Shutdown Endgame

I am writing this on a weekend.  We are currently engaged in a partial shutdown of the Federal Government.  As I start writing this post this particular shutdown is now officially the longest on record.  And no one knows how or when it is going to end.  We weren't supposed to get here.  But here we are.

The basic motivation for starting this blog was to provide a counter narrative when I thought a large percentage of what was being said about something was nonsense or ill informed.  This morning it occurred to me that "the shutdown" definitely qualifies.  I have seen a lot of noise and hot air and little intelligent analysis on the subject.  So here's what I have to say.

Consider the unthinkable.  Some event, either in its basic nature or in its consequences, is so horrendous that any reasonable person will feel compelled to do whatever is necessary to make sure it does not come to pass.

In political parlance, we used to have the "must pass" bill.  Not passing the bill was unthinkable.  So, if compromises must be made then they must be made.  So a long standing trick employed by smart legislators was to attach a "rider" to a must pass bill.  (A rider is a small addition that may or may not have anything to do with the main bill.)  But the point is that if you succeeded in getting the rider attached, you were pretty much guaranteed it would become law.  The "must pass" bill must pass, so it will.

Warren G. Magnuson, a long time Senator from my state (he died in 1981) was famous for doing this.  And, as long as it was used sparingly, people grumbled but that was about it.  And someone like Magnuson was accorded grudging respect for being a canny legislator.  And the tactic worked in Magnuson's day because "must pass" legislation passed.  Why?  Because it was unthinkable to not pass a "must pass" bill.  So people grumbled and complained.  But in the end the bill passed.

But this was an abuse of power.  It was just a traditional abuse of power that over time got accepted as one of those things that everybody just had to learn to live with.  And Magnuson was careful to only occasionally resort to this tactic.  And he only did it on relatively small and relatively noncontroversial issues.  A bridge in Seattle got wrecked unexpectedly.  Magnuson snuck funding in a rider to a "must pass" bill that put the Federal Government on the hook for paying most of the cost of the replacement.

So, other than resorting to the underhanded trick of slipping a rider into a "must pass" bill, it was standard issue pork barrel politics.  The amount of money was in line with other pork barrel projects being pushed by other legislators.  And that's the way things used to work.

But then some smart people asked themselves just how far this sort of thing could be pushed.  How about asking for something that would otherwise have been completely unreasonable?  The responsible people would end up sucking it up and voting for the bill even though it now included some horrible component because it was "must pass".  (If you want an example, liberals think the "Hyde Amendment" is horrible.  Conservatives can site examples of things they find equally horrible.)  For a long time this worked.  "Must pass" was must pass, until it wasn't.

For a long time funding the government by passing "appropriations" bills on time every year was considered "must pass".  It was unimaginable to leave the government unfunded, wasn't it?  But over time the brinksmanship kept getting ratchetted up.  Before continuing, let's take a moment to understand how the process is supposed to work.

The Fiscal Year for the Federal Government runs from October 1 of one year through September 30 of the next.  The appropriations process starts with the President submitting a detailed budget request in late January or early February.  This is turned into a Budget Resolution by the House Ways and Means committee and the Senate Finance committee.  The Budget resolution is strictly internal to Congress and provides guidance to the various appropriations committees as to how much money they have to spend.

At the same time the budget is broken up into about a dozen "appropriations" bills, roughly one for each cabinet department.  These department level budgets are processed by the various congressional committees that have oversight responsibility for the department in question.  They hold hearings and go through a "markup" process (making technical - and frequently not so technical - changes) to the budget bill that covers their area of responsibility.

So the Department of Defense gets its budget bill.  The State Department gets its budget bill.  And so on.  When the Budget Resolution is finished and agreed to by the House and the Senate each appropriations bill is expected to conform to the guidance contained in the Budget Resolution.

Generally speaking, work on the Budget Resolution will wrap up in June.  Each appropriations bill goes through the House first (the Constitution requires this) and then moves along to the Senate.  The Senate can, and usually does, make changes.  A "reconciliation" committee consisting of members from both the House and the Senate is now formed to iron out the differences and produce a single bill.  This final version goes back to each body for "final passage".  If that goes according to form it goes to the President for signature.

