Suggested goals for the "lame duck" session
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The mid-term elections are essentially over, although votes are still being counted in various races including Senate races in Florida and Arizona. Funny how “early voting” seems to sludge up the electoral process. We’ll have more to say about that subject in due course.
But enough election outcomes have been determined to be sure of two things: (1) House Democrats will have a comfortable majority in the next session of Congress (which starts in early January), and (2) Republicans will have a bit more breathing room in the Senate (probably picking up 2 or 3 seats).
In theory, Republicans should try to notch as many legislative wins as possible in the remaining few weeks of the 115th Congress (aka the “lame duck session”) as things will become more difficult for them once Democrats control the House. The president tried to suggest otherwise in his post-election press conference on November 7, saying it might be easier to do legislative deals if Democrats controlled the House. Hmm, sounds a bit like the “sour grapes” story in Aesop’s Fables.
A Wall Street Journal editorial expressed a hope for gridlock in the 116th Congress, basically because the writers don’t trust the president to follow conservative policies. The Nancy Pelosi method, Wall Street Journal, 11/7/18.
Mr. Trump has no fixed policy compass on most issues, so there’s a serious risk he’ll be lured into anti-growth traps. The U.S. could do worse than two years of virtuous gridlock when nothing economically damaging happens in Washington.
But viewing the lame duck session as a window of opportunity for Republicans, what are the goals they could reasonably hope to accomplish. Here’s a suggested “to do” list for Congress and the president.
A. Budget process – The report of the Joint Select Committee on Budget and Appropriations Process Reform is due before Nov. 30. There have been no hints as to what the JSC will recommend, only indications that its recommendations will be bipartisan. [JSC] shows bipartisanship can still work in Congress, Rep. Steve Womack [one of the two co-chairs], thehill.com, 11/1/18.
Shortly after the midterms, we expect to meet our statutory deadline and report out our recommendations. Just as in any negotiation, they will not include everything I hoped to accomplish, nor will they include everything any of us hoped to accomplish. Rather, they will reflect the areas in which eight Republicans and eight Democrats from both sides of the Capitol found consensus to move the ball forward. That, in my mind, is a win.
We have no illusions that the JSC recommendations will solve the fiscal problem, which seems to reflect a lack of political will to balance the budget versus a “broken” budget process. Still, there probably are some process tweaks that would be helpful, and our thoughts on the matter were previously communicated to the JSC members and other interested parties. SAFE letter, 6/25/18.
It’s not feasible to offer an opinion on the JSC recommendations before they become available for review, of course, but if the recommendations seem sensible we would suggest they be enacted – with whatever upgrades may be deemed appropriate - in December versus carried over to the next Congress.
One point that will probably be raised is the periodic arguments about raising the debt limit. Suspended since February 2018, it is scheduled to snap back at a higher level in March 2019. Perhaps the JSC will propose ways to ameliorate the potential effects of this limit (increasing the risk of government shutdown), but our suggestion would be to recognize the debt limit as a meaningless formality and abolish it outright. Fixing the fiscal problem: work on what matters, 6/26/17.
B. Appropriation bills – Fiscal year 2019 appropriations for Defense, Labor, Health and Human Services, and Education were enacted in late September. A shutdown of other government operations, including Homeland Security, was averted by enacting a continuing resolution to provide funding until 12/7/18.
Congress should get the remaining appropriation bills taken care of in December, if necessary extending the deadline by a few days, if nothing else to demonstrate that it can comply with its own budget rules. The only major sticking point, to our knowledge, is “border wall” funding.
Before the elections, a tentative commitment had been made by the Republican leadership to approve up to $5 billion in funding for border barriers (a wall in some areas, fencing in others). While the president might have preferred an assurance of full funding for the facilities that are envisioned, he was reportedly willing to settle for this proposal. Trump poised to win $5 billion to build border wall, Paul Bedard, Washington Examiner, 9/14/18.
. . . the Senate has already locked in the $1.6 billion Trump sought this year in wall construction funding in a bipartisan vote and it will be included in the stopgap bill. The House is likely to approve $5 billion for the wall, matching Trump’s top level wish and setting up negotiations with the Senate.
Given the mid-term election results, it’s unclear that this understanding is still valid – and at best it will expire at the end of the lame duck session. Also up in the air is the amount of wall funding, i.e., would it be $5B, $1.6B or something in between?
Supporters of current immigration policies (which have permitted a continuing influx of illegal immigrants) may propose a larger deal on immigration, in which the president would offer a path to citizenship for illegal immigrants that are covered by the Deferred Action for Childhood Arrivals (DACA) program in return for more wall funding and perhaps other concessions (but not all the terms he previously proposed, e.g., merit based immigration and a crackdown on “sanctuary cities”). The lame duck session could be seen as a GOP window of opportunity for such a proposal, in that Democrats might be less receptive after taking control of the House. Stealth amnesty bills coming in lame-duck session, Neil Munro, breitbart.com, 11/9/18.
Businesses and progressives, Democrats and Republicans, will try to sneak a bipartisan amnesty bill through Congress’ lame-duck session in December as voters are distracted by Christmas, say pro-American immigration reformers. “This is why they come back for a lame duck — so they can accomplish all the things they could not do when the voters’ eyes on them,” said Rosemary Jenks, the director of government relations for NumbersUSA.
One could certainly argue that an overall deal on immigration issues is long overdue, but the two parties don’t seem ready to resolve their differences and it would seem more productive to settle the immediate question about the amount of wall funding and leave the other issues open for further discussion.
The president suggested at his post-election press conference that a deal on the status of DACA-eligible immigrants collapsed after a court decision blocking his administration’s decision to terminate the DACA program set up (without legislation) by the previous administration. And so matters would probably stand until the DACA termination issue was decided by the US Supreme Court. Transcript of White House press conference, 11/7/18.
I think we could really do something having to do with DACA. And what really happened with DACA — we could have done some pretty good work on DACA. But a judge ruled that DACA was okay. Had the judge not ruled that way, I think we would have made a deal. Once the judge ruled that way, the Democrats didn’t want to talk anymore. So we’ll see how it works out at the Supreme Court.
The next day, an appellate court decision (by the 9th Circuit, natch) was announced that upheld the lower court’s ruling. This presumably means the DACA termination issue will be taken up by the Supreme Court, with a decision by June 2019. Federal appeals court deals blow to Trump on DACA, trumptrainnews.com, 11/8/18.
C. Trade treaty – Negotiations were recently concluded on a trade agreement with Canada and Mexico. It basically represents a modified and updated version of the North American Free Trade Agreement (NAFTA), which the president has repeatedly attacked as a terrible deal, but bears a new title of US, Mexico, Canada (USMCA) trade agreement.
Under the trade promotion authority legislation that was renewed during the Obama administration, the USMCA requires up or down approval by both houses of Congress. This compares with the requirement that a treaty be ratified by a 2/3 vote of the Senate only.
There was considerable concern about the economic consequences of abandoning NAFTA, and pro-trade Republicans were reportedly relieved by the USMCA agreement. Despite administration efforts to tout it as a big win, however, USMCA does not enjoy strong positive support. Can Trump rally Congress behind USMCA? Eric Kulisch, autonews.com, 10/8/18.
The business community's reaction has been relief more than satisfaction. The agreement maintains the duty-free trade zone on which integrated supply chains and agricultural producers depend, though it adds compliance costs. And it ends the 20 months of uncertainty that froze investment decisions. But beyond that, there's no ringing endorsement.
Given the mid-term election results, it might be advantageous to get USMCA approved during the lame duck session instead of waiting to see what favors the House Democrats may seek for their support next year. The timing would be tight, however, and it’s not clear that a bid for expedited consideration would succeed. Ibid.
Republican leaders, especially Mitch McConnell in the Senate, have bent parliamentary norms and rules to speed votes on pet issues, such as last year's attempt to repeal the Affordable Care Act and this year's effort to confirm Judge Brett Kavanaugh to the Supreme Court. But those issues have ideologically galvanized Republicans. The political stakes aren't as high for them on a NAFTA update and may not be enough motivation to ignore rules they wrote for advice and consent on trade policy, the former U.S. trade official said.
D. Investigations – The president and his supporters have been under investigative fire since before he was elected, and the pressure certainly won’t lessen as the result of the elections. House Democrats have already made clear that they intend to continue investigations in several areas and start some new ones. Trump prepares for “beautiful” war with House Democrats, Susan Ferrechio, Washington Examiner, 11/8/18.
•Further consideration of alleged Trump collusion with Russia in the 2016 elections, which GOP members of the Intelligence Committee previously concluded didn’t happen.
•New investigations into Trump immigration policies, e.g., attempt to separate illegal immigrants from their children at the southern border.
•Forced production of Trump tax returns.
•Pursuit of any misconduct that could arguably justify the president’s impeachment, e.g., the just broken story about how the FBI has determined that the president was actively involved (counter to previous denials) in approving arrangements to pay “hush money” to two women with whom he allegedly had sexual relationships and that the payments might have involved campaign finance violations.
In addition, the Mueller probe of Russian collusion and related matters would be expected to run its course – possibly providing grist for impeachment proceedings or new investigations. And rumor has it that Mueller’s findings (whatever they may be) are currently being finalized. Sources: Mueller writing his final report on Russia probe, submission timeline unclear, Chris Vlastos et al., abcnews.com, 11/9/18.
The post-elections resignation of Attorney General Jeff Sessions and appointment of Andrew Whittaker (his chief of staff ) as acting AG have sparked a lot of pushback to the effect that Whittaker must keep his hands off the Mueller probe. Coons calls for recusal from AG, Josephine Peterson, News Journal, 11/9/18.
None of the foregoing bears a direct relationship to the lame duck session. Some of the efforts are already in motion and will inevitably play out, such as the Mueller investigation. Other efforts are prospective, and would only happen after Democrats take over the House.
But there are also some Republican-initiated investigations underway in the House, such as the investigation of alleged misconduct of FBI, DOJ and intelligence officials that led to an official investigation of the Trump campaign starting in July 2016 and continuing as the Mueller probe after FBI Director James Comey was fired, arguably based on “oppo research” paid for by the Clinton campaign.
High ranking officials from the aforesaid agencies have seemingly attempted to stonewall the House investigations, perhaps banking on a change in control after the mid-term elections. And it appears that said investigations may be abruptly dropped after the House Democrats take over. Rep. Adam Schiff weighs in on what’s ahead for House intelligence committee, Mary Louise Kelly, npr.com, 11/7/18.
You know, I think it's going to be enormously important that the committee protect the investigation of Bob Mueller instead of attack it. So that will be quite a sea change for our committee. But we're also going to want to restore the relationship between our committee and the intelligence community and law enforcement that was so badly damaged by the publication of the [Rep. Devin] Nunes memorandum.
Dropping these investigations would be highly undesirable, in our view, given the impressive body of evidence that has been painstakingly accumulated re high level official misconduct. To prevent such a result, action is needed to declassify and release some of the key documents so the American people can make up their own minds about the matter rather than being forced to accept official/media denials at face value. Burying the other Russian story, Wall Street Journal, 11/9/18.
A few weeks ago Mr. Trump decided to release important documents, only to renege under pressure from Deputy AG Rod Rosenstein and members of the intelligence community. Mr. Sessions resigned this week and perhaps Mr. Rosenstein will as well. Meantime, Mr. Trump should revisit his decision and help Mr. Nunes and House Republicans finish the job in the lame duck session of revealing the truth about the misuse of U.S. intelligence and the FISA court in a presidential election.
Proceeding along these lines would be far easier while Reps. Devin Nunes, Bob Goodlatte, and Trey Gowdy are in charge of their respective committees than it will be after Democrats take over next year.
How about it, Mr. President, didn’t you promise to “drain the swamp” and isn’t it time to make good on that promise by ensuring a fair and balanced investigation of what happened during the 2016 presidential election versus a one-sided narrative?
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If the members of the 115th Congress could get these four things done between now and year-end, they could leave DC for the holidays with their heads held high. But it remains to be seen how successful they will be in that regard.
As for the next session of Congress, SAFE’s view – informed by a lively discussion at the November 9 meeting – is that the next two years won’t be very productive. The political craziness isn’t going away, the 2020 presidential campaigns have already begun, and very few of our political leaders have realistic plans for attacking the real issues.
Stay tuned – much more to come.
#“Mr. Trump has no fixed policy compass on most issues, so there’s a serious risk he’ll be lured into anti-growth traps. The U.S. could do worse than two years of virtuous gridlock when nothing economically damaging happens in Washington.” [cited quote from a Wall Street Journal editorial]
The president is a business person and contentious about efficiency and costs. What kind of a trap or traps might this be? – SAFE director
The WSJ editorial predicted that Rep. Nancy Pelosi, as Speaker, would try to tempt Mr. Trump “with poll-pleasing deals on raising the minimum wage, mandating family leave (the Ivanka Trump-Marco Rubio entitlement), and imposing price controls on prescription drugs” – all of which “would have destructive economic consequences.”
Further, at his post-election press conference, the president gratuitously declared that he would be open to reversing some part of the hard-won reduction in corporate taxes to support additional middle class tax cuts.