Legislative Politics

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.

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.

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.

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.

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.

The Fallout: Does Boehner's Absence Change Anything?

Speaker John Boehner finally succumbed to the three-year pressure campaign waged by House conservatives. As politically weak as Boehner was in his conference, he was never going to be forced out of his position. He’s powerful enough that he could leave on his own terms. On Friday, he did just that. The question now is: where does that leave a divided and unwieldy House majority? Over the next month this potentially untethers Speaker Boehner from the hard right. A short-term continuing resolution (CR) will pass next week and potentially set the stage to pass the Highway Trust Fund bill and other priorities currently stuck in limbo. In short, Boehner is free to do what he has done for the last five years: enable Republicans to get out of their own way on what should be easily passed bills. Boehner has deftly moved his conference around problems that truly threatened the Republican brand and fundraising from the Doc-Fix, the Violence Against Women Act, trade promotion authority, to the debt ceiling and his handling of the shutdown in 2013. In his last month, that will likely remain his focus. This time, however, he likely won’t feel tied to demands from the right that could endanger these deals or the party.

Once he leaves Republican politics become trickier. Conservatives waged this rebellion, finally succeeding after nearly three years. They will want a successor with proven conservatism or at least gain assurances their demands will gain more traction in the legislative process. In this scenario more distant obstacles may become even more difficult. Critical legislation such as the December continuing resolution and the debt ceiling may become the battlefield in which newly emboldened conservatives will challenge the rest of the party to follow their lead. The problem is the structural features of government that have prevented conservative wins in several showdowns remain in place. The President will still veto any legislation that defunds Planned Parenthood, undermines Obamacare, undermines non-defense programs in unacceptable ways. Senate Democrata will still filibuster spending bills. 

In other words, this potentially makes an already bad situation worse in the time remaining in the 114th Congress. It’s unclear who will succeed Boehner, how they’ll manage the factions within the conference, and if they can chart a path toward victory in 2016. However, removing Boehner won’t change the broader dynamics causing dysfunction. It arguably makes them worse.

Conservatives won the battle they’ve been fighting for years. However, it’s unclear they’ve furthered their cause in the war.

How John Boehner would Lose his Job: He Chooses to.

This is the week Speaker John Boehner will supposedly face a vote to remove him from the speakership on the House floor. Don’t buy the hype. Amid multiple headlines claiming Speaker Boehner is facing his most strident rebellion yet, it’s important to keep the procedural context in mind. The only way John Boehner will vacate the speakership is if he decides he no longer wants the job. Some have claimed they can force a vote to remove Boehner through a "privileged resolution." Privileged status doesn’t guarantee a vote. Privileged status means a member can interrupt regular business to bring up a bill up. But it does not guarantee that it will be considered. For example, several current bills with privileged status remain in limbo. Agriculture, Financial Services, DHS, Interior and Environment, State and Foreign Ops appropriations bills are all privileged but have yet to receive a vote. Until the Speaker officially recognizes a member on the floor, even a privileged bill will fail to be debated, let alone receive a vote. Greg Koger has a nice summary of how that kind of conversation would unfold on the floor. That is a key point. The Speaker must recognize a member for the explicit purpose of bringing forward a vote to fire him. It’s not likely.

Another consideration is that the current resolution is not written in privileged form. In other words, the only way the current resolution, sponsored by Rep. Mark Meadows (R-NC), would come to the floor is through the Rules Committee - which is handpicked by the Speaker - or by the suspension of the rules – which would require 2/3rds majority to vacate the chair. Neither of those routes are particularly likely either.

This is a pressure campaign. The right-wing of the caucus is attempting to place enough pressure on Boehner that he is forced to step aside so [insert unknown and unclear successor here] can lead a divided and unwieldy majority. It should be noted, it is a pressure campaign the right has waged, on and off, for nearly four years. It’s possible Boehner folds to the pressure. Many lieutenants are reportedly jockeying for jobs, anticipating a potential chance to move up the leadership ladder. But the chances Boehner is fired prior to the shutdown are practically zero, and the likelihood he’s removed at all are slim.

The Speaker may be politically weak but procedurally he’s very strong. And for all intents and purposes, Boehner retains the power to determine his own retirement.

Conservatives' Playcalling: Hail Mary… Repeat.

(Hail Mary, noun, 2. (FOOTBALL) a very long, typically unsuccessful pass made in a desperate attempt to score late in the game.) It appears Speaker Boehner may have another rebellion on his hands. Will this be the toughest challenge to his speakership? Maybe. That is if you don’t include the last two speakership elections, multiple Hastert violations, DHS funding, or any of the other events that sparked overthrow rumors the last four years.

Speaker Boehner’s demise has received at least as much press as many former speakers who eventually resigned their positions. But this is different from those historical examples. The difference between speakers Reed, Henderson, Gingrich, et al., is this rebellion will almost certainly not succeed in the 114th Congress. Conservatives do not have the votes to vacate the chair. They’d need Democratic votes on multiple series to accomplish that. And short of nominating a member even more moderate than Boehner, the minority has little to gain from helping the right overthrow their leader.

However, this rebellion is notable in that it is part of a string of more aggressive tactics emerging from the conservative wing of the party. Just before recess Sens. Ted Cruz (R-TX) and Mike Lee (R-UT) tried to circumvent Majority Leader McConnell to force votes on amendments to kill the Iran deal and Obamacare. Their procedural gambits ended when neither could produce enough supporters for a  roll call vote (a very low threshold of only 11 in the Senate). Around the same time Rep. Mark Meadows (R-NC) offered a resolution to declare the speakership vacant, attempting to force a family discussion about the direction of the party. Changing Senate process or unseating a sitting Speaker can only be described as Hail Marys, plays with such low odds they are only called in moments of desperation.

The irony is that conservatives are winning on several issues. Leadership has gone out of their way to accommodate conservatives on a variety of votes. CQ recently released a study (gated) showing that the most frequent party defectors do not come from the House Freedom Caucus or the Tea Party. Moderate Republicans are the ones most likely to vote against the party’s position. To put it differently, when scheduling floor votes House leaders appease the right’s requests more often.

