end of the first substantive chapter it becomes clear how much it enriches the structural discussion. First, it offers a glimpse of what legislative-executive relations looked like in a system where the legislature was substantially weaker in formal authority. Similarly, it strikingly places the contemporary powers of Congress on a developmental timeline, notably one that is not frozen in 1787. The American Constitution occupies something of a late midpoint in English-American legislative development, benefitting from the received wisdom of English history and colonial experience, but clearly still part of a transitional period. Finally, it provides numerous parallels between events that occurred 500 years apart. All of these things reinforce the underlying theme of a system in constant contestation, and the contingent nature of any temporary equilibrium.

The structural analysis is clear, methodical, and insightful. While some of the territory will be well known to those familiar with separation of powers, the presentation is top-notch and the connections to early English democracy make for striking revelations. Discussing the power of the purse, Chafetz illustrates it’s not inherently about control of the money, but about the annual nature, and therefore built-in sunset, of appropriations. Only positive action of parliament (or Congress) can provide the monarchy (or president) with war funding. And just as Parliament spent centuries fighting to reduce the portion of royal funds derived from prerogative taxation (funds that could be raised without Parliament), Congress spent the 20th century reversing that trend, in the form of mandatory appropriations. If a chief lever of legislative control is the need for positive annual appropriation, what does it say about congressional power and institutional strategy that three-quarters of government spending has been effectively removed from such control?

Throughout, such non-obvious connection between congressional power and visible action is on wonderful display. Indeed, one underlying theme is we’ve been looking for congressional power in the wrong places. Or, more precisely, the easiest places to look can be misleading. Chafetz notes, in the chapter on personnel, that the intense focus on confirmation of nominees obscures the larger superstructure. Congress creates the bureaucracy and positions to which the president nominates officials. Congress designs the civil service system, placing the vast majority of executive employees out of patronage or at-will control. Congress designs regulatory structures out of the reach of the president. But even on confirmations, analytic instincts can be wrong.  Most presidents get strong co-partisan congressional support for their nominees, but their nominees are endogenous to both their relative standing in the public sphere, as well as private information they get from Congress. A weak president will not necessarily have more rejected nominees than a strong one under unified government, but the idea that they share the same deference is a naïve assumption.

Readers of all ideological stripes will take issue with some aspects of the book. For liberals, the central conceit will be its faith in free and fair elections. The vision presented necessarily relies on the public sphere being able to effectively reward and punish parties. Chafetz makes the excellent point that any party which wins the consecutive elections necessary to dominate the government is inherently more trusted by the voters, and thus we should be less concerned by some of the often-derided features of unified government, such as reduced oversight of the executive branch. In effect, the rules of the constitutional game are flexible enough to be responsive to the realities of the public sphere.

But if the very rules of the constitutional game are determined in the public sphere, how can we possibly ensure debate that occurs in the public sphere is not itself distorted by corporate money or entrenched illiberal hierarchies of power? Or what if a unified government is able to manipulate the election laws and put a thumb on the scale in its favor? While Chafetz does correctly point out that what we call unified government in our system is hardly unilateral total control, many liberals in 2017 are likely to bristle at the idea the judiciary can be a strong bulwark against election manipulation by the political branches. If constitutional power is endogenous to politics, surely it is possible that fair elections are endogenous as well. These questions go unanswered.

Liberals and conservatives, and in particular legal originalists, may also react poorly to the public sphere understanding of constitutional politics itself. It will undoubtedly raise the specter of a constitution that is not itself an anchor for government, or a restraint on government behavior. If the Constitution’s framework is merely endogenous to politics, then it cannot be the rock upon which the church is built. And that may be unsettling. Even if a conception of the Constitution as stable scaffolding of assigned powers and strict limitations is a fiction, they may argue, it is a fiction worth preserving. Law professors and others who rely on strict textual analysis may be equally unsettled. But these quibbles pale in comparison to the explanatory power of the book.

