CONGRESS
A Glimpse at the Struggle
Or, what to expect when you’re expecting divided government
The 2022 midterm elections results have affirmed that Republicans will hold a majority of seats in the House of Representatives in 2023 and 2024, while Democrats will retain and possibly increase their Senate majority. Democratic leaders in both chambers have laid out their plans for the lame duck session: competing the fiscal 2023 appropriations process through omnibus bills; legislation to revise how electoral votes are counted in presidential elections; legislation concerning interracial and same-sex marriages; and ratifying a deal between railroad companies and workers.
Come January attention will turn to Congress’s divided chambers. House Republicans already have signaled a focus on “investigating” the Biden administration in various ways, and possibly initiating impeachment proceedings against Homeland Security secretary, Alejandro Mayorkas, which in turn has produced criticism that Republicans will engage in “performative politics” rather than serious policymaking.
In reality, Republicans will do both.
Even in a strong partisan era, Congress still engages in serious policy work, but often it’s less visible. With some help from Def Jux Records, here’s what to keep an eye on in next year.
None Shall Pass
In addition to the media-grabbing investigations, expect both the House and Senate to focus significant attention on oversight of the Biden administration’s regulatory agenda. In my book, Committees and the Decline of Lawmaking in Congress, I describe how committees in both chambers are devoting much less effort to legislating today than they did in the 1980s: we’re seeing less than half as many legislative hearings compared to 40 years ago. That decline in committee lawmaking isn’t necessarily due to divided government or the need to keep up with a more active federal bureaucracy, two common explanations.
Instead, I find that a series of rules changes in the 1990s shifted committee incentives and made it less likely they’d recoup opportunity costs that come with making policy through legislation rather than through non-legislative means. Committees have fewer reasons to compete with each other for legislative authority, so they aren’t. Enhanced party leader control over the floor agenda combined with oversight authority that tends to concentrate in the hands of committee and subcommittee leaders has lead to what I call the “stratified Congress.”
I see three areas in particular to watch over the next two years:
Monetary policy
With divided party control of the two congressional chambers another large spending package like the Inflation Reduction Act or 2021’s American Rescue Plan Act seems unlikely. Focusing on the Federal Reserve and its interest rate decisions over the past year may provide legislators with better opportunities to highlight their positions on inflation and the Biden administration’s approach to managing consumer spending.
Energy and the environment
The Inflation Reduction Act and the CHIPS and Science Act each contained significant provisions for clean energy technology investment, tax credits, and commercialization. House Republicans — with West Virginia Democrat and Senate Energy and Commerce Committee chairman Joe Manchin as a possible ally—could use the next two years to boost fossil fuel industries and influence implementation of those recent laws’ energy and climate provisions.
Social media
Congressional Republicans have for years complained in committee hearings that conservative voices are not boosted on social media to the extent they would like. Lawmakers from both parties have expressed dissatisfaction of the Communications Decency Act section 230, though for different reasons. Section 230 essentially says “interactive computer service” providers (including video sites like YouTube and social media platforms like Twitter and Facebook) are not considered publishers of any content provided by third parties like users. Section 230 also permits service providers to remove content they deem obscene, excessively violent, harassing, or otherwise objectionable.
Republicans have proposed repealing section 230 as a way to prevent social media companies from removing certain content, while some Democrats support section 230’s repeal as a way to make companies liable for that same content being posted. The Supreme Court will hear oral arguments in the case Gonzalez v. Google LLC decision early next year which concern section 230’s liability protections. Regardless of the case’s outcome, expect members of Congress to weigh in.
H-U-S-T-L-E
Congress does have looming legislative responsibilities that will take up significant attention. Numerous federal policies and programs are scheduled to expire every 5–7 years and require reauthorization, a process that allows legislators to learn about what is and isn’t working and claim credit for addressing pressing problems. Many, many reauthorization processes have failed over the past decade, so what used to be standard operating procedures are no longer guaranteed. Two major reauthorizations loom in 2023: the Farm Bill and the Elementary and Secondary Education Act.
