The Shameful Spectacle of Friday’s Coronavirus “Vote”

Ten years ago, House Speaker Nancy Pelosi (D-Calif.) infamously proclaimed that we had to pass Obamacare to find out what was in it. On Friday, she and her House colleagues enacted one of the largest pieces of legislation in American history, a more than $2 trillion bill that represented Congress’ third piece of coronavirus-related legislation, all while refusing to take a recorded position on it.

The first coronavirus bill, signed into law on March 6, provided $8.3 billion in spending to fight the virus; the second bill, signed into law on March 18, spent another $100 billion on testing, food stamps, paid family leave, and additional subsidies to to state Medicaid programs; and the third bill, which President Trump signed last Friday, contained a broader package of unemployment and economic bailouts to businesses and families.

That Pelosi would resort to such procedural chicanery should surprise few Americans. In 2010 she wanted the House to enact Obamacare without actually voting on the legislation—the so-called “deem-and-pass” maneuver—although she eventually abandoned that strategy after a massive public outcry.

But unlike the Obamacare debate, House Republican leaders and many rank-and-file members of Congress actively participated in Pelosi’s successful attempt to deny the American people a vote on the legislation. In so doing, they abdicated their responsibilities as lawmakers and leaders out of a mixture of fear and spite.

Members of Congress Are Essential

The fear came because House lawmakers did not want to travel back to Washington to vote on the “stimulus.” The combination of several representatives and senators testing positive for coronavirus (with several others in self-isolation due to potential exposure), public advisories against large gatherings and travel, the close quarters in which members congregate in the Capitol, and the advanced age of some members made them understandably nervous about a return to Washington.

But members of Congress do not have any ordinary job. Their roles as our elected lawmakers make them essential to our democracy—and Article I, Section 6 of the Constitution recognizes them as such: “They shall in all cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

While the Supreme Court has since narrowed the scope of members’ privilege from arrest, its inclusion in the nation’s founding document shows how the Framers considered full participation by all members essential to American self-rule.

Pelosi’s Incompetence Prompted the Debacle

Much of the member frustration regarding the process came not just from the fact that they had to travel to Washington, but were asked to do so on short notice—a particular difficulty given airlines’ dramatic reductions to their flight schedules. Some members could not arrive back in Washington by the time of Friday’s debate and “vote.”

But why did members have to rush back late Thursday for proceedings in the House on Friday morning? Because Pelosi mismanaged the process and then sought to blame others for her mistakes.

For starters, House members remained in their districts for most of last week only because Pelosi had sent them there. Early on March 14, House leaders dismissed members to their districts, in an attempt (ultimately successful) to force the Senate to accept the second coronavirus bill without amendments. Had the Senate made any changes to the legislation, the House would have had to return into session to ratify the Senate amendments, holding up passage. Senate Majority Leader Mitch McConnell told his colleagues to “gag and vote for it anyway.”

Ironically enough, Pelosi not three days before dismissing her colleagues claimed, “We are the captains of the ship—we are the last to leave.” Had Pelosi kept the House in session as the Senate passed the second coronavirus bill and debated the third, members would not have needed to travel back to Washington in the first place—they would have remained here.

The speaker claimed she would give members 24 hours’ notice prior to any votes, should they become necessary. But she waited until late Thursday to tell members they would have to attend proceedings in the House beginning at 9:00 Friday morning.

Following Senate passage of the third coronavirus bill early Thursday morning, Pelosi and House Minority Leader Kevin McCarthy (R-Calif.) should have instructed all members to report to Washington the following day. Instead, they wasted most of Thursday playing a game of “chicken” with the rank-and-file—daring someone to demand all members attend, and then blaming that member, Rep. Thomas Massie (R-Ky.), when he insisted the House assemble a quorum of 216 members to conduct business.

A very similar scenario happened in Congress’ upper chamber two years ago. McConnell (R-Ky.) tried to ram through a spending bill at the last minute, but miscalculated when Sen. Rand Paul (R-Ky.) raised objections. Rather than blaming McConnell for mis-managing the Senate floor, leadership staffers—and the reporters who rely on leadership staffers to spoon-feed them gossip and stories—decided to blame Paul instead.

Rep. Thomas Massie Did Not Grandstand

House leaders took the same tack with Massie last week, enlisting President Trump to attack the congressman. On Friday morning, Trump called Massie a “third rate grandstander” for insisting that members of Congress return to Washington to vote on the legislation.

But to someone well-versed in House procedure, the facts indicate otherwise. Massie had multiple other opportunities to throw sand in the proverbial gears regarding Friday’s coronavirus bill, but did not do so:

  • The House passed the rule governing debate on the bill by unanimous consent. Massie (or any member) could have objected to the House even considering the rule on Friday morning. Such an objection would have required the House Rules Committee to hold an emergency meeting, and could have postponed consideration of the bill by 24 hours. He raised no objections.
  • Massie could have demanded a vote on the rule. Demanding that vote would have required House leaders to muster a quorum of 216 members at 9:00 on Friday—a time many members were still rushing back to Washington. Massie raised no objections.
  • Massie could have demanded one or more votes on a motion to adjourn—a frequent stalling tactic the minority party in the House uses to express outrage when it feels the majority has committed a “process foul.” He never did.