The Trump presidency is providing a worthy testing ground for many of Chafetz’s claims about institutional power and the public sphere. Will a Republican Congress meaningfully restrain President Trump? Some tests have already occurred. The low standing of the president in the public sphere has emboldened Congress to act in ways highly atypical for a unified government in its opening months. An unusual number of executive nominees have been forced to withdraw while others have barely survived the Senate; Congress statutorily reduced the president’s sanction authority; and substantial investigations of presidential scandals are ongoing in both chambers. Other tests remain, some related to the soft powers described by Chafetz. Will Congress seek to augment its institutional capacity in the face of a hostile executive? Will any Members seek to create individual leverage in the public sphere over foreign policy by reading classified information into the congressional record or committee hearing transcripts?

Most notably, members of the Republican majority have criticized or refused to defend the president on numerous occasions, laughed off many of his policy proposals, and have often placed institutional concerns squarely ahead of partisanship. This was exemplified by Senator Grassley’s terse public letter asserting the need for executive agencies to respond to majority and minority committee oversight inquiries, as well as bipartisan subpoenas that have been issued in the Russia investigation. And more broadly, Congress appears to have taken on an agenda-setting role far greater than under previous first-term unified-government presidents. These applications of congressional power are revealed neither in legislation nor in roll call votes on the floor. Again, congressional assertions of power are often found in places people tend not to look.

Chafetz only takes an explicit normative turn in the final chapter, though the argument throughout well predicts his position as a defender of legislatures. For many, the final chapter may answer the most nagging question of the book: even if Madisonian government is still workable in the modern age, why go through all the trouble when the parliamentary systems seem fundamentally superior? Chafetz surveys three classic strengths of a separation of powers system—representation, deliberation, and tyranny prevention—and updates them in the language of his multiplicity viewpoint and public sphere contestation. The comparison to the parliamentary systems is unfortunately mostly implicit, but the important (if uncomfortable) upshot is clear: if politics is messy and contested, a system that reflects that has certain virtues, and a system that suppresses it comes with costs. 

Congress’s Constitution beautifully portrays a legislature not only well-equipped to compete with the modern presidency but, indeed, already competing more forcefully than casual observation would reveal. It forces the reader to consider that perceived failings of legislative government in a modern separation of powers system are part illusory and part consequence of poor strategic choices, rather than simply systemic failure of an outmoded system. There is no guarantee of a congressional resurgence or even an attempt at one. And the centralizing temptation of Wilsonian government is ever-present.  But the tools of power are available for Congress to compete in the public sphere, and as the 115th Congress unfolds, the equilibrium has been disturbed enough that the dust has been shaken off many of them.

Matt Glassman (@MattGlassman312) is a Senior Fellow at the Government Affairs Institute.

A Closer Look at a Trump-Schumer Deal to Eliminate the Debt Ceiling

By Rob Oldham

President Trump made waves in Washington when he agreed to a deal with congressional Democrats that provides relief from the damage caused by Hurricane Harvey, raises the debt ceiling, and funds the government for another three months. In the grand scheme of congressional deals, a three-month funding package and non-controversial disaster relief is not that significant—unless, of course, it is the start of an unlikely Trump pivot toward being an independent rather than a Republican president. However, Trump posited another deal that really would be a game-changer: eliminating the debt ceiling altogether. The president called the debt ceiling unnecessary and said he was talking with Senate Minority Leader Chuck Schumer about doing away with it.

There are quite a few questions about a potential Trump-Schumer deal to nix the debt ceiling. Here are three of them.

(1) What mechanism would lawmakers use to raise the level of debt? Vice President Mike Pence suggested that the House bring back the Gephardt Rule, a procedure that allowed members to increase the debt indirectly through the budget process. Rep. Dick Gephardt (D-MO) devised the procedure and had it codified as House Rule XXVIII in September 1979. Starting in 1980, House Rule XXVIII instructed the House Clerk to engross a joint resolution raising the debt limit whenever the House passed a budget resolution. The new debt level was to be set according to the spending levels in the budget resolution.

