Rule 22 Blog Merges Into LegBranch.com

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After 7 years, Rule 22 blog has moved to a new home.

Jordan Ragusa and I now are contributors at LegBranch.com, the joint venture between R Street Institute and New America, as part of the Legislative Capacity Working Group project.

We will continue blogging about Congress at our new home. You can find all our content below, and our new stuff is under our tags: Joshua C. Huder and Jordan Ragusa

The healthcare process is not just bad. It's damaging.

By Joshua Huder

There's a lot of alk about the broken processes in the House and Senate, particularly around the healt are bill. Extraordinary secrecy has been employed to push the AHCA through the House and the BCRA through the Senate. n fact, ere's so much commentary about how "broken" the institution is that people are overlooking what a disastrous strategy this is for Republicans. In short, this leader-centered process is horribly mismatched to the current, fractured Republican Party. he strategies employed by House Speaker yan and enate Majority Leader cConnell's r exacerbating ensions in the party, opening their members to damaging votes, and putting their olleagues in ntenable political positions.  First, let's assess the broken process. These arguments rest on a couple assumption: rst, that committees should hold hearings and markup, d second, hat hese debates should be open to the public. These components are commonly referred to as "regular order." ut the truth is that neither of these things are completely regular. In fact, these processes barely overlap in congressional histor. They are features from different legislative eras.

Committee hearings and markups have become increasingly less relevant to the language that actually passes through Congress. Committee influence is minimized and often bypassed ntirely, a trend that can be trace back to the late-1970, ai steam in the 1980, and hi warp-speed in the 1990s. Over that time i' become more common for bills to be pulled out of committees, significantly changed after committee consideration, or skip committees altogether. If regular order is for bill language reported from committees to receive debate and amendment on the floor, it's been a long time since Congress has been regular. Today, it's far more regular for arty eaders to ontrol the process from the beginning. 

This brings us to e openness of the process. The period in which committe worked through bills and saw their language largely intact when these bills reached the floor s roughly the same period when heir hearings were closed to the public. Decades ago, mmittee hearings were closed until voted open. Today, they are open unless voted closed. T has only been a feature in congressional deliberation since 197, and it has indeed made committee actio more transparent. But that transparency is accompanied by less relevance in the legislative process, not more. 

As Walter Oleszek points out in his essay in he Congressional Research Service's The Evolving Congress, regular order is a flexible construct. Things haven't been "regular" in a long tim. As a result, many current critics lament a process that barely existed. doing so, they miss the more important point: how this strategy is potentially catastrophic for Republicans.

Leaders have taken a more central role in the process, in part, to protect their majorie. They forward bills that promote the par' image and brand. They use their power o revent politically damaging amendments on the floor. They use the process to accomplish policy and political goals that will, on the whole, enable their party to in the next election. In recent decades this has ecome the norm.

It's safe to say we are no longer in recent decades. The healt are process has accomplished none of these things. Instead, he cConnell and Ryan strategy has resented members ith orribly unpopular bills. Now, Majority Leader McConnell is in the process of exposing his members to a variety of potentially damaging amendments. Senator Heller's 2018 challenger is already fundraising off of his vote to just debate the bill

The process changes. It always has. Getting back to regular order is a misnomer. But focusi o how different this process is misses how bad i's likely to b for the Republican Party. Members are being forced, egged, or coerced to adopt a strategy that will likely damage them. The process is not bringing the party togethe; leaders are instead ikely to drive an even deeper wedge between the ideological wings of the party. Conservatives like the House Freedom Caucus, Senator Lee, Senator Cruz and others are frustrated they are not getting what they want. Meanwhile, moderates are being forced to take difficult votes that could exacerbate their already vulnerable status. As a result, these tactics are creating in a loss of confidence.

It's possible the Republican Party has become too deologically iverse to effectively govern. If that's the case, no process will cure its ills. But one thing is certai: this process is not helping bring the arty together. Instead, leaders are intensifying ntraparty ensions. And as bad as this process is for democratic norms, it's arguably worse for the majority party. 

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

The omnibus is here! And some things to clear up about congressional budget politics.

By Joshua C. Huder

Originally published at the Government Affairs Institute at Georgetown University House and Senate leaders will push through an omnibus spending package this week. The bill combines 11 appropriations bills for the final months of the FY2017 calendar. Democrats walked away with some big wins in the omnibus. They struck over 100 policy riders, resisted non-defense cuts proposed by President Trump, managed to block funding for President Trump’s border wall, among other items.

However, their leverage in the budget process is being badly misunderstood. Many pundits are suggesting that fractured Republican politics are giving Democrats leverage. And while that certainly helps, it underestimates the institutional features in place that will bias budgets in favor of the minority party no matter which party is occupying it. In other words, it’s not just fractured Republican politics. It’s also existing law. So let’s look at the omnibus and how it shapes up, examine why Democrats were successful, and explain the state of play for FY2018.

The omnibus spending bill is the culmination of the 2015 Bipartisan Budget Act (BBA), negotiated by then-Speaker Boehner, Majority Leader McConnell, and then-President Barack Obama. In other words, the $1.07t funding level was negotiated more than 2 years ago. Democratic finger prints are all over this budget. To some degree the omnibus is not necessarily an example of Republican weakness. Rather, it’s an example of the fact that this deal was written 2 years ago when Democrats controlled the White House. The only reason we’re still talking about it is because after the November election, Republicans decided to put in a stopgap continuing resolution (CR) to allow President Trump to put his imprint on the budget.

That was a dramatic mistake for a couple of reasons. First, defense and nondefense numbers were already written in law by the 2015 BBA. So whatever imprint President Trump and the 115th Congress wanted to make on FY2017, they had to do it within the existing framework negotiated by the 114th Republican majorities and President Obama. If Republicans wrote a bill that broke those caps, it would trigger another round of automatic cuts. Any appropriations changes would at best play around at the margins because defense and nondefense numbers for this fiscal year are already set in law. You would need to write a new law to change them, a lift that would have required an enormous amount of political capital which simply doesn’t exist when Congress is also trying to rewrite the most substantial healthcare policy in a generation.

This limited the majority’s ability to reshape funding for new things. If they wanted to cut agencies’ funding to make room for other priorities, they’d have to do it through the 2015 BBA defense and nondefense partition. In other words, to make room for a border wall, they would have had to find it in the nondefense section of the budget. But making room for priorities even within the nondefense segment of the budget is very difficult.

This brings us the second problem Republicans faced for FY2017: all appropriations bills still go through a filibuster in the Senate. If they wanted to cut EPA, NIH, State, and other agency budgets to make room for a border wall, Republicans would certainly face a Democratic filibuster. This assumes that all Republicans would support deep cuts to other nondefense agencies, an assumption that ignores the strong bipartisan support for many agencies on the nondefense side. Simply gutting some agencies to make room for other priorities ignores the realities of appropriations politics in both parties.

All of this stems from the heart of the problem. Republicans cannot reorient government by working under old budget numbers. They need a new budget. This would normally make FY2018 a critical opportunity for Republicans to remake government in their vision. In a normal budget year, Republicans would write a new budget, boost defense spending and cut nondefense through the budget process, and then write their appropriations bills to those numbers.

The problem with this is this is not a normal budget year. The sequestration caps put in place by the 2011 Budget Control Act go back into effect next year, capping defense spending at $549b and nondefense spending at $515b. Put differently, defense and nondefense spending will get an across the board cut by $2b and $4b, respectively, if Congress doesn’t ease the BCA caps (for the third time). Republicans will have to amend sequester if they want to fundamentally restructure government spending.

The irony here is if sequester had not been allowed to take effect in 2013, Republicans would be in a very strong position to fundamentally reorder government spending. They could simply pass a new budget by majority vote and rewrite defense and nondefense budgets without Democratic input. Instead, Republicans handcuffed future Congresses by triggering sequestration. The budget process cannot amend the BCA. So Republicans will again have to change the law, which will require 60 votes in the Senate, which means Republicans will again be negotiating with Democrats in FY2018. And all of this is because they allowed sequestration to take effect in 2013.

Sequestration, a policy Democrats loathed when it went into effect, is ironically their greatest ally. It forces the new Republican majorities to rewrite the law before they can pass spending bills. That requires the support of at least eight Democrats in the Senate. Democrats’ leverage will continue to give them outsized influence in the budget and appropriations process in FY2018. As long as sequester is in place, it gives the minority party leverage in budget and appropriations.

