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December 1, 2015

Posts by Don Wolfensberger

55 Posts

October 26, 2015

GOP Rebels Orchestrate Ex-Im Bank Job | Procedural Politics

UNITED STATES  MARCH 6: Rep. Stephen Fincher, R-Tenn., speaks during the press conference at the Republican National Committee following the House Republican Conference meeting on Tuesday, March 6, 2012. (Photo By Bill Clark/CQ Roll Call)

Fincher is at odds with House Republican leadership over his bill that would reauthorize the Ex-Im Bank for five years. (Bill Clark/CQ Roll Call File Photo)

Last year in this space, I wrote about House discharge petitions as “useful minority tools,” even though they seldom gain the requisite 218 signatures to force floor consideration of the targeted legislation. The subject of that column was the Democrats’ attempt to force consideration of a bill to raise the minimum wage to $10.10 an hour. That effort had stalled at 197 signatures (all Democrats) when the clock ran out on the 113th Congress.

In this Congress, a different phenomenon is unfolding: A discharge petition launched by 42 majority party members on Oct. 9 hit the 218 signature mark that same day, thanks to 176 Democratic co-signers. This year, the subject of the discharge petition is a five-year reauthorization of the Export-Import Bank. (On July 1, it lost its authority to make new loans to companies to finance the export of U.S. products abroad.)

The leader of the discharge effort is Rep. Stephen Fincher of Tennessee, a third-term Republican from Memphis who sits halfway down the roster of 34 Republicans on the Financial Services Committee to which his bill was referred. Fincher introduced his bill on Jan. 28, just 14 legislative days into the new Congress. He was joined by 61 co-sponsors — all but one of whom are Republicans, though only six sit on Financial Services. And therein lies the rub: The committee’s chairman, Rep. Jeb Hensarling of Texas vehemently opposes the bill, as does House Republican leadership.

Moreover, Senate Majority Leader Mitch McConnell opposes the bank. However, as part of a deal to pass Trade Promotion Authority, McConnell promised Ex-Im supporters a later floor vote on their issue. That promise was fulfilled when an amendment by Sen. Mark Kirk of Illinois extending the Ex-Im bank was added to the three-year highway funding reauthorization on July 27 by a vote of 64 to 29. The popular highway bill went on to pass by a comparable margin. Nevertheless, McConnell has since vowed he will not take up a separate Ex-Im bank bill, such as the Fincher measure.

What was especially adroit about the Fincher pincer was its orchestration to achieve victory on the same day the motion was filed. That precluded any attempts by GOP leaders to pressure Republican colleagues to remove their names from the petition. It was a done deal. But Fincher also had the foresight to file his motion on a special rule providing for consideration of his Ex-Im bill. That has two advantages. First, the effort cannot be halted if Financial Services subsequently reports the bill. You cannot discharge a bill from a committee once it has reported it.

Secondly, the special rule provides for tight consideration: It self-executes the adoption of language from a substitute bill Fincher introduced in September that brings it into line with the Senate-passed language. And the rule prohibits any amendments. An open rule could have subjected the measure to a filibuster by amendment. The rule does preserve the right to offer a motion to recommit, with or without instructions (a final amendment). Whether Democrats should qualify to offer a final amendment in a motion to recommit is a morally murky question given their support for the bill. However, they are still entitled under the rules to do so as the minority party so long as the person offering the motion affirms opposition to the measure.

Under the discharge rule, the motion is eligible for consideration on the second or fourth Monday of the month after it has been pending on the discharge calendar for seven legislative days. In this case, that date fell on Oct. 26. Suffice to say, the House Freedom Caucus, which opposes the Ex-Im Bank, is not happy about the quickie bank job pulled by another 40-something member rump group inside the GOP conference. Nevertheless, the development has sparked an interesting internal debate about the founders’ notion of majority rule in a democratic republic.

Correction 8:35 p.m. 

A previous version of this column misstated the day on which the discharge motion would be called up.

Don Wolfensberger is a resident scholar at the Bipartisan Policy Center, a congressional fellow at the Woodrow Wilson Center and former staff director of the House Rules Committee.



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October 13, 2015

House GOP Has History of Leadership Revolts | Procedural Politics

There used to be a radio-TV series called “The Life of Riley,” in which the lead character, Chester A. Riley (played by William Bendix), would cry out in each episode, “What a revoltin’ development this is.” It always produced uproarious laughter from the (canned?) studio audience.

The House Republican Conference on the other hand, which has a history of revolting developments, isn’t exactly rolling in the aisles (let alone across the aisle) over its latest internal eruptions culminating in the resignation of Speaker John A. Boehner, effective at the end of this month (or when a successor is chosen). Party leadership shakeups are unsettling enough at the beginning of a Congress, but can be downright disruptive when they occur mid-session.

Full story

September 30, 2015

Iran Review Moves Recall ‘Duck-and-Cover’ Days | Procedural Politics

Last May, in a rare display of bipartisanship, the House and Senate overwhelmingly approved a congressional review process for the Iran nuclear agreement — a process President Barack Obama initially said he didn’t want and didn’t need.