Another option would be the Schumer-Obama plan. In 2013, Schumer introduced legislation which would have let the president raise the debt limit unilaterally, while allowing Congress to pursue a resolution of disapproval to stop him. The resolution could be vetoed by the president, meaning opponents would effectively need two-thirds support to pass the resolution and then override the veto. The idea originally came from then-Minority Leader Mitch McConnell. He used the mechanism during the 2011 debt ceiling crisis to allow conservative Republicans to vote against the hike while allowing Obama to avoid the governing perils associated with the debt ceiling debate. However, by 2013 McConnell had soured on the plan and said he opposed it.

(2) Would eliminating the debt ceiling would have any chance of enactment? The short answer is no. Speaker Paul Ryan came out in opposition almost immediately after hearing that Schumer and Trump were considering it. Ryan’s official reason for opposition was the constitutional spending prerogative given to Congress. It also is likely that his caucus would be torn apart in a fight over eliminating the debt ceiling. There is good reason for conservatives to want to keep the ceiling. Their biggest policy win since taking control of the House in 2010 was probably the domestic and military spending caps put in place as a result of the 2011 debt ceiling crisis. And it’s not just conservatives who would oppose it.  Moderates from both parties would be bludgeoned in their next campaign if they voted to eliminate the debt limit altogether. Although the polling can differ depending on whether a debt limit crisis is occurring, 57 percent of the public is opposed to just raising the limit. Regardless of whether an elimination vote would really endanger incumbents, many would see it as a career-ender.

(3) Finally, there is a question of why Democrats would want to eliminate the debt limit. Should they not be able to leverage their votes on the debt ceiling to force Republican leaders to accept some of their policy riders? Some Democrats certainly think so. Rep. Luis Gutierrez (D-IL) has suggested that Democrats use the debt ceiling fight to pass the DREAM Act. Would it really be this simple?

No. It’s complicated, not least because the partisan politics of the debt ceiling debate is in uncharted territory. For the first time since the Tea Party came to town in 2011, there is a unified Republican government. But the GOP, due to internal dissonance, does not have nearly enough yes votes to raise the limit, which gives the Democrats leverage. And doing so creates positioning issues for many Republican lawmakers.

A historical perspective on how the debt ceiling has been increased is useful here. The matter has been contentious since 1953, when President Dwight D. Eisenhower asked for an increase to help pay for the Korean War and the Cold War buildup. He had a unified Republican government, and although the House passed the increase, the Senate did not follow suit due to opposition from fiscal conservatives. Democrats took control of Congress in 1954 and were more open to increases. Once they were in power, most House Democrats voted to raise the ceiling every time the president asked. Many House Republicans went along too, but the number of defectors increased throughout the Eisenhower presidency.

Because Democrats did not give up control of the House for several decades after 1954, they almost always supplied the majority of votes to increase the debt ceiling. Republicans would usually only lend significant support when they controlled the presidency and even that support diminished over time. Over the years, the debt ceiling fight became more complex, especially as the increases began attracting riders related to Social Security benefits, campaign finance, and the Vietnam War. Still, the pattern remained, with consistent support from House Democrats and conditional support from House Republicans. Depending on who was in the White House, Senate Republicans sometimes voted in favor of increases.

It was not until 2003 that the debt ceiling increase finally faced down a unified Republican government, with George W. Bush as president and the GOP having majorities in both chambers. For the first time since 1953, Democrats had no responsibility for increasing the debt limit. And the increase votes came at a time when Republicans were pushing major budgetary policies–such as income tax cuts and spending on foreign wars–that required an increase in the debt. In the debt ceiling hikes of 2003, 2004, and 2006, almost all votes came from Republicans. Even Senator Barack Obama gave a speech in opposition to raising the debt ceiling to pay for the spending priorities of the Bush administration.