If history is any indicator, this will push back negotiations all the way up to the October deadline where Congress will either address BCA caps and sequester head on or, more likely, negotiate another two-year deal. This week Congress will pass the easy bill. It gets much harder later this month when the FY2018 budget cycle starts.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

Desperate Times Call for Desperate Measures: CR edition

By Joshua C. Huder

Next week, the government will run out of money to stay open. And in typical fashion, Congress has left itself an insanely small window to pass a continuing resolution (CR) to keep it functioning. (If the process plays out normally, the Senate will have approximately  5 hours to spare before the government shuts down. This is another way of saying the process will in no way play out normally). But there’s a huge difference this time around, this CR debate illuminates a deep distrust within the Republican Party. Like other recent CR debates, members are floating policy riders in exchange for their vote. Sanctuary cities, a border wall, and, for a brief time, Planned Parenthood have all reared their heads during debate. The still unanswered question is whether these riders will be attached to the CR Congress must pass next week.

But beyond the immediate question, that these riders are even being floated is amazing in its own right. Riders like these were common the previous 6 years. In Congress if you can’t pass something on its own, you look for a vehicle to attach it to and force the opposition to accept the rider to pass the bill. And for the last 6-years, bills to fund the government or raise the debt ceiling became the must-pass vehicle of choice. Using that leverage, conservatives routinely attached controversial policy demands to various must-pass appropriations bills. Riders to repeal or defund Obamacare shut down the government in 2013. A rider to undo President Obama’s immigration order caused a very short shutdown in 2015. Some version of these shutdown threats have occurred in nearly every appropriations cycle since 2011.

These are desperate legislative tactics, used in situations when one party or faction wants to force a vote they otherwise cannot. But why is this happening again? It made sense in prior congresses when Democrats controlled the Senate and/or White House, and the Republican House forced them to either balk or vote on issues they otherwise wouldn’t have. But with Republicans in full control, why is Congress replaying the greatest hits in obstructive/destructive legislative tactics?

If these issues were priorities, Republicans could simply try and pass them. But that’s the problem. For many, particularly in the House, members aren’t getting their opportunities to address the bills or issues they believe are important. And as a result, they are again turning to desperate tactics to force votes.

The broader problem here is that the current institution isn’t designed for fractured internal party politics. Over the last several decades, the House has increasingly become a top-down institution. Over the course of decades, Speakers have played an increasing role in floor debate, committee assignments, committee activity, and drafting legislation. What this has meant is a decreasing role for rank-and-file members in the legislative process. This type of institution is great if the members in it agree on the leader’s direction. It is not great if there is significant disagreement in the ranks. So while this is not an inherently bad thing, in a time of intra-party dispute, we are currently observing the consequences. It can derail legislative negotiations, kill political capital, and otherwise render the president’s agenda dead-on-arrival.

Without a full-throated committee process acting as a sounding board for the factions in the Republican Party, Congress is depending on leadership to fill the void. Passing anything, major legislative rewrites or routine bills, now rests on Speaker Ryan’s ability to function as the Republican arbitrator. In a time of political upheaval in both parties and the country writ large, we have to wonder whether any one leader is up to that task. It clearly wasn’t during the AHCA debate. Next week will test whether it’s possible on what should be a routine legislation.

Regardless, the fact that these riders are being floated means there remains a deep distrust between the leaders of the Republican Party and its rank and file. After seven years, this problem looks more systemic than personal.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

The legislative filibuster isn’t going anywhere any time soon

By Joshua C. Huder

It’s a nuclear week in the Senate. Majority Leader McConnell has hinted that he has the votes to go “nuclear” on Judge Gorsuch’s nomination to the Supreme Court. In effect, McConnell would invoke the same process then-Majority Leader Harry Reid used in 2013 to change the Senate’s interpretation of Rule XXII. The effect would reduce the cloture threshold to break a filibuster on SCOTUS nominees from 60 to 51. This change affects the final 9 judicial seats not already confirmed by a strict majority thanks to the 2013 nuclear option. These 9 seats are very important. And you can expect a fundamentally different style of politics on Supreme Court nominees for the rest of our lives. But this is not a fundamental change to the Senate. Procedurally speaking, it’s actually quite limited.

The broader question is will this change create a slippery-enough slope to kill the legislative filibuster? In the short-term: no. In the mid-term, also probably no. Short of something extraordinary pushing Senate majorities over the edge (maybe not that far after all), it’s likely here to stay for a while. Why? The filibuster empowers all senators. It gives senators – majority and minority alike – the ability to affect all policies that come before the Upper Chamber. If a senator doesn’t like bill language, they can filibuster, force an amendment, force a compromise, and otherwise alter the text and intent of that legislation. If a bill adversely affects their state, they have significant leverage to kill it or at least mitigate its impact.

The filibusters on judicial and executive branch nominees offered a similar power. The president had to consult the minority before making a nomination. But historically speaking this is not often a controversial process, even in the post-nuclear Senate. For example, of the 23 judges confirmed by the Senate from April 2015 to January 2017, only three received more than 10 votes against. In the 113th Congress – the original nuclear Senate – there were more judges confirmed by voice vote and unanimous support than there were votes that garnered even a little opposition. Party line votes on judicial nominees are not the norm. Nominees confirmed unanimously and voice vote are far more common.

What this tells you is senators do not consider confirmation votes critical to their reelection, at least not to the same degree as legislation. Some confirmations matter a great deal. At some point in history, a confirmation vote surely affected a senator’s reelection. But those cases are rare. The overwhelming majority of senators who voted for the current Supreme Court justices remained in the Senate after their votes.  And if voting patterns indicate how important confirmations are to reelection, most senators, most of the time, have not considered them anything close to a career ender.

In short, there’s a reason the legislative filibuster has a special exemption. Giving up the ability to affect legislation would be the equivalent of a majority of the Senate (or at least 50) giving up what makes being a senator cool. Many, if not most, aren’t happy they are giving up power on nominations. The ability to force presidents to moderate their choices for someone more personally appealing is nothing to scoff at. However, the individual power to affect policy has defined the Senate. It is a fundamentally different power. Majority Leader McConnell doesn’t have the votes to nuke the legislative filibuster. And in all likelihood, he hasn’t even seriously considered it.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

Is Speaker Ryan leading too much?

By Joshua C. Huder

The debate to repeal and replace Obamacare was always going to be a serious test for congressional leaders. Reorganizing an eighth of the economy has massive ramifications for communities and states of every political stripe. Now, a week into the formal House debate, observers are getting a sense of how leaders are handling the bill. So far, it isn’t good. With the exception of the hardcore party loyalists, Speaker Ryan is facing opposition from basically every angle. Hospitals, doctors, insurance companies, conservative groups from the mainstream to the far right, the AARP, and all Democratic affiliated groups oppose the bill. At least nine Senate Republicans (Capito (WV), Cassidy (LA), Collins (ME), Cruz (TX), Heller (NV), Lee (UT), Murkowski (AK), Paul (KY), Portman (OH)) have voiced serious concerns about it. And within Ryan’s own caucus, the House Freedom Caucus vocally opposes it. It’s possibly more difficult to find people who like the bill.

Ryan seems to be mostly alone on this bill. Very few members publicly support the plan. The committees of jurisdiction made no changes to the bill after 45-hours of amendment and debate. This is basically unfathomable unless: leadership assured members on the committee they would address their concerns before/during floor debate; leaders pressured members to push the bills through without changes; or, both. All of this indicates a heavy leadership hand. Ryan has decided to steer this ship and he is trying to bring his reluctant members along for the ride.

There’s a perpetual myth that congressional leaders are the thought and opinion leaders of their caucus, that they decide where the party is going and get their members on board. In reality, their ability to lead is grossly overblown. Yes, there are avenues for leaders to choose a path among multiple options. That’s a major power in the Capitol. But trying to lead a caucus where it doesn’t want to go usually go ends badly for the leader.

Successful congressional leadership more often pragmatic. It entails allowing members to shape ideas rather than giving them ideas to follow. Even in ideologically similar caucuses, like the polarized parties we see today, members represent dramatically different constituencies facing very different realities. Rural California is very different from rural Ohio, suburban Florida, Wyoming, or middle Pennsylvania. Congress doesn’t think nationally. This is why Congress will never pass the “best” policies (as prescribed by many think tanks, policy wonks, etc). It is only a national legislative body in the sense that hundreds of local and state representatives gather there. But once in Washington their mentality doesn’t fundamentally shift. They continue to think locally and they should. If they prioritize national policy over their constituents’ interests, that is their prerogative. It’s also their constituents’ prerogative to unelect them.

This presents an enormous challenge for congressional leaders who are as close as it gets to national legislator as members of the legislative branch can get. They do think nationally about policy, politics, elections, etc. But throughout history parties have pushed back on leaders who lead too forcefully. Speaker Reed (R-ME) (1889-1891, 1895-1899), among the most powerful and influential speakers in history, lost his job when he forced votes on his conference and blocked bills they supported. This led to his abrupt retirement in 1899. Speaker Cannon (R-IL), possibly the most influential speaker in history, lost the majority of his power in 1910 by failing to accommodate moderate Republican members, predominantly from the Midwest, on issues like trade and tariffs. Thinking nationally has its drawbacks.