Full story

September 8, 2015

Can Party Government Work in America? | Procedural Politics

In graduate school I wrote a paper titled, “The Deadlock of Democracy and Anglophilia in American Politics.” It was a review essay on James MacGregor Burns’s book, “The Deadlock of Democracy: Four Party Politics in America” (1963). His thesis was simple: Our system of government wasn’t working properly because there were four, not two, political parties vying for power — the presidential Republicans and Democrats, and the congressional Republicans and Democrats. The congressional parties, with their attendant special-interest groups, were tying the system in knots.

We need to look across the pond to our English forebears, Burns argued, and adopt their party government model in which a single party, headed by a party leader, sets and administers government policy, and the minority party opposes. If the majority does not carry through on its campaign promises or its policies fail, it will be held accountable by the electorate. That brings true accountability to government by holding office holders responsible for their party’s pledges.

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July 29, 2015

Congress Regulates Internal Speech for Good Reason | Procedural Politics

It is often noted there are two kinds of members in Congress: the showhorses and the workhorses. That’s probably an oversimplification, since most members consider themselves workhorses, but with a flair for show. Politics, after all, is a lot like show business, with public attention and appreciation focused on those actors who are able to entertain and project their roles in a convincing and effective manner. On Broadway, the payoff is in audience acclaim and good reviews. In Congress, it is in media attention and re-election.

However, it seems that more and more members are opting for the show ring over the work plough as Congress becomes increasingly polarized and legislative work is less valued and rewarded. This becomes more evident as presidential and congressional elections loom and members ramp up their publicity machines, both on and off the Hill, to set themselves apart from the rest. Frequently this involves running for Congress by running against it, especially when the public mood is strongly anti-Washington, as is now the case. It’s an old incumbent trick for hanging onto incumbency.

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July 23, 2015

Why Are Restrictive Rules Ratcheting Up? | Procedural Politics

One of the recurring, puzzling paradoxes in the House of Representatives is why new majorities, coming to power on pledges to restore openness and regular order, quickly revert to the ways of their predecessors and become even more restrictive in closing down the floor amendment process on important bills.

Proponents of partisan power politics readily explain why this way: “Because they can.” Former House Rules Chairman David Dreier, R-Calif., gave a more nuanced justification on numerous occasions, suggesting Republicans never fully appreciated when in the minority just how difficult it is to govern. Majority status brings with it new responsibilities to pass the party’s priority legislation in a timely and successful fashion, and that often entails severely restricting the amendment process on major legislation to avoid minority party obstruction and weakening or politically embarrassing amendments.

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July 7, 2015

Political Games Can Trigger Petard Self-Hoist | Procedural Politics

House Democrats are learning a basic lesson of procedural politics: Those who engage in political gamesmanship can sometimes be hoisted with their own petard (an explosive device used to breach doors and gates).

The recent imbroglio over Senate-passed trade legislation is a prime example. House Democrats openly defied the president’s request for both Trade Promotion Authority and Trade Adjustment Assistance by voting against both. They first succeeded by voting down the TAA title — a program they long championed for retraining workers displaced by trade. They then failed by eight votes to defeat the TPA portion that gives the president authority to negotiate trade agreements that can be put to an up-or-down vote in Congress. Their unsuccessful effort to blow up the entire package by torpedoing their own submarine left final disposition of the overall Senate amendment in a state of legislative limbo.

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June 15, 2015

Why the Senate Plays Legislative Bait-and-Switch | Procedural Politics

Very few people take the time to follow major legislation as it wends its way through the congressional maze. For those who do, Congress’ two online bill tracking services, THOMAS and, make that easy to do, at least most of the time. Nevertheless, those who track the big bills sometimes find themselves ensnared in what appears to be a legislative bait-and-switch, with no public explanation of when or why the trap was laid. The hapless citizen is left stuck in a web of diversion — be-switched, bothered and bewildered.

On two major occasions this year, language from Senate-numbered bills has been transplanted into totally different (and minor) House-numbered bills: the Iran Nuclear Agreement Review Act and the Bipartisan Trade Priorities and Accountability Act (aka trade promotion authority). Two other instances of bait-and-switch occurred on lesser bills passed as bargaining chips for the trade bill’s passage (Procedural Politics, “Senate Trade Bill,” June 4).

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June 4, 2015

Senate Trade Bill Prompts Floor Trades | Procedural Politics

The Senate trade promotion bill became a self-fulfilling prophecy in ways its sponsors probably didn’t anticipate — all before it could even pass the Senate. The trades made were legislative favors swapped on the floor for the support of senators otherwise threatening to bring the bill down. Step by step these legislative side payments accrued sufficient interest to move the bill forward and ultimately past the last 60-vote cloture threshold to final passage.

In Congress, politics is the art of the passable, and bargaining has always been a part of that process. For the trade bill that presented an especially tricky challenge since many of the favors sought would have invited a presidential veto if included as amendments to the bill. To overcome that obstacle the political odd couple of Senate Majority Leader Mitch McConnell of Kentucky and President Barack Obama combined forces to put the measure over the top through artful strategizing and persistent personal lobbying efforts, respectively.

