Why Congress Still Won't Get Anything Done This Fall

From ISIS to inversions, immigration to infrastructure, a host of pressing needs face legislators. Of course, that doesn't mean they'll take any action.
Jason Reed/Reuters

Congress is back for its homestretch. Well, not exactly "back."

The House will spend the rest of this week in "district-workweek" mode, returning Monday evening and leaving again Thursday after lunch; the next week will be action-packed—coming back late Tuesday evening (no votes before 6:30 p.m.) but this time staying around until Friday after lunch. The following week? Back to the district, through Rosh Hashanah, then back Monday evening, September 29, leaving again Thursday, October 2 after lunch—and that is it through the November election. Six full days of work in Washington this fall, another six partial days or just evenings.

Of course, it's not as if Congress has anything on its plate. There are a few niggling little things, such as the entire appropriations process for the fiscal year that begins October 1; dealing with ISIS, the bombing in Iraq and the War Powers Act implications; the immigration issue, including the current border questions involving children from Central America; tax inversions and tax reform; continuing pressing infrastructure needs; and everything else that has not passed in the nearly two years the 113th Congress has been around. And there are the purported scandals that will soak up a good deal of time and resources in those remaining few days, including Benghazi and the IRS.

It is no great surprise that Congress will avoid most of the big issues, fail to finish work on bills that need final action, keep up its scandal focus, and be in Washington as little as possible. Congressional Republicans can almost taste a big victory in November, including taking a majority in the Senate and solidifying their majority in the House. Midterm elections are focused on the president and the president's party; the worse he is doing, the better for the party out of the White House. So for Republicans, scandal mongering, blasting presidential fecklessness, and minimizing signing ceremonies where the president can declare victory are far more potent than accomplishing legislative goals or moving to solve big problems. Meantime, for Senate Democrats, with a lot of incumbents up in tight races, votes on controversial issues are radioactive.

But some things have to be done, including especially getting those pesky spending bills through before witching hour at midnight on September 30. Not a single one of the dozen appropriations have yet been enacted into law, and most will be unresolved over this month. So we will see a continuing resolution—a typical pattern—pushed to enactment before the new fiscal year begins. In theory, this ought to be easy. The vaunted spending deal worked out by House and Senate Budget Committee Chairs Paul Ryan and Patty Murray reached agreement on spending for fiscal 2015 in each area, bypassing the sequester numbers that would have brought pain and perhaps impasse. Prominent congressional Republicans, including some tea partiers, have made it clear that they do not want controversy for now, including over hot-button issues like the Export-Import Bank. The leaders, and even firebrand Ted Cruz, have underscored that they do not want another shutdown, especially a month before this election.

Most pundits agree that a shutdown won't happen. Beyond the fact that Cruz has eschewed the apocalyptic rhetoric he used before the last shutdown, the reasoning seems to be that a shutdown would be so suicidal for Republicans, potentially snatching defeat from the jaws of victory, that it is unthinkable.

This may be right. But it is still worth thinking a bit about scenarios ahead, particularly given some interesting statements by key Republicans to the contrary. For example, the comments Marco Rubio, who has made stiff warnings to President Obama about any unilateral actions on immigration, made to Breitbart News: "There will have to be some sort of a budget vote or a continuing resolution vote, so I assume there will be some sort of vote on this. I'm interested to see what kinds of ideas my colleagues have about using funding mechanisms to address this issue."

And there is the comment to the Des Moines Register by the ever-voluble Representative Steve King that "the threat of another government shutdown could be Republicans' leverage to pass border security and immigration legislation this fall." He added, "If the president wields his pen and commits that unconstitutional act to legalize millions, I think that becomes something that is nearly politically nuclear … I think the public would be mobilized and galvanized that that changes the dynamic of any continuing resolution and how we might deal with that."

Now, Steve King does not exactly speak for his caucus, but others share his views. At the same time, there are growing indications that Obama will not go for the end zone on executive action on immigration before the election, given the volatility of the issue. Thus taking away the big trigger for a GOP eruption. But it is likely he will do something, either a small or medium-sized step, and any action might precipitate an emotional reaction in the right-wing blogosphere and talk-radio circuit, pushing Republican congressional leaders to do something in response. Would that mean altering a CR to cut funding for Immigration and Customs Enforcement, or denying any funding for Dream Act-related actions? If it did, it would trigger a showdown with the Senate, or at least a veto of the measure, probably extending beyond October 1.

But immigration is not the only stumbling block to a smooth end of this congressional session. House Republican leaders want a clean CR—but want it to go barely a week beyond the November election. They believe that Republican gains on November 4 and the change in political dynamic with an election in the rearview mirror will give them the leverage they need to use the spending bills to their advantage, including killing the Ex-Im Bank and doing what Mitch McConnell told a collection of Koch-inspired conservative activists about the GOP approach in 2015 if they capture the Senate, as caught on tape by The Nation:

I assure you that in the spending bill, we will be pushing back against this bureaucracy by doing what's called placing riders in the bill. No money can be spent doing this or that. We're going to go after them on health care, on financial services, on the Environmental Protection Agency, across the board (inaudible). All across the federal government, we're going to go after it …

Now after this tape became public, McConnell vigorously denied a strategy of shutdowns. But the approach, using denial of spending as leverage, is clear. And Democrats know it. It is possible that Senate Democrats, worried about a backlash against their own incumbents if there is another sign of dysfunction in Congress, will accede to the ultra-short-term CR. But I think it is more likely that they will insist on a much longer one—at least well into 2015. Indeed, one can argue that their best political strategy is to insist on a full-year CR, saying: "Let's put these disputes on ice while we debate the longer-term budget problems." Either way, an insistence by Democrats to extend the CR for months instead of weeks can easily lead to a deadlock that spills over into October.

There is no doubt that the vast bulk of Republicans in Congress, from leaders to many of their tea-party-driven rank-and-filers, do not want an upheaval in October that could backfire against them. The dynamic is strikingly different than it was leading up to the last shutdown, where Speaker John Boehner knew it would be disastrous for his party but could not stop it from happening. But all of that does not mean certainty that we will move smoothly from here to November 4, with a minimally engaged Congress doing as little as possible to get by. Stuff happens, even if presumed power brokers don't want it to happen. The odds of it happening this time may be small, but they surely aren't close to zero.

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Norm Ornstein is a correspondent for The Atlantic, a contributing editor and columnist for National Journal, and a resident scholar at the American Enterprise Institute for Public Policy Research.  More

Ornstein served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also serves as a senior counselor to the Continuity of Government Commission. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future; The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann; and, most recently the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann.

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