The President usually signs it but can veto it.  If the bill is vetoed then supermajorities of both the House and the Senate can override the veto.  Or Congress can rework the bill and pass the updated version back to the White House for signature.  Typically appropriations start becoming law in August.  All of them are wrapped up by the end of September.  When that happens all is well and the entirety of the government is funded for one more fiscal year.  Of course, the whole thing starts over a few months later.

It's a complicated process.  And the farther along you get the more rigid it gets.  The House and Senate appropriations bills can be amended right up until the moment they pass.  But whatever comes out of the reconciliation process is carved in stone.  Congress can also make no modification to a bill that has been vetoed if they want to override the veto.  What this means is that one of the best points to insert a rider is in the reconciliation process.  If you can get it by your fellow committee members you are pretty much home free.

I think you can see why the whole process starts many months before the due date of October 1.  And the closer October 1 comes the less practical flexibility there is.  So inserting (or deleting) your change as close to the last minute as you can manage is the best way to make sure it survives the process.  And this late stage leverage, if you have it, means that lots of people find it advantageous to delay things until the absolute last minute.

Power players have long known this.  The result is that the orderly process I have outlined above has been breaking down more and more often.  More and more appropriations bills are passed out of Congress late in September.  And the process can break down even further.  What if an appropriations bill is literally not ready.  Enter the Continuing Resolution (CR).

A CR is a super simple bill that just says "keep funding everything at the old levels with no change".  That is a "clean CR.  It is also possible to add riders.  It is only practical to add a few.  But they represent too good of an opportunity to pass up.  So a CR is a great place to insert a rider.  Especially since a CR is even more "must pass" than a regular appropriations bill.

But what if the unthinkable is actually thinkable.  The thinking went for a long time that if anyone sabotaged a "must pass" bill the wrath of God would descend upon them.  Their reputation would be shot.  Their career would go down the tubes.  And that would be that.  But you know that at some point someone would try it.  And the unthinkable happened for the first time in 1976.

President Ford vetoed the funding bill for what were then the departments of Labor, Health, Education, and Welfare.  That didn't cause a shutdown because Congress overrode the veto.  But the resulting distraction gummed things up enough that the regular appropriations bills got hung up.  So the government shut down for 11 days.  And the world did not end.  Sure, Ford lost his bid for re-election.  But the general consensus was that the cause was not bad behavior of anyone's part.  It's just that the general chaos got out of hand.  And with that, the unthinkable became thinkable.

By one count, if you include the current one, we have now had a total of twenty shutdowns.  There is now a whole process in place to make the whole thing routine.  And the concept of a "must pass" bill has been consigned to the dusty bin of history.  And, oh by the way, the CR has also become routine.  The idea that we should have a thoughtful, disciplined, and responsible budgeting process has also gone the way of the dinosaur.  Now it's all gamesmanship.  The idea of thoughtfully and deliberately going through a process for determining what the Federal Government should and should not spend its money on can now only be described as quaint.

So we now are where we are.  Ostensibly, we are fighting over whether a few billions of dollars should be spent on a wall.  This is out of a budget that totals a couple of trillion dollars.  But that is now our reality.  And the actions (or inactions) that put us here this time around are all attributable solely to the Republicans.

Back when the current budget was supposed to be getting assembled Republicans controlled the House, the Senate, and the White House.  And they managed to pass and get signed into law appropriations bills covering about three quarters of the Federal Government.  Why didn't they complete the job?  Ask the Republicans.  Why didn't they include funding for the wall at whatever level they thought appropriate?  Ask the Republicans.

Democrats were in a position to slow the process down somewhat.  But they were not in a position to stop anything.  And this was true right up to January 3, 2019.  That's when the politicians who were up for election in 2018 and won, got seated.  And, of course, Democrats picked up 40 (and perhaps 41) seats in the House.  So from that day forward they controlled the levers of power in the House.