If Massie truly wanted to act like a “glass-bowl,” to paraphrase a tweet by former Sen. John Kerry (D-Mass.), he could have done so. He could have wound the House in knots for much of Friday with procedural objections, parliamentary inquiries, motions to adjourn, and other dilatory tactics.

To his credit, he didn’t do any of that. Massie cared about one thing: That members of Congress have an up-or-down vote—“yay” or “nay”—on the massive, multi-trillion-dollar bill. House leaders conspired against that reasonable request.

‘Mean Girls’ Try Their Tricks in Washington

Massie, or any member of Congress, can object that the House lacks a quorum to conduct business. Article I, Section 5 of the Constitution prescribes that a majority of members (216 at present, given several vacancies) constitutes a quorum. Given Massie’s publicly stated intent to object, the House could not pass the coronavirus bill without a majority of members present in the chamber. Hence the frantic messages from congressional leaders Thursday night seeking member attendance the next morning.

But no one member can demand a roll call vote, in which each takes a recorded “yay” or “nay” position. Article I, Section 5 of the Constitution also states that “the Yeas and Nays of the Members of either House on any question shall, at the Desire of one-fifth of those Present, be entered on the Journal.”

When debate on the bill concluded Friday afternoon, Massie suggested the absence of a quorum. The presiding officer counted, and concluded that a majority of members, many sitting in the House gallery above the chamber to observe social distancing protocols, were present. But when Massie requested a roll call vote, one-fifth of members (somewhere between 43 and 85, depending on the number of congressman present in the House chamber) would not agree, meaning the $2 trillion-plus bill passed on a voice vote, with lawmakers’ positions not recorded.

Under the most charitable interpretation, members didn’t want to force a vote when at least dozens of their colleagues could not participate, either because they remained in quarantine or couldn’t get back to Washington in time. But consider Clause 10 of Rule XX of the rules of the House for the current Congress:

The yeas and nays shall be considered as ordered when the Speaker puts the question on passage of a bill or joint resolution, or on adoption of a conference report, making general appropriations, or on final adoption of a concurrent resolution on the budget or conference report thereon. [Emphasis added.]

In just about every other circumstance, House rules require a roll-call vote on an appropriations bill like the one the House passed on Friday. This requirement did not apply to Friday’s coronavirus legislation only because the House considered it as a message from the Senate, rather than as an original bill or the report of a House-Senate conference committee.

As noted above, members had to come into town anyway, to ensure the House had a quorum to conduct business. Usual practice, as indicated by the excerpt from the House’s own rules, suggests members would record their votes publicly.

They did not even need to congregate in mass groups to vote electronically on the House floor. The clerks could have engaged in an actual roll call vote, which would have allowed members sitting in the House gallery to respond verbally from their places. Rather than following this usual practice—to say nothing of giving their own voters the respect of making their positions known on a $2 trillion bill —the House instead decided to take a passive-aggressive approach, turning Friday’s session into another real-life episode of “Mean Girls.”

To put it bluntly, members did not approve a roll-call vote to spite Massie, because Massie had the temerity to force them to come to Washington and do the job they are paid to do. Pelosi, McCarthy, and their leadership teams likely instructed rank-and-file members not to “reward bad behavior” (as one senator described the McConnell-Paul incident two years ago) and to deny Massie a recorded vote.

The members, either due to their own irritation at Massie, or fear of the consequences from leadership, politely complied. In so doing, they abdicated their responsibilities as lawmakers, prioritizing revenge and anger at Massie over conducting an open, transparent, and fully recorded vote.

Do Your Job, Congress!

Early in my career, a boss of mine offered some matter-of-fact advice that members of Congress should think about: “If you don’t like the job, don’t take the check.”

As Massie noted, grocery store clerks and many others such as nurse’s aides and orderlies in hospitals get paid far less than members of Congress’ $174,000 salary. They continue to show up on the frontlines of this pandemic day-in, day-out, performing heroically in grueling conditions. But when members of the House get asked to do their duties in public for one day, they lash out like preschoolers at the individual forcing them into service.

Massie’s solitary stand against his colleagues may cost him re-election. He faces a primary challenge in June (possibly fomented by House Republican leaders), and his opponent will no doubt use Trump’s Twitter tirade against him.

But Massie acted as he did out of the belief that our elected representatives should not add more than $2 trillion to the national debt without accepting public responsibility for their actions. Of course, to many of his congressional colleagues, Massie’s actions represent a novel—and truly revolutionary—concept: Standing up for principle.

This post was originally published at The Federalist.

In Defense of the Senate Filibuster

On Monday, former Senate majority leader Harry Reid (D-NV) wrote an op-ed in The New York Times calling for the full abolition of the Senate filibuster. Reid claimed that the Senate’s current rules—which require 60-vote majorities to pass legislation—have prevented the enactment of climate change and gun control legislation, turning the Senate into an “unworkable legislative graveyard.”

The facts, however, suggest otherwise. For both philosophical and practical reasons, conservatives should support retaining the Senate filibuster.

It’s Good to Make Legislating Difficult

In all seriousness, the filibuster requires the type of deliberation the Constitution’s Framers originally intended. Remember, the Constitution guarantees citizens a republican form of government—not a direct democracy, where public opinion directly determines laws. The filibuster helps to ensure that lawmakers will not fall into the temptation to “do something” every time a policy problem arises, enacting knee-jerk legislation that could lead to unintended consequences.