In contrast, instances of successful leadership highlight not policy brilliance but strategic brilliance. This is less about presenting the best ideas, and more about finding the right mix of ideas to get it through the process. For example, Pelosi’s leadership was critical when passing the Affordable Care Act in 2010. But her role was important not because she had the best ideas. It was because she organized the ideas of her caucus in a way that could pass. She was able to get her members to pass the law in two phases. First, they had to swallow hard and pass the Senate version of the ACA, which they hated. She then used the Rules Committee to blend a patchwork of bills put out by the Energy & Commerce, Ways & Means, and Education & Workforce committees, with some language that satisfied moderates in her caucus to amend the first bill. Only then did the ACA truly pass the House. Speaker John Boehner brilliantly navigated a variety of policy problems. For example, in 2013 he faced an unexpected revolt against the must-pass FARRM bill. He regrouped, repackaged the FARRM bill into two separate bills that satisfied his members, passed them separately, and brought them back together in conference with the Senate in an unusual, but remarkably inventive way.

The current House process – where bills are largely conceived, drafted, and pushed out of leadership offices by leadership staff – is unusual in American history. It’s not novel to Ryan’s tenure (you can trace this all the way back to Speaker Gingrich). But it’s clear Ryan is using his position and the AHCA debate to flex his wonk muscles as his party’s leading policy mind. However, this isn’t a speaker’s natural role. It’s trying to president from the speaker’s office. Coupled with the fact that it’s the wrong venue, presidential leadership in Congress is another overblown phenomenon.

Either Ryan is going to force ideas on members who don’t want them, or Republicans will not be able coalesce behind a healthcare replacement bill at all, in which case he’s trying to make something out of nothing. In either case, there’s a lot of leadership where it may not be wanted. And in the words of former Speaker Boehner, a leader without followers is simply a guy taking a walk. It's still very early, but Speaker Ryan is currently on a walk.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

Future headline: President Trump’s budget proposal re-breaks already broken appropriations process into itty bits… And that has other consequences.

By Joshua C. Huder

That’s not likely to be the actual headline but it won’t be far off. On Tuesday, President Trump outlined his budget proposal which will include $54 billion in additional defense and homeland security spending. Those increases are coupled with deep cuts at EPA and the State Department among other nondefense agencies. On the one hand, Trump is following through on his promise to enhance the military and ramp up immigration enforcement. On the other hand, it guarantees a broken appropriations process. The chances of this budget passing are not quite zero, but they’re really close. Sequester is the big sticking point. Following the Super Committee’s failure, this policy was triggered in 2013, capping discretionary spending for defense and nondefense until 2021. These are separate caps. The FY2018 defense cap is $549 billion. Nondefense spending cannot exceed a $515 billion cap. If Congress passes an appropriations bill(s) that exceeds either cap, it would trigger another sequester cut to remove the breach. Living under the caps isn't really an option either, since the FY2018 caps are actually $2 billion and $4 billion below the FY2017 numbers for defense and nondefense, respectively.

By only proposing a repeal of the defense cap, the President’s budget basically guarantees stalemate. Proposing a budget that overtly violates the defense sequester cap means Congress will need to revise sequester. This is not something that can be done through reconciliation. As a result, Democrats have enormous leverage in this process. So if Republicans want to pursue some version of increased defense spending outlined by the President, Majority Leader McConnell will need to break a filibuster by getting eight Democratic votes. He may be able to peel off a few votes from the other side of the aisle, particularly from deep-red state Democrats up for reelection in 2018 (WV, ND, MT), but he doesn’t have the votes to break a filibusters on the defense sequester or appropriations bills.

Until Republicans cave and allow increases in nondefense spending in addition to increases for defense the appropriations process faces a death-by-filibuster. The game will unfold in a very familiar way. House Republicans will refuse increases to nondefense. Senate Democrats will refuse increases to defense unless nondefense is increased as well. And they will march down the path of “a shutdown is coming” until both caps are revised or (in an optimistic world that likely doesn’t exist) repealed.

This is entirely predictable.  It's a replica of the broken appropriations processes from 2013 and 2015. This is why the President’s proposal is not dead on arrival in Congress. It is dead before it even gets there.

We have a lot of experience with this budget game. Political posturing delays compromise until the last second when a deal is finally struck. The consequence for playing it again comes at the price of legislative time. Rehashing old budget disputes is a time consuming process in an institution where time is not abundant. Introducing a budget that guarantees a broken appropriations process will push back other Republican priorities. Tax reform, entitlement reform, infrastructure bill, altering financial regulations, amending EPA activities, energy regulations, and more will fall further down the legislative calendar. If those bills are pushed into the 2018 election year, the less likely they are to pass as election politics begins to consume the chambers.

President Trump’s budget proposal will keep his campaign promises but guarantees budget and appropriations dysfunction. The window of opportunity in the 115th Congress is fairly small and will only get smaller if sequester remains a sticking point between the House and Senate. Unless Republicans compromise quickly, many of their big proposals could miss the window of opportunity. If this game plays out like it did in previous years, the promises made on the campaign trail may be kept but will be more symbolic than substantive.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

On to Reconciliation! Republicans have a plan but probably won’t follow it.

By Joshua C. Huder

The Senate passed a budget yesterday. It lacked some of the typical hallmarks of a budget resolution. Namely, the chamber did not debate in any great detail discretionary spending numbers. This budget is meant for one purpose and one purpose only: repealing the Affordable Care Act (ACA). Following the campaign congressional Republicans set out on an ambitious path, planning to repeal the ACA within the first month of being in office. Therefore, the budget passed last night includes reconciliations instructions, which puts in motion a sequence of events that need to occur in rapid succession if they want to meet their self-imposed deadline. In the case of the ACA, this means instructing the Finance Committee and the Health, Education, Labor and Pension Committee to find at least $1 billion in savings (each) over a 10-year period, and to submit those bills by January 27th. Once those committees produce those bills, it will be introduced on the Senate floor to begin the non-filibusterable reconciliation process. Only a simple majority is needed to pass this legislation.

In the midst of this debate you’ve likely heard of several Republican senators concerned with this plan. Currently, at least four Senate Republican have echoed the President-Elect’s desire for a repeal-and-replace strategy. While the repeal piece of the plan is fairly straight forward (they already passed this legislation last year), the replace part of the plan has major obstacles. The most notable obstacle is the fact that Republicans have yet to produce a replacement bill. This takes a lot of time.  The two Senate committees tasked with drafting and submitting repeal legislation are also responsible for providing guidance in a replacement bill, receiving input from experts, drafting that legislation, holding hearings, and potentially marking-up and reporting that legislation to the floor. Not to mention, all of this has to take place in the House as well. This takes a lot of time and there are only so many staff resources available.

At worst, they won’t be able to agree. At best, this likely takes well over two weeks, which means Republicans will miss their deadline.  This is one reason Senators Corker (R-TN), Portman (R-OH), Collins (R-ME), Cassidy (R-LA), and Murkowski (R-AK) introduced an amendment to push back the reconciliation deadline from January 27th to March 3rd to allow more time for the Senate to consider replacement legislation. (They later withdrew the amendment.)

The good news for Republicans is that missing the deadline will not strip the reconciliation bill’s privileged status. That’s another way of saying it does not matter if they miss the January deadline. The eventual bill can still be brought up and is not filibusterable. In fact, this happened last year when Republicans missed their self-imposed deadline to repeal the ACA in July 2015. The bill was not even introduced until October and was not passed by both chambers until January 2016. It’s also possible that Republicans move forward on the FY2018 budget, which will likely include reconciliation instructions for tax reform, entitlement spending, and other fiscal priorities, without affecting the FY2017 instructions to repeal the ACA.

If you’re confused by Congress’s disregard for their own deadlines, that’s okay. It's confusing. It’s also pretty normal for Congress; a tradition of sorts. Regardless, the budget the Senate passed, though not a law, carries enormous weight and importance, even if they blow past their ambitious deadline.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

Ominous Omnibus: A CR is coming.

By Joshua C. Huder

With elections over, lawmakers make their way back to DC today. They will be faced with several pieces of important business, perhaps none more important than government spending. The current continuing resolution will expire December 9th. There was some expectation that omnibus legislation was being prepared. But with an unified Republican government around the corner, that has almost certainly changed. Prior to the election, congressional leaders were preparing an omnibus or a few minibuses (packages of 2 or 3 appropriations bills) to fund the government at the level stipulated in the 2015 Bipartisan Budget Act (BBA). All pre-election signals indicated Congress was heading in this direction. The 12 appropriations bills that emerged from committee met the FY2017 BBA numbers, $1.07 trillion. It was widely expected that the House and Senate, with an incoming Democratic administration, would write their bills to the number, likely finding Democratic votes to push it across the finish as they had in previous bipartisan agreements.