But let's backspace to December when Republicans controlled everything.  The election was over but the new members have not yet been seated.  This is called a "lame duck" session for reasons that are unknown to me.  Anyhow, during that session a deal was struck.  A CR including funding for all of the remaining departments through February 8, 2019 had been agreed to.

House Democrats and Republicans had signed off on it.  Senate Democrats and Republicans had signed off on it.  The White House had signed off on it.  All that was left was to step through the process necessary to turn the deal into law.  That process should have taken only two days.

And the Senate immediately did what it was supposed to do.  Any single Senator can force a "recorded" vote.  That's where the Senate staff polls each and every Senator on the Senate floor.  When everybody has been heard from the tally is formally recorded showing how each specific Senator has voted.  But this is a time consuming process.

If no one objects there is a quick and dirty alternative.  Whoever is presiding over the Senate calls the question.  Senators shout out "Aye" or "Nay" and the presiding officer says "in the opinion of the chair the Ayes have it" or "in the opinion of the chair the Nays have it".  If no one objects that's it and the whole thing takes less than a minute.

And that's what happened.  The Senate approved the CR bill on a voice vote.  And the only time you have a voice vote is when all the Senators are in agreement and they all also think the vote is totally noncontroversial.  But then before the House had a chance to vote several rabble rousers on Fox got on TV and started calling Trump a coward.  And Trump told the House he had changed his mind.

The CR contained $1.3 billion for general border security but nothing specific for the wall.  Trump now said he would veto anything that didn't have $5.7 billion for his wall.  So the House, then still under the control of the Republicans, amended the bill the Senate had passed and sent it back to the Senate.  The Senate was unable to pass this modified version (and we were back to doing recorded votes).  And the old CR ran out and a quarter of the government got shut down.

And since then the Democrats have taken control of the House.  And they are not going to fund the wall at any level.  And Trump says "no wall - no funding".  So we are at an impasse.  So how does the impasse get broken?  That's where most of what the talking heads have to say is either pure hot air or nonsense.

Shutdowns end in one of two ways.  It might have been caused by some kind of small technical problem.   Everybody gets together and fixes the problem.  There is good will on all sides so this doesn't take long.  The fix is passed into law and everybody goes back about their business.  So that's one way a shutdown ends.  The other way is a lot more ugly.

A number of shutdowns have been the result of an actual difference of opinion.  One side says "red".  The other side says "blue".  Until everybody can settle on a color we are all stuck.  That's the kind of shutdown we now have.  These kinds take a lot longer to resolve and that's why we are in record setting territory when it comes to the duration of the shutdown.

These kinds of shutdowns generally devolve into a blame game.  Who is responsible for the shutdown?   Whoever gets the blame sees their popularity decrease.  Once the losing side has been clearly determined then that side gives ground and a resolution close to the position of the other side ends up being agreed to.  From there, things progress along a path similar to the "technical problem" case.

So who's winning and who's losing in the popularity contest that surrounds the current shutdown?  The Democrats are winning and the Republicans are losing.  But things have gotten a lot more complicated than they were the last time we had a contested shutdown.  There have been structural changes so the old formulas no longer work.

Trump is widely blamed for the shutdown.  This is because he is the one who reneged on his promise to support the CR.  He also publicly accepted responsibility for the shutdown before it even began.  That should mean that his popularity is sinking like a rock and he will soon be forced to change his behavior.  But we now live in an "alternate facts" world.

His support has not declined.  His supporters either don't believe it's his fault or they think it is okay to shutdown the government in order to secure funding for the wall.  He has long since given up on getting support from any group other than his hard core base.  The fact that whatever popularity he had among other groups is shrinking is not important to him.  So he sees no reason to change his behavior.

The same is not true of other Republicans.  Many of them depend to some extent on support from groups who are not part of Trump's hard core base.  Nobody among these groups is happy about the shutdown.  They do blame Democrats but only to a modest extent.  Mostly they blame Republicans in general and Trump in particular.  The problem for Republicans is that they depend critically on Trump's hard core base.  Those people demand loyalty to Trump.  If Republicans get on the bad side of Trump loyalists they are in big trouble.