Ronald Reagan famously opined about the nine most terrifying words in the English language: “I’m from the government and I’m here to help.” By making it more difficult to pass major new expansions of the welfare state when we cannot afford our current entitlement commitments, the filibuster prevents more ill-considered legislation from intruding the federal government even further into our lives.

Harry Reid Helped Create the Problem

On one level, Reid’s criticism of the Senate as an “unworkable legislative graveyard” has merit. After all, the Senate has held votes on a grand total of 18 amendments all year, falling far short of senators’ self-important claims that they serve in the “world’s greatest deliberative body.”

But why has the Senate voted on only 18 amendments all year? Because Mitch McConnell (R-KY), Reid’s replacement as majority leader, has chosen to focus nearly all the Senate’s floor time on confirming nominees—Cabinet appointments, sub-Cabinet officials, and federal judges.

And why has McConnell focused almost exclusively on confirming nominations? Because in 2013, Reid and Senate Democrats abolished the filibuster for all nominations except Supreme Court appointments. (Senate Republicans abolished the filibuster for Supreme Court appointments in 2017, to confirm Neil Gorsuch as an associate justice.)

Nominations thus require a simple, 51-vote majority for passage, as opposed to the 60 votes required for legislation. Since President Trump took office, McConnell has focused on the former to the near exclusion of the latter.

If Reid hadn’t pulled the trigger on the so-called “nuclear option” back in 2013, the Senate might have spent more time this year legislating, instead of simply approving nominees. Since he exacerbated the Senate’s status as a legislative graveyard, few should trust Reid’s prescription for fixing a self-inflicted problem.

Leaders Want to Rig the Process

Most members rarely take the first approach. Republican senators have said the lack of votes on amendments “sucks.” But unless and until a group of senators offer an effective threat to grind the Senate to a halt—for instance, Republican senators voting down President Trump’s nominees—to demand an open process for legislation, the status quo will never change. As the old saying goes, if you’re not part of the solution, you’re part of the problem.

Worth noting: The Senate did vote on a Rand Paul amendment to the budget deal earlier this month—because conservatives demanded that vote in exchange for allowing the process to move forward.

With the second, members of Congress say they want an open process, but the instant such an open process would result in legislative outcomes they disagree with, they immediately seek to ditch transparency, and to manipulate outcomes through backroom deals. Either they do not realize that such efforts neuter their own power as backbenchers—by empowering a select group of leaders to negotiate bills behind closed doors—or, more likely, they secretly support this move, because it absolves them of responsibility for legislating.

This post was originally published at The Federalist.

Three Reasons to Oppose the Swampy Budget Deal

On Monday, congressional leaders and the Trump administration announced agreement on legislation that would set budget and spending parameters for the next two years. The agreement would suspend the debt limit through July 2021, and establish spending levels for lawmakers to enact appropriations measures for the remainder of this Congress.

Conservatives have rightly criticized the agreement as abandoning the principles of smaller government, with a return to the trillion-dollar deficits seen under Barack Obama (and this time under a more robust economy). Among the many reasons to oppose the agreement, three in particular stand out.

1. More Spending Now

When the Budget Control Act, which established the existing spending caps, passed in the summer of 2011, Sen. Mitch McConnell (R-KY)—then the minority leader, now the majority leader—famously said it would slow down the “big government freight train.”

But in the time since that bill’s enactment, McConnell and his colleagues in Congress have repeatedly increased the Budget Control Act’s spending caps, speeding up the big government freight train over and over again.

2. More Spending Later

On one level, the agreement at least wins points for honesty, by abandoning the pretense that Congress has any interest in controlling spending. However, future generations will wish that Congress had substituted some actual fiscal discipline for profligacy.

3. No Policy Improvements

To assuage the conservative concerns about the package’s spending binge, Republican leaders have pointed to other language in the agreement. Specifically, the text states that Republican leaders and the White House would have a veto on any appropriations riders passed by the Democratic House that would seek to (for instance) defund regulatory actions by the current administration:

Congressional leaders and the Administration agree that, relative to the [Fiscal Year] 2019 regular appropriations acts, there will be no poison pills, additional new riders…other changes in policy or conventions…or any non-appropriations measures unless agreed to on a bipartisan basis by the four leaders with the approval of the President.

In theory, this language blocks Democrats from eliminating restrictions on taxpayer funding of abortion, among other liberal priorities.

If Democrats could block Republicans from enacting appropriations policy riders over the past two years, despite serving in the minority, could Republicans have blocked Democrats from enacting their own policy riders with continued control of the Senate and White House? That question should answer itself—provided Republicans had any spine (admittedly an uncertain prospect).

Instead, Republicans agreed to hundreds of billions of dollars in additional spending to “win” something they already had—an understanding that neither side would enact appropriations policy riders. Taken from the most cynical perspective, the agreement uses the pro-life community’s worries about Democratic riders—riders which both the White House and Republican Senate already had the means to stop—to rationalize congressional Republicans’ continued spending binge.

Trump came into office pledging to “drain the swamp.” But the new government spending contemplated by this agreement wouldn’t drain the swamp so much as grow it. Conservatives, and the American people as a whole, deserve better.

This post was originally published at The Federalist.