That was before the election. Republicans sweeping victory last Tuesday has changed everything. And it starts with the feasibility of the speakership under unified government.

The biggest change is Paul Ryan’s (now continuing) speakership. Under a Democratic administration, the Speaker of the House has become the least wanted job in Washington. Speakers have been forced to negotiate with Democratic president to strike deals their own conference will not support. Boehner and Ryan have both been forced into this position since 2011. And it is a big reason why Ryan and his predecessor faced coup attempts soon after they took the top job. The balance between governing (such as passing spending bills, authorizations, etc) and representing the conference in negotiations was impossible. Governing meant losing their job. Keeping their job meant not governing. If Ryan had any political ambitions beyond the House, the speakership would have been catastrophic under divided government. Four years of presiding over a conference trying to overthrow him would consume his political career, tainting any future ambitions he may have had.

This dynamic changes with a Republican president. Ryan will now have a president who will sign spending bills at Republican levels. Further, he has a president who will likely sign all of his major policy proposals. Republicans will repeal Obamacare, enact tax reform, among a whole host of objectives they’ve failed to accomplish under divided government. This not only makes the speakership a much more fun job. It also means it is no longer a career killer.

With this in mind, the budget picture comes into clearer focus. Speaker Ryan could not pass a budget this year because he failed convince the House Freedom Caucus (HFC) to support the 2015 BBA. The HFC argued they didn’t support those numbers when they were passed. Therefore, they would not support appropriations bills brought to the floor at those levels. This, along with poison pill amendments from Democrats, killed the appropriations process in the House. It’s a big reason why Congress finds itself under a looming CR deadline.

If Paul Ryan really wants to be speaker in the 115th Congress, he needs the support of the politicians who refused to vote for his budget. If they won’t support an omnibus at the $1.07 trillion number outlined in the 2015 BBA, you can bet he will not push it in this lame duck session. Speaker Ryan’s political career rests on their shoulders. And for now, that means that omnibus legislation is likely in the trash. And CR legislation is beginning to be drafted.

With a new Congress and a new president, Speaker Ryan, Majority Leader McConnell, and the Trump administration will wait until March of next year to rewrite government spending. At that time they will have to address the debt ceiling and probably sequester if the current budget caps prevent them from enacting their policy visions. The timing may change. But the beginning of next year will set a new course for government spending.

Regardless, in the short term the Bipartisan Budget Act of 2015, negotiated by Boehner, McConnell, and Obama is gone. And any chance at omnibus legislation is likely gone with it.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

How will Congress respond to a Trump win?

By Joshua C. Huder

Republicans won both elected branches of government on Tuesday night. They will add the Third Branch soon as a SCOTUS nominee will be among the first orders of business for the new president and majority. That said, this unified government will be an interesting one to watch. The way that Paul Ryan and Mitch McConnell addressed the media following Trump’s win yesterday you may have thought that they had won the presidency. McConnell flatly stated some pieces of Trump’s agenda are off the table. The rift between congressional leadership and the president-elect brings the potential for real tension between the Congress and President. In all likelihood, congressional Republicans will try to impose their will on the new president. The big question is if President Trump pushes back or goes with the flow.

This government will pursue lots of policies. Rather than write them down in piecemeal fashion, here’s what we can expect from a procedural standpoint.

Paul Ryan remains Speaker. Many around DC believed that if Paul Ryan wanted a legitimate shot at the 2020 nomination, he had to find a way to step down from his current position. Presiding over a unwieldy House of Representatives for four years, enduring multiple attempts to remove him from his position, and failing to enact routine business like a budgets and appropriations bills doesn’t set one up well for a run at the nation’s highest office. After Trump’s upset win everything changes. Suddenly, he has as president he can work with, a Senate majority to negotiate with, and real potential for making a lasting impact on national policy. And further, his earliest run for the presidency likely won’t happen until 2024. What looked like the country’s worst political job 48 hours ago suddenly looks much better.

The budget process will unbreak. The budget process will be critical for Republicans to enact their agenda. Tamping down spending, repealing Obamacare, cutting Medicaid, reforming Medicare will all have their roots in passing a budget resolution. The first order of business for House and Senate Republicans will be finding a way forward on this process. It all starts here.

Reconciliation will be used. In January of this year Republicans used the reconciliation process (which is not subject to filibuster in the Senate) to repeal Obamacare. There are some restrictions on what can be passed under reconciliation. Reconciliation bills must have a budgetary effect. And unless Republicans want to go nuclear on the legislative filibuster from day one of the 115th Congress (not likely), reconciliation offers Republicans the path of least resistance to their policy goals. This is why the budget process is crucial. Without that resolution, reconciliation can’t move forward. The biggest question remaining is what will Republicans use it for? Will they use reconciliation for just one policy (i.e. repealing Obamacare) or as a vehicle for several bills wrapped up in an omnibus. Best guess is that this process will be used for basically everything that can be justified.

Filibuster is on borrowed time. While Republicans held the Senate they lost two seats. Put differently, there are more Democrats available to filibuster bills. With a unified government the conditions are now ripe for filibuster reform. While McConnell lamented Reid’s use of the nuclear option you can also bet he took good notes on how to replicate Reid’s procedural maneuver. And if the filibuster is the only thing standing between Republicans and their entire agenda, you have to imagine that the 115th Congress will go down as the one that killed the filibuster for both SCOTUS nominations and legislation.

The legislative skids will be greased in 2017. Congress becomes more relevant than ever. The extent to which Trump actualizes his agenda will rest on Congress’s shoulders. However, the more likely scenario is Congress pushes their agenda on Trump. Trump rode a wave of populism into office. Republicans, on the other hand, lost seats in both chambers. How the public feels about conservative Republicans somewhat coopting Trump’s win, or if they’ll notice, remains to be seen. But regardless, it will be interesting.

Joshua C. Huder, Ph.D., is a senior fellow at the Government Affairs Institute.

Just How "Special" Are Special Elections?

By Jordan Ragusa and Gibbs Knotts

[Another version of the post was published on the Washington Post's Monkey Cage blog.  Gibbs Knotts helped write this article.] On September 25th, 2015, Republican John Boehner shocked the political world when he announced his plans to resign as Speaker of the House and retire from Congress.  In the aftermath of Boehner’s announcement, political commentators debated who would be the new Speaker and the role of the Tea Party in causing Boehner’s early retirement.  Less attention focused on the fact that Boehner’s resignation triggered a special election in Ohio’s 8th congressional district.

In yesterday’s contest to fill Boehner’s seat, Republican Warren Davidson defeated the Democrat Corey Foister.  Local and national outlets predicted it would be a good night for Davidson.  After all, Boehner had held the seat for nearly 25 years and the 8th district is one of the most Republican-leaning districts in Ohio (Obama lost to Mitt Romney in the 8th district 62 to 36 in the district).  Simply put, yesterday’s results were not particularly surprising.

All this begs the question: Are special elections really special?

Answering this question hinges on what one means by “special.”  Special elections certainly generate a lot of media attention.  When a Member of Congress dies, retires because of scandal, or resigns for personal reasons, it is newsworthy.  Special elections may also be special because of their ability to predict future election outcomes.  In one innovative study, political scientists David Smith and Thomas Brunell found that the party that wins the most special elections between elections often gains seats in the subsequent general election.

But “special” is also a synonym for “different.”  And in this context, a key question is whether special elections are somehow unique when compared to regular congressional elections.

We examined this question in a paper that was published earlier this year in the Journal of Elections, Public Opinion, and Parties.  We were particularly interested in whether special election outcomes are structured by the same factors as their closest counterpart: regular open-seat contests.

Why might special elections be different from regular congressional elections?  First, they exist in different political environments.  Regular open-seat races occur in a national environment in tandem with 434 other House contests, about one-third of Senate elections, and, every four years, alongside a presidential election.  In contrast, special elections occur during the “off season” and may be isolated from broader electoral forces.

We were particularly interested in the effect of presidential approval on special election outcomes (a factor widely thought to be a strong determent of congressional election results).  In one of the few studies of special election outcomes, political scientists Keith Gaddie, Charles Bullock, and Scott Buchanan found that the president’s approval rating has no effect on who wins and losses in a special election.  Because their results show that presidential approval does have an effect in open-seat elections, they conclude that special elections are insulated from national forces.  In other words, special elections do seem to be “different” from regular congressional elections in a key way.