Even if they had wanted to do so, Democrats did not have much time to score political points by opposing the debt ceiling. They regained unified control of the presidency and Congress from 2009 to 2010, before seeing the House slip back to Republican hands.

This was a turning point for the politics of the debt limit. The conservatives elected in the 2010 Republican wave did not support increases in debt despite controlling one of the levers of power. In 2011, 2013, and 2015, they forced a coalition of moderate Republicans and all Democrats to supply the votes for the debt ceiling increases. This caused headaches for President Obama, but, as president, he bore the responsibility (in the public eye at least) for keeping the government operating.

With Republicans in control of Congress and the White House after 2016, the responsibility for raising the debt ceiling fell completely on the GOP for the first time since 2006. But this is a much different party compared to the George W. Bush years. In the vote on the Trump-Schumer deal, they supplied just 133 of the 316 yes votes. This is where Democrats theoretically might have leverage. For the first time in decades, Republicans have unified control of government but are unable to advance must-pass legislation without Democratic help. If the GOP cannot do much better than 133 votes for a debt ceiling hike then just half of the Democratic caucus could hold the House hostage to its demands. So why would Schumer want to eliminate his party’s bargaining chip?

There are a couple of explanations. One is that the minority leader is playing the long game. He knows that the cyclical nature of American politics will eventually put his party back in the White House, maybe as soon as 2020. If Republicans maintain a House majority (somewhat likely in the long-term given the natural advantage of their rural and suburban voter distribution), the Democrats might very well face another divided government scenario like 2011, where conservatives held the debt ceiling hostage until they were able to force Obama into a deal that cut discretionary spending. If the debt ceiling is eliminated now, Schumer will not have to worry about it the next time a Democrat is president.

Another explanation is that the Democrats’ bargaining advantage is not quite what it seems. In his blog Honest Graft, political scientist David Hopkins argues that neither party has been very successful in winning concessions through debt ceiling negotiations. With the notable exception of 2011, he is correct that most negotiations end in bipartisan agreements that preserve the status quo, not deals like immigration reform. Simply put, Democrats are not in a position to gain much from a fight over the debt ceiling and their political fortunes would be better served by eliminating the ceiling now before it ensnares a future president like it did Obama.

Regardless of whether Schumer is playing smart politics, this deal does not seem likely to happen. Republicans see it as another threat to their already divided caucus. They most likely recognize that Democrats could benefit from ending the limit in the short-term by using it to campaign against moderates and would certainly do so in the long-term by taking away a major Republican bargaining chip when control of the White House changes. Trump and Pence might be able to garner support for a modest procedural change like the Gephardt Rule. However, as was seen in 2011, rules can easily be repealed once members see them as obstacles to leverage in legislative bargaining. In any case, House conservatives are likely to block any move that Ryan may be pressured into, so expect the debt ceiling to stick around until at least after the 2018 midterms.

Rob Oldham is a political writer interested in legislative politics at the state and national levels.

AEI Event: The Senate Filibuster: Tool of Mass Obstruction or Key to Deliberation?

Cots in the U.S. Senate, 1960. Source: Senate.gov

Cots in the U.S. Senate, 1960. Source: Senate.gov

Thursday, September 28, 2017 | 2:00 pm - 3:00 pm

AEI, Auditorium
1789 Massachusetts Avenue NW
Washington, DC 20036

The Senate filibuster and the threat of its use have grown in importance since the early 20th century. But has it grown too powerful? Has the filibuster strayed too far from its roots in promoting deliberation and protecting the voice and prerogatives of the minority, becoming instead a tool that obstructs the will of the majority? Has it become, as President Trump has argued, an “archaic” rule, “forcing bad decisions,” or is the filibuster here to stay? As Majority Leader Mitch McConnell has said, to abolish the rule would “fundamentally change the way the Senate has worked for a very long time. We’re not going to do that.