The House and Senate Agriculture Committees already have held a number of hearings on the pending Farm Bill due to expire next year in preparation. The Farm Bill represents a combination of commodity subsidies and nutrition assistance programs, and represents a classic example of congressional “coalitions of convenience.” At least, it used to. Debate over the Farm Bill famously blew up in 2011 and 2012 when conservative Republicans, led by Kansan Tim Huelskamp, insisted on severing nutrition assistance programs which then reduced support for a commodities-only bill. Incoming House panel chair Glenn Thompson has expressed a preference for a bipartisan Farm Bill, but the decision may not be up to him.
As political scientist Christopher Bosso notes in his book Framing the Farm Bill, fewer House members represent rural districts that benefit from commodity subsidies today than they did 50 years ago. The House Freedom Caucus or other conservative Republicans not on the committee may again try to break up an enduring example of coalitional politics, particularly as the Biden administration has highlighted nutrition and hunger.
The Elementary and Secondary Education Act, first enacted in 1965, typically represents an opportunity for presidents to put their stamp on national education policy, including Bill Clinton’s “Goals 2000” and George W. Bush’s “No Child Left Behind.” ESEA was last reauthorized in 2015 as the Every Student Succeeds Act and is up for reauthorization again in 2023.
With ESEA reauthorization comes conflict. I have been working on a project to measure and trace policy disagreement in congressional agenda setting through “views” attached to committee reports. While a report typically is written by a committee chair’s staff and is meant to represent the whole panel’s work product, any committee member can attach an additional, dissenting, or minority “view” disagreeing with the committee’s work in some way.
My data show that since 1995 the House Education and Labor Committee reports have experienced the second-highest rate of attached views, more than 75 percent, behind only Senate Budget. The current chair of that Senate Budget Committee, Vermont Independent Bernie Sanders, is expected to slide over to chair the HELP Committee next year and he can expect a high degree of conflict in his new position as well.
My analysis of the Senate Health, Education, Labor, and Pensions Committee reports reveals that of the seven HELP Committee reports issued from 2011 to 2018, three pertained to ESEA reauthorization bills and all had views attached. In other words, 75 percent of the Senate HELP Committee’s reports with attached policy disagreements in the past decade have been ESEA reauthorization bills.
Hold the Floor
The last cadre of House Republican leaders, including John Boehner and Paul Ryan, often struggled to manage what political scientists call dimensionality during floor debate. At a basic level, making any decision requires focusing on one aspect to the exclusion of others: defining the problem in a certain way that makes choosing easier. In today’s Congress that’s part of the majority party leaders’ job: focusing on the issue dimension that allows the chamber to reach a decision.
Allowing legislators to offer amendments can work against that need to simplify, and it’s something at which Boehner, Ryan, et al. consistently were bad.
The 2011 and 2012 government shutdowns happened because a small group of Republicans including Texas Senator Ted Cruz were able to define broad government funding and borrowing legislation in terms of support for the Affordable Care Act. In 2018 House conservatives were able to hold up consideration of a combination omnibus spending bill and continuing funding resolution because they wanted to talk about immigration policy.
And consider debate over the fiscal 2016 Interior Department appropriations bill. The House agreed by voice vote (that is, with no recorded objections, in part because many legislators weren’t paying attention) to an amendment sponsored by California Democrat Jared Huffman that would ban displaying the Confederate flag at national cemeteries. GOP leadership then instructed California Republican Ken Calvert, who was managing debate on the bill, to offer an amendment to undo the Huffman proposal.
House Democrats pounced, and were able to direct attention to the House Republicans’ support for the Confederacy and Confederate imagery at a time when the “stars and bars” were being removed from the South Carolina capitol building in response to a mass shooting at a Charleston church. House Republican leaders had lost control over the Interior spending bill’s debate dimensions to the point that it held up consideration of other legislation.
Kevin McCarthy, the presumptive though by no means guaranteed Speaker of the House in the next congress, was part of the leadership team responsible for losing track of Huffman’s amendment and framing over the Confederate flag. Which is all to say, given McCarthy’s and the House GOP’s track record we might see at least one unforced error during floor debate on appropriations in the next two years.