How Republicans Shot Themselves in the Foot on Pre-Existing Conditions

Republicans who want to blame their election shortcomings on last year’s attempt to “repeal-and-replace” Obamacare will have all the fodder they need from the media. A full two weeks before Election Day, the bedwetters caucus was already out in full force:

House Republicans are increasingly worried that Democrats’ attacks on their votes to repeal and replace Obamacare could cost them the House. While the legislation stalled in the Senate, it’s become a toxic issue on the campaign trail for the House Republicans who backed it.

In reality, however, the seeds of this problem go well beyond this Congress, or even the last election cycle. A health care strategy based on a simple but contradictory slogan created a policy orphan that few Republicans could readily defend.

A Dumb Political Slogan

Around the same time last year, I wrote an article explaining why the “repeal-and-replace” mantra would prove so problematic for the Republican Congress trying to translate the slogan into law. Conservatives seized on the “repeal” element to focus on eradicating the law, and taking steps to help lower health costs.

By contrast, moderates assumed that “replace” meant Republican lawmakers had embraced the mantra of universal health coverage, and would maintain most of the benefits—both the number of Americans with insurance and the regulatory “protections”—of Obamacare itself. Two disparate philosophies linked by a conjunction does not a governing platform make. The past two years proved as much.

A Non-Sensical Bill

In life, one mistake can often lead to another, and so it proved in health care. After having created an internal divide through the “repeal-and-replace” mantra over four election cycles, Republicans had to put policy meat on the details they had papered over for seven years. In so doing, they ended up with a “solution” that appealed to no one.

  1. Removed Obamacare’s requirements for what treatments insurers must cover (e.g., essential health benefits);
  2. Removed Obamacare’s requirements about how much of these treatments insurers must cover (e.g., actuarial value, which measures a percentage of expected health expenses covered by insurance); but
  3. Retained Obamacare’s requirements about whom insurance must cover—the requirement to cover all applicants (guaranteed issue), and the related requirement not to vary premiums based on health status (community rating).

As I first outlined early last year, this regulatory combination resulted in a witch’s brew of bad outcomes on both the policy and political fronts:

  • Because lawmakers retained the requirements for insurers to cover all individuals, regardless of health status, the bills didn’t reduce premiums much. If insurers must charge all individuals the same rates regardless of their health, they will assume that a disproportionately sicker population will sign up. That dynamic meant the bills did little to reverse the more-than-doubling of individual market insurance premiums from 2013-17. What little premium reduction did materialize came largely due to the corporate welfare payments the bills funneled to insurers in the form of a “Stability Fund.”
  • However, because lawmakers removed the requirements about what and how much insurers must cover, liberal groups raised questions about access to care, particularly for sicker populations. This dynamic led to the myriad charges and political attacks about Republicans “gutting” care for people with pre-existing conditions.

You couldn’t have picked a worse combination for lawmakers to try to defend. The bills as written created a plethora of “losers” and very few clear “winners.” Legislators absorbed most of the political pain regarding pre-existing conditions that they would have received had they repealed those regulations (i.e., guaranteed issue and community rating) outright, but virtually none of the political gain (i.e., lower premiums) from doing so.

Some people—including yours truly—predicted this outcome. Before the House voted on its bill, I noted that this combination would prove untenable from a policy perspective, and politically problematic to boot. Republicans plowed ahead anyway, likely because they saw this option as the only way to breach the policy chasm caused by bad sloganeering, and paid the price.

Lawmaker Ignorance and Apathy

That apathy continued after Obamacare’s enactment. While Suderman articulated an alternative vision to the law, he admitted that “Republicans can’t make the case for that plan because they’ve never figured out what it would look like. The GOP plan is always in development but never ready for final release.”

Emphasizing the “repeal-and-replace” mantra allowed Republicans to avoid face the very real trade-offs that come with making health policy. When a Republican Congress finally had to look those trade-offs in the face, it couldn’t. Many didn’t know what they wanted, or wanted a pain-free solution (“Who knew health care could be so complicated?”). Difficulty regarding trade-offs led to the further difficulty of unifying behind a singular policy.

Can’t Avoid Health Care

Many conservative lawmakers face something that could be described as “health policy PTSD”—they don’t understand it, so they don’t study it; they only define their views by what they oppose (e.g., “Hillarycare” and Obamacare); and when they put out proposals (e.g., premium support for Medicare and “repeal-and-replace” on Obamacare), they get attacked. So they conclude that they should never talk about the issue or put out proposals. Doubtless Tuesday’s election results will confirm that tendency for some.

Rather than using the election results to avoid health care, Republican lawmakers instead should lean in to the issue, to understand it and ascertain what concepts and policies they support. The left knows exactly what it wants from health care: More regulation, more spending, and more government control—leading ultimately to total government control.

Conservatives must act now to articulate an alternative vision, because the 800-pound gorilla of Washington policy will not disappear any time soon.

This post was originally published at The Federalist.

What Mitch McConnell and Congressional Democrats Get Wrong about Entitlements

Sometimes, as parents often remind children in their youth, two wrongs don’t make a right. This held true on Tuesday, when Democrats erupted over comments by Senate Majority Leader Mitch McConnell (R-KY) on entitlement reform.

In returning to “Mediscare” tactics, Democrats made several false claims about entitlements. But so did McConnell, who blithely omitted what a Republican majority did earlier this year to worsen the country’s entitlement shortfall.

