Procedural Implications Of The Midterm Elections

     Well earlier the recent election, activists as well as pundits were hard at function shaping expectations for what would alter inward lite of anticipated Republican losses.  Many of these predictions reverberate considerable naivete almost the operations of Congress.  Although many questions remain open, it seems useful to review what nosotros know to this point.  This is the get-go of 2 posts; the mo volition focus specifically on budgetary issues.

     First, every bit to leadership.  The Senate is unlikely to run into meaningful changes at the top:  Majority Leader McConnell led his caucus to larger-than-expected gains.  Democrats’ losses seem hard to attribute to Minority Leader Schumer, as well as having won his spot past times acclamation simply 2 years agone he has no obvious challenger.  House Majority Leader McCarthy was easily elected minority leader later on having worked tirelessly, as well as reasonably successfully, to minimize his party’s losses.  He besides had the President’s support, which insulated him against the conservative critics who denied him the speakership previously.  To prevail, he entirely needed a bulk of the Republican Caucus.

     House Democrats are about other story.  Rep. Pelosi was ane of the most skilled as well as effective speakers of modern times; if anything, she demonstrated fifty-fifty to a greater extent than acumen every bit minority leader.  Her powerfulness to forcefulness Republicans into hard votes spell often shielding her ain Members has a lot to practise alongside Democrats’ reconquest of the House.  She besides shrewdly leveraged situations when the Republican Caucus was split to extract substantial policy concessions from the Speakers Boehner as well as Ryan inward central for the necessary Democratic votes.  The minority leader risks blowing upwards a bargain of this sort if she dances a jig upon its completion, but her successes inward defanging the devices Republicans had used to leverage cuts inward domestic programs – the debt limit, sequestration, the postulate to accommodate Medicare physicians’ reimbursement rates, etc. – merit a total ballet.

     Republicans have, however, succeeded inward making her a lightning rod as well as often tried to necktie Democratic candidates to her.  Her path to the speakership is considerably to a greater extent than hard than Rep. McCarthy’s path to becoming minority leader was because she non entirely needs to win a bulk of the Democratic Caucus – which she probable volition secure inward the side past times side 2 weeks – but besides to receive got 218 Members vote for her to live speaker on the get-go solar daytime of the novel Congress.  That would require several Democrats who pledged non to vote for her to contrary their positions.  She is a superb vote-counter, as well as if she does non receive got those votes volition take away on her own.  If she does pace down, the relaxation of the House Democratic leadership, which currently has regional as well as factional balance, may live upended.  For example, if Democrats select a to a greater extent than moderate candidate for speaker, progressive members may demand that ane of their ain move out bulk leader rather than retaining Minority Whip Hoyer.  Sorting this out could accept quite about time.

     Senate Republicans may claim that their modest gains title them to shift the partisan residual inward committees’ membership, presumably to practise an 11-to-9 Republican payoff on the typical committee.  Democrats inward theory could filibuster the organizing resolution that sets upwards Senate committees at the start of the novel Congress but probable would entirely practise so if the Republicans overreach sufficiently that the Democrats experience confident that Blue Planet volition non blame them for obstructionism.  During the George W. Bush administration, Republicans (relying on Vice President Cheney’s tie-breaking vote) insisted upon a one-seat payoff on all committees when the Senate was evenly divided betwixt the parties, as well as Democrats acquiesced.  In the electrical flow situation, ane tin give the axe imagine negotiations leading to two-seat Republican majorities on to a greater extent than powerful committees as well as one-seat majorities on others.

     A two-seat Republican bulk soundless would allow Democrats to block legislation or nominations if they tin give the axe remain together as well as persuade ane Republican.  It does mean, however, that Democratic amendments to legislation volition neglect inward commission unless they tin give the axe attract 2 crossovers, which seems unlikely given the near-total disappearance of Republican moderates.  A two-seat bulk besides would allow Republicans to advance legislation when ane of their Senators is sick or otherwise absent.

     House committees historically render the bulk political party considerably larger margins than their overall numbers would dictate.  Nonetheless, because of the ideological gain of the caucus, about committees may test unreliable for the leadership’s priorities.  And alongside relatively tenuous command of the House as well as many novel Members from Republican-leaning districts, Democrats cannot fifty-fifty consider passing over to a greater extent than conservative Members who are inward business to chair committees. 

