Time's running out for the 115th Congress

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Before the current session of Congress began in January 2017, with Republicans in charge of both chambers plus the White House for the first time since 2005-2006, there was plenty of optimistic talk about the great things that would be accomplished. “Dawn of a new unified Republican government” coming in 2017, Susan Davis npr.org,
12/22/16.

"Welcome to the dawn of a new unified Republican government," [House Speaker Paul] Ryan told reporters one week after Election Day. "This will be a government focused on turning President-elect Trump's victory into real progress for the American people. *** If we are going to put our country back on the right track, we have got to be bold, and we have to go big."

That "be bold, go big" agenda is still in its early planning stages, but Ryan, Senate Majority Leader Mitch McConnell and incoming President Donald Trump have outlined plans to repeal and replace Obamacare, overhaul the federal tax code, slash federal regulations, invest in infrastructure projects and seal the U.S.-Mexico border.


The first target in January was to make good on the longstanding Republican pledge to repeal and replace the healthcare law that Democrats viewed as the greatest legislative achievement of the Obama administration. Moving swiftly, the House and Senate laid the groundwork for using the reconciliation process to avert a filibuster in the Senate and permit the R&R legislation to be passed by a simple majority vote. An overhaul of GovCare begins,
1/16/17.

There was no GOP consensus on the terms for healthcare “reform,” however, so the pace slowed dramatically after that. Republicans eventually fell one vote short of passing an R&R bill in the Senate (which would have set up a House/Senate conference to hash out the differences between the House and Senate bills). [Senator] John McCain just effectively killed the Republican Party’s latest healthcare bill, Gideon Resnick, thedailybeast.com,
9/22/17.

Giving up on healthcare, Republicans pivoted to a tax bill, which ultimately was passed without any Democratic votes (via the reconciliation process) because this time the Republicans stuck together. SAFE newsletter,
Winter 2017.

Republicans succeeded in passing a major tax bill just before Christmas, which will lower business taxes, e.g., cut the corporate tax rate from 35% to 21%, and marginally reduce the tax burden on the majority of individual taxpayers. While one could quibble with many details of this legislation, it should provide a further boost to economic growth as well as simplifying tax preparation for most Americans.

SAFE endorsed the Tax Cuts and Jobs Act as a means for boosting economic growth, but was disappointed that it didn’t provide more in the way of tax reform (simplification, elimination of tax preferences). Our enthusiasm was further diminished by the subsequent enactment of the Bipartisan Budget Act. The BPBA provided across the board spending increases (not just an increase in the defense budget), which in tandem with the previously enacted tax cuts ensured soaring budget deficits, and it also eliminated most of the tax reform elements in the TCJA by stealthily resurrecting dozens of special interest tax breaks. More shutdown drama, mediocre results,
2/12/18.

The TCJA will necessarily be remembered as the top legislative accomplishment of the 115th Congress, for all its deficiencies, because there are no other significant legislative accomplishment that can be pointed to. GovCare remained intact (except for repeal of the individual mandate) - budget deficit headed up versus down – no infrastructure package – no progress in curbing illegal immigration.

Perhaps this lack of progress contributed to the mid-term election results, perhaps other factors were responsible, but in any case Democrats picked up about 40 House seats and will control that body come January. Could Republicans partially redeem themselves, we wondered, by accomplishing some positive things in the closing weeks of the 115th Congress? Ever anxious to be of service, SAFE proposed a modest four-point agenda. Suggested goals for the “lame duck” session,
11/12/18.

Five weeks later, is the agenda getting done? Here’s an update.

A. Budget process – Having monitored public hearings of the Joint Select Committee on Budget and Appropriations Process Reform, we thought the JSC members might come up with some useful tweaks for the congressional budget process. Perhaps they would propose abolition of the debt limit, for example, which has evolved into a meaningless formality and is currently suspended (until March 2019).

The JSC deadline was November 30, and its report (assuming approval by the JSC members) was to be simultaneously sent to both houses of Congress. If the recommendations seemed sensible, we reasoned, they should be enacted in December rather than carried over to the next Congress. Lame duck session,
op. cit., section A.

