How Lame Will the Lame-Duck Be?

Between now and the end of the year, Congress could take major steps to fund the government and approve nominees—or it could shut down the government.

Siu Chiu/Reuters

First, and sadly, I need to acknowledge the death of a great figure from Congress, Bill Frenzel of Minnesota. Bill was my congressman and also a dear friend. I worked especially closely with him on the Office of Congressional Ethics, where he was a stalwart member, helping to ensure its integrity and providing some of the glue that meant that all of its decisions, from a diverse membership cutting across all partisan and ideological lines, were unanimous. That was Frenzel, a throwback to an earlier era both in Congress and in the Republican Party. He was a bridge-builder, not a bomb-thrower, a free-market, business-oriented conservative who knew how to find common ground and forge compromises. I mourn his loss and the loss of his model in the GOP, both in Washington and Minnesota.

Will there be anything left of this compromise and common ground? With the apparent determination of President Obama to issue his executive order on immigration this week, the lame-duck session in Congress takes on a fascinating set of twists. I tweeted last week, "House Republicans say Obama exec action on immigration will make it toxic for a decade. From the lovefest it's been for the past decade." The reality is that there were ample opportunities over the past four years for the House of Representatives to take a constructive step on immigration, especially after the big, super-majority vote in the Senate on a comprehensive bill. It declined to do so. Meanwhile, the favorite GOP talking point on the subject has been that Democrats had majorities in both chambers in 2009 and 2010 and failed to act. Which neatly ignores another reality: During that time, the House passed handily the Dream Act, a major step toward broader immigration reform. There was majority support in the Senate. Guess what? Mitch McConnell led a filibuster that killed the Dream.

Regardless of that set of facts, and the additional fact that both Ronald Reagan and George H.W. Bush took sweeping executive actions on deferring deportations without a peep from Congress, it is the case that the president's move will change the dynamics of policy-making and politics during the weeks ahead, and beyond. There are two areas, in particular, I am watching right now. The first is to follow the money.

Before the election, anticipating a Republican Senate, House Majority Leader Kevin McCarthy made clear that he wanted the new, all-Republican Congress to start out on a strong and positive footing by clearing the decks in the lame-duck session of troublesome and divisive matters, starting with spending bills—doing a clean continuing resolution through the current fiscal year that would move the budget and appropriations showdowns to later next year. As numerous news stories have pointed out, there is now a lot of pushback to that approach, a scramble to come up with a strategy to use the spending leverage to blow up the president's executive order. That strategy starts with a set of short-term CRs that expire in January. Most programs would be extended through the year, but there would be a narrow, targeted bill cutting off funding to implement the executive order.

Making that work is a very tricky and explosive business. First, if there is only a short-term extension, it might be blocked in the Senate, leading to a possible shutdown in December. Second, it will be difficult to construct a bill that would cut off funding for the executive order without cutting funding for immigration activities overall, including the Border Patrol. And in any case, the president could veto other spending bills and take the case to the country. Whether there is any circumstance in which a shutdown would not be blamed on Congress is an interesting thing to test. But if we segue right from an election that gave Republicans control, after which incoming Senate Majority Leader Mitch McConnell flatly pledged no shutdown, to a shutdown right before the holidays, that would not bode well for the public image of the new Congress. Will McConnell, House Speaker John Boehner, and McCarthy try to push the controversy to next year's appropriations and budget? Will they argue that the best way to push back on immigration is to block the president's nominee for attorney general? That would leave Eric Holder in place, while blocking a highly qualified and widely praised African-American woman. A big set of questions.

Second is the confirmation process. As Eleanor Clift pointed out last week, there are more than 200 stalled executive-branch positions awaiting action in the Senate, including dozens of ambassadors to key countries around the world. Nearly all the nominations are noncontroversial. We also have a sizable number of judges awaiting confirmation. Four ambassadors and three judges have moved, without controversy, since Congress came back. Will Harry Reid and McConnell reach a deal to move the bulk of these nominees through without delays? Or will the immigration move by the White House make McConnell decide to block any level of cooperation with his Democratic counterpart?

Even with the rules change that reduced the confirmation filibuster bar to 50 from 60, if there is a filibuster, the time it takes to get cloture votes and go through post-cloture debate for each nominee is extensive. Without a deal, Reid would keep the Senate in session most likely until late December to push the confirmations through, and we would start the new year with an added level of friction and resentment.

I understand the president's need to act on immigration; I hope he will issue his executive order and delay its effective date until the end of January or mid-February, giving the House one last chance to do something on the issue. But put into context, including the history of the last six years, the renunciation of the comprehensive Senate bill by its chief sponsor, Marco Rubio, in the face of grassroots conservative opposition, and the history of actions by previous presidents, it is not nearly as explosive as the rhetoric or editorials would suggest. Will it be separated from other issues where there is an opportunity for constructive action, or will it be the excuse for another meltdown into gridlock in the 114th Congress? We will have an answer in the lame duck.