This makes these high profile attempts puzzling. They are Hail Mary throws to the end zone. And just like in football, 99% of these plays will end in failure. The question is: at what cost?

Unlike football, there is a lot of time left on the political clock. The game will go on. For conservatives, this likely won’t end well. In the process of flexing their muscles they may turn the ball over to Democrats, giving them leverage on many issues from highway funding to budgetary issues. Boehner will have to move forward on a continuing resolution (CR) that does not include an amendment for Planned Parenthood. Once that is passed, a highway bill, omnibus spending package, and other issues remain.

Hail Marys are entertaining plays but they fail more often than not. And unless conservatives temper their play calling, they risk losing a lot of policy games.

Why the House is to blame for the Senate’s polarization

In the American political lexicon, the Senate is said to possess “coolness” and “wisdom.”  Words like “decorum,” “comity,” and “respect” are frequently used to describe the institution as well.  In recent years, however, cracks have appeared in the Senate’s high-minded veneer.  For example, in July of this year, Ted Cruz was admonished by his own party for calling Majority Leader Mitch McConnell a “liar” on the Senate floor.  A number of political observers have remarked that senators seem to be behaving more like the “uncivilized masses” in the House of Representatives. Academic studies confirm that the Senate has become a more extreme place over the past two decades.  By just about any measure, the Senate has polarized ideologically at about the same rate as the House.  According to political scientist Keith Poole, both chambers are more polarized than at any period since the late 1800s.  What’s puzzling about the synchronous polarization of the House and Senate is the fact that the chambers should respond the polarizing pressures very differently.  With longer terms and more diverse constituencies, senators should move toward the extremes at a much slower rate than the representatives.

All this begs the question: Why do we see similar patterns of polarization in both chambers?

Although the House and Senate are quite different from electoral and institutional standpoints, they share one important thing in common: the same members.  In the current Senate, about half of senators first served in the House.  Examples include staunch liberals like Barbara Boxer and Dick Durbin as well as staunch conservatives like James Inhofe and David Vitter.  Notably, this seems to be a modern development.  In the 80th Congress (1947-1949), just 19 percent of senators came from the House.

Can the increase in the volume of shared members explain the Senate’s polarization?

In a forthcoming paper, I argue that it can (see here and here).  In the paper I argue that lawmakers learn extreme partisan behaviors in the House and simply continue those learned routines after winning election to the Senate.  Although this theory has intuitive appeal and fits the timing of the Senate’s polarization, it is unconventional in the congressional literature.  Indeed, virtually all studies view polarization as a function of lawmakers’ rational or goal-seeking actions (designed to secure preferable policy outcomes or win re-election).  In contrast, my work theorizes that lawmakers’ roll-call behaviors are also the product of social-psychological processes.

I propose that there are two main ways this “partisan learning” happens.  First, political parties use their organizational powers to intentionally socialize junior members.  What junior members learn in this context is the utility of party loyalty and a norm valuing teamsmanship.  While uncommon in the contemporary congressional literature, research by Sinclair, Loomis, and Dodd make similar arguments.  Second, lawmakers learn partisan behaviors as a by-product of the House’s hyper-partisan environment.  Political scientists Arthur Lupia and Matt McCubbins summed it up best: “Legislators, like most people, learn by watching what others do and listening to what they say”.

I test the theory of partisan learning in a series of statistical models.  In simple terms, the models tell us why some senators are so extreme in their voting behavior and others are relatively moderate.  A key aspect of these models is that they account for the “usual” explanations of polarization (things like party identification and state characteristics).  More importantly, however, they account for possible selection effects caused by electoral dynamics (maybe extremists are more likely to run for the Senate?) as well as a senator’s ideological extremism before they won election to the House.

Ultimately, the results validate the theory that senators adopt partisan behaviors in the House and continue those behavioral patterns after winning election to the Senate.  Among results, I find that senators who came from the House display greater ideological extremism if they (a) served in the House within an extreme partisan cohort and (b) won election to the Senate after representing a partisan district.  In other words, ideological extremism is fostered when lawmakers are surrounded by extreme co-partisans as well as when they represent extreme constituents.

Figure 1 shows just how substantively important the two factors are for Democrats and Republicans.  In the figure, the causes of ideological extremism are broken down by era according to whether a senator served before Newt Gingrich was elected in 1978, during Gingrich’s time in the House, and after Gingrich resigned in 1999.  The blue “base” causes of a senator’s ideological extremism represent the “usual”.  Needless to say, factors like party identification and state characteristics have the biggest overall effects in both parties and in every time period.  At the same time, however, we can see that the effect of a senator’s House cohort (red bar) is quite large as well.  This effect is most visible on the Republican side in the post-Gingrich era, where the cohort effect accounts for roughly 35 percent of a senator’s ideological extremism.

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It is important to note that my paper is not the only one that documents these patterns.  Sean Theriault and David Rohde were the first to report that the replacement of moderate senators by extremists from the House has been a major cause of the Senate’s polarization.  And Theriault followed up on that article with an excellent book on the same topic.  But like most landmark studies, their work raised additional questions.  Namely, neither project was able to isolate what--exactly--happens in the House that causes ideological extremism in the Senate.  In a review of Theriault’s book, political scientist Gerald C. Wright noted the following:

“More could be done to address the question of why these senators are so different. Theriault deals with the question indirectly in some rough quantitative controls for state characteristics, but he does not confront the question head on.”

In both projects, Theriault and Rohde refer to the House’s effect on Senate polarization as a consequence of a peculiar cohort of lawmakers they call the “Gingrich Senators”.  In simple terms, their work identifies Republican senators who came from the House after Gingrich’s election (from 1978-2010) as key to explaining the Senate’s polarization.  My results, by comparison, show that the underlying causes of this effect are not isolated to Newt Gingrich or the Republican Party but are, instead, part of a more broadly generalizable behavioral process.  In fact, some of the most partisan senators in the past decade (Jim DeMint, Pat Toomey, and David Vitter) entered in the House after Gingrich had resigned.