What McConnell Got Wrong

McConnell spoke accurately when he said in an interview that Medicare, Social Security, and Medicaid serve as the primary drivers of our long-term debt. He stood on less firm ground when he told Bloomberg that “the single biggest disappointment of my time in Congress has been our failure to address the entitlement issue.” Contra McConnell’s claim, Congress—a Republican Congress—actually did address the entitlement issue this year: they made the problem worse.

This Republican Congress repealed a cap on Medicare spending—the first such cap in that program’s history. It did so as part of a budget-busting fiscal agreement that increased the debt by hundreds of billions of dollars. It did so even though Republicans could have retained the cap on Medicare spending while repealing the unelected, unaccountable board that Democrats included in Obamacare to enforce that spending cap.

By and large, both parties have tried for years to avoid taking on entitlement reform. But Democrats included an actual cap on Medicare spending as part of Obamacare, and Republicans turned around and repealed it at their first possible opportunity. That makes entitlements not just a bipartisan problem—it makes them a Republican problem too.

What Democrats Got Wrong

But McConnell’s comments suggested just the opposite. He noted that, while entitlements serve as the prime driver of the nation’s long-term debt, any changes to those programs “may well be difficult if not impossible to achieve when you have unified government.” McConnell said the same thing in a separate interview with Reuters on Wednesday: “We all know that there will be no solution to that, short of some kind of bipartisan grand bargain that makes the very, very popular entitlement programs in a position to be sustained. That hasn’t happened since the ’80s.”

Even though Congress needs to start reforming entitlements sooner rather than later—even if that means one political party must take the lead—McConnell indicated he would do nothing of the sort. In fact, his comments implied that Congress would not do so unless and until Democrats agreed to entitlement reform, giving the party an effective veto over any changes. Yet Democrats, who never fail to demagogue an issue, attacked him for those comments anyway.

Actually, they haven’t “earned” those benefits. Seniors may have “paid into” the system during their working lives, but the average senior citizen receives far more in benefits than he or she paid in taxes, and the gap continues to grow.

Making a Tough Job Worse

In this case, two wrongs not only did not make a right, they made our country worse off. Like outgoing Speaker of the House Paul Ryan (R-WI), McConnell wishes to absolve himself of blame for the entitlement crisis, when he made the situation worse.

On the other side, Pelosi and her fellow Democrats continue the partisan demagoguery, perpetuating the myth that seniors have “earned” their benefits because they see political advantage in defending nearly infinite amounts of government subsidies to nearly infinite numbers of people. For all their love of attacking “science deniers,” much of the left’s politics requires denying math—that unsustainable trends can continue in perpetuity.

At some point, this absurd game will have to end. When it finally does, our country might not have any money left.

This post was originally published at The Federalist.

Rescissions Package Shows Washington’s Spending Problem

Talk about swampy: Republicans control the House, the Senate, and the White House, yet even token attempts to reduce spending cannot succeed.

Last week’s failure of a $15 billion package of rescissions (i.e., spending cuts) that the administration had proposed partly reflected the narrow Republican majority in the Senate. With Republicans’ one-vote margin, objections by Sens. Susan Collins (R-ME) and Richard Burr (R-NC) sank the measure in a 48-50 vote.

Health Care: Dems Demagogue, GOP Caves

Nearly half of the proposed savings, approximately $7 billion, in the rescissions package came from the State Children’s Health Insurance Program (SCHIP)—roughly $5.1 billion in unobligated balances, and $1.9 billion in child enrollment contingency funds for the current fiscal year that ends in September.

Liberals claimed the rescissions package would “gut” the contingency fund and “put the health of children at risk.” However, the Congressional Budget Office (CBO) last month noted that, with respect to the $5.1 billion in unobligated SCHIP balances, “authority to distribute the funds to states…expired in 2017.”

CBO also “projected that the rescission from the child enrollment contingency fund would not affect payments to states.” In sum, the budget office concluded that the $7 billion rescission “would not affect…the number of individuals with insurance coverage.”

Had Republicans stuck to their prior principles on SCHIP, much of the rescissions package would have proved unnecessary. Congress never would have authorized the funds in the first place, eliminating the need to rescind that spending. They did not. Collins voted against the package because of the SCHIP funds, while Sen. Lisa Murkowski (R-AK) voted to support it, but very begrudgingly.

Parochial Interests Clip the Other Vote

The other Senate Republican no vote came from Burr, a surprise opponent of the measure. Burr said he opposed the package’s $16 million reduction in funding for the Land and Water Conservation Fund.

Burr’s staff told the Washington Post they had not received assurances that Burr could receive a vote on an amendment striking the land and water reduction from the package, leading the senator to oppose the procedural motion to bring the package to the floor.

On the other hand, killing a $15 billion spending reduction package over literally 0.1 percent of its contents seems more than slightly absurd. With the federal debt at $21 trillion and rising, if Congress will not act on this package—buckets of unspent money lying around at agencies, like spare change under the proverbial couch cushions—when will it discover fiscal discipline?

All Dessert, No Spinach

The defeat of this rescissions package means another may not follow in short order. The administration wanted to propose reductions in spending from March’s omnibus legislation. But appropriators like Senate Majority Leader Mitch McConnell (R-KY) said that one party clawing back money included in a bipartisan budget deal might impede Congress’ ability to pass budget-busting legislation in the future. (Quelle horreur!)