Notably, however, Gaddie, Bullock, and Buchanan reached this conclusion with data from 1973-1997.  In our paper we hypothesized that the effect of presidential approval would be different because of the increased polarization in American politics since 2000.  For example, we know that voters are more loyal to one political party and that the national parties have greater organizational resources today.  Research has also found a stronger connection in recent years between presidential election results and House election results.   As Jeffrey Stonecash has shown in his recent book, House elections by the mid-1990s became less candidate-centered and more party-centered.

Our analysis confirmed this hypothesis.  In the modern era, the president’s approval rating does indeed have an effect on special election outcomes.  Candidates from the president’s party perform worse in special elections when the president is unpopular whereas candidates from the opposition party perform better.  Like regular congressional elections, our results show the fate of special election candidates hinges, in part, on national forces.  A secondary result in our paper is that the 2002 midterm seems to be the point in time when presidential approval became a significant predictor of special election outcomes.

As a whole, we conclude that special elections are not that “special” because they are structured by roughly the same set of factors as regular open-seat contests.  Much like Lee Sigelman concluded in 1981, special elections do indeed seem to be national contests despite their unusual timing.  Our research, coupled with Gaddie, Bullock, and Buchanan’s work, reveals that this change in the nature of special elections is the product of significant developments that have occurred from the 1970s to today.

In the context of yesterday’s special election in Ohio’s 8th district, however, presidential approval was probably not the deciding factor.  According to Gallup polling, Obama’s approval rating sits at 51% (not enough to have had an effect in either candidate’s favor).  Instead, what almost certainly matted yesterday was the simple fact that the 8th district contained such a large volume Republican voters.  However we expect presidential approval to be a factor in future contests, particularly in more competitive districts.

Jordan Ragusa is assistant professor of political science at the College of Charleston.Gibbs Knotts is professor and department chair of political science at the College of Charleston.

Is Paul Ryan delivering on his promise for regular order?

When Paul Ryan accepted the nomination for the speakership he promised his colleagues that he'd deliver a more regular process. He promised more inclusion in developing strategy, more opportunities for amendments, and greater representation on panels that organize the chamber. So far he has delivered on some promises but continues to struggle on others. Unfortunately for the Speaker, his failures are more likely to get press than his achievements. Speaker Ryan has delivered in areas where he has clear control. As the de facto leader of the Rules Committee he’s clearly prioritized a more liberal amendment process. Bills are coming to the floor with more opportunities for rank-and-file to alter the language. Since January, Ryan has allowed amendments at nearly a 4-1 clip (structured v. closed rules) according to the Rules Committee website. To those crying for a greater voice on legislation this has to be a welcomed development. It’s a clear break from Ryan’s predecessors in both parties and a step toward a more regular process, though it’s still a far cry from what was “regular” a few decades ago.

Ryan has also kept his promise in regards to internal Republican housekeeping. He reformed the Republican steering committee, removing committee chairs and adding a strong conservative to the panel. This weakens the Speaker while opening a door, albeit a small one, for more conservative influence.

Ryan has also been more inclusive in developing legislative strategy. In February he held a multi-hour beer and pizza summit with conservatives to discuss budget strategy. He’s held several other meetings with members to discuss priorities, party strategy, and other business. By all accounts, he’s opened the door to his office. Members may not agree with every decision he makes, but they can’t complain that he isn’t listening.

All of this is juxtaposed with possibly Ryan’s greatest shortcoming: delivering even something remotely regular in the budget and appropriations cycles. The Budget Committee reported a resolution several weeks ago but it is effectively dead. It doesn’t have the votes to pass on the floor. Ryan has been unable to corral defense hawks and conservatives to support a single resolution. That isn’t because of a lack of trying. Some very unique plans have been floated to try and find the sweet spot between these Republican factions. However, those plans break basically every rule that has been considered “regular” in congressional history.

That’s left Ryan in a difficult spot. The House is destined to a definitively irregular budget and appropriations process. Failure to pass a budget means the House is unlikely to pass appropriations bills. If conservatives remain committed to their version of the budget, Congress as a whole is unlikely to pass any of the 12 appropriations bills. This means the House is setting itself on a trajectory for either a CR into 2017, a shutdown heading into the election, or potentially both. The House’s inability to deliver a budget is a huge failure with potentially damning implications.

The reality is that Ryan can only deliver a regular process if his caucus wants one. And at this point in Ryan’s tenure it’s unclear that members who called for more regular order really want it. If they do, they don’t want it on budgetary matters. With only a few dozen legislative days left in this session Ryan’s track record is unlikely to change. The time for a full return to regular order has come and passed. However, it’s noteworthy to keep in mind the areas where Ryan has delivered as well as those where he didn’t.

R.I.P. FY2017 Budget

The prospects of a congressional budget resolution are nearing zero. For weeks members in the House and Senate searched for a path forward. As of today, each institution is trail-blazing paths toward a budget but neither appears to meet up with the other. At this point in time, the budget process appears dead in the water. As early as January House conservatives indicated they would not vote for a budget resolution that met the numbers outlined in the 2-year deal struck by President Obama, Speaker Boehner, and Majority Leader McConnell in October of last year (PL 114-74). Basically, any budget that meets the topline $1.07 trillion will be opposed by House conservatives without a guarantee to find $30 billion in savings in other parts of the budget, namely mandatory programs. The House Budget Committee cleared a budget resolution on Wednesday but only on the condition that the Speaker either agrees to procedural changes or commits to a procedural maneuver that would force the Senate to address a separate bill with $30 billion in savings before they vote on appropriations bills or a budget. It’s possible procedural changes assuage their demands. However, sending a CR or omnibus to the Senate with a side-car is potentially devastating and will likely be opposed by House and Senate leadership at all costs.

The Senate is in an entirely different situation. In a little reported provision included in last year’s budget deal allows the Senate Budget Committee Chairman, Sen. Mike Enzi (R-WY), to “file” appropriations numbers. In other words, the Chairman can walk on the Senate floor between April 15 and May 15 and simply insert the 2-year discretionary spending number ($1.07 trillion) in the Congressional Record. This circumvents the budget process entirely. No hearings, markups, amendments, or floor debate or votes are necessary. Essentially, the House and Senate authorized the Chairman to circumvent the FY17 budget process last November.

The key lesson here should be obvious. This 2-year deal was for the Senate. The budget deal was widely considered the Obama-Boehner agreement. However, it was not the President or the House that really needed this agreement. With seven vulnerable Republican seats in states Obama carried in 2012 (nine if you count states Obama carried in 2008), Republican senators need every opportunity to avoid politically damaging and risky votes. The budget process is one of the few bills where tough amendment votes were inevitable. Avoiding these votes will give some political cover to those vulnerable members while also reducing – somewhat – the risk of a shutdown.

The remaining question is whether House leaders can find a way forward on an omnibus spending bill or a CR. A shutdown a month prior to the November election would be catastrophic for the majority. Should that happen, Republicans would lose the Senate and the House would be up for grabs, something no one has, or should have, envisioned when the deal was struck.

In this decade a failed budget process is more the norm than exception. What is exceptional is the inability to write budget and spending bills with numbers already in place. This September Speaker Ryan may find himself between conservatives who continue to vote against large spending bills and Democratic colleagues who have heavy political incentives to watch his majority fail dramatically just a month before the November election. Finding 218 votes to prevent a shutdown is far from impossible but will require some acrobatics. The Speaker may need to limber up if he wants to hold onto his majority.

Simulating the Senate Vote to Confirm Merrick Garland

On Wednesday, President Obama appointed Merrick Garland to replace Antonin Scalia on the Supreme Court.   Senate Majority Leader Mitch McConnell (KY) and Senate Judiciary Committee Chairman Chuck Grassley (IA) have said that Garland will not receive a vote in the current Congress. Despite McConnell and Grassley’s statements, one of the reasons President Obama selected Garland is the fact that he is relatively moderate, as indicated by this Monkey Cage post, and was thus approved by the Senate in 1997 by a vote of 76-23.  Notably, Garland was appointed to the DC Circuit in that year by a Republican controlled Senate, receiving the support of a majority of Senate Republicans (32 for, 23 against).

On the surface, this would seem to bode well for Garland’s chances of making it to the Supreme Court despite McConnell and Grassley’s obstructionist claims.  However, much has changed since 1997.

In this context (and many like it) the biggest change since 1997 has been the increase in ideological polarization in Congress.  Countless studies have documented that Democrats and Republicans have drifted further apart over the past three decades.  My work on this topic argues that a major reason for the Senate’s polarization has been the increase in the number of senators who first served in the (more polarized) House of Representatives (see here and here).

A straightforward analysis can help us adjudicate between these competing expectations about Garland’s likelihood of being confirmed (and crudely estimate how many votes he might receive).  Although this analysis has a number of limitations, it can give use a rough sense of what to expect.