When they became available, the JSC’s budget process recommendations seemed disappointing. It wasn’t clear that biennial budgeting and a 2-week setback (from April 15 to May 1) in the budget resolution deadline would accomplish much, and several more fundamental process issues were ignored. JSC proposals for budget system reform,
11/26/18.

. . .the JSC seems to have avoided offering any recommendations that might upset folks in the congressional scheme of things. Three examples that come to mind (all of which were discussed at the JSC’s public sessions) are proposals to abolish or modify (a) the Senate filibuster rule, at least as it applies to appropriation bills; (b) the arcane reconciliation process, a Senate filibuster workaround that is initiated by passing budget resolutions; and (c) the debt limit, which serves no useful purpose – if it ever did – yet is scheduled to spring back to life in March.

The JSC didn’t approve its own recommendations. Seven of the 16 members voted “yes,” five voted “no,” and 4 abstained. Several were quoted afterwards that the recommendations hadn’t seemed substantial enough to bother with. Rebellion dooms lawmakers’ attempt to make smallest fixes to budget process, David Sherfinski, Washington Times,
11/29/18.

Thus, Sen. David Perdue (R-GA) said he just didn’t think the committee went far enough. “The reason I had to be a ‘no’ was that I couldn’t represent to my colleagues that it was going to make any difference,” Mr. Perdue said. “If you don’t bring some sort of timetable and schedule to get appropriations done — and consequences if you don’t — then we’ll have the result we’ve had for the last 44 years.”

Perhaps some of the JSC proposals will resurface in the future, but our suggestion for the next review would be to begin with a concrete goal – better budget outcomes – instead of with process details.

And for the record, we don’t feel the supposed party of fiscal responsibility has been trying very hard to keep government spending under control. The Republican Congress is breaking spending records, Nate Madden, conservativereview.com,
12/14/18.

. . . Republican leadership has even given up on the spending-related agenda items of defunding Planned Parenthood or placing modest work requirement reforms on the federal food stamp program in the nearly $900 billion [5 years, roughly 80% for food stamps] that passed this week. [Looks like] the only way congressional leadership might manage to save any taxpayer money in the ongoing year-end spending negotiations is if they fail to negotiate the $5 billion in funds President Trump has demanded for a southern border wall [see Section B, infra].

B. Appropriation bills – Fiscal year 2019 appropriations for Defense, Labor, Health and Human Services, and Education were enacted in late September. An Oct. 1 shutdown of other government operations, including Homeland Security, was averted by enacting a continuing resolution to provide funding until Dec. 7 (subsequently extended until Dec. 21 by a second CR).

Passage of the other seven appropriations bills before the 115th Congress seemed to fall in the category of “must pass” legislation, with “border wall” funding being the only major sticking point. Accordingly, SAFE proposed that these bills should be enacted in December. Lame duck session,
op. cit., section B.

Congressional Republicans wanted to authorize $5 billion for this purpose in fiscal year 2019, while Democrats had only committed to $1.6 billion. Surely this and any other budget issues could be resolved in December, allowing all of the appropriation bills to be enacted before Congress went home for the holidays. Seriously, a government shutdown over $3.4 billion?

The political stakes are high, however, and the president has been demanding that the full $5 billion in funding for the border wall be approved – or else. The rift over this matter was highlighted last week by live TV coverage of the start of an Oval Office discussion among the president, Vice President Mike Pence (primarily a witness), Senate Minority Leader Chuck Schumer, and presumptive House Speaker Nancy Pelosi (come January). In public fight with Democrats, Trump says he would be “proud” to shut down government over border wall, Jonathan Allen, nbcnews.com, video (3:13, sorry for the ad),
12/11/18.

The Democratic leaders want to pass another CR rather than resolving the wall funding issue, presumably anticipating more leverage in the next Congress than they have now. And congressional Republicans, who weren’t even represented at the meeting, don’t seem to be actively supporting the president. Congress has no shutdown plan and won’t rush back to find one, Susan Ferrechio, Washington Examiner,
12/15/18.

