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A Government Relations Overview: What are the Political Dynamics in Washington After the Mid-Term Elections?

- January 2015

The seemingly-endless mid-term elections are finally behind us, and campaign ads no longer occupy virtually every available minute of TV advertising time. The Republicans gained seats in the House of Representatives, strengthening their majority. And after a very disappointing election in 2012, the GOP in 2014 finally achieved its long-sought goal of taking majority control of the U.S. Senate.

So will Washington now, finally, get down to business?

The answer is…it depends.

It depends on whether the President chooses to cooperate with the new GOP Congress to get some things done, or opts for continued confrontation.

And it depends on whether House Republicans will work together to give House Speaker John Boehner the majority vote he needs to pass legislation, or whether a sufficient number of Tea-Party allied conservatives will again let the perfect be the enemy of the good and oppose any compromise proposals.

And it depends on whether Senate Democrats will cooperate with the new Senate GOP majority to pass legislation, or if now-Minority Leader Harry Reid will simply obstruct and force the GOP to have to find 60 votes to pass anything.

Taking those one at a time –

First, how will President Obama deal with the new GOP-controlled Congress?

When Democratic President Bill Clinton faced a newly-elected GOP majority in Congress after the 1994 mid-term elections, he chose to work with House Speaker Newt Gingrich and the Congressional Republicans, and that cooperation produced a balanced Federal budget and significant welfare reform.

Unfortunately, signs of cooperation from President Obama are hard to find; in fact he seems to be doubling-down on his “pen and phone” approach. His repeated executive actions have outraged Congressional Republicans, who argue that not only are the President’s actions confrontational, but that he is repeatedly exceeding his Constitutional authority.

The President’s action on immigration last fall is perhaps the best example. Thousands of illegal immigrants were flooding across our southern border, the President had suffered significant losses in the mid-term elections, and House Speaker Boehner had specifically urged the President not to act without Congressional involvement. Nevertheless, barely two weeks after the election, the President issued executive orders providing temporary legal status to and delaying deportation of millions of illegal aliens. Congressional Republicans were enraged, and promised both legislative and legal action in response.

While the immigration executive action was the most blatant, it was only one of many, and the elections clearly did not persuade the President to consider a more cooperative approach. Beginning with recess appointments early in his Administration – appointments which were ruled unconstitutional by the Supreme Court in a case in which NAW participated through our Coalition partners – the unilateral executive actions have been numerous.

The President and his agencies and departments have taken executive actions to impose workplace regulations regarding discrimination and affirmative action, wages and salaries, and numerous labor law provisions; to impose more stringent environmental regulations; to remove public lands from energy production; to delay implementation of clearly-written provisions of Obamacare; to make environmental deals with China and extend diplomatic relations to Cuba; to pressure the Federal Communications Commission to treat broadband service providers as regulated utilities; to change Federal policy on education, on retirement plans . . . the list goes on.

The list goes on and on. On December 17th, USA Today published a report on an analysis they had done of presidential executive actions, in which they stated that “Obama is on track to take more high-level executive actions than any president since Harry Truman battled the ‘Do Nothing Congress’ almost seven decades ago.”

Perhaps most significant in the current context, there is no indication that the President is considering trading executive action for legislative cooperation. In fact, in mid-December the White House released a report entitled “A Year of Action,” a 37-page document describing all of his executive orders and memoranda – and extolling the virtue of all of them.

In what might be seen as something of a détente, at his year-end press conference, the President said that he would pursue staff-level conversations with Congressional GOP leaders in early January on tax reform and trade. At the same time, however, he said he would veto any legislation that reached his desk that would roll back any provisions of Obamacare or the Dodd-Frank banking regulations. (Ironically, even that veto threat could be a good sign – at least the President is acknowledging that Congress can pass legislation . . .)

It will signal a new willingness to work with Congress if the President comes to the tax reform debate with an open mind and without demanding tax increases and that “the rich pay their fair share” – his previous non-negotiable demands. As of this writing, we are watching and waiting.

Will House Speaker Boehner lead a unified GOP caucus….or not?

In the last Congress, the GOP had a majority in the House, but often in name only. Many of the conservatives elected to the House in 2010 – in the anti-Obamacare “wave” election – came to Washington determined to reverse the liberal Obama policies, and joined ranks with others already in the House for whom “compromise” is a four-letter word. For this expanded “no compromise” caucus, confrontation was preferable to cooperation, and they were willing to vote against – and defeat – GOP leadership-supported legislation.

The results of that obstruction were unfortunate, predictable, and repeated over and over: No-compromise conservative House members refused to support the Leadership on must-pass budget and spending bills, the Speaker was forced to find votes on the Democrat side of the aisle to prevent government shut-downs and possible default, and Democrats were therefore able to demand policy concessions from a Speaker weakened by a faction within his own conference. Ironically, the actions of the no-compromise conservatives usually resulted in enactment of policies that were more liberal than those originally proposed by the GOP Leadership because they forced the Speaker to get Democrat votes on his bills, giving the Democratic leaders leverage to demand policy concessions in the legislation.