I estimated a simple logit model of the 1997 vote to confirm Garland to the DC Circuit.  All data came from Keith Poole’s Vote View website.  The model includes just two variables: a senator’s ideology and whether they are from the South.  Although this is a very simple model for sure, it performs well, correctly predicting 88% of the yeas and nays in 1997.

Based on that model’s estimates, I then predicted what would happen in the current Senate.  Data on the ideology of senators in the 114th Congress also came from Poole’s Vote View website.

Figures 1 and 2 below present a senator’s predicted probability of voting for Garland (on the y-axis) by their ideology (on the x-axis).  Liberals are on the left, conservatives on the right.  Figure 1 is for the actual for Garland in 1997 (105th Congress) and Figure 2 is for the simulated vote in the current Congress (114th Congress).  Democrats are in blue and Republicans are in Red.

105th114th

In the current Congress, the model estimates that 60 senators would vote for Garland and 40 would vote against his confirmation.  Looking at the figure, 60 senators are above the 50% threshold (more likely to vote for Garland than against) and 40 senators are below the 50% threshold.

All Democrats are predicted for Garland as are 14 Republicans.  The predicted Republican yes votes are: Alexander (TN), Gardner (CO), Capito (WV), Flake (AZ), Rounds (SD), McCain (AZ), Hoeven (ND), Heller (NV), Portman (OH), Hatch (UT), Ayotte (NH), Kirk (IL), Murkowski (AK), and Collins (ME).

While this prediction may seem surprising given what we know about party polarization, the two figures reveal how the Republican Party’s shift to the right changed the landscape of Senate confirmations.  Indeed, if just 14 Republicans vote for Garland that would represent a net decrease of 18 Republican votes from twenty years ago.  In the first figure above we can see how in the 105th Congress, a number of moderate Republicans have high probabilities of voting for Garland according to the model (and indeed, moderate Republicans did vote for Garland in 1997).  But as new, more extreme, senators replaced these moderates, the individual probabilities of a “yes” vote drop well below 50% line.

Let me emphasize, again, that this is a crude analysis.  It assumes that ideology and region--alone--shape how a senator votes on confirmations.  Of course, there are electoral and strategic reasons why a senator would vote for or against a president’s Supreme Court nominee.  In addition, an excellent Monkey Cage post by Kastellac, Lax, and Phillips discusses how public opinion in a senator’s state is a key piece of the puzzle.

At the minimum, however, the analysis gives use a sense of what a vote on Garland’s nomination might look like and how the landscape of Senate confirmations has been shaped by ideological polarization.  Of course, there’s a good chance we will never know if this prediction is right or wrong.

New Budget Drama and Procedural Inventiveness. Got to love the House.

The optimism following the 2-year budget deal struck last October is officially over. Many House majority members who were unhappy with the deal remain unhappy. Over the past month House conservatives have signaled they will not vote for a budget unless they find $30 billion in cuts. Passing a budget (or appropriations) below the discretionary numbers in the 2-year deal appears to be a nonstarter. So conservatives are attempting to find the savings in mandatory programs. They are circulating an interesting plan to reform major entitlement programs on appropriations bills through the reconciliation process. Here are the major take-aways from that last sentence: conservatives want to circumvent the House Ways & Means Committee, authorize changes to mandatory spending through the discretionary spending process, and do so using a straight majority process rarely used for appropriations.

This is a huge deal. It’s also a lot to unpack. It combines several processes into a plan akin to procedural acrobatics. It’s not impossible, though it would be unprecedented.

The first criticism of the plan is it violates House rules. Those rules state that members cannot add authorizing language (i.e. insert language changing Medicare benefits, taxes, etc.) in appropriations bills. Is this true? Yes. Does it matter? No. The reality is for the last couple decades this rule is waived (read: is not binding) any time an appropriations bill is brought to the floor. So would this rule violation really prevent the House from passing this mega-bill? If they have the votes, no.

The second criticism is that you can’t use reconciliation to pass appropriations bills. Actually, you can, though it has only happened twice. The last time reconciliation was used on appropriations was in 1981 for rescissions in previous spending bills (basically taking away previously awarded budget authority). It has never been used to circumvent a committee of jurisdiction or provide budget authority for executive agencies. In this respect, this is a huge unprecedented step for both reconciliation and the appropriations committees.

The plan has the advantage of attaching mandatory spending cuts to must pass spending legislation. This is something the President could not avoid if it made its way through Congress. There is a catch though: they can’t touch Social Security. That is expressly forbidden in the 1974 Budget and Impoundment Control Act and would subject the bill to a 60-vote point of order in the Senate, something conservatives are using this process to avoid.

Keep in mind this plan is extremely hypothetical. If they somehow navigate the minefield of very powerful people in the House (like Ways & Means Chair Kevin Brady (R-TX)), its chances in the Senate are very small at best.

Regardless, the plan gets big time kudos on style points. What it lacks in regular order it more than makes up for in procedural jujitsu-y-ness.

Senate SCOTUS politics in 2016

The passing of Justice Antonin Scalia this past weekend throws a new wrinkle into Senate politics. As if things were difficult enough for Majority Leader McConnell, he now has to navigate one of the Senate’s most important votes, or lack thereof, as he attempts to defend seven vulnerable Republican seats. President Obama is expected to send his nominee to the Senate as soon as next week, when it returns from recess. It is uncertain how the Senate’s “advice and consent” will unfold in coming months. Here are a few possible scenarios.

Senate does not consider the nominee

This is the least likely option. Despite Leader McConnell’s remarks following the news of Justice Scalia’s passing, and reports that the Senate Judiciary Chairman, Sen. Chuck Grassley (R-IA), would not hold hearings on a nominee, outright refusal to consider the nominee simply will not happen. Senator Grassley himself is up for reelection in a state Obama won in 2012 by almost six points. The Senior Senator is viewed as a fairly safe bet to win reelection. He will not want to jeopardize his lead with overt political maneuvers that do not play well in a state with a significant Democratic presence.

Republicans have been fighting an obstructionist label since they retook the majority. Refusing to consider Obama’s choice would not only validate that label, it would be a transparently snide political move that would garner the wrong kind of media attention.

Republicans are protecting seats in seven states won by Obama. None of those senators will likely support a stall-all-costs approach to a respected figure. There will almost certainly be a vote.

Dragged out process with no ultimate confirmation

The remaining scenarios are largely dependent on the presidential nominating process.

If the Republican nominee is a candidate senators believe can help their own reelection, then it’s likely the Senate votes, in some form, on Obama’s nominee. It may even be the case that 4 or 5 vulnerable Republicans from states like Wisconsin, Illinois, Pennsylvania, New Hampshire, and possibly Ohio support seating a centrist jurist on The Court. However, the likelihood of a filibuster is astronomically high.

Democrats would need 14 Republican votes to break a filibuster. Short of a damaging presidential candidate winning the nomination, its unlikely 14 Republicans vote with Democrats. There simply aren’t enough moderate or swing states to break the filibuster. For example, many experts peg Senator Rand Paul (R-KY) as the 8th or 9th most vulnerable Republican up for reelection. Kentucky is not a swing state. Betting on Paul to break a filibuster is a long shot. Convincing an additional five or six votes from senators in states like Oklahoma, Utah, Idaho, South Dakota, or Alabama to unblock an Obama nominee of this importance is even less likely.

This tactic satisfies critics calling for the Senate to perform their advice and consent function while also playing to the Republican base and blocking the President’s nominee. A very plausible scenario results in a historically long SCOTUS vacancy.

Senate confirms a nominee

If the nominating process plays out differently with no establishment candidate rising to win the Republican nomination, things could go very differently.

If Senator Ted Cruz or Donald Trump wins the nomination it could change the appointment dynamics in the Senate. Both of these candidates perform very well in Republican primary contests but could be liabilities in swing states Republicans are trying to defend. If Republican senators in swing states view the nomination as a drag on their own reelection, it may shift the politics enough to break a filibuster and force a nomination.

That said it would have to be a major drag on the ticket. If by July, the nominee seriously threatens the Senate majority, it’s possible swing state Republicans convince their colleagues to allow a straight up or down vote on the nominee which could then seat the next justice.

It is not likely this happens. The nominee would have to be terribly damaging for the party with some possible missteps heading into the convention. That said it’s not implausible.

The key elements here are the five seats Republicans need to maintain their majority. If those look like they are under threat, it’s possible the expected confirmation politics change dramatically in mid-2016.

Quantifying the Value of Nikki Haley’s Endorsement

It was leaked this afternoon that South Carolina Governor Nikki Haley will endorse U.S. Senator Marco Rubio.  Questions about Haley’s endorsement have persisted for months.  Until today, the only reliable information was that she would not be endorsing Donald Trump. Needless to say, Haley’s endorsement is welcome news for Rubio’s campaign as voters head to the polls on Saturday for the GOP primary.  But just how much is Haley’s endorsement worth?