Without a funding deal by next Friday, several agencies — including the Department of Homeland Security — won't have any funding authorized by Congress. But the House left town Thursday and is tentatively scheduled to remain out of session until Wednesday, just two days before the deadline.

The Senate also isn't in a rush to find an answer. Senators return Monday but are slated to take up criminal justice reform legislation, not spending.


If Congress passed the appropriation bills without $5 billion in wall funding, the president might force a shutdown by vetoing them. He is reportedly edging away from such a scenario, however, and will probably sign another CR to keep the government running through the holidays. Trump may push border wall debate to January, Theodore Bunker, newsmax.com,
12/14/18.

Either way, the appropriation bills won’t be enacted in December.

C. Trade treaty –The president has repeatedly called the North American Free Trade Agreement (NAFTA) a terrible deal and threatened to pull the US out of it. Negotiations were concluded on a modified and updated version of NAFTA at the end of September. It will be known as the US, Mexico, Canada trade agreement and has since been signed by the leaders of the three countries. USMCA: Trump signs new trade agreement with Mexico and Canada, Bill Chappell, npr.org, 11/30/18.

Under the applicable trade promotion authority law, the USMCA is subject to majority approval (no amendments, no Senate filibuster) by both houses of Congress. This compares with the constitutional requirement that a treaty be ratified by a 2/3 vote of the Senate only.

There was considerable concern about the economic consequences of abandoning NAFTA, and pro-trade Republicans were relieved by the USMCA agreement. Not all Republicans are pro-trade, however, and some Democratic leaders have complained that the renegotiation didn’t go far enough. See, e.g., Chuck Schumer: New trade deal “too weak” on environment, labor, and dairy protection, Susan Ferrechio, Washington Examiner,
11/30/18.

Although acknowledging that the timing would be tight, SAFE previously suggested Republicans should seek to get the USMCA approved in December instead of waiting to see what favors the House Democrats might seek in return for their support next year. Lame duck session,
op. cit., section C.

Senator Pat Toomey (R-PA) and six other Republicans offered the president similar advice. GOP senators urge Trump to move on trade deal before Dems control the House, Nate Madden, conservativereview.com,
11/21/18.

It appears unlikely that the USMCA will be expeditiously approved, however, for two reasons:

#The president apparently wants to portray the USMCA as a breakthrough achievement versus selling it as a modest NAFTA rewrite. To this end, he has already threatened to withdraw from NAFTA in six months if USMCA hasn’t been approved in the meantime. Trump corners Democrats with threat to kill NAFTA, “It is going to force Congress to act,” S.A. Miller, Washington Times,
12/10/18.

Mr. Trump has found more agreement with Democrats than his fellow Republicans in criticizing the 24-year-old NAFTA, which is blamed for shipping jobs to Mexico and hastening the demise of U.S. manufacturing. But Democrats, who take control of the House next month, have been less than enthusiastic about approving an agreement that would allow Mr. Trump to check off a major campaign promise.

#Some business people are concerned by Trump’s “take it or leave it” rhetoric, which could conceivably result in an impasse and NAFTA cancellation. They would prefer a low key review process even if it takes longer. Next steps for North American trade, Thomas Donohue, uschamber.com,
12/10/18.

We must also build support in Congress on the merits of the deal. Shortly after signing the USMCA, President Trump announced that he would be “terminating NAFTA quickly” in order to present the incoming Congress with a choice between the new agreement and no agreement. We disagree with this strategy. U.S. Trade Representative Robert Lighthizer has insisted that the USMCA was negotiated in such a way [as] to attract bipartisan support. So essentially issuing this threat against a co-equal branch of government is neither necessary nor productive and could actually cost votes.

Bottom line, approving the USMCA during the lame duck session was a nice idea, but it’s not going to fly. Too bad!

D. Investigations – The president and his supporters have been under investigative fire since before he was elected, and the tempo isn’t likely to let up any time soon.