The Speaker’s prospects for leading a unified Conference – or for at least being able to find 218 votes without going begging to Democrat Leader Nancy Pelosi (D-CA) for help – look much better in the new Congress. House Republicans picked up more than a dozen seats in the 2014 mid-term elections, increasing their majority to 247 seats, giving the GOP the largest Congressional majority it has had in 85 years. With his increased majority, the Speaker can now lose 29 of his own members and still have a majority to pass legislation. That comfortable margin would seem to ensure him the ability to set the House agenda and pass whatever GOP bills he wants.

Another major factor impacting the House is the GOP control of the “Upper Body.” For the last two Congresses, the House passed dozens of bills on major policy issues, knowing that those bills were certain to end up in the killing fields of Democratic Majority Leader Harry Reid’s (D-NV) Senate. With Republican Mitch McConnell (R-KY) now Majority Leader in the Senate, House-passed bills will be certain to get a warmer welcome in the Senate. With majority control of both houses of Congress, House Republicans can now focus on trying to make law, not just statements. Making statements is easy, making law not-so-much, and making law requires compromise. As of this writing, we are still waiting to see if 218 House Republicans will choose the latter course.

Senate Majority Leader Mitch McConnell promises a return to “regular order” in the Senate:

Former Majority Leader Harry Reid (D-NV) was probably the most powerful Senate Majority Leader since Texan Lyndon Johnson held that job in the 1950’s. But Harry Reid’s legacy will be greater even than LBJ’s: Reid did more to damage the institution of the Senate than any of his predecessors, of either political party.

The Senate is an institution in which each of its 100 members – whether in the majority or minority – has the right to participate in the legislative process; to speak on the floor, to introduce legislation, and to offer and get votes on amendments to legislation. These rights are fundamental to the Senate as an institution, and have been preserved and protected by every Senate leader – Republican and Democrat, conservative and liberal. Until now.

Under Harry Reid’s rule, the “world’s greatest deliberative body” became his personal fiefdom in which the rights of all 99 of his colleagues to participate in the legislative process were consistently abrogated. Reid strictly controlled the Senate floor, preventing any of his colleagues from offering amendments or getting votes on any policy issues. Under Reid’s rule, a parliamentary maneuver was used to change the Senate rules by a simple majority vote – a change that should have required a two-thirds vote – in order to further deny the minority its traditional voice in the consideration of executive branch nominees.

Reid’s refusal to allow votes on amendments on the Senate floor was ostensibly intended to protect Democrat senators from having to cast any politically difficult votes. Ironically – one might call it poetic justice – Reid’s tactic actually helped defeat Democrats running for re-election in states in which President Obama is unpopular. Because Reid allowed so few votes on the Senate floor, incumbent Democrats in “red” states could not get votes on amendments that would have allowed them to distinguish themselves from the President, and they therefore had voting records in which they voted with Obama almost 100% of the time. “He/She voted with Obama 97% of the time” was a campaign theme used with devastating effect by their GOP challengers – now the GOP senators from Alaska, Arkansas, Colorado, Louisiana and North Carolina.

Senators of both political parties chafed under Reid’s autocratic rule, none more than now-Majority Leader Mitch McConnell, and he has promised to return the Senate to its traditional role as a deliberative body – to return to “regular order.”

Specifically, Leader McConnell has promised to open the Senate back up to debate, to allow amendments to be offered on the Senate floor, to welcome the recorded votes that Reid improperly denied. He has also said the Senate will discharge its statutory responsibilities to consider a budget resolution and pass individual appropriations bills rather than again wrapping up all of the spending bills into a single Continuing Resolution or Omnibus bill.

It is clear to all observers that Senator McConnell wants the Senate to function as a legislative body again. He has said he is willing to work with the House majority, the Senate minority, and the White House… that he wants Washington to work again. Whether Senator McConnell will succeed with his ambitious and welcome plan will depend on more than his own strategic planning and legislative skills, both of which are unmatched in the Senate today.

First, he will need some cooperation from the no-compromise conservatives in his own conference. That small group of senators, led by controversial Texas Senator Ted Cruz, has been as willing as their colleagues in the House to obstruct rather than legislate.

He will also need the cooperation of some of his Democrat colleagues since it will still take 60 votes to pass any legislation that Reid’s minority conference chooses to obstruct. There is promise in that area, as several Democrats have indicated that they, too, want the Senate to function again. As a potentially significant signal, 6 Democrat Senators announced publicly that they had voted against Harry Reid for Democrat Leader in their leadership elections last November. Coincidentally, that is the same number of Democrat votes that a unified 54 Republican Senators will need to get to reach 60 votes.