According my data, Haley’s endorsement should net Rubio an additional 4% on Saturday.  But first, a little background.

Perhaps the most contentious issue among election forecasters this cycle is the extent to which party elites shape presidential nomination contest outcomes.  Although primaries and caucuses give voters the power to decide who wins the nomination, and even though parties are hardly monolithic teams that act in perfect harmony, the conventional wisdom is that party elites do indeed have considerable power over who wins the nomination.

In large part this view stems from a book appropriately titled “The Party Decides.”  Written by political scientists Marty Cohen, David Karol, Hans Noel, and John Zaller, the book proposes that one of the key tools used by party elites is the power of their endorsement.  It is a testament to Cohen et al.’s work that Nate Silver--the most influential election prognosticator--has written extensively about the party decides thesis and has even catalogued endorsement data this cycle.  Silver calls it the “endorsement primary.”

Although most political observers accept the general wisdom of the “The Party Decides,” the contentiousness surrounding this book concerns how (if at all) Donald Trump fits into the thesis.  Given that most Republican elites are apprehensive (to put it mildly) toward a Trump nomination, and Trump he has secured so few endorsements, there are questions about the book’s predictive power in 2016.  For a more thorough discussion of these issues, see Nate Cohen and Nate Silver.

Back to Nikki Haley and Marco Rubio.  If endorsements do indeed affect who wins the nomination, it should be possible to quantify just how much Haley’s endorsement is worth.

I have been working on a project with two College of Charleston students that examines the factors that correlate with success (or failure) in South Carolina’s nomination contests.  Our data cover the period from 1988 to 2012, giving us an even balance of five contested Democratic elections and five contested Republican elections.

Our primary predictors of a candidate’s vote share include their performance in New Hampshire and Iowa, how much media attention the candidate received, a candidate’s demographic characteristics, and the volume of their endorsements by state party officials.

We plan to release the model’s full predictions Friday evening and discuss more fully what factors have shaped South Carolina’s election results from 1988 to 2012.  Spoiler alert: endorsements are indeed an important factor in the model.

But just how much does a governor’s endorsement matter.

According to the model, from 1988 to 2012 the governor’s endorsement has netted the endorsed candidate an additional 4% of the vote.

Clearly, 4% is not enough to vault Marco Rubio past Donald Trump (at least, not on its own).  According to most polls, Trump has a 19-point lead over Rubio (35% to 16%).  However, a 4% improvement in his vote share would put Rubio in second place ahead of Ted Cruz (who is polling around 18%).

Going forward, a second place finish would be of considerable value for Rubio’s campaign.  A third place finish, however, could dim Rubio’s long term prospects.

How long will the “open process” last?

During the Republican retreat two weeks ago Speaker Ryan doubled down on his commitment open the process in the House. The original pledge was offered to satisfy conservative members’ desire for greater input and influence. Anyone with a deliberative-democratic bone in their body should welcome this change and the pledge. However, it comes with some major risks. And if history is any sort of guide, this commitment may be short lived. The tweaks to the Republican Steering Committee haven’t changed much in the House. House majority leaders still control the process. Any bill of consequence will need to go through the Rules Committee, which is still firmly in the hands of Speaker Ryan. This means the Speaker is voluntarily opening the process to his rank-in-file and the minority for amendment, deliberation, etc.

In the past these types of voluntary commitments have had a limited shelf life. Since the reforms of 1975, restrictive rules – that limit opportunities to amend legislation on the floor – have been the norm. The speaker puts a bill under a process that prohibits members (either totally or in part) from amending its language. Members can only vote for or against the bill. Restrictive rules were used a whopping 92% of the time in the 113th Congress. That’s down from the record high of 98% in the 111th, but dramatically up from previous Congresses. For example, restrictive rules were used 75% of the time in the 108th, 55% of the time in the 101st, and only 16% of the time in the 95th Congresses.

Leaders use restrictive rules for a variety of reasons. But one of the most important reasons is to limit minority party mischief. When in the minority, both Democrats and Republicans have used open rules to disrupt policymaking. They intentionally offer amendments to drive wedges in the majority party coalition, making final passage of the bill difficult or impossible.

In the late-1980s, Republicans became a very effective opposition by offering amendments that undermined policy on the floor. Democrats responded by increasingly closing opportunities for amendment. Republicans retook the majority in 1995 promising to achieve what Democrats couldn't: more open debate and amendments for the rank-and-file. Democrats reacted predictably, offering hundreds of political amendments that undermined the new majority’s bills. Republicans leaders reigned in their commitment to an open process just a few months after taking office.

Polarization and partisan warfare have undermined serious efforts to reopen or maintain amending processes in the House and Senate. This week the Senate is struggling to pass an energy bill through a maze of amendments ranging from small adjustments to charged language relating to the Flint water crisis.

Given the polarized environment of the House, if Speaker Ryan wants to keep his pledge to open the process he may also need to commit to failing. An open process will undoubtedly force votes that many of his members would rather not see on the House floor. It’s downright likely that an open process will cost the majority some major policy victories at the expense of more deliberation. Given the size and safety of the House majority, Ryan has some freedom to take these hits and retain the majority. However, Speaker Ryan’s commitment to open deliberation will likely come at a cost that include policy wins and possibly seats in the House.

Previous leaders changed course after flirting with open procedures. A couple months of costly political votes were enough to renege on their promises. The extent the process is opened, or remains open, in 2016 will depend on how much risk Speaker Ryan and his colleagues are willing to shoulder. That willingness will be closely tied to the number of vulnerable Republican seats and presidential odds in 2016.

Is Nikki Haley a Strong Vice Presidential Candidate? Evidence from Research on the “Veepstakes”

After seven years in office, last night President Obama gave his final State of the Union address.  Immediately following Obama’s speech, South Carolina Governor Nikki Haley delivered the GOP’s primetime response.  Naturally, journalists and pundits are debating whether Haley’s speech helps her chances of securing the vice presidential nomination. In a half dozen studies , political scientists have examined the factors that increase a candidate’s chances of being chosen in the so-called “veepstakes.”  Based on this body of research, it seems to me that Haley matches a lot of the criteria found to predict who is selected to join the ticket and should be considered a strong candidate.

What follows is based on four studies: two by Baumgartrner (2012 & 2008), one by Sigelman and Wahlbeck (1997), and another by Hiller and Kriner (2008).  Although the selection of a running made would seem (on its face) to depend on the preferences of the presidential candidate and the context of the election, these studies have a fairly high degree of predictive accuracy over a fifty year period.  For example, Baumgartner’s (2012) model correctly predicted 70% nominees from 1960-2008 while Sigelman and Wahlbeck’s model correctly predicted 68% from 1940 to 1996.

One of the most important factors is the candidate’s age.  On the one hand, Sigleman and Wahlbeck (1997) and Hiller and Kriner (2008) find that presidents seek an age balance on their ticket.  Older candidates were more likely to select a younger running mate while younger candidates were more likely to select older candidates.  At the same time, Baumgartner (2008, 2012) finds that younger candidates have a higher chance of being chosen (all else equal).

At just 43 years of age, Nikki Haley is younger than all of the Republican presidential candidates (Marco Rubio, the youngest, is 45, and Ted Cruz is 47).  Aside from Rubio and Cruz, Haley is at least ten years younger than the rest of the Republican field and would thus help balance the ticket (she is Donald Trump’s junior by 27 years).

Another consistent factor in these studies is whether the potential running mate ran against the party’s presidential candidate in the primary .  As you might expect, rivals are less likely to be selected (Sigleman and Wahlbeck 1997; Baumgartner 2008).  Another point in favor of Nikki Haley.

Significant media exposure is a third factor that seems to increase the probability of being chosen as a running mate (Baumgartner 2008, 2012).  Needless to say, Haley’s GOP rebuttal will almost certainly go a long way toward increasing her national media exposure.  And although Haley is not as well-known as other Republican governors (Chris Christie, Rick Scott, Scott Walker), she gained significant national exposure in the aftermath of last year’s shooting at Emanuel AME Church and for her leadership in removing the Confederate Flag from the South Carolina Statehouse grounds.

Receiving much of the attention in debates of Haley’s likelihood of being the GOP running mate is her ability to balance on the ticket in a demographic sense.  As a woman and an Indian American, she would certainly add diversity to the ticket.  In two studies, gender and ethic balance were found to increase the likelihood of selection (Baumgartner 2012; Hiller and Kriner 2008).

Lastly, there is some evidence that a candidate’s experience matters.  Generally, the longer a candidate has served in national or subnational office, the more likely they are to be tapped as a running mate (Baumgartner 2008; Hill and Kriner 2008).  Having served as South Carolina’s governor for five years and in the South Carolina House for six years before that, Haley certainly has some notable political experiences.

