Is Speaker Ryan leading too much?

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.

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

That’s not likely to be the actual headline but it won’t be far off. On Tuesday, President Trump outlined his budget proposal which will include $54 billion in additional defense and homeland security spending. Those increases are coupled with deep cuts at EPA and the State Department among other nondefense agencies. On the one hand, Trump is following through on his promise to enhance the military and ramp up immigration enforcement. On the other hand, it guarantees a broken appropriations process. The chances of this budget passing are not quite zero, but they’re really close.

Sequester is the big sticking point. Following the Super Committee’s failure, this policy was triggered in 2013, capping discretionary spending for defense and nondefense until 2021. These are separate caps. The FY2018 defense cap is $549 billion. Nondefense spending cannot exceed a $515 billion cap. If Congress passes an appropriations bill(s) that exceeds either cap, it would trigger another sequester cut to remove the breach. Living under the caps isn’t really an option either, since the FY2018 caps are actually $2 billion and $4 billion below the FY2017 numbers for defense and nondefense, respectively.

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

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

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

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

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

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

The Senate passed a budget yesterday. It lacked some of the typical hallmarks of a budget resolution. Namely, the chamber did not debate in any great detail discretionary spending numbers. This budget is meant for one purpose and one purpose only: repealing the Affordable Care Act (ACA).

Following the campaign congressional Republicans set out on an ambitious path, planning to repeal the ACA within the first month of being in office. Therefore, the budget passed last night includes reconciliations instructions, which puts in motion a sequence of events that need to occur in rapid succession if they want to meet their self-imposed deadline. In the case of the ACA, this means instructing the Finance Committee and the Health, Education, Labor and Pension Committee to find at least $1 billion in savings (each) over a 10-year period, and to submit those bills by January 27th. Once those committees produce those bills, it will be introduced on the Senate floor to begin the non-filibusterable reconciliation process. Only a simple majority is needed to pass this legislation.

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

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

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

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

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Ominous Omnibus: A CR is coming.

With elections over, lawmakers make their way back to DC today. They will be faced with several pieces of important business, perhaps none more important than government spending. The current continuing resolution will expire December 9th. There was some expectation that omnibus legislation was being prepared. But with an unified Republican government around the corner, that has almost certainly changed.

Prior to the election, congressional leaders were preparing an omnibus or a few minibuses (packages of 2 or 3 appropriations bills) to fund the government at the level stipulated in the 2015 Bipartisan Budget Act (BBA). All pre-election signals indicated Congress was heading in this direction. The 12 appropriations bills that emerged from committee met the FY2017 BBA numbers, $1.07 trillion. It was widely expected that the House and Senate, with an incoming Democratic administration, would write their bills to the number, likely finding Democratic votes to push it across the finish as they had in previous bipartisan agreements.

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

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

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

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

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

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

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

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How will Congress respond to a Trump win?

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.

Posted in Filibuster, leadership, Legislative Politics, Legislative Procedure, Senate | 1 Comment

Just How “Special” Are Special Elections?

[Another version of the post was published on the Washington Post’s Monkey Cage blog.  Gibbs Knotts helped write this article.]

On September 25th, 2015, Republican John Boehner shocked the political world when he announced his plans to resign as Speaker of the House and retire from Congress.  In the aftermath of Boehner’s announcement, political commentators debated who would be the new Speaker and the role of the Tea Party in causing Boehner’s early retirement.  Less attention focused on the fact that Boehner’s resignation triggered a special election in Ohio’s 8th congressional district.

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

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

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

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

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

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

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

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

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

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

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

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Is Paul Ryan delivering on his promise for regular order?

When Paul Ryan accepted the nomination for the speakership he promised his colleagues that he’d deliver a more regular process. He promised more inclusion in developing strategy, more opportunities for amendments, and greater representation on panels that organize the chamber. So far he has delivered on some promises but continues to struggle on others. Unfortunately for the Speaker, his failures are more likely to get press than his achievements.

Speaker Ryan has delivered in areas where he has clear control. As the de facto leader of the Rules Committee he’s clearly prioritized a more liberal amendment process. Bills are coming to the floor with more opportunities for rank-and-file to alter the language. Since January, Ryan has allowed amendments at nearly a 4-1 clip (structured v. closed rules) according to the Rules Committee website. To those crying for a greater voice on legislation this has to be a welcomed development. It’s a clear break from Ryan’s predecessors in both parties and a step toward a more regular process, though it’s still a far cry from what was “regular” a few decades ago.

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

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

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

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

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

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