Fiscal year 2014 has arrived, unfunded, and no one is singing Auld Lang Syne. Congress’s Ping-Pong tourney to temporarily fund the federal government continues. The House’s latest gambit called for the chambers to end the Ping-Pong and instead start a conference committee to negotiate an agreement over the short-term CR to re-open the government. Senate Democrats intend to reject the House offer. Why don’t House leaders want to play more Ping-Pong? While the players take an over-night break, some bicameral observations are in order:
First, meet my new best friend, the World’s Fastest Deliberative Body (#WFDB). Perhaps the most eye-opening element of the CR politics is the warp factor speed with which the Senate has acted each time the House sends over new amendments to the CR. The last completed volley Monday night — from initial House consideration to the Senate and back to the House — took just 57 minutes. How has this lumbering, supermajoritarian, twisted-in-knots chamber managed to turn itself around and act with dispatch by simple majority vote? Rules and context matter:
For starters, the Senate majority party isn’t trying to exercise what legislative scholars call “positive power.” Loosely speaking, positive power enables lawmakers to make things happen, such as the adoption of new policy proposals to reform immigration laws. The Senate’s move to strip away House amendments to the CR is instead an episode of “negative” power, the ability to block things from happening. Majority leader Harry Reid’s use of tabling motions, which under Senate rules cannot be filibustered, is a classic exercise of negative power. It’s always easier to block your opponent than it is to convince him to join you.
Next, keep in mind that Congressional Ping-Pong (formally, the exchange of amendments between the chambers) has its own rules for play. Importantly, these rules differ from those that govern the use of conference committees to work out agreements between the chambers. For example, conference-related rules allow filibusters to block the majority from even getting to conference. In contrast, the rules of amendment exchange afford some slight advantage to the majority in considering amendments added by the other chamber. When a unified party majority plays Ping-Pong, the majority’s power seems even stronger: the Senate can act with remarkable dispatch along party lines.
Second, the House’s Hail Mary late Monday night to get the Senate to go to conference on the CR raised a lot of eyebrows on and off the Hill. Why would the House prefer a conference over more Ping-Pong? Some possibilities:
a) Sore losers. The House GOP are clearly losing at Ping-Pong, given the Senate’s institutional and partisan capacity to wipe the slate clean each time the House attempts a new set of restrictions on the implementation of the Affordable Care Act. Moving to conference changes the players, re-sets the clock, and changes the rules of the game. Rather than whittling down the CR to the clean funding resolution (which Ping-Pong ultimately leads to), any conference report would ultimately need the support of sixty senators. Senate Democrats would be compelled to negotiate an agreement acceptable to a handful of Senate Republicans. The final outcome might ultimately be a clean CR, but going to conference allows House GOP to hold out hope for Democratic concessions.
b) Empowering the moderates. Consider the list of would-be House conferees. Five are appropriators, who (with the exception of Tom Graves) have been relatively loyal to Boehner on pivotal votes this year. Three (Eric Cantor, Paul Ryan, and Dave Camp) are party or committee leaders, for whom the party brand name might matter a lot. True, Tom Graves has spearheaded the fight to block the ACA, but only a majority of each chamber’s conferees must sign a conference agreement. The would-be House GOP conferees might allow Boehner to clip the wings of the far right flank.
All that said, Democrats are not eager to go to conference, not least because both chambers have already voted several times for the same underlying CR. In other words, from Democrats’ perspective, there is nothing left to discuss in conference. Moreover, Senate GOP’s repeated efforts to block the Senate from going to conference on a broader budget resolution earlier this year drives home the irony of the House conference gambit. Seeking “regular order” is only appealing if your party stands to gain from adopting it. How these bicameral politics play out — and what it takes to get the government open again — remains to be seen.