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May 11, 2015

Congress Is Still Evolving, but to What? | Procedural Politics

Recently, I participated in a panel discussion on “The Evolving Congress” cosponsored by the Bipartisan Policy Center and National Capital Area Political Science Association. It was based on a book by that title written by a group of experts at the Congressional Research Service on its 100th anniversary. The panel had no problem agreeing that Congress has changed considerably since its inception. But there are still unresolved questions over just how and why it has evolved to what it is today, and what it might be evolving to.

CRS Senior Specialist Walter Oleszek, in his introductory chapter to the volume, offers the best explanation of what has happened and why: “Congress is an institution constantly in flux,” he writes. “The policy and political struggles among the elective units are a permanent fixture of the Nation’s constitutional system that continue to shape the evolution and work of Congress.”

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April 27, 2015

Were House and Senate Budgets Separated at Birth? | Procedural Politics

Sometimes it’s hard to believe House and Senate budget resolutions had the same birth parents back in 1974. They are different in so many ways: They look different, act different, and, yes, even weigh different (more on that later).

If you’ve been away from them for several years and only occasionally read about what they’ve been up to, you nod knowingly and sigh, “Oh, those budget kids will be kids.” You might be somewhat concerned that one of them, the Senate budget kid, has been missing in action four of the past five years. But then, lots of families have prodigal sons, and you figured he’d be back some day. And indeed, this year did seem to be a new day with both kids showing up on time for the family’s spring reunion.

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April 13, 2015

Congress Has an Overriding Problem With Iran Deal | Procedural Politics

(Tom Williams/CQ Roll Call File Photo)

Corker’s bill is reportedly one vote short of a veto-proof majority in the Senate. (Tom Williams/CQ Roll Call File Photo)

This week the Senate Foreign Relations Committee is slated to consider the Iran Nuclear Agreement Review Act introduced by the committee’s chairman, Sen. Bob Corker of Tennessee. The bill requires the president to submit the final agreement to Congress for a 60-day review period. The administration strongly opposes the legislation on grounds the pact is an executive agreement between the U.S., Iran and the five other nations and does not require congressional approval.

Contrary to some shorthand press reports, the bill does not require Congress to approve the nuclear agreement for the sanctions relief to take effect, nor does it force Congress even to vote on the matter. It simply provides that any sanctions relief contained in the plan may go forward if Congress enacts a joint resolution favoring the agreement or fails to enact a joint resolution disapproving the plan during the review period. There are no action-forcing mechanisms or expedited procedures to require either a vote of approval or disapproval.

Congress may, in effect, take favorable action on the plan by inaction. Full story

March 30, 2015

House GOP Restores Budget Game of Thrones | Procedural Politics

When Republicans regained control of the House in 1995 after 40 years in the minority, they vowed to eliminate the Democrats’ “king-of-the-hill” process for voting on budget resolution substitutes.

Since 1982, the Democratic-controlled Rules Committee had been issuing special rules on budget resolutions that allowed for votes on substitute amendments by various factions, notwithstanding the disposition of a previous substitute. Under ordinary amending procedures, once an amendment in the nature of a substitute is adopted, no further amendments are allowed.

The “king-of-the-mountain” approach, as it was originally called, provided that if more than one substitute is adopted, the last one adopted prevails, even if it has a smaller majority. Not coincidentally, the last substitute to be offered would always be the Democratic budget reported by the Budget Committee. Full story

March 16, 2015

Cotton Balls Up Diplomatic Protocol With Letter | Procedural Politics

(Tom Williams/CQ Roll Call File Photo)

Cotton (Tom Williams/CQ Roll Call File Photo)

Senator Tom Cotton’s “open letter” to the leaders of Iran on negotiations over its nuclear program ran into a buzzsaw of criticism from the president, vice president, our negotiating partners and members of Congress from both parties. The main criticism: Senators should not thrust themselves directly into the middle of ongoing negotiations between the U.S. and other countries.

The Arkansas Republican and his 46 Senate Republican co-signers have been accused of everything from trying to blow up the negotiations and undermining the president to giving aid and comfort to the enemy and betraying the national interest. Full story

March 10, 2015

Lott-Daschle Reform Bars Bill-Blocking Actions | Procedural Politics

House Republicans painted themselves and the Senate into a corner by making Department of Homeland Security funding after Feb. 27 contingent on rolling back President Barack Obama’s unilateral immigration actions. Surely, they were fantasizing a corner with a hidden trap door and safe room.

Instead, a more realistic escape route appeared out of nowhere — a rope ladder thrown down by a federal district court judge in Texas who stayed the president’s 2014 immigration action pending disposition of legal challenges to it by 26 states. Since judicial appeals from the dueling orders could take months, the judge’s injunction freed Senate Majority Leader Mitch McConnell of Kentucky to propose a compromise: a clean DHS funding bill in return for separate consideration of a bill rescinding the president’s 2014 immigration order.

Full story

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