The administration relented in the short-term, hoping to start a virtuous cycle of fiscal responsibility and set spending-reducing precedent they could build upon. Unfortunately, however, the administration failed to recognize the magnitude of this Congress’ bipartisan addiction to federal spending.

Sooner or later, Congress will end up passing spending reductions of a much larger scale than last week’s rescissions package. That they failed to start that task when they had an easy opportunity—the lowest of the low-hanging fruit—will make the spending reductions Congress ultimately enacts that much larger, and more painful.

This post was originally published at The Federalist.

Does the Heritage Health Plan Include Taxpayer Funding of Abortion?

When lawmakers write legislation, little details matter—a lot. In the case of a health plan that the Heritage Foundation and former Sen. Rick Santorum (R-PA) are reportedly preparing to release in the coming days, a few words indicate the plan has not considered critically important details—like how Senate procedure intertwines with abortion policy—necessary to any substantive policy endeavor.

A few short words in a summary of the Heritage plan leave the real possibility that the plan, if enacted as described, could lead to taxpayer funding of abortion coverage. Either Heritage and Santorum—both known opponents of abortion—have undertaken dramatic changes in their pro-life positions over the past few months, or they have failed to think through the full import of the policies they will release very shortly.

However, multiple individuals participating in the Heritage meetings told me that the concepts and policies Spiro’s document discusses align with Heritage discussions. Spiro may have created that document based on verbal descriptions given to him of the Heritage plan (just as the New York Times’ list of questions Robert Mueller wants to ask President Trump likely came via Trump’s attorneys and not Mueller). But regardless of who created it, people in the Heritage group told me it accurately outlined the policy proposals under discussion.

What Cost-Sharing Reductions Do

The summary describes many policies, but one in particular stands out: Under “Short-term stabilization/premium relief,” the plan “Adopts the [Lamar] Alexander and [Susan] Collins appropriation for CSRs [cost-sharing reductions] and state reinsurance/high risk pool programs for 2019 and 2020.”

On one level, this development should not come as a surprise. Party leaders often incorporate recalcitrant members’ pet projects (or, in the old days, earmarks) into a bill to obtain their votes: “See, we included the language that you wanted—you have to vote for our bill now!” Given that Collins as of last week had not even heard about the Heritage-led effort, one might think she would need some incentive to support the measure, which attaching her “stability” language might provide.

About the Hyde Amendment and Byrd Rule

The reference to CSRs takes on more importance because of the way Congress would consider Heritage’s plan. As with the Graham-Cassidy bill and other “repeal-and-replace” bills considered last year, the Senate would enact them using expedited budget reconciliation procedures.

Those procedures theoretically allow all 51 Senate Republicans to circumvent a Democratic filibuster and pass a reconciliation bill on a party-line vote. However, as I outlined last year, the reconciliation process comes with procedural restrictions (i.e., the “Byrd rule”) to prevent senators from attaching “extraneous” and non-budgetary matter to a bill that cannot be filibustered.

“Hyde amendment” restrictions—which prevent federal funding of abortion coverage, except in the cases of rape, incest, or to save the life of the mother—represent a textbook example of the “Byrd rule,” because they have a fiscal impact “merely incidental” to the policy changes proposed. Former Senate Parliamentarian Bob Dove said as much about abortion restrictions Congress considered in 1995:

The Congressional Budget Office determined that it was going to save money. But it was my view that the provision was not there in order to save money. It was there to implement social policy. Therefore I ruled that it was not in order and it was stricken.

After pushing for a vote for months, Collins suddenly backed off and didn’t force the issue on the Senate floor. She knew she didn’t have the votes—everyone knew she didn’t have the votes—because Democrats wouldn’t support a measure that restricted taxpayer funding of abortion coverage. Exactly nothing has changed that dynamic since Congress considered the issue in March.

Why We Can’t Fund CSRs

Republicans recognize the problems the abortion funding issue creates, and the Graham-Cassidy bill attempted to solve them by providing subsidies via a block grant to states. Graham-Cassidy funneled the block grant through the State Children’s Health Insurance Program (SCHIP), largely because the SCHIP statute includes the following language: “Funds provided to a state under this title shall only be used to carry out the purposes of this title, and any health insurance coverage provided with such funds may include coverage of abortion only if necessary to save the life of the mother or if the pregnancy is the result of an act of rape or incest.”

Because SCHIP already contains full Hyde protections on taxpayer funding of abortion, Graham-Cassidy ran the block grant program through SCHIP. Put another way, Graham-Cassidy borrowed existing Hyde amendment protections because any new protections would get in a budget reconciliation bill. It did the same thing for a “stability” fund for reinsurance or other mechanisms intended to lower premiums by subsidizing insurers, also referred to in Spiro’s document.

Creating a pot of money elsewhere in law—for instance, through the SCHIP statute, which does contain Hyde protections—and using that money to compensate insurers for reducing cost-sharing would prove just as unrealistic. The CSR payments reimburse insurers for discrete, specific discounts provided to discrete, specific low-income individuals.