RSVP: https://www.aei.org/events/the-senate-filibuster-tool-of-mass-obstruction-or-key-to-deliberation/

 

Should Members of Congress Get DC Housing Stipends?

Benjamin Freed writes in the Washingtonian:

"Both the United Kingdom and France give members of their parliaments allowances for capital-area housing. British MPs, who earn base annual salaries of £76,011 ($96,812), can expense up to £22,760 (about $29,000) on renting in London, with more allowed if they are living with dependents. The French do it a bit differently. Each member of the National Assembly receives a monthly stipend of €7,100 ($7,956), of which 3 percent, or €165.44, is a dedicated residential allowance."
"These systems are far from perfect, and can be corrupted under lax oversight, as in the case of an scandal in the UK in 2009 in which the Telegraph found MPs claiming expenses on furniture, home appliances, swimming pool repairs, and one instance of a “duck house” for a backyard pond...."

Read more at: https://www.washingtonian.com/2017/06/27/congress-housing-stipends-chaffetz/

Event: Launch of the Center for Effective Lawmaking

Volden lawmakers event 09-2017.png

The Launch of the Center for Effective Lawmaking
Agenda

WHEN: Tuesday, September 26, 2017 8:00 AM - 9:00 AM
WHERE: 2043-2044 Rayburn Banquet Room, 
45 Independence Ave SW, Washington, DC 20515, USA

RSVP: https://uvabatten.secure.force.com/events/#/list

8:00am     Breakfast and Opening Remarks
 
Lauren Benton -- Dean, Vanderbilt University College of Arts and Science; Nelson O. Tyrone, Jr. Chair in History; Professor of Law. 

Craig Volden -- Co-Director of the Center for Effective Lawmaking; Professor of Public Policy and Politics, Associate Dean for Academic Affairs; Frank Batten School of Leadership and Public Policy, University of Virginia. 

Alan Wiseman -- Co-Director of the Center for Effective Lawmaking; Cornelius Vanderbilt Professor of Political Economy, Vanderbilt University;    Professor, Department of Political Science; Professor of Law (by Courtesy).   

 8:15am     Panel: Experiences in Effective Lawmaking; committed panelists thus far: 

 
Congressman Lamar Smith -- U.S. Representative for Texas's 21st congressional district.  

Congressman Stephen Cohen -- U.S. Representative for Tennessee's 9th congressional district

Congresswoman Elizabeth Esty -- U.S. Representative for Connecticut's 5th congressional district

Congressman Tom Davis --Former  U.S. Representative for Virginia's 11th Congressional district
 
9:00am    Informal  Q + A and Networking
 

BPC Event: Evidence-Based Policymaking: Next Steps

Wednesday, September 20, 2017 1:00 PM - 2:30 PM

Bipartisan Policy Center, 1225 Eye Street NW, Suite 1000, Washington, D.C., 20005

RSVP here.

Speakers

Katharine Abraham | Chair, Commission on Evidence-Based Policymaking; Co-Chair, BPC's Evidence-Based Policymaking Initiative

Ron Haskins | Co-Chair, Commission on Evidence-Based Policymaking; Co-Chair, BPC's Evidence-Based Policymaking Initiative

Ted McCann | Assistant to the Speaker for Policy, Office of the Speaker

John Righter | Deputy Democratic Staff Director, Senate HELP Committee
 
BPC's newly launched initiative to carry on the work of the Commission on Evidence-Based Policymaking will take a look at the next steps necessary to implementing the recommendations from the commission’s recent final report. The commission, sponsored by House Speaker Paul Ryan (R-WI) and Sen. Patty Murray (D-WA), issued recommendations for improving access to government data, while simultaneously improving the security of Americans’ sensitive information. They are an important foundation for a better-informed policymaking process. While those recommendations represent great progress, the important work of creating a broader culture of fact-based, evidence-informed policymaking is just beginning.

Join us as we host an event to explore the key recommendations and look at the next steps necessary to build on the momentum created by the commission’s significant work.