In the end, I prefer the term the “Housification” of the Senate.  It may seem like academic quibbling over vocabulary, but the distinction has important implications for conveying why the Senate has polarized as well as our theoretical understanding of legislative behavior.  In my view, one of the biggest takeaways from both projects is that legislative behavior is not just the product of rational, goal-seeking motivations.  Congressional behaviors--like ideological extremism--can be learned as well.

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Note: Another version of this post was published on the London School of Economics and Political Science's blog.

Political parties are often too convenient an explanation

Teagan Goddard asked the question, can politics be "unbundled" from political parties? In other words, if there is a market where we can unbundle phone and internet service, why isn’t there a market to unbundle politics from parties? Hans Noel wrote an excellent piece describing how the electoral and governing process inherently bundles politics for us. It is a process that simplifies our system but also, in Noel’s piece, ties politics to the parties. Both pieces are excellent reads with some great points. But at what point do we risk overstating parties’ influence on politics? A common, underlying thread to both these pieces assumes that “unbundled politics” – politics that is distinguishable, or not driven by, party politics – do not or cannot exist in American politics.

This strand of thought often glosses over how unbundled American politics actually is. Politics is about coalitions, but it’s not always about party coalitions. They are, without question, the dominant political coalitions and polarization is the defining narrative of our time. However, we often use these reasons as intellectual crutches and in the process we unfortunately obscure an important and nuanced understanding of representation, particularly in Congress.

There is a good reason political parties are the focus of most observers’ explanations. Falling back on parties as the “bundles” of politics works most of the time. To borrow an example from Hans Noel’s post, the Affordable Care Act (ACA) is either something you like or something you don’t. Today, those that dislike the ACA are nonetheless forced to live with it. And often one’s partisan preference determines their opinion about the ACA, or vice versa. On the big votes, like those to enact the bill into law, political parties perfectly explain the divide on expanded healthcare coverage.

But this black and white choice also oversimplifies the problem. What’s most troubling is it glosses over the geographic, demographic, and ideological differences that render a more rich and complex picture.

For example, millions of people dislike the ACA but also overwhelmingly support many of its provisions. On the other hand, several provisions are also unpopular on a bipartisan basis. Eighty-one Democrats, a full 42% of the House caucus, voted to block the individual mandate in 2011. A repeal of the medical device tax received 37 Democratic votes in the 113th Congress. Unsurprisingly, most members who voted against the ACA’s provisions represented more moderate districts.

Factors other than partisanship have divided and continue to divide members in Congress. The presence of two parties in Congress does not inevitably lead to partisan problems or issue breakdowns. Democrats frequently get the credit for civil rights legislation because they were in power when it passed. But Republicans supported civil rights legislation in the House and Senate in higher percentages than Democrats throughout the 1950s and 1960s. In fact, an entire generation of Congress was defined by a majority party divided on major issues like civil rights, education policy, and energy regulation, just to name a few.

Today, despite better sorted partisan and ideological coalitions, we still observe these patterns. The majority party is divided on foreign trade, government spending policy, the deficit, government surveillance and privacy, the Export-Import Bank, immigration, prison reform, and the list goes on.

We may only have one president, one Congress, and two parties but that Congress and those parties are remarkably complex. The original FARRM bill vote in 2013 illustrated rural Democrats with farm heavy constituencies were willing to stomach more than $30 billion in cuts to SNAP, a major party priority. Congress is currently debating trade promotion authority (TPA) that, if enacted, would divide moderates in both parties from their less moderate co-partisans.

Votes that highlight demographic and ideological divisions within the parties are less common but nevertheless present. Today, it’s just harder for the ideological, geographic, and demographic outliers in each party to differentiate themselves. Leaders press for unity, not discord. As a result, outliers have a difficult time getting their time in the legislative sun. For example, it’s much harder for members like Rep. Justin Amash (R-MI) to receive the green light on his amendment that almost perfectly divided both parties. It happens. It is just much less frequent.

In other words, there is ample evidence that politics is already unbundled. Senators Harry Reid, Joe Donnelly, Jon Tester, and Joe Manchin are all Democrats with high ratings from the NRA. Representatives Rodney P. Frelinghuysen (NJ), Robert Dold (IL), Greg Walden (OR), Richard L. Hanna (NY) are all Republicans who have taken pro-choice positions. On issues like banking regulation or energy policy, the list of elected officials breaking from their parties multiplies by at least three. They break from their parties for good reason. If they didn’t, they probably would not be in Congress.

America’s governing and electoral institutions have created strong incentives to toe the party line. The idea that “unbundled politics” do not or cannot exist glosses over the most interesting political and representational issues of our time. Today political parties explain a lot in the American political system. But at times its ubiquity is overstated. And unfortunately, this intellectual shortcut can undermine important examples that illustrate exactly how geographically, demographically, or ideologically diverse representation in Congress can be.

The budget rule is uncommon but (small ‘d’) democratic

The House budget proposal is being brought to the floor under an uncommon rule called the queen-of-the-hill. It’s being framed as quirky, odd and, at times, a signal of Republican dysfunction. However, it perhaps best described as a release valve. Under the queen-of-the-hill process multiple amendments (which is a full substitute bill) are offered to the House for a vote. The amendment with the most votes wins (as long as it attains a majority). This gives members the opportunity to vote on multiple budgets.

The process emerged from a more heavy-handed rule called king-of-the-hill. Under king-of-the-hill rules, the last amendment to achieve a majority wins. Democrats created this approach in the 1980s to give members the opportunity to vote on multiple versions of the same bill. The rule makes several substitute amendments (referred to as amendments in the nature of a substitute) in order, and members can vote for or against each one. The catch was the last amendment to receive a majority was adopted. To win, all leaders needed to do was put the amendment they supported last in the voting sequence. As long as that version achieved a majority, it passed. At times, this led to the House adopting amendments that received fewer votes.