Now let us turn to the Democrats.  They just won big in 2018.  Voters in general preferred Democrats to Republicans by a wide margin.  Gerrymandering and other issues meant that this did not translate to an improved situation for Democrats in the Senate.  But it did in the House.  Democrats believe rightly that their base expects them to oppose the wall.  The Democratic base blames Republicans and Trump for the shutdown by lopsided margins.  So from a political perspective there is no reason for Democrats to change their position.

But wait.  There's more.  History tells Democrats that if they concede on the wall Republicans will move the goalposts and ask for more and more and more.  Trying to compromise with Republicans has not resulted in good outcomes from the Democratic perspective.  After 9/11, for instance, Democrats went along with the Bush agenda out of a sense of patriotism and solidarity.  It didn't get them anything from Republicans.  Instead Republicans just dug in harder and demanded more.  So from a tactics perspective, backing down looks like a bad idea to Democrats.

The situation in the Senate is interesting.  Democrats are holding firm.  Some Republicans depend on moderates to win elections.  Moderates have said loud and clear they don't want a wall.  But moderates are the smaller group.  Trump supporters make up the bulk of the people who vote GOP.  Still several Republicans have started talking publicly about reopening the government.  But talk is cheap.

The key player in all this is Senate Majority leader Mitch McConnell.  I don't like him but I respect him.  He is a wily old fox.  He doesn't mind some members of his caucus mouthing off as long as they behave the way he wants them to when push comes to shove.  For instance, Jeff Flake has made a lot of anti-Trump noises over the last few months.  But he mostly voted the way Mitch wanted him to vote.  And he didn't even say a thing until last Spring when he lost in the GOP Primary in Arizona.  That meant he had to go home for good in January of this year.

McConnell is wise enough to give his members a little wiggle room over thing that don't matter as long as they go along with his plans when it does matter.  The GOP has a three seat cushion in the Senate.  If three people defect McConnel can still win because Vice President Pence gets a vote if there is a tie.  By my count there are five GOP senators who, on paper, have defected.  So McConnell is in trouble, right?  Right now he is not in trouble.

That's because what he has been doing so far is making sure no bill gets to the Senate floor for a vote.  As long as nothing happens that stops him from being able to hold up votes he is fine.  But theoretically, there is a way a vote could be forced.  It is called a "discharge petition".

If a majority of Senators sign such a petition then the bill, whatever bill they signed the petition to discharge, must be brought to the floor and voted on. Certainly all the Democrats (I am counting the two Independents as Democrats for the purposes of this discussion) would sign such a petition.  So all it would take is four Republicans to sign on too.  As far as I know no Republican has signaled they would sign such a petition.  That's why we are at the "talk is cheap" stage when it comes to Senate Republicans.

And McConnell's behavior is interesting.  He is Missing in Action (MIA) and has been for several weeks.  Why is this?  The answer is simple.  He currently has no good options.  For better or worse, he is currently stuck with Trump.  That's because he and fellow Republicans all need the Trump base.  The Trump base goes where Trump tells them to go.  So McConnell can't afford to annoy Trump enough to cause him to bad mouth McConnell.

And McConnell has to be very unhappy with Trump right now.  Power in Washington comes from the ability to make or stop deals.  To be effective your word must be your bond.  If you say you will do (or not do) something you must follow through 100% of the time.  McConnell has been wielding power in Washington for a long time.  His word is his bond once he signs on.  But that is not true with Trump.

And this is a behavior pattern of Trump's that goes back decades.  Trump sees welching on deals as a standard business tactic.  Normally a businessman can't get away with that behavior.  But a number of circumstances have allowed Trump to.

Originally his dad, whose word was his bond, bailed him out.  Then Trump screwed over a number of New York banks after his dad could no longer bail him out.  He was able to put off the inevitable for a while by switching banks.  But eventually that stopped working.  So he moved on to international banks.  When that stopped working he started to deal with oligarchs and corrupt governments.

That was still working but then he made the mistake of transitioning from the business world to the world of Washington D.C.  The problem for him is that there is now no other group to move on to.  But he hasn't figured that out yet.  But he is also not going to change his behavior at this late date and become someone who can be counted on to keep promises.