     Some Democratic activists receive got rejoiced that Democrats volition receive got a vocalization inward policy for the get-go fourth dimension nether President Trump.  This is incorrect:  the threat of a filibuster required all legislation apart from budget reconciliation bills to live negotiated alongside Senate Democrats, as well as fractures inward the House Republican Caucus often gave House Democrats leverage on of import legislation such every bit appropriations as well as legislation raising the debt limit.  Democrats’ taking over the House should, however, forestall Republicans from threatening to resort to budget reconciliation.  That, inward turn, volition strengthen the manus of Senate Democrats despite their somewhat diminished numbers past times forcing all legislation to move out through the regular order.

     The House Democratic leadership may receive got considerable difficulty controlling the floor.  Although command of the gavel as well as commission supermajorities initially may succeed inward bottling upwards problematic legislation, Republicans amended House rules to facilitate petitions discharging committees from the farther consideration of item bills.  If a bulk of representatives signs a discharge petition for a item pecker or resolution, the leadership must convey it earlier the House promptly.  Republican seem probable to exert rigid push clit per unit of measurement area on vulnerable Democrats to sign discharge petitions on politically seductive legislation, including bills to farther terms the surround as well as to intensify push clit per unit of measurement area for budget cuts past times extending or expanding the 2017 taxation cuts.

     One outcome of a Democratic House bulk that activists most eagerly anticipate, as well as that Republicans most fear, is the powerfulness to subpoena executive branch witnesses to investigate what the Administration has been doing.  This physical care for is non nearly every bit uncomplicated every bit many seem to believe. 

     Rule XI(m) of the House’s standing rules allow committees as well as subcommittees to number subpoenas, either past times a bulk vote or through commission rules delegating the subpoena powerfulness to the chair.  One powerfulness promise that the issuance of such a subpoena would live decisive, but the electrical flow Administration may non live inclined to comply routinely, 

     The Senate has a particular statute allowing its legal counsel to convey a civil contempt activity inward federal district courtroom to compel compliance alongside its subpoenas.  The House, unfortunately, lacks such a statute (and sure enough is unlikely to obtain ane nether this Administration). 

     Should an Administration official (or anyone else) ignore a subpoena, the House may transcend a resolution asserting that that private is inward contempt of Congress as well as referring her or him to the appropriate U.S. attorney for prosecution.  Jefferson’s Manual § 299 at 143-44 (2017).  The get-go such instance against a sitting executive branch official involved EPA Administrator Anne Gorsuch inward 1982. 

     The President, however, controls the Justice Department, as well as his appointees tin give the axe decline to accept activity against those ignoring House subpoenas.  The President has repeatedly asserted that the Department of Justice should human activity to farther the electrical flow Administration’s policy; it so remains to live seen whether this facial expression of the Department’s historical and statutory purpose volition survive.  The House occasionally has passed resolutions authorizing the Sergeant at Arms or other officers of the House to retain counsel to assert the interests of the House, Jefferson’s Manual § 291b at 135 (2017), as well as inward theory it may straight its Sergeant at Arms to detain whatever recalcitrant witness.  Jefferson’s Manual § 297, at 140 (2017).  When compared alongside the resources of the Administration, however, these seem rather underpowered.    

     Should the Administration both spend upwards to comply alongside a lawful subpoena as well as straight the Justice Department to accept no activity to enforce the House’s subpoena, the House inward theory could commence impeachment proceedings against the official refusing to comply, against the attorney general, or against the President.  The minimal prospects of obtaining the required two-thirds bulk inward the Senate to convict – indeed, alongside no assurances that Senator McConnell would fifty-fifty convene an impeachment lawsuit at all – this is a rather express threat. 

     These practical limitations may live component of Democratic leaders’ motivation inward insisting that House committees boundary as well as coordinate their oversight efforts.  If subpoenas may entirely live effectively enforceable inward the courtroom of world opinion, Democrats volition desire to avoid the perception that they are overreaching.  

     One possible deterrent to blatant disregard for the House’s subpoenas is the possibility that an private doing so could live prosecuted nether the side past times side Administration should the President non live re-elected.  Although prosecutions nether the statute for contempt of courtroom carry a one-year statute of limitations, contempt of Congress is criminalized nether a separate law as well as thus would seem to autumn nether the general five-year federal statute of limitations.  Of course, whatever Administration official refusing to comply alongside a House subpoena facing that prospect could promise that the President would pardon her or him earlier leaving office.