As a result Republicans created the queen-of-the-hill rule when they retook the House majority in 1995. It is similar to the king-of-the-hill rule but with a softened edge. It was used several times in the 104th and 105th Congresses to vote on welfare reform, constitutional amendment establishing term-limits, the balanced budget constitutional amendment, and for the Tax Code Termination Act of 1998 (for more on this read Sinclair’s Unorthodox Lawmaking). This gave members the same opportunity to take nuanced stands on the subject but allowed the amendment with the most votes to be adopted.

It’s often used as a release valve amid strong differences of opinion on an issue before the House. It is telling that the last two times the queen-of-the-hill process was proposed were on bills forced to the floor through the discharge process: the Bipartisan Campaign Finance Act of 2002 and the Continuity in Representation Act of 2004. Neither bill had overwhelming support from the House majority. Leaders prudently avoided the bills as long as they could to avoid dividing their caucuses until the discharge process forced their hands. (footnote: to my knowledge 2002 was the last time it was actually used. In 2004, it was proposed in a discharge petition but circumvented by leadership through the Rules Committee)

While the queen-of-the-hill process may be unusual, it’s a more democratic approach than many of the options available to the leadership. They could have changed the text of the budget resolution, or banned alternative amendments that would have significantly challenged their own. Not all issues are conducive to a queen-of-the-hill approach. So enjoy the votes and drama while it last. It’s unlikely to come around again for some time.

House process quick hit: Overthrowing the Speaker.

As rumors swirl and fade about Boehner’s removal from the speakership, it’s a good time to clarify a few things about House process and its history. No speaker has ever been removed from office mid-Congress. If members want to remove a speaker from office, they would need to make a motion to declare the chair vacant. That motion has never succeeded.

That includes Speaker Cannon (R-IL). Several news outlets have said the motion to remove the speaker was invoked against Cannon. That’s not accurate. Cannon’s “overthrow” did not remove him from office. Rather, he was “overthrown” because his power as Speaker was significantly curtailed. In addition to being speaker, Cannon was the chair of the Rules Committee and was also responsible for assigning all members and chairs to each standing committee of the House. Both of these tools gave him exceptional power to control House business. On March 17th, George Norris (R-NE) offered a simple resolution to strip both powers from Speaker Cannon on a week that many of Cannon’s allies were missing from Congress largely due to St. Patrick’s Day.

After the resolution passed two days later, Cannon, to the surprise of practically everybody in the chamber, entertained a motion to declare the office the Speaker vacant. That motion failed. In other words, Republicans did not want to remove Cannon from office. They just didn’t want him exercising as much power as he had during his tenure.

The surprising part of this story is not that Cannon was not removed. The surprise was that Cannon entertained a motion that could remove him from office at all. House rules lean heavily in the speaker's favor. This is why Boehner will likely remain Speaker in the 114th unless he voluntarily steps down.

Speakers have the right of recognition. They choose who will be recognized to make a motion from the members on the floor. Without the Speaker’s recognition, members can’t do much of anything. Speakers can also actively ignore members they do not want to make a motion. If the speaker does not like the reason the member has sought recognition, he or she can simply refuse to recognize them. Without recognition even a privileged motion goes nowhere. This makes removing the speaker through the motion to declare the office vacant highly unlikely because the speaker or his designee would have to allow the motion to be put before the House in the first place.

Procedurally, the more likely scenarios would involve intense collusion between Republicans and Democrats over the course of several votes. While it’s possible, I don’t believe Pelosi, Democrats or the faction that want a new Speaker are willing to go to those lengths. Though if it did happen, you’d be watching one of the more exception episodes in House history.

Quick process hit: Senate will vote on a clean DHS bill. Why that looked likely last Monday.

Today Senate Republicans are moving forward on the inevitable. They will vote on a clean DHS funding bill with no immigration riders attached. With time running out they struck a deal with Democrats, which Minority Leader Harry Reid agreed to a couple hours ago. The key point here is that DHS will come up for a clean vote. There will be no immigration vote or amendment included in the deal. Future responses to the President's immigration action will come up for a vote through the cloture process later this week.

A clean DHS funding bill was a virtual certainty after the Senate recessed on February 12th. Failing to invoke cloture before the recess put Senate Republicans in an unwinnable situation. With time running out there was only one procedural avenue available to them to avoid a DHS shutdown: unanimous consent. That requires the consent of all 46 Democrats to proceed. If McConnell's statement was any indication, Democratic consent was contingent on a clean DHS bill with no immigration votes.

It's unclear if Republicans were put in this position through a botched strategy or conference politics. Democrats refused to proceed to the bill. Presumably, they would have continued to filibuster until the immigration riders were stripped. It's possible - but certainly not clear - that if Republicans compromised earlier in the process they could have found a package that would have attracted six Democrats to invoke cloture. That's purely speculative and we will know for sure in the coming days as McConnell moves forward on the separate bill responding to Obama's executive action. Regardless, their current position gives them no negotiating leverage. As soon as the Senate gaveled-in Monday Republicans' hands were tied. The next step was to either let DHS funding lapse or forego attempts to respond to Obama through DHS appropriations.

Many on the right may accuse McConnell of caving to Democrats before the shutdown. However, by blinking first he's biting the bullet and moving the Congress closer to funding DHS. Whether the House follows suit remains to be seen.

Democrats gained even more power in the DHS/immigration debate, and it happened last week

It’s well known that any Republican attempt to reverse Obama’s executive action would be an uphill battle. Because any congressional response required a legislative fix, Republicans face a likely insurmountable veto, even if they managed to overcome a filibuster in the Senate. All the checks of government disadvantage Republicans’, and today we see that they have been unable to overcome either obstacle. However, Republicans are in an even worse position today than they were a week ago when they were in recess. Funding for the Department for Homeland Security expires Friday. Without action 30,000 DHS employees will be furloughed and roughly 200,000 DHS agents will work without pay. DHS funding needs a quick fix. The problem is Senate process doesn’t provide one.

