The Omnibus Dilemma

What Happened, Why and How to Fix It

As the bewilderment on the right over last week’s omnibus deal turns to anger, it’s worth considering how we got to this point, how the deal got so bad, and how we can avoid this situation in the future.

The conference started with a laundry list of 150 so-called policy “riders” that represented the biggest bargaining chips on the appropriations table. Language related to Planned Parenthood and Syrian refugees was often discussed, without much hope that the provisions might survive. But with bad regulatory policy being promulgated by the Obama Administration on a daily basis, there was still a great deal to shoot at, with industry and conservative groups alike uniting around several of them.

From the WOTUS rule whereby EPA seeks to regulate glorified puddles to the NLRB’s redefinition of “joint employer” to facilitate franchise unionization, key concessions were long considered in play. And yet when the dust settled, none were to be found under the legislative Christmas Tree. More troubling to many on the right, they found an unexpected lump of coal in the Omnibus stocking in the form of H-2B visa expansion.

So what went wrong? How did the deal get so bad?

A key insight can be found in a post-mortem piece by Ryan Lizza (yes, that Ryan Lizza) in The New Yorker of all places:

Because many of the most conservative Republicans would not support the spending bill under almost any circumstances, Ryan had to depend on Democrats to reach the two hundred and eighteen votes necessary to pass the legislation. That put Pelosi in a powerful negotiating position, and is the most recent example of how the House Freedom Caucus, by witholding support for Republican leadership’s priorities, has helped to shift legislation to the left.

This is a crucial and inarguable point- each and every GOP House member who says from the outset that they won’t vote for the omnibus package inherently ratchets its contents a tick leftward.

Part of it is the sheer physics of dealmaking. You can’t leverage for your preferred provision if your vote was never in play in the first place. The approach must be “I will vote for the omnibus if it includes X.” X could be a Syrian refugee rider; it could be defunding PP. It could be anything you like. But unless enthusiasm for X can help sustain the bill itself, it’s not going to pass muster.

Conversely if you want to know why the things you don’t like got into the package, consider who your allies are. If you don’t like the H-2B program, you’re not alone, even within Congress. Judging by the loud grumbling the expansion was met with, there are many. But the problem for immigration hawks is that, to a man, these members were never going to vote for the final deal in the first place.

At the most basic level, it’s not about special interests and it’s not about bipartisan support. At the end of the day it’s because those who wanted these provisions were willing to go to the mat and vote for the omni while the other side simply wouldn’t. Call them crony sellouