Assessing record of the 114th Congress

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In the 2014 mid-term elections, Republicans increased their majority in the House and regained control of the Senate, leading some to hope for a conservative shift in the arc of government policy. It quickly became apparent, however, that this wasn’t a likely outcome. Calibrating SAFE’s agenda in the post-election environment, 11/10/14.

At a press conference on November 5, and again when congressional leaders were invited to the White House on November 7, the president expressed a desire to work with all concerned. But no adjustments in policies or approach were mentioned, and many observers felt his offer of cooperation was insincere.

Also, a showdown [was] looming re the president’s planned executive order on immigration policy. *** [And if] a fine lunch (Bibb lettuce salad, herb-crusted sea bass, and pumpkin tart) at the White House later that day was supposed to improve the atmosphere, it didn’t work. A press release put out by Boehner’s office afterwards could hardly have been blunter.


Two weeks later, the Department of Homeland Security issued a flurry of memos that effectively exempted some 5 million people from US immigration laws. The rationale was prosecutorial discretion, which clearly applies in individual cases but has not commonly been applied to large classes of people. Republicans characterized this move as a usurpation of the powers of Congress, but a proposal to defund DHS implementation was abandoned after Democrats made clear that they were prepared to play the government shutdown card. Something’s got to give in the US Senate,
2/23/15.

The only real challenge to “executive amnesty” has been a lawsuit filed by numerous states, which at this point has resulted in a stay of the DHS policy changes pending a determination as to their legality.

The 114th Congress (2015-2016) has also been ineffectual in other areas, and there isn’t much hope for improvement when the members reconvene next week. The only “must do” for the September session will be granting spending authority for a portion of the new fiscal year (starts October 1) so as to avert a government shutdown. Instead of attempting to highlight Democratic vulnerabilities, congressional Republicans are reportedly keen on projecting an image of bipartisan cooperation. What are Republicans planning to make their end-of-the-year focus? Fulfilling Obama’s jailbreak agenda, Daniel Horowitz, conservativereview.com,
8/26/16.

The closing argument for Republicans this election will be to end the congressional session by consummating Obama’s #1 remaining legacy item of mass jailbreak – all at a time when crime is rising in many major cities for the first time in over two decades and most swing voters in the suburbs are generally concerned about safety and security more than ever before.  Haven’t Republicans watched the disaster of California’s Prop 47, which implemented a similar scheme on a state level, and has led to record low arrests and rising crime?

If there are to be any notable congressional accomplishments this year, they will take place during the “lame duck” session (so named because the president and several dozen legislators will not be occupying their current positions in 2017), which will begin on Nov. 14 and run until Congress adjourns for the holidays.

Year-end sessions have often facilitated the passage of bad legislation, as for example the massive spending and tax bill – stuffed with special interest provisions - that was enacted in December 2015. Some thoughts about the omnibus budget package,
1/11/16.

A few issues deserve to be addressed after the elections, however, and the lame duck session will provide an opportunity for doing so. Our suggestions will follow for making the most of this opportunity while limiting downside risks, but first here’s a bit more about the trials and tribulations of the 114th Congress thus far.

I. Lots of talk, not much action – Politics is the art of the possible, as the maxim goes, and we don’t plan to second guess the strategies of the Republican leadership in Congress. Nevertheless, it would be hard to identify any “conservative” gains of consequence that have been achieved since the GOP won a Senate majority.

Some conservative bills were passed in the House, only to be blocked by Democratic-led filibusters in the Senate. As a result, they weren’t even brought up for debate in the Senate, let alone voted on. A handful of conservative bills did survive the legislative gauntlet, notably approval of the Keystone pipeline and, thanks to employment of the arcane reconciliation rules, repeal of certain provisions of GovCare. The president vetoed these bills, however, and there wasn’t any notable public reaction.

Efforts to restore order to congressional budget procedures fell flat in 2015. Republicans succeeded in passing a congressional budget resolution (which doesn’t require presidential approval) for the first time in years, but appropriation bills in line with the budget were blocked by Democratic-led filibusters in the Senate backed up by veto threats from the White House. Another budget shutdown looms,
8/17/15.

Republicans were unable to pass a budget resolution this year due to a backlash from House conservatives, but there was a general understanding about overall spending levels and Congress made better progress on appropriation bills than in 2015. Without a six-week summer break, some of these bills might actually have been completed so they could be sent to the president for signature before the September 30 deadline. As it is, a continuing resolution will probably be needed again. Budget and appropriations: What Congress did and didn’t do before their 2016 summer break, Ryan McCrimmon, cqrollcall.com,
7/15/16.

The fiscal 2017 appropriations process was supposed to be front and center on lawmakers’ list of accomplishments to show constituents over the summer recess. Republican leaders in each chamber pledged early in the year to make a bit of appropriations history and complete work on all individual spending measures for the first time in two decades. So far, they’re zero for 12, and a stopgap spending measure likely will be needed in September to avoid a government shutdown when fiscal 2016 expires Sept. 30. But lawmakers have at least laid the groundwork for potentially completing their work later this year.

Meanwhile, the administration has continued to pursue a left-leaning agenda without seeking congressional approval or even input. Executive amnesty has already been discussed. Here are some illustrative examples from other areas: Clean Power Plan (one of a series of costly regulations issued by the Environmental Protection Agency to discourage the use of coal and other fossil fuels) - Iranian Nuclear deal (cast as a non-treaty to avoid the need for Senate ratification) - Paris climate agreement (again cast as a non-treaty) - “net neutrality” regulations of the Federal Communications Commission, which abrogated a longstanding exemption of the Internet from government regulations - proposed Department of Labor regulations to more than double the salary ceiling for workers entitled to mandatory overtime pay, etc.

For all our good advice, including a suggestion that Congress pass the REINS Act so as to require explicit congressional approval before major new regulations are put into effect, Congress has done essentially nothing to counter this assault on its central role (see Article I of the Constitution) in our governmental system. Congress must rein in administrative agencies,
1/19/15.

The only credible resistance to executive branch power grabs has been the filing of court challenges by the states and other aggrieved parties. The Clean Power Plan is currently stayed, as is executive amnesty. A circuit court ruling upheld the net neutrality regulations. It’s been suggested that the next administration could repudiate the Iranian Nuclear deal or Paris climate agreement, although this wouldn’t necessarily be feasible.

II. Balance of power – In strategizing for the lame duck session, one would like to know the outcome of the November elections. As of now, here’s how things look:

#Clinton is running ahead of Trump, but the polls are tightening and unforeseen developments could tip the outcome one way or the other. Tight race or trouble: Where does Trump really stand? Gabby Morrongiello, Washington Examiner,
8/27/16.

"I don't think Republicans are wrong about the polls tightening," said Geoffrey Skelley, associate editor of Larry Sabato's Crystal Ball at the University of Virginia Center for Politics. "It seems reasonable to me that in a country that is very polarized, even with Trump's many issues, his numbers could improve. Obviously with Clinton there is a lot to attack so it's not like she's the strongest Democratic candidate." *** [Skelley went on to suggest, however, that Trump is in need of “outside help” (e.g., another terrorist attack, bad economic news, or further disclosures re the e-mail or Clinton Foundation controversies) to overcome Clinton’s current lead.]

#Republicans currently enjoy a 54-46 majority in the Senate, but they will have to defend a lot of seats and are waging an uphill fight. Democrats have a 60 per cent chance to retake the Senate, Josh Katz, msn.com,
8/25/16.

This year, the Democrats are defending only 10 seats while the Republicans have to preserve 24. On fundamentals alone — that is, historical voting patterns, the candidates’ political experience and fund-raising — the Democrats would have about a 50-50 shot to win the Senate. The latest Senate polling improves this figure to 60 percent.

#The Republican margin in the House (247-188) will probably be reduced somewhat, but it appears unlikely that the Democrats will take over. Larry Sabato’s Crystal Ball, last updated
8/10/16.

Current outlook: Democratic gain of 10-15 seats, short of the 30 net seats they need to gain to win the House.

In sum, it looks like the government will continue to be divided, i.e., neither party will hold the White House and both houses of Congress in 2017.

III. Key issues – Here are several matters that are likely to come up in the lame duck session, with suggestions for how they should be handled.

SPENDING - As already discussed, Congress must pass legislation authorizing the government to keep spending money in the new fiscal year. This will need to be done by September 30 to avert a government shutdown. Despite the progress that has been made on specific authorization bills, they probably can’t be completed in time. The stopgap solution would be a continuing resolution (CR), which would provide for spending until a designated date after the elections.

The CR could be set to expire during the lame duck session or it could run until the 115th Congress and new president took office in 2017 and had time to take charge of the situation. Some conservatives would greatly prefer the latter option; their rationale is that the president and departing members of Congress should not be allowed to participate in crafting a year-end omnibus appropriations bill that would have effects extending beyond their time in office. House conservatives don’t want a “lame duck” Obama to have say on government funding, Josh Siegel, dailysignal.com,
7/7/16.

“I think we should avoid a lame duck session,” said Rep. Louie Gohmert, R-Texas, in the briefing for reporters Thursday. “You’ve got Harry Reid leaving, you’ve got President Obama leaving, and this is a chance to just line up the Christmas tree for all the wants for the future. We need to really to avoid that happening. There’s too many people that would love to make deals to just overwhelm the American public and we do not need that to happen if we are going to salvage this little experiment in democracy.”

We agree. Also, setting an expiration date of, say, March 1, 2017, could eliminate potential excuses for not completing and enacting the individual appropriation bills that House Speaker Paul Ryan, Senate Majority Leader Mitch McConnell, et al. promised earlier this year. It’s high time to break the pattern of passing omnibus appropriation bills, cobbled together behind closed doors, with very little opportunity for most members to review and ask questions about the relevant details before being called on to vote.

TRANS-PACIFIC PARTNERSHIP – SAFE commented earlier on this massive, 12-nation trade deal. Although generally in support of free trade, we suggested that Congress should review the TPP carefully before approving US participation – and, if necessary, push for renegotiation of any troublesome details. Trans-Pacific Partnership – yes, no or maybe?
11/16/15.

Both Trump and Clinton have disavowed the TPP and committed to block its implementation. Trump has been a long-time critic of trade deals, and his opposition to the TPP is chiseled in stone. Clinton’s position seems politically opportunistic, and it’s possible that she would find reason to change her mind after the elections. Dueling economic plans,
8/15/16.

The window of opportunity to push the TPP through Congress will be the lame duck session; the TPP can’t be safely supported by either party before the election and the president will leave office in January. Obama readies one last push for Trans-Pacific Partnership, Jackie Calmes, New York Times,
8/21/16.

Most conservatives (contra moderate Republicans) oppose the TPP and view a bill to approve it as the kind of controversial legislation that should not be taken up in a lame duck session. Kill the 2016 lame duck session, Rick Manning, conservativereview.com,
4/17/16.

. . . the only possible reason for bringing up legislation like the Omnibus or this year, the Trans-Pacific Partnership, in a lame duck is to allow some members to claim opposition during their re-election campaign and then vote in favor of it once the votes have been cast. 

Critics have gone so far as to suggest not having a lame duck session at all lest it be used to get the TPP approved. Obama plotting to ram TPP through Congress in lame duck, Alex Newman, thenewpatriot.com,
8/25/15.

Senate Majority Leader Mitch McConnell has now joined forces with opponents of the TPP, declaring that there will be no vote on it this year, supposedly because changes are needed. [Sen. Bernie] Sanders praises McConnell for blocking TPP vote, Sean Higgins, Washington Examiner,
8/26/16.

McConnell made the announcement during an appearance before the Kentucky Farm Bureau. After arguing that trade deals have been a boon for the state's farmers, the majority leader said that TPP had "serious flaws (and) will not be acted upon this year." McConnell expressed hope that it would come up next year but only after it is "massaged, changed, worked on."

We disagree. Negotiations on the TPP started years ago, and reducing trade barriers is one of the president’s better ideas. If the vote on the TPP is “no” subject to the next administration’s right to renegotiate and resubmit it, fine, but he deserves a vote on it before leaving office.

SUPREME COURT VACANCY – By declining to take up the nomination of Merrick Garland (chief judge of the DC Circuit Court of Appeals) to fill the vacancy created by the death of Justice Antonin Scalia, Senate Republics basically gambled that the GOP presidential candidate would be elected. If so, the new president could nominate a more conservative candidate next year, thereby averting a fundamental shift in the ideological balance of the Supreme Court.

If it pays off, this gamble will be seen by conservatives as inspired – never mind that (1) it creates a precedent that could be invoked against a Republican nominee in the future, and (2) the GOP took a lot of flak as a result. Note that the
scotusblog website is displaying the number of days (now up to 166) “of Senate inaction since the nomination of Merrick Garland to the Supreme Court.”

Should Clinton be elected president, however, Senate Republicans might do well to initiate a review of the Garland nomination and – unless unfavorable information surfaced – confirm it during the lame duck session. Otherwise, Clinton could abandon Garland and nominate someone else who was more liberal and younger.

KITCHEN SINK – No doubt there will be a push for action on other issues during the lame duck session, and if any good conservative bills come to the fore we reserve the right to support them. Otherwise, our suggestion would be to wait until next year, e.g., why the rush to pass a big “prison reform” package? Fulfilling Obama’s jailbreak agenda, op. cit.,
8/26/16.

The same conclusion applies a fortiori for the energy bill (reconciliation of bills passed by the Senate and the House) that is being pushed by the National Association of Manufacturers and other special interests. Lobbyists ramp up pressure on energy bill, John Siciliano, Washington Examiner,
8/28/16.

Not that changes in energy policy aren’t needed, nor that all the ideas being considered are necessarily bad. But given the starting premise for the Senate bill, the end result was almost sure to be bad – and we saw this movie before in 2007. Spare us another bipartisan energy bill,
5/23/16.

Considering that Republicans control both houses of Congress, their failure to pass some constructive energy legislation is disheartening. By settling for legislation Senate Democrats won’t filibuster, the GOP is practically ensuring government control over the economy will keep growing – sometimes fast, sometimes slow, but never stopping – as it has been for over 100 years.

**********FEEDBACK**********

The “moderate” Republicans have found a way to torpedo themselves as usual. – SAFE director

It's all about making an argument and winning the debate, but that’s hard work.  No wonder so many of the members just go along to get along.  Letting the appropriation bills slide for six weeks and then acting surprised that they aren’t done is just unreal. – Civic activist

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