If the subsidy pool gave money to all insurers equally, regardless of the number of low-income enrollees they reduced cost-sharing for, then insurers would have a ready-built incentive to avoid attracting poor people, because enrolling low-income individuals would saddle them with an unfunded (or only partially funded) mandate. If the subsidy pool gave money to insurers based on their specific obligations under the Obamacare cost-sharing reduction requirements, then the parliamentarian would likely view this language as an attempt to circumvent the Byrd rule restrictions and strike it down.

Not Ready for Prime Time

Four participants in the Heritage meetings told me the group has discussed appropriating funds for CSR payments to insurers as part of the plan. Not a single individual said the Senate’s “Byrd rule” restrictions—which make enacting pro-life protections for such CSR payments all-but-impossible—came up when discussing an appropriation for cost-sharing payments to insurers.

That silence signals one or more potential problems: A lack of regard for pro-life policy; an ignorance of Senate procedure, and its potential ramifications on the policies being considered; or a willingness to fudge details—allowing people to believe what they want to believe. Regardless, it speaks to the unformed nature of the proposal, despite meetings that have continued since the last time “repeal-and-replace” collapsed” nearly eight months ago.

Earlier this month, Santorum claimed in an interview that while the original “Graham-Cassidy was a rush…this time we have the opportunity to get the policy better.” But any serious attempt to “get the policy better” wouldn’t have major lingering questions about tens of billions of dollars in “stability” funding, and whether such funds would subsidize abortion coverage, mere days before its public release. In this case, eight months of deliberations may not lead to a deliberative and coherent policy product.

This post was originally published at The Federalist.

New Precedent Allows Congress to Dismantle (Some of) Obamacare

What does a ruling about automobile financing have to do with Obamacare? As it turns out, plenty.

This week the Senate acted to repeal a piece of regulatory guidance the Consumer Financial Protection Bureau (CFPB) issued back in March 2013. As a Politico report Wednesday noted, that precedent allows Congress to nullify other regulatory actions the federal government took years ago—including those on Obamacare.

1996 Law Allows for Expedited Process

Until this week, Congress has generally enacted CRA resolutions of disapproval following a change in administration, when one party controlled both houses of Congress and the presidency. In 2001, Republicans passed, and President George W. Bush signed, a resolution of disapproval negating an ergonomics rule promulgated in the waning days of the Clinton administration. Last year, the Republican Congress passed and President Trump signed 14 resolutions of disapproval undoing Obama administration actions.

Action on CRA resolutions of disapproval undoing Obama administration actions had largely ended last year. The CRA provides that Congress can consider resolutions of disapproval under expedited procedures only within 60 legislative days of the rule’s “submission or publication date.” Because the Obama administration’s final regulatory actions occurred early in 2017, the 60 legislative-day clock ran out last year—or so it appeared.

However, as the Heritage Foundation’s Paul Larkin has argued for many years, the CRA contains a big catch. According to the law, the expedited procedures apply for the 60 legislative days following “the later of the date on which” Congress receives a required report on the regulatory action, or the action is published in the Federal Register. If an administration never officially submitted a report to Congress, the 60 legislative-day clock never began, and the current Congress can still pass a resolution of disapproval under the CRA-expedited procedures.

Because the Obama administration did not consider the CFPB document a “rule,” it never submitted it to Congress, as required by the CRA. The 60 legislative-day clock never expired, because the Obama administration never started it by submitting the document to Congress. That meant the Senate could, and did, pass a resolution of disapproval negating the CFPB guidance this week, more than five years after CFPB first issued it.

Now Congress can do the same thing regarding Obamacare.

This Opens Lots of Doors for Obamacare Regs

To be sure, Congress cannot pass resolutions of disapproval regarding Obamacare rules that the Obama administration officially submitted years ago, which is most of them. But in some cases, the last administration may not have formally submitted sub-regulatory guidance, giving Congress an opening to repeal at least part of Obamacare’s regulatory structure.

I wrote early last year that the Trump administration should unilaterally revoke that guidance, but unfortunately, it has not done so yet. However, if the Obama administration never submitted that guidance to Congress, then Congress—using the precedent set this week—can pass a resolution of disapproval negating it. Alternatively, Congress can consider starting action on a resolution of disapproval, to get the Trump administration off the proverbial dime in revoking the guidance themselves.

The CRA precedent set this week also serves as a cautionary tale for the Trump administration, a warning to act thoroughly with its own regulatory actions. For instance, the guidance to state Medicaid programs issued earlier this year regarding work requirements likely meets the definition of a “rule” for CRA purposes. If the Trump administration never submits that action to Congress, a future Democratic administration and Democratic Congress could—and if given the chance, certainly would—act to undo the guidance, and thus the Medicaid work requirements.

But even as the Trump administration should act to cement its own regulatory legacy, Congress can act to negate portions of Obamacare through resolutions of disapproval. I know from experience that staff in Congress, and during the transition, compiled lists of rules that they can use CRA to target. During my time on Capitol Hill following Obamacare’s passage, staff kept a spreadsheet containing all the rules and notices the law generated—the source of the “Red Tape Tower” that used to appear around the Capitol.

This post was originally published at The Federalist.

Conservatives Have Themselves to Blame for Ominous Omnibus

Several years ago, I kvetched to a friend about various ways I found myself unhappy with my life. My friend listened attentively, and when I had finished, responded calmly and succinctly: “Well, what are you going to do about it?”