McConnell is inextricable bound to Trump at this point.  But he knows that Trump is and will always be an unreliable partner.  And that means McConnell literally can't make a deal that involves Trump because he can't count on delivering Trump.  So how does he make a deal in these circumstances?  He can't.  So he has gone to ground.

He is hoping something will change and give him an opening.  At that point he can jump in and get credit for saving the day.  But currently there is literally nothing he can do until something changes.  He is the key man but he is radio silent.

And the press is letting him get away with it.  They are content to blame Trump, talk to lots of Democrats and Republicans and ask inane questions predicated on ridiculous assumptions.  And while all this is going on they are giving McConnell a free pass.

There is a theoretical way out.  McConnell could secretly tell his members that he is okay with them signing a discharge petition as long as he is kept out of it.  Then when the discharge petition surfaces he would say "I had no idea this was happening and now Senate rules require me to bring the bill to the floor."  In other words, "it's not my fault".

From there we would see what happened.  Trump could sign the bill or he could veto it.  If he signed it that would be the end of that but he would get raked over the coals by the same rabble rousers that made him change his mind in the first place.  So most likely he would veto it.

That would put Republicans in both the House and the Senate in a pickle.  Do they want to make a meaningful vote?  (Republicans in that House voting against various Democratic initiatives designed to get the government back open are not making a meaningful vote.  Everyone expects these bills to die in the Senate.  As long as that holds the votes are symbolic.)

A number of Republican votes in both the House and the Senate would be required to override the veto.  But these votes would not be symbolic and everyone would be watching.  So I expect that if a bill made it to the floor a large number of Republicans would be forced to vote for it.  Remember, what we are talking about is legislation that passed the Republican controlled Senate on a voice vote and had the public support of the Republican House leadership.

The discharge petition idea works for McConnell if he can escape blame.  But I calculate that he calculates that he would not escape blame.  And I think his calculation is correct.  As long as that is so McConnell is not going to okay members of his caucus signing a discharge petition.

Right now, there is not enough pressure coming from the general public to break things loose.  As long as that remains true the stalemate will continue and that part of the government that is shut down will stay shut down.  Well, actually more of the government will shut down.

Various tricks have been used to keep parts of the affected agencies and departments at least partly open.  But many of those tricks only work for a while.  More and more of those tricks no longer work and more and more of the government is shutting down.

At some point something is going to give.  When?  I don't know.  It's the "what" that may be more interesting.  The Republican party has been skating on thin ice for a long time.  For eight years they got away with being "the party of no".  Whatever Obama was for, even if it was something with broad Republican support, they were against.

But recently they controlled all the branches of government for two years straight.  Mostly what they got done during that period was putting through a giant tax cut for the rich that started out unpopular and has only gotten more unpopular since.

They promised to kill Obamacare. They failed at that.  Trump promised to build a wall and force Mexico to pay for it.  They had two years to come through on that promise but they failed there too.  There are a number on internal contradictions that they were able to paper over during the Obama years by blaming everything on Obama.  Trump has proven to be terrible at deal making.  I could go on.

But how does this current shutdown redound to the benefit of Republicans?  Well, if the Democrats collapse and completely give in, that would be a big win.  But I am betting that won't happen.  Republicans could pull something off in the legislature (Discharge petition or something else) that would get the government funded but not the wall.  That would likely be very unpopular with a large segment of their base.

They could throw Trump under the bus, a perfectly sensible thing to do from my point of view.  But that too would be very unpopular with a large segment of their base.  Losing a big chunk of their base, even if it just turned them apathetic rather than driving them into the arms of the Democrats, would be a disaster for Republicans.

For a long time I have believed that sooner or later Democrats would have to come straight at Republicans.  Over the years I have seen Democrats forgo opportunity after opportunity to do that on issues that I thought Democrats could win on.  Maybe we have finally come to that point.  Certainly a lot of newly elected Democrats are spoiling for a fight.  If Democrats go straight at Republicans and win that might destroy the Republican party, at least in the short run.

Fasten your seatbelts.  It's going to be a bumpy night.