Special Counsel Robert Mueller’s probe will inevitably run its course, and no one is sure how long that will take. There will also be investigations by House Democrats (starting in January), Department of Justice prosecutors in the southern district of New York, state prosecutors, etc. Trump under unprecedented attack on multiple fronts, Rowan Scarborough, Washington Times,
12/9/18.

Everywhere President Trump looks, there are Democrats targeting him, from New York to Washington to Maryland, in the positions of lawmakers, prosecutors, state attorneys general, opposition researchers, bureaucrats and activist defense lawyers. They are aiming at Russia collusion [the purported focus of the Mueller probe], the Trump Organization, the Trump Foundation, a Trump hotel, Trump tax returns, Trump campaign finances and supposed money laundering.

One might wonder whether a US president should be expected to deal with all this and also find time to lead the nation, but it’s not clear how to stop the attacks at this point so they will just have to play out.

SAFE did endorse action, however, to support completion of House Republican-initiated investigations re alleged misconduct of FBI, DOJ and intelligence officials. The conduct in question sparked an official investigation of the Trump campaign, starting in July 2016 (and continuing as the Mueller probe after FBI Director James Comey was fired), which investigation was started based on “oppo research” commissioned by the Clinton campaign.

High ranking FBI and DOJ officials have seemingly attempted to stonewall the House investigations, perhaps banking on a change in control after the mid-term elections. And House Democrats are reportedly planning to terminate these inquiries as soon as they take the reins in January.

•Rep. Adam Schiff weighs in on what’s ahead for House intelligence committee, Mary Louise Kelly, npr.com,
10/7/18.

You know, I think it's going to be enormously important that the committee protect the investigation of Bob Mueller instead of attack it. So that will be quite a sea change for our committee. But we're also going to want to restore the relationship between our committee and the intelligence community and law enforcement that was so badly damaged by the publication of the [Rep. Devin] Nunes memorandum.

•Incoming House Judiciary chair [Rep. Jerrold Nadler, NY] plans to end probe into FBI, DOJ, Tyler Durden, zerohedge.com,
12/8/18.

The entire purpose of this investigation is to be a diversion of the real investigation, which is Mueller. There is no evidence of bias at the FBI and this other nonsense they are talking about.

To the contrary, impressive evidence of high level misconduct has been unearthed. SAFE therefore endorsed a Wall Street Journal editorial board suggestion that the president should follow through on his previous commitment to declassify and release some of the key documents “so the American people can make up their own minds about the matter rather than being forced to accept official/media denials at face value.” Lame duck session,
op. cit., section D.

Proceeding along these lines would be far easier, we continued, while Reps. Devin Nunes, Bob Goodlatte, and Trey Gowdy were still in charge of their respective House committees. Accordingly, the declassification and information release should take place promptly.

How about it, Mr. President, didn’t you promise to “drain the swamp” and isn’t it time to make good on that promise by ensuring a fair and balanced investigation of what happened during the 2016 presidential election versus a one-sided narrative?

Rightly or wrongly, the president hasn’t pulled the trigger. He reportedly views declassification as a bargaining chip, which should be held in reserve for now. Trump threatens to declassify “devastating” documents if Democrats “want to play tough,” Kelly Cohen, Washington Examiner,
11/28/18.

But, Trump later said he may save the release for a more politically ideal time. “It’s much more powerful if I do it then,” Trump said, adding, “because if we had done it already, it would already be yesterday’s news.”

Oh well, looks like SAFE’s suggestions for the lame duck session will go zero for four.

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

#Republicans definitely blew it in the lame duck session! – Family connection

#The 3 min clip showed much that the Dems did not want to show. There may be some secret deal-making re the court ruling that GovCare is unconstitutional. – SAFE director

The president’s position on wall funding was applauded by many conservatives, but they don’t happen to be in the majority. Trump is sabotaging himself (and his party) by pandering to his base, Jonah Goldberg, townhall.com, 12/19/18. He was smart to walk back his shutdown threat this week, although this will embolden the other side in coming battles.

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