Although Nikki Haley certainly fits the above criteria, there are some potential negative effects that should be discussed.

Conventional wisdom says that presidents select running mates from large states in an effort to increase their vote share.  However, the effect of state size has yielded mixed results in the above studies.  State size matters in Sigleman and Wahlbeck’s (1997) analysis but not in Baumgartner’s (2008) or Kriner’s (2008) analyses.  Notably, the two most recently published articles (with data for the most recent elections) find no effect of state size.  In contrast, there is no evidence that presidents are more likely to seek a regional balance on their ticket, picking a running mate from a different part of the country (Baumgarnter 2008; Hiller and Kriner 2008; Sigelman and Wahlbeck).

So, South Carolina’s relatively small population size may not be as big a deterrent as most people think.  And even if Marco Rubio or Ted Cruz win the GOP nomination, an “all south” ticket does not seem to hurt Haley’s chances either.

Another common claim is that presidents select candidates in an attempt to boost their vote share in pivotal “swing” states.  One study, however, suggests that running mates do not add very much in terms of additional votes (Dudley and Rapoport 1989).  In this study, presidential candidates gain just 0.3 percent in their running mate’s home state.  In all likelihood, the small bonus in the in the running mate’s home state is simply not enough to overcome other strategic considerations.  As evidence, consider that the last two vice presidents were from solidly blue and red states (Delaware and Wyoming) as were the last two running mates on the losing side (Wisconsin and Alaska).

In the above studies, only one factor is a clear negative for Haley’s likelihood of selection: she never served in the military.  In both studies by Baumgarner (2012 & 2008), veterans were significantly more likely to be chosen.

All in all, Nikki Haley seems like a strong contender for the Republican Party’s vice presidential slot.  Based on studies in political science, she matches most of the criteria identified as key predictors of who gets selected.  Of course, the running mate will depend on who wins the GOP nomination in the first place.  But Haley looks like a strong choice at the present time.

What's on Tap in Congress in 2016?

This was originally published at the Government Affairs Institute at Georgetown University. The 114th Congress was a whirlwind of activity compared to its predecessors. Accomplishments like trade promotion authority, a Medicare “doc-fix” solution, a two-year budget deal, and the highway funding act were legislative highlights in a productive first session. In all, the 114th Congress passed 115 laws, the most in a first year of Congress since 2009.

Speaker Boehner’s last order of business was the “clean out the barn.” Several hurdles that impeded productive lawmaking in the past were cleared. The debt ceiling is not an issue again until 2017. Congress ensured the budget debate is more symbolic than substantive with a 2-year budget deal. The highway trust fund has finally been resolved. Speaker Boehner’s departing gift for Speaker Ryan was, essentially, a clean legislative sheet.

Yet despite fewer obstacles, significant lawmaking will be hard to come by in the Second Session. Majority Leader McConnell has a strong incentive to protect his moderate colleagues. Seven Senate Republicans up for reelection in 2016 represent states that Obama won in 2012. On the other side of the Capitol, Speaker Ryan is tasked with navigating bills through a three-faction House: Freedom Caucus Republicans (the most conservative), establishment Republicans, and Democrats. He may be forced to find votes from different factions depending on his objective. For messaging purposes the most conservatives Republicans are obvious allies. However, on spending policy he may be forced to appeal to Democrats in order to craft a majority that can pass a bill that can also get through the Senate. If he wants to remain Speaker after the 114thCongress, he can’t lean on Democrats too often. These dynamics do not favor a productive 2nd Session.

The presidential race makes things worse. Presidential campaign politics complicate congressional politics. There is no formal mechanism linking the current Congress to presidential candidates. Nonetheless, Congress tends to reinforce their party’s nominee at the expense of their opposition’s nominee, and worry about down-ticket races. This means potential legislative goals brewing in the 114th Congress will drop by the wayside should it create friction with the nominee’s position or message. We are much more likely to see the Republican majority adapt their policy positions to the Republican nominee while also avoiding success so as to not steal their thunder. This means we are far more likely to see messaging bills than significant policy overhauls.

This does not mean Congress will go dormant. Here are some areas where policy will move forward or at least has the potential to see significant action. Those areas are outlined below with very equivocal certainty.

Most likely will definitely happen:

ACA Repeal

This has been in the works for the better part of a year now. The March budget resolutions in both the House and Senate outlined instructions to repeal Obamacare.  Republicans spent the last 8 months crafting a path to use the powerful reconciliation process (exempt from Senate filibuster) to repeal Obama’s signature accomplishment. For the first time in 5 years and over 50 attempts, Republicans will place a major repeal of the health care law in front of the President. The bill will die there.

Trade

Late in 2015 the administration completed negotiations, which started under the Bush Administration, on a 12 nation trade agreement called the Trans-Pacific Partnership (TPP). This is among the largest trade deals ever struck in terms of the number of countries involved and the size of their economies. Congress authorized trade promotion authority earlier in 2015, giving them the final say in an up or down vote that will occur later this year. This is an issue that divides ideological extremes against the middle. While the left and right have serious critiques of the deal, a sizable bipartisan coalition are at least interested in finding a way to support it. Despite rhetorical equivocation, Congress may enact one of the largest trade deals in history and in doing so, will likely hand President Obama his final legislative accomplishment of his presidency in early 2016.

Appropriations: Defense, Milcon-VA, E&W, Agriculture

One thing is certain, Congress will almost certainly go another year without passing all 12 appropriations bills (last time it was done was 1996). Appropriations is divided up into two camps. Those camps are the individual bills that will almost certainly make it through the process on their own, and those bills that will be lumped into an omnibus package at the end of the year. Of the twelve, Defense, Milcon-VA, Energy & Water, and Agriculture are the most likely to make their way through the process. However, that would be ambitious and we shouldn’t expect such ambition in a presidential year. In all likelihood, only two will actually pass both chambers with an outside chance at passing three.

The reality is appropriations still face a “double reverse filibuster” of sorts. In addition to the filibuster, a sizable portion of the House majority are noncommittal votes when it comes to appropriations. Only 150 of 246 House Republicans supported the omnibus appropriations bill last month. If Speaker Ryan wants to pass appropriations bills, he’ll almost certainly need Democrats. This gives Democrats leverage in negotiating policy riders and funding levels in both chambers, which could further inhibit support among the Speaker’s and Majority Leader’s more conservative wing. In sum, some action on appropriations is likely; just not a lot.

NDAA

The National Defense Authorization Act will likely continue its march as the lone authorizing bill Congress actually completes. There are rumors that acquisition reform and DoD overhaul could be included in the next NDAA, which would present significant roadblocks. However, it’s pure speculation at this point. The NDAA may also include a major overhaul of Tricare, the health care plan for the military. Regardless, there is enough bipartisan momentum pushing the NDAA onward to continue its reauthorization streak of over half a century.

Possible but not likely:

Tax Reform

While comprehensive tax reform will remain elusive, a more focused international tax reform has a better chance this year than most. December’s tax extenders passage made more than a dozen permanent, while giving longer extensions for others. While the Presidential race will complicate negotiations, repatriation of funds from abroad, possibly for infrastructure, is an ongoing item of interest. Republicans have their eye on lowering the top corporate marginal rate of 35%–a higher marginal rate than other nations, though US effective rates are similar, and often less than other OECD countries.  While the top of the GOP’s wish list also includes a move towards territorial taxation (where profits of US multinationals abroad are not subject to US tax), they are far more likely to get a reduction in the corporate rate in exchange for reduced tax expenditures or better enforcement. That said, this would be a heavy lift in a presidential year that still features upwards of 10 Republican candidates with their own tax plans.

Revising USA Freedom Act

The events in San Bernardino revived debate on domestic government surveillance. In 2015, Congress passed the USA Freedom Act, which curtailed some NSA activities in the wake of Edward Snowden’s revelations. Following San Bernardino, many lawmakers, including the Senate Majority Leader, have suggested they may need to re-examine their revisions. This would be a large undertaking full of political complications that are only amplified in a presidential election year. While it’s possible Congress revisits their new policy, it’s firmly in the unlikely category.

Prison reform, energy legislation, revising Dodd-Frank

Each of these areas enjoy significant bipartisan support. Trimming back Dodd-Frank regulations continues to occur, though much more frequently in the House than in the Senate. Energy legislation continues to affect regions of the country differently, lending itself to unusual political coalitions. And finally, prison reform is an area where Republicans and Democrats appear to agree but fail to come together on the solution. Major overhauls in any of these areas are unlikely. These can be hot-button campaign issues and will lose momentum in Congress. Regardless, minor bills that affect these areas could make their way through Congress, giving the institution some low-profile legislative victories as the presidential campaigns heat up.