The best possible solution has already been attempted four different times and failed. In reality, Republicans needed to invoke cloture on the motion to proceed – the motion on which they’ve failed four times – by February 9th (if they still planned to recess last week). The process of creating a cloture petition, letting it ripen, voting on the cloture petition, and letting all post-cloture debate expire takes a week’s time. On any given bill, there are two filibusterable motions. That means Republicans needed to first invoke cloture two weeks ago in order to set up another successful cloture vote yesterday. None of the steps necessary to cut off debate have been successful.

So where does that leave Republicans? They’re in a very bad negotiating position. Basically, there is not a normal process that Republicans can use to pass a clean DHS funding bill, a short-term CR, or any other DHS bill before the shutdown on Friday. The only way left to avoid a shutdown is through what’s called unanimous consent. If all senators agree on a motion or purpose moving forward, Republicans can avoid a shutdown. However, getting every Democrat (and Republican) to agree to move forward will come with strings attached.

In other words, about a week ago Republicans lost the little leverage they had in the debate to response to Obama’s executive action. Democrats have gained more leverage in the debate because all processes Republicans could have used are now gone. Their inability to craft an agreement that could get six Democratic votes has cost them the bargaining leverage they had a week ago. In sum, this week Democrats have even more negotiating power than they had the last week the Senate was in session. Now Republicans need agreement from all Democrats, not just six, on the terms moving forward.

This gives Democrats an interesting choice. Either they compromise with Republicans and find an agreement to fund DHS or they can let it expire and hang a partial government shutdown that threatens domestic security on Republicans.

Many people believed Harry Reid was an overly strong majority leader, stifling debate and preventing amendments. This week we’ll see if Harry Reid is as ruthless in the minority as he was in the majority.

Flaws in shutdown logic: It is different this time.

Republicans’ flirtation with a shutdown of the Department of Homeland Security intensified over the weekend. Boehner appears entrenched and suggested Sunday that a shutdown is possible. On President’s Day the dynamic changed… possibly. A federal judge in Texas recently halted the President’s executive action on immigration. Several reports suggest that this could pave the way for DHS funding bill to sail through. However, it is not clear the judge’s decision greased the wheels on either side of the aisle. Republicans are likely wary that the court decision could be reversed in the coming days. Meanwhile, Senate Democrats have no incentive to back down. They’re gaining support from a large and growing portion of their base by fighting Republicans’ attempt to defund Obama’s immigration action. It is unlikely that the court’s injunction has any effect on the political dynamics embroiling this debate.

Matt Yglesias has a very good piece detailing Republicans’ perseverance despite potentially damaging outcomes from the shutdown. Essentially, Republicans felt little to no repercussions from the last government shutdown. The shutdown polled very badly for Republicans in October of 2013 but in November of 2014 they rode a wave to complete congressional control. Put simply, if the 2013 shutdown did not result in catastrophic losses, why would a 2015 shutdown of a single department be different?

Actually, there are lots of reasons to believe this time is different. The one factor in Republicans’ favor is that this strategy would only shutdown DHS instead of the entire government. After that, all advantages break toward the other party.

First, with healthy majorities in both chambers this is Republicans’ boat to crash. In 2013 Republicans shouldered most of the blame but Democrats were also hurt in the polls just not to the same extent. This time there is no Democratic majority to blame. With complete control of Congress, Republicans have been unable to pass a funding bill. Had the President vetoed the legislation, Democrats may take a hit. But at the moment, Democratic involvement in Republicans' inability to pass legislation is obscure at best.

Yet, Democrats are at the heart of Republicans’ predicament. Their filibuster is preventing Republicans from taking a stand against the President. The problem Republicans face is that blaming Democratic obstruction is not terribly effective. Filibusters obscure accountability. If you want proof of that, just look at how effectively now Majority Leader Mitch McConnell used filibusters to retake the Senate. By increasing obstruction Republicans retook control of Congress. Most voters are unaware of the filibuster and its processes. Put differently, most people are unaware that Democrats are involved at all. Therefore, Republican attempts to blame the shutdown on Democrats will fall on mostly deaf ears. In a worst case scenario it may actually help Democrats by raising awareness and boosting their support among Latinos. This kind of blame game does not fall in Republicans’ favor.

And lastly, the 2013 government shutdown was shortened by intervening factors. The government was reopened only after an 11th hour gambit to prevent a debt ceiling catastrophe. If there was no debt ceiling threat looming on October 17th, it’s unlikely the shutdown would have ended on October 16th. In many ways the debt ceiling prevented further damage from the shutdown. Once the government was reopened, Republicans enjoyed several months of botched ACA rollout coverage. Within a few months, Republican approval ratings had rebounded.

This time there is no negative Democratic press cycle to fall back on or divert attention. There is no confusion over which chamber (or party) of Congress is causing the shutdown. The context of this potential shutdown is drastically different.

Whatever the logic is shutdown politics remain an awful strategy, particularly for a majority party. While some may view the 2014 election as an affirmation of prior shutdowns, expecting the same soft-landing in 2015 is likely a costly mistake.

Obama wants filibuster reform. Would it help polarization?

Obama had some interesting things to say about polarization and the filibuster in his interview with Vox. When the question of if government can work in the midst of polarization was posed, Obama mentioned the filibuster: “Probably the one thing that we could change without a constitutional amendment that would make a difference here would be the elimination of the routine use of the filibuster in the Senate… The filibuster in this modern age probably just torques it too far in the direction of a majority party not being able to govern effectively and move forward its platform.”

It’s important to note that this is an answer about governing, not reducing polarization. If you watch the video from the interview, you might assume that Obama’s answer on the filibuster is a response on how to solve or ameliorate polarization. It’s not. This is an important point because reforming the filibuster and reducing polarization are at odds with one another.

For all its faults the filibuster is an inclusive political instrument. It forces majorities to listen and compromise with the minority. However, a new breed of stubborn politics has crippled the honest pursuit of bipartisan compromise. Filibusters are currently used at rate that essentially prevents Congress from addressing problems. While stalling a bill’s progress is hardly new to Congress, the frequency with which they are used today has undermined the filibuster as a means for compromise and transformed it into a means of complete obstruction.

This doesn’t have to be the case. The filibuster could be a process that incorporates minority policy opinions without serving as an insurmountable roadblock. Done properly, filibuster reform could create a system that reduces dysfunction while also assuaging polarization. For example, placing a greater burden on minority senators to sustain a filibuster would make it more politically costly to wage one. This would preserve minority rights while also greasing the wheels of policy productivity.

Unfortunately, those options are not on the table. Presently the most likely reform to the filibuster would be its effective termination. This change would make it easier for a majority to govern in a polarized situation but it would also make the Senate a much more partisan institution. It would eliminate minority debate rights, almost certainly prohibit minority amendments, and undermine the political inclusiveness that has characterized the Senate for most of its history.

Filibuster reform is not likely to occur in the near future. However, the way the politics of filibuster reform shake out, it is a near certainty that changes to the filibuster will not reduce polarization. It will worsen it.

Governing in polarized times is a problem that needs to be addressed. But we should weigh if change is worth the cost of further distancing already outlying political parties.

Why three failed votes is not necessarily a failure

Majority Leader Mitch McConnell received a fair amount of flak this week for his attempts to move forward on the DHS funding bill that expires at the end of the month. Republicans failed to invoke cloture on the DHS funding bill for the third time in three days, raising speculation about a potential shutdown of US security agencies. Sarah Binder has a great piece at the Monkey Cage explaining the strategy. She argues McConnell’s attempts are not unprecedented or even a failure. Multiple attempts to stop debate on a bill has, at times, put pressure on the filibustering minority to compromise. In this sense McConnell’s is attempting to win a message battle by framing Democrats as obstructionists.

The messaging battle is an important one. However, it’s also a situation where neither party will likely emerge as the victor. In fact both parties win on this particular issue. Republicans are presumably gaining support for their attempt to battle the President on immigration. Meanwhile, Democrats are gaining support among their base by obstructing attempts to roll back what has been a very popular executive action among their base. In other words, it is certainly a messaging battle but it is one that both sides will win. McConnell isn’t winning at the expense of Democrats. Rather, he’s likely bolstering both sides while shouldering accusations that Republicans cannot govern.

The irony is that by failing to stop a filibuster, McConnell is moving closer to governing. As Binder points out, provoking multiple votes on DHS and the immigration rider demonstrates that moving forward on this bill through the normal process cannot work. Democrats are resolute and they have no incentive to back down. Republicans already knew this, signaling weeks ago that they did not have the votes to advance a DHS bill with the immigration rider.

So why use three votes? In addition to demonstrating that this is not a viable strategy, it gives McConnell leeway on his right. Had McConnell taken the obvious action needed to pass DHS from the start – stripping the immigration rider and passing a clean funding bill – he would have been attacked for appeasing Democrats. By demonstrating that their opposition is not avoidable, he eases some of that right-flank pressure.

And lastly, three votes buys McConnell time to strike an agreement to avoid a shutdown. The Senate is an institution of negotiation and unanimous consent. Behind closed doors McConnell is likely searching for an agreement between his conference and Democrats that strips the rider from the bill, offers conservatives the opportunity to make their stand on the issue with a non-passable amendment (60-vote threshold), and a time agreement that ensure the Senate passes DHS well before the funding deadline.

The headlines are not pretty now. But in an odd way, by failing to invoke cloture on Democrats’ filibuster McConnell is likely doing more to move forward than the media are giving him credit for.

That said, this latest episode continues a growing trend for Republicans. They continue to show a penchant for putting themselves in unwinnable political situations. Unless they become more strategically savvy, self-inflicted wounds may become this majority’s calling card. How they manage the upcoming cliffs on the debt ceiling, the Highway Trust Fund, and the Export-Import Bank reauthorization will be telling as we continue to inch toward 2016.

It’s not all Gridlock: What Republicans can accomplish in the 114th Congress

Can decades of dysfunction reverse course in a single Congress? No. But despite the general pessimism surrounding Congress there are several reason to expect the 114th to be more productive than its recent predecessors, which were historically bad on several fronts. Now that divided congressional control is over a sense of mild optimism should overcome you. Plenty of ink will be spilled describing the impending dysfunction of a Republican Congress and a Democratic President. Divided government does depress legislative output, though probably not as much as most expect. However, research has shown that divided congressional control can actually be more debilitating. In her study on congressional stalemate, Sarah Binder found that the ideological distance between the chambers created more gridlock than divided government between the executive and Congress. While that sinks in, consider the 113th Congress was among the most polarized in US history. In other words, Congress was controlled by two different parties at a time when those parties are arguably the furthest apart than they have been since 1879. In that context it’s easy to understand why gridlock gripped the Capitol for the past four years. Now that Republicans control the Senate, we’re likely to see more robust negotiations between Congress and President Obama. The question is over what agenda items they will negotiate.

Republicans have two major roadblocks to legislating in the 114th Congress: the filibuster and the veto. Both checks require a supermajority to overcome (60 for the filibuster and two-thirds in both chambers for the veto). These thresholds are difficult, but Republicans can and will be able to overcome them in some form or another. However, these barriers do constrain the universe of policies that Republicans can target.

Budget Reconciliation

With only 54 votes in the Senate, Republicans will either need to moderate their policies to attract six Democratic votes – a strategy that will hugely frustrate their House colleagues – or use the reconciliation process to circumvent filibusters. This leads us to our first prediction: Congress will pass budgets. Reconciliation is built into the annual budget process. Congress has not passed a budget resolution since 2010. That will change in the 114th. If Republicans want to follow through on their campaign promises, they need to pass a budget in order to use reconciliation.

There is a catch. Reconciliation can only be used on policies affecting direct spending, revenue, and the debt ceiling. Republicans are unlikely to touch entitlements and leaders will likely pass a debt limit hike through indirect means, such as reinstating the Gephardt Rule (where the debt ceiling is raised or suspended upon adoption of a budget resolution). That leaves revenue measures as the most likely policies to be used under reconciliation.

Revenue bills just happen to coincide with several Republican priorities. Republicans can pass bills that repeal the individual mandate, eliminate the medical device tax, alter fees funding immigration deportation processing, corporate and/or individual tax reform, as well as several other policies. In other words, the bills Republicans want to pass to score political points will most likely come through the reconciliation process. And Republicans may very well want Obama to veto many of these bills. For example, a presidential veto killing a repeal of the individual mandate is something the Republican campaign committees are likely drooling over.

It’s also possible that bipartisan compromises emerge through the reconciliation process. However, it will depend on Republican politics and how far the president is willing to compromise on these issues.

Veto-“proof” legislation

There is also reason to expect a large number of bipartisan legislative efforts to emerge. Despite headlines suggesting bipartisan compromises are a thing of the past, a large number of bills passed the 113th House with over two-thirds support. In fact, several issues reached broad consensus on a regular basis. Homeland security legislation, reducing the number of government reports and studies, bills expanding government transparency, veterans’ legislation, among others, all passed under suspension of the rules (requiring two-thirds support).

Keep in mind that just because a bill receives bipartisan support does not mean it is uncontroversial. Several bills reported from the Financial Services and Energy and Commerce committees frustrated the Democratic base, but still managed to pass the two-thirds threshold. In fact, several bills stripping Dodd-Frank regulations were passed with large, bipartisan majorities. The swap push-out provision vilified in the cromnibus package is a great example. Despite liberals ardent objections the bill passed with 292 votes (H.R.992).

Bipartisan bills range from the widely agreed upon to those that divide the Democratic base. It will be very difficult for the President use his political capital to veto legislation if there is a good chance it can be overridden. And in the 113th, there were several policies, controversial and uncontroversial, that will put the president in a difficult position. In the 114th, he can make a stand or accept policy losses. But there is room for Republicans to slowly chip away at the President’s legacy by passing widely-supported policies.

The 114th is likely to be more productive than the 113th. That said, with a presidential campaign season looming, partisan politics could also overcome any modicum of bipartisan agreement.

113th Congress: Arguably the least democratic in American history

The 113th Congress may very well go down as the least democratic in our nation’s history. Except probably not in the way you are thinking. This has nothing to do with how much money was spent in campaigns, gerrymandering, voter suppression laws, or other things that distort the electoral process. The 113th Congress, more than any other Congress, excluded elected representatives and senators from the ability to offer amendments. Members of the 113th Congress have arguably had the fewest opportunities to put their imprint on policy than at any other time in the nation’s history. Congress, as a deliberative institution, is increasingly failing as a representative body. The Legislative Branch was intended to be, to varying degrees, the people’s body and a reflection of their will. At a practical level this isn’t possible. If all representatives were given equal say in the process nothing would be done. To find a contemporary approximation of this concept, just look at today’s Senate. Obstruction is rampant and passing routine measures is extraordinarily difficult. Congress has, and always will, solve this problem by giving some members more power in the policymaking process.

Party leaders (Speaker, majority leaders, whips, etc) and committee chairs are perfect examples of this. They control greater procedural power in order to push the policymaking process forward. Without them nothing would be done. While giving some members more power to shape policy is not entirely fair, it is necessary. And under the current rules, party leaders control the most power.

Today, however, these well intentioned rules have become distorted. As a result party leaders are badly undermining the deliberative process. This is not entirely new. In fact, this has occurred at increasing rates since the mid- to late-1970s. It really ramped up in the late-1980s and has been on a steady (some might suggest steep) upward trajectory since. In that sense the 113th is just the most recent Congress in a decades-long trend. That said, the 113th reached new heights (or depths).

In the 113th, Speaker Boehner set a record for the most “closed rules” in House history. At this point 74 bills (and counting) brought to the House floor have come under closed rules, passing the previous record of 61 under Speaker Pelosi in the 111th. These rules prevent any member from offering amendments to the bill, typically limit debate to an hour, and offer no policy alternatives. Representatives can either take it or leave it. In other words, this process is the most strong-handed way to bring a bill to the floor. Influential members may be able to alter the bill behind closed doors before it reaches the floor, but most often rank-and-file are forced to consider the bill as its written; a straight take it or leave it proposition.

Further, sixty more bills were brought to the floor under a “structured rule,” where leadership (by virtue of the Rules Committee) chooses the amendments that are debated on the floor. In most cases, this again, shuts out significant portions of House membership. Today, even large bills with histories of open deliberation eliminate hundreds of amendments from consideration.

For example, members submitted 322 amendments to the National Defense Authorization Act (NDAA) considered earlier this year. The leadership prohibited 137 of those amendments from being offered on the floor. It is true that most amendments made it to the floor. However, for most of the past 53 years this bill has passed the Congress, this bill was brought up under open rules, allowing any representative to debate and offer amendments to the bill.

And further, the NDAA is the exception to the rule. It’s common for the Rules Committee to eliminate most offered amendments. For example, 42 amendments were offered to Cyber Intelligence Sharing and Protecting Act (CISPA) in 2013. Only 14 amendments made it through the Rules Committee to the House floor. Additionally, the Rules Committee forces members to pre-print amendments to a bill 24-hours in advance of their hearing, often deterring members from submitting amendments. So far in the 113th House a full 95% of all bills brought to the floor (exempting the suspension process) were considered under these special rules.

The Senate, historically known for open debate and deliberation, did not fair much better. Majority Leader Harry Reid used his procedural prerogatives to stifle the regular amendment process. In only a hand full of occasions, Reid “filled the tree,” a process where he offers several non-consequential amendments before other senators can offer their policy amendments/ideas to the bill. Like the House, this tactic cuts out senators from the amendment process. Like the House, this is not new. However, this Senate was particularly bad. Only four bills out of the more than fifty receiving roll call votes in the 113th Congress had more than 5 votes on amendments. Obstruction and filibusters have reached an all-time high. However, it’s hard to argue that encroachments on senators’ right to offer amendments are not also reaching historic levels.

Processes that were once open for the membership to debate are now closed. Congress was intended to be a body where the nation’s representatives gathered to debate and vote on legislation. However, current practice in both chambers (and from both parties) brings the principle of open debate and deliberation into serious question. It is rarely mentioned but nonetheless important: how party leaders use the process affects how members of the parties behave within it.

The party rank-and-file share blame in this story. For the past several years they have pushed leaders to use more strong-handed tactics by abusing the privileges they once enjoy. However, this cycle is reaching dangerous depths. Party leaders are exercising more power without delivering any political or policy benefits. It has led only led to more partisanship and more dysfunction.

You will likely hear a lot about regular order over the next month. It is an overused and arguably anachronistic trope that members in both parties clamor for. However, it hasn’t been seen on Capitol Hill for over 20 years. And until members start demanding more influence in the policymaking process and creating ideological and political room to compromise, it has little to no chance of returning. With party leaders clamping down debate and bringing partisan-charged bills to the chamber floors, it is no wonder the parties no longer trust one another.

Can the midterm outcome “solve” Washington’s problems? No. But it can make things worse.

An old adage is that lawmakers win reelection by “running against Washington.”  According to a recent Gallup poll, just 14% of Americans approve of Congress’s job performance. So while there’s something absurd about incumbents and major party candidates running against themselves, it’s a winning strategy for sure. In some ways Congress’s remarkably low approval is undeserved.  We know, for example, that congressional approval fluctuates along with macroeconomic conditions.  We also have an arrangement where both parties are sharing power, so everyone has a reason to hate at least half of Congress.  Research even shows that the passage of legislation has a negative effect on approval (you know, when Congress actually does its job).

Nonetheless, in running against Washington, lawmakers regularly promise to “fix Congress,” work “collaboratively” with the other side, and “break the logjam” of legislation.  Unfortunately, research suggests that none of these problems will be solved based on tonight’s midterm outcome.  In fact, there are good reasons why some problems will get worse, not better.

Polarization

Let’s start with polarization, which is part and parcel to Congress’s dysfunction.  For starters, polarization is a process whereby lawmakers in both parties move to the ideological extremes (leftward for Democrats, rightward for Republicans).  And as a theoretical matter, that process can happen in two ways: either (1) new members enter Congress to the left or right of the lawmaker they replaced or (2) continuing members drift to the left or right over the course of their career.

Based on numerous studies, #1 is the larger cause of polarization.  In other words, it’s the replacement of old members with new members that has caused Congress’s movement to the extremes.

In an old post (see here), I wrote about why the logic of “throwing the bums” out is wrong.  If you read that article, the exact same logic applies here: If polarization is the “problem,” electing a large volume of “new lawmakers” will make things worse, not better.

Gridlock

Gridlock is defined as the inability of Congress to pass legislation.  We can tackle the question of whether today’s midterm results can alleviate gridlock from multiple angles.  I’m assuming that the House will remain in Republican hands (and extremely safe assumption), so the real question is what happens in the Senate (where current projections give anywhere from a 98% chance to a 70% chance).

For starters, it’s often assumed that “new members” will “break the logjam” and usher in a new era of collaboration and compromise.  Unfortunately, the lessons of polarization apply here too: At best the volume of new members is Untitledunrelated to the passage of legislation and, at worst, new lawmakers make passing legislation harder.  For those details, see here.  But see the chart to the left (click for larger image) comparing the percentage of new lawmakers elected (x-axis) and the number of landmark laws passed (y-axis):

Second, the fact that the House and Senate are controlled by rival parties is often cited as a reason for the current Congress’s gridlock.  It is certainly logical that if Republicans win the Senate tonight, gridlock should go down.  However this, too, is wrong.

Control of the Senate is what’s known as a “necessary but not sufficient” condition for breaking gridlock.  While Republicans will indeed be better able to coordinate the passage of legislation across chambers, Democrats will retain two very powerful weapons that promote gridlock.

First, baring an upset of epic proportions, Democrats will maintain the ability to filibuster Republican proposals.  Second, remember that President Obama has the power to veto any laws that survive a Democratic filibuster.  I know that’s painfully obvious, but Republicans could circumvent the filibuster in two important ways: (1) by using a procedure known as “reconciliation” or (2) by eliminating the filibuster altogether.  Both are very real possibilities, making Obama’s veto power that much more consequential.  And according to these data, there have been 2564 vetoes dating back to George Washington’s presidency.  Among these, only 110 have been overridden by Congress, a success rate of just 4%.

But also, there is empirical research exploring these very questions.  In a paper published in the American Political Science Review, Sarah Binder tests the effect of “quasi-divided government” (defined as when the parties share control of Congress) on the occurrence of gridlock.  She finds that periods of quasi-divided government have absolutely no effect on the volume of important legislation Congress passes.  In sum, Binder’s research suggests that tonight’s outcome in the battle for control of the Senate won’t have much of an effect on the passage of legislation in the next Congress.  What does matter, according to Binder’s results?  “Pure divided government” (when the president opposes Congress, so see above), polarization (also see above), and the ideological distance between the House and Senate.  While the final one could be alleviated by tonight’s outcome, the result of a race or two won’t move the location of the median senator enough to make a sizable difference on the occurrence of gridlock.

Conclusions

Politicians are not “bad” for running against Congress and for over promising to “fix” Washington’s dysfunction.  And the public isn't “stupid” for buying into these promises.  But we tend to have unrealistic expectations in even numbered years, focusing myopically on the idea that a single election is the antidote legislative paralysis and hyper partisanship.  Washington wasn't broken over night, and it won’t be fixed this evening.