Legislative Procedure

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.

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.

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.

Will the Senate Go Nuclear Again?

Put this in the “it’s not really nuclear” category. Despite several accounts reporting that Senator Mike Lee (R-UT) plans to go nuclear, don’t believe the headlines. That said this is likely the most interesting thing that will happen in the Senate this year, at least from a procedural standpoint. After cloture is invoked Senator Lee will attempt to revote an Obamacare repeal amendment to the highway bill that is also carrying the Export-Import Bank authorization, which is the bill the Senator really wants to kill.

Unlike regular debate, nongermane amendments are not in order after cloture has been invoked. In other words, you cannot attach the Obamacare repeal after cloture has been invoked on the highway funding bill with Ex-Im attached to it. Major reforms to the healthcare industry are simply not that relevant to fixing bridges or giving out loans. Therefore, the Senator’s motion will be ruled out of order. The Senator will then appeal the ruling of the chair, which is decided by the Senate by a majority vote without debate.

The fact that this motion will be decided by majority vote without debate is the major commonality. Forcing a majority vote in the Senate is no small feat. However, the effect of this change would not be as significant as Reid’s nuclear option, reducing cloture to a majority on executive and judicial nominees (excluding the Supreme Court).

If Senator Lee attempts this motion, it would change germaneness rules while under cloture. The effect would simply open the door to more extraneous amendments while under cloture. Put differently, this would make the Senate under cloture more like the Senate when not under cloture. In regular debate (though not on appropriations) Senators can offer completely random amendments to bills. It’s arguably the second most important feature of the Senate outside the filibuster. For example, the lack of a germaneness rule is how we arrived at this scenario in the first place. Majority Leader McConnell is amending the “Hire More Heroes Act of 2015” (H.R. 22) and replacing it with the highway funding bill and adding the Export-Import Bank, neither of which are germane to hiring heroes. This would be impossible in the House (except under a rule from the Rules Committee).

It’s unlikely but we could see a major change to Senate operation. There are a variety of ways that the leaders or others in the chamber could thwart Senator Lee’s plans. Even if there was a change, it’s not on the same level as the nuclear option. Rather, it would make cloture debate more like regular debate. It would be significant but I wouldn’t call it nuclear.

The real underlying story is the method. Since the Senate went nuclear in November of 2013, senators have learned you can change nearly any Senate process if you can find a nondebatable motion. We’ll see that method employed again as conservatives try to kill the highway/Ex-Im bill.

(For process geeks: there is an excellent paper by Tony Madonna and Richard Beth on nondebatable motions and the nuclear option that was presented at the 2014 APSA Annual Conference.)

Left or Right? Who's further from the middle?

Polarization is commonplace in American politicsBoth parties are moving away from the middle. The debate often boils down to who is polarizing the most/fastest. New York Times opinion writer Peter Wehner sparked an interesting debate when he claimed, “in the last two decades the Democratic Party has moved substantially further to the left than the Republican Party has shifted to the right.” Jamelle Bouie’s excellent response at slate essentially illustrates that a lot of political science does not support that claim.

Both make good points about polarization in American politics. However, in many respects they are talking past one another. Wehner’s piece highlights the issues Democrats adopted in recent years.  And as he points out Democrats are undoubtedly more liberal on gay rights, drug legalization, and climate change, among other issues. Bouie, on the other hand, bases his argument on measures found congressional research. He highlights that recorded votes illustrate a much different picture than the one Wehner paints. Despite some excellent points there is an important dynamic between the issues parties champion and votes on the House and Senate floor that neither author addresses.

The argument for asymmetric polarization originated from recorded votes taken in Congress. Among the first to point this out were Thomas Mann and Norm Ornstein, who argued asymmetric polarization is obvious and primarily occurs on the right. Over the past four decades the average Republican’s vote score has unquestionably moved farther right than Democrats have pulled left.

polar_house_means_2014

But this isn’t the whole story. To grasp asymmetric polarization you have to understand how roll call votes occur. And in this context we see a much muddier picture.

Roll call votes are both a very good measure of polarization and a clearly biased sample. They’re biased toward the decision-making of the representatives or senators that control the floor agenda. If a bill can reach the chamber floor, it can receive a recorded vote. If it can’t, then it doesn’t. And to over-simplify legislative process into a single sentence: party leaders dictate the agenda. Polarization found in roll call scores is in large part a function of party leaders’ policy priorities, political necessities, or electoral incentives. They can prioritize or deemphasize divisions between the parties depending on the interests and incentives they choose to pursue. As several scholars point out, today party leaders are far more interested in dividing the parties than they have been since the early 20th century (see Frances Lee’s Beyond Ideology for a great description of this).

The issues majority party leaders bring to a vote affects polarization and how far left or how far right they diverge. So the question we should be asking is: what issues are party leaders deciding to vote upon?

Laurel Harbridge recently tackled this question in her book, Is Bipartisanship Dead? She finds that since the mid-1970s party leaders having schedule more partisan votes. Despite the fact that bipartisan legislation is still introduced with impressive frequency, those bills receive roll call votes far less frequently. A statistic that really sticks out in her research, in 1974 over 70 percent of all roll call votes were on bills cosponsored with a significant amount of members from both parties. By 1995, just 27 percent of roll call votes had significant bipartisan support. Congressional leaders increasingly bypassed bills with bipartisan support, often for partisan alternatives on the same issue.

If you take this agenda effect with other studies emphasizing how procedural control and votes influence polarization (research done by Smith, Carson, Crespin, Madonna, Roberts, Theriault, and others), there is a body of evidence suggesting that the issues and bills party leaders prioritize are a significant culprit in congressional polarization. And further, Republicans are prioritizing partisan bills and votes with greater frequency than Democrats.

This isn’t wholly surprising or even illogical. Republican congressional leaders have much greater incentives to pursue partisan policies. The Republican base - with hugely safe, homogenous districts coupled with the money, organization, and impressive influence of right-wing Super PACs and groups with the power and willingness to primary moderates – is simply not mirrored to the same extent on the left.[1]

So while the 111th Congress passed a huge swath of Democratic priorities, on the whole Republicans have more incentives to vote and pass partisan bills. And as a result, vote scores illustrate Republicans have been more prone to move away from the middle than Democrats over the last few decades.

There are a lot of reasons both parties are moving away from the center. But despite the fact Democrats take more liberal stances than they have in the past, those stances receive less attention on the chamber floors relative to the more conservative positions in the Republican Party.

[1] In this vein an interesting test for Republicans will come in 2016. Speaker Boehner and Majority Leader McConnell have prioritized several significant bipartisan bills in recent months. This tactic has illustrated a willingness to govern but runs counter to the tactics employed the last four years that brought Republicans electoral success.

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.

Most budgets lack details. That doesn't mean they're ineffective.

Since the House budget resolution dropped yesterday a lot of complaints have surfaced about its lack of detail. Lack of detail have some claiming it abandons Paul Ryan’s budget, – even though it is remarkably similar - and many pundits and politicians lamenting the vague character of the House Republicans' proposal. There are a lot of reasons to criticize budgets. Lacking policy details isn’t one of them. The teeth of the budget are not in its policy. It is in the processes it establishes for legislation for the remainder of the fiscal year.

The practice of including policy statements in budget resolutions is actually a relatively new one. According to a CRS report, since 1994 congressional budget resolutions have included an average of 22 declaratory statements. Between 1976 and 1993, congressional budget resolutions included only an average of 3 policy statements. The fact that the number of statements have increased as the parties polarized reinforces what everybody already knows: budgets are political documents. They may express party goals but those statements do not bring Congress any closer to enacting those provisions.

The main reason budget resolutions are not policy documents is because the policy statements found in them are nonbinding. They have the same legal effect as nonbinding resolutions expressing the sense of Congress, the House, or the Senate. Vaunted legislation passed with the same nonbinding status have included welcoming India’s prime minister to the U.S., authorizing concerts by the National Symphony on Capitol grounds, expressing a sense of the Congress that the U.S. should take a strong role in implementing decisions made at the Earth Summit, and thanking congressional colleagues for the manner in which they presided over the chamber. The policy statements in the budget resolutions may express a sense of the chamber or Congress, but they have no procedural or legal weight. It’s simply a statement.

The real teeth in budget resolutions are in the processes put in place when passed. First, budget resolutions set the topline spending and revenue numbers. Once passed by Congress future legislation has to conform to those numbers. All appropriations bills, amendments, and committees must fit within the 302(a) number prescribed by the resolution.

Second, the budget committees can instruct other committees in Congress to find savings in existing law and provided the committees meet the numbers, Congress could pass those bills with a simple majority in both chambers (i.e. filibuster-proof legislation). This process is known as reconciliation. The annual budget resolution outlines this annual process, detailing which committees can change government spending without worrying about a filibuster in the Senate. If you want to save money by tailoring Medicare and Medicaid, this is where you do it. For example, this year’s House budget gives instructions to 13 House committees to find a minimum of $4.75 billion in savings. If the committees meet the budget guidelines of the instructions, they can use reconciliation, avoid a filibuster, and pass the bill. However, how the committees find the savings is left to the committee of jurisdiction.

For example, the House proposed budget that dropped yesterday instructed Ways and Means to find $1 billion in savings over the next 10 years. Despite the fact that that the Budget Committee included policy statements expressing an interest in changing Medicare and Medicaid, they cannot force Ways and Means to introduce policy doing that. If Ways and Means finds $1 billion in savings in tariffs, there is nothing the budget committees can do about that. That bill will still go through the filibuster-proof reconciliation process.

There are lots of reasons to debate the budget resolution. We can argue the merits of the House and Senate numbers and whether or not they actually accomplish what they claim to do. But “lacking policy detail” is not a great reason for criticism. That’s largely out of the budget committees’ hands. Regardless, the numbers and processes they put in place make it a very important document; just don't expect it to have a lot of policy details.

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.

What does DHS/immigration tell us about the power of Congress and the President?

Institutional power is more of an academic topic. Nonetheless, it has enormous ramifications. The current immigration debate is a great example of that. Despite the rhetoric around the DHS debate, America has never had a dictator president - the current president included. However, the fight for power in the separation of powers (i.e. How big should the presidency be?) is real. The DHS/immigration debate is an interesting look into that struggle.

Much of the modern presidency’s power stems from the type of actions we are observing in the immigration debate. Reinterpreting existing law, exercising discretion on the many responsibilities under the purview of the executive branch, or writing orders and directives, presidents have ample opportunity and authority to reshape national policy unilaterally. These actions pale in comparison to actually creating law, as Congress does, but they are important nonetheless. And while Obama’s immigration action falls within precedents set by former presidents, Congress is well within its constitutional rights to correct presidential overreach.

However, Congress rarely curtails presidential unilateral actions. There have been several attempts but few are successful. The best attempt was the 1974 Budget Control and Impoundment Act, establishing the modern budget process. After Nixon impounded congressionally appropriated funds, Congress established processes and deadlines to take back budgetary control. It also established a reconciliation process that could circumvent filibusters to restore budget harmony. That process could be used to respond to executive actions if those actions fail to follow congressional intent.

As we see today even Congress's most powerful tool cannot address executive action. It would take some creative legislative drafting in order to use reconciliation to reverse Obama’s immigration action, which prohibits provisions that have no budgetary effect. Which means today’s congressional stalemate boils down to one of two possibilities. Either it can’t be done or Republicans plan on using reconciliation -which only allows a limited amount of bills per year - for another purpose.

This is the problem Republicans currently face. They cannot circumvent the supermajority requirements of the process. Even if they could, there is no guarantee Republicans could find a Senate majority once the symbolic nature of the cloture vote was removed from the scenario. Should three moderate or border Republicans join Senator Dean Heller in blocking the bill, Congress’s response would still be deadlocked.

Historically Congress’s power has been hampered by its own processes and the political realities of forging majority coalitions. It’s often very difficult pass bills through both chambers. It’s particularly challenging to find majorities to challenge unilateral executive actions that fall within the previously accepted scope of executive authority. It’s nearly impossible to find a supermajority to do that. Without a Watergate-like scandal, where illegal actions clearly occurred, Congress rarely has the ability to tame America’s 80-year tradition of expansive executives.

The ambiguity of Article II means that presidential power open to interpretation, which is another way of saying that presidents' unilateral power is mostly anything that Congress has not expressly prohibited. Given the inherent difficulties of lawmaking and the supermajority processes that have always existed in Congress, historically those prohibitions have been scarce.

As Jon Bernstein points out, every modern president overreaches at some point. With a hamstrung legislative branch, that’s likely to continue.

Have Republicans Gone M.A.D. (Mutual Assured Destruction) on the Filibuster?

Frustrated House Republicans lashed out against their Senate colleagues Thursday. Without a clear path forward on the DHS funding bill, Rep. Raul Labrador (R-ID) and others blamed Majority Leader McConnell for failing to save what is a bad legislative strategy. Roll Call’s Matt Fuller reports:

“Mitch McConnell can change the rules of the Senate,” Rep. Raúl R. Labrador said Thursday at a panel discussion with conservative lawmakers. “And this is important enough for Mitch McConnell to change the rules of the Senate.”

This is a catchy talking point that would have more bite if it wasn’t also certainly wrong. McConnell can’t go nuclear on the filibuster alone. He needs the support of his conference. Unless some dramatic, earth shattering shift has occurred behind closed doors, McConnell likely does not have the votes to eliminate the filibuster.

The reality is that going nuclear on the legislative filibuster is not very popular on either side of the aisle. All senators gain influence from the filibuster. Today, the filibuster is commonly perceived as the minority’s tool to obstruct business. That’s true but unlimited debate also bolsters the rank-and-file in both parties. Threatening to filibuster a bill gives all senators enormous leverage in the negotiating process. For this reason most majority senators, even insurgents like Sen. Ted Cruz, are unwilling to eliminate the legislative filibuster.

In the process of promising victories they cannot deliver, Labrador and his colleagues are also feeding a couple of underlying problems in the Republican Party. Statements like these set up unrealistic expectations. Many constituents likely believe McConnell is standing between conservatives and their immigration battle with the President. That is not the case.

Further, failing to understand (or acknowledge) leaderships’ limitations makes McConnell’s and Boehner’s jobs harder. Congressional leaders are only effective if others are willing to follow. Framing Republican leaders as weak, not conservative enough, or cowardly deters colleagues and constituents from following leaders’ cues. After all, why would a true conservative follow a weak, liberal Republican? Put simply, comments like these throw their party leaders, and the majority’s capacity to enact laws, under the bus.

Whether it’s principle, stubbornness, or an inability to grasp legislative process, House conservatives have gotten into a bad habit of shooting themselves in the foot and then blaming their leaders when they can’t walk. For whatever reason leadership-bashing has come into vogue in the Republican Party. These tactics undermine credibility and the policymaking process. The only real winners in this scenario are fundraisers and those that do not want the Republican Party to exist in its current form. Because at this rate, it is hard to imagine this majority enacting much of anything resembling a conservative vision for the country.

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.

The Senate’s Return to Regular Order?

For the past week, Majority Leader McConnell experimented with an open amendment process in the Senate. Members offered amendments on everything from climate change, to federally protected land, to limiting the President’s ability to initiate and sign bilateral agreements with foreign countries. The broader question is can McConnell take a positive step toward a functioning Senate?

There are some positives to take away from the past week. Debate has gone smoothly for the most part. Senators have worked together on several fronts. Murkowski and Cantwell, the Chair and Ranking Member on Energy and Natural Resources Committee, have worked behind the scenes to find amendments both sides are willing to tackle. As a result the Senate has debated subjects such as climate change, potential limitations on informal and formal executive treaties, taxation of tar-sands oil, and topics such as private property versus eminent domain. Willingness to work through regular(ish) order has reinvigorated debate and deliberation over the last week. As a result the Senate has voted on more amendments in the last week than all of 2014.

However, it is not all good news. Yesterday some filibusters began to emerge. Several amendments were held to a 60-vote threshold, meaning that not all Senators would allow those votes unless there was an implicit understanding that they wouldn’t pass. As the afternoon turned into the evening, those the seemingly sparse filibusters turned into outright stalemate. The process came to a halt. In what appeared to be frustration or impatience, McConnell killed the pending amendments and filed cloture. This essentially guarantees the bill will move toward passage next week with few if any additional amendment votes. To an extent, the Senate we’ve come to know over the past few years reemerged.

Obviously the Keystone debate has been a more robust one than those in the 113th Congress. But last night highlights just how fragile the process really is. The majority opened up the process to allow the minority to participate. And as has been common among recent congressional minorities, they have wanted more time, more debate, and more amendments. In the eyes of the majority, they want to abuse their privileges. As a result the majority shuts down the process. Steven Smith, the Kate A. Gregg Distinguished Professor of Social Science at Washington University in St. Louis, refers to this erosion of cooperation as the Senate Syndrome, and it appears to have struck again in the third week of session. A week-long debate over amendments to an important bill is a positive step. But it is clear the process is fragile and trust between the parties is not high.

Lastly, Keystone is a unique case. High public visibility and bipartisan support grease the wheels of cooperation. In other words, it’s the type of bill where this kind of bipartisan process can flourish. However, not all issues enjoy broad support. And at some point, likely soon, stronger opposition will reemerge. At that point we’ll see if McConnell’s experiment with regular order is sustainable or if the Senate Syndrome will erode the good will that was built this past week.

Update: Great video of McConnell shutting down the process Thursday night.[embed]https://www.youtube.com/watch?v=yl4neFHnk84#t=147[/embed]

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.

Can Republicans roll back Obama’s executive order? It's hard but not impossible.

Republicans have rallied behind the idea of defunding Obama’s executive order on immigration either through the omnibus or a rescission – a bill passed after an appropriations bill. However, this plan ran into some speed bumps. As Jennifer Hing, House Appropriations Committee spokesperson, points out, Citizen and Immigration Services (CIS), the agency that processes immigration petitions and deportations, is funded through application fees. That means its funding is not subject to annual appropriations bills. And as a result, there is nothing Congress can do to defund the executive order. However, this talking point misleads many into thinking that Congress is helpless, which is categorically wrong. Republicans could pursue several different avenues. They could attach legislative language onto an omnibus or other appropriations bill. This is a routine process that occurs basically every time an appropriations bill is passed (see here under “Legislating on Appropriations”). Even though Congress has a rule prohibiting legislative language in appropriations bills, they nonetheless ignore it all the time.

There are other ways to respond as well. The Budget Committee could grease the wheels and push the bill through the reconciliation process. Legislatively, some piece of this bill would have to do with revenue (fees), though not all necessary provisions would likely be able to pass under reconciliation. Finally, the most obvious solution is to pass a bill. Congress could simply prevent CIS from executing the order.

There is a catch, however. Any process the House could use would be subject to a 60-vote threshold in the Senate. Either the Senate would have to agree to waive the rule against legislating on appropriations, waive the Senate Byrd rule, or overcome a filibuster. That is a difficult but not impossible task. Republicans are hesitant to take this path because in order to get 60 votes they would have to pull back on reversing the executive order.

There is a deeper, underlying point that uncovers Republicans’ strategic motivations. This is not a case of inability. This is a case of inaction. There is nothing procedurally hindering Republicans from pursuing a response to Obama’s executive order. They are not held back by process. They are held back by strategy.

The real reason most Republicans do not like these options is there is no guarantee the bill they want to offer the President could get to his desk. There would be no grand showdown forcing Obama into the awkward situation of choosing between his executive order or funding the government.

In other words, without non-filibusterable, must-pass legislation, Republicans cannot force the president into accepting their terms by presenting him with a catastrophic consequences if he doesn’t. And as a result, we see a lot of hyperbolic rhetoric without much motivation to back it up with legislative effort.