Conservative members of Congress face a similar dilemma this week, as they return to Washington for the first time since Congress passed a massive omnibus spending bill just before Easter. Politico last week highlighted senators’ concerns about a closed process in the Senate. Sen. John Kennedy (R-LA) went so far as to say the floor process, and the lack of amendment votes, “sucks.”

Consider the floor process in the House. The morning after Congress passed the omnibus, a staffer bragged to me about how his boss voted against the sprawling spending legislation. But my follow-up query spoke volumes: “Did your boss vote against the rule allowing for consideration of the bill?” The staffer hung his head and said that he hadn’t.

Therein lies the problem. Fully 210 Republican members of Congress voted to approve a rule that allows the House of Representatives to vote on a 2,232-page bill a mere 16 hours after its public release. In so doing, they blessed House leadership’s tactics of negotiating a budget-busting bill in secret, springing it on members without time to read it, and ramming it through Congress in a take-it-or-leave it fashion.

Or, to put it another way, those 210 Republican members of Congress signed their judgment over to the Republican leadership, which made all the decisions that mattered regarding the bill. Conservatives complained that, for the rule governing debate on the omnibus, House Republican leaders gaveled the vote to a close too quickly. Fully 25 Republicans did vote against the rule bringing the omnibus to the House floor, and if a few more that wanted to vote no had been given time to do so, the rule might have failed.

The conservatives who would not vote against the rule governing the omnibus also bear responsibility for the next omnibus. Had conservatives voted down the rule governing the omnibus, they could have demanded concessions to prevent future instances of congressional leaders ramming massive spending bills down Congress’ throat.

For instance, they could have demanded that Senate Majority Leader Mitch McConnell (R-KY) commit the upper chamber to passing a budget, and considering spending bills individually on the Senate floor this summer. But because not enough conservatives voted against the rule, they received exactly no procedural concessions, ensuring Congress will resort to another massive, catch-all omnibus spending bill late this year or early next.

A very similar dynamic exists in the Senate. Despite their complaints, Kennedy and his Senate colleagues have failed to use their considerable powers to demand changes to that process. In the Senate, a single member can make long speeches, object to passing legislation by unanimous consent, and object to routine procedural requests. One senator or a handful of senators using such tactics for any period of time would quickly attract the attention of Senate leaders—and could prompt a broader discussion about how to open up Senate floor debate.

In democracies, people generally get the type of government they deserve. That axiom applies as much to the internal functioning of Congress as it does to Congress’ role in the country as a whole. If members of Congress don’t like the process their leaders have developed for debating (or not debating) legislation, they need only look in the mirror.

This post was originally published at The Federalist.

Republicans Omit Obamacare Bailout from Omnibus — DO NOT CONGRATULATE

Congressional leaders finally released the massive, 2,232-page omnibus spending bill late Wednesday, a measure they want Congress to pass within 24 hours. The version released Wednesday night omits language of an Obamacare “stability” package that Republican lawmakers released separately on Monday.

But, to borrow a phrase echoing throughout the Capitol since a Washington Post story appeared Tuesday night, “DO NOT CONGRATULATE” Republicans for leaving the bailout provisions out of the draft. On both process and on substance, congressional leaders did not cover themselves in glory. Far from it.

Republicans Bad on Substance…

A cynic would question why Republican leaders found this particular issue non-negotiable. After all, Republicans ran for four straight election cycles—in 2010, 2012, 2014, and 2016—on repealing Obamacare, only to turn around and propose more than $60 billion in spending to prop it up. From Democrats’ perspective, since Republicans did a complete 180 on repealing Obamacare, why not expect the GOP to perform a similar U-turn on taxpayer funding of abortion?

…And Just as Bad on Process

In general, the process surrounding the omnibus—as with most appropriations legislation, and most major legislation in general—stinks. After completing a secretive drafting process among a small group of staff behind closed doors—the swamp personified—leaders now will turn to ramming the legislation through Congress.

Facing a potential government shutdown at midnight on Friday, they will rush through the massive bill spending trillions of dollars in a matter of hours, well before members of Congress or their staff will have time to read, let alone digest and understand, its contents.

One specific issue stands out: As I previously wrote, Senate Majority Leader Mitch McConnell (R-KY) wants to grant Sens. Susan Collins (R-ME) and Lamar Alexander (R-TN) a separate vote on bailing out Obamacare. He apparently will attempt to do so despite the fact that:

  1. Other Republican senators never agreed to give Collins a vote. McConnell spoke only for himself in his colloquy with Collins last December.
  2. Collins demonstrably moved the goalposts on the size of her bailout. McConnell agreed to support $5 billion in reinsurance funds in December, while now she has demanded more than six times as much, or more than $30 billion.
  3. McConnell literally shut down the federal government rather than grant Sen. Rand Paul (R-KY) a vote on his amendment to an appropriations bill just last month—and Paul’s colleagues publicly trashed his attempts to obtain a vote as a “stunt” and “utterly pointless.”

To most individuals outside Washington, Republicans moving to bail out Obamacare, and attempting to pass 2,200-plus page bills in mere hours, signifies a degree of insanity. Unfortunately, however, Congress seems to engage in these types of activities (at least) every year, raising the specter of the trite saying that defines insanity as doing the same thing over and over while expecting different results.

This week’s spectacle should raise one obvious question: How many more of these sorry affairs will it take before conservatives summon the will to end it, once and for all?

This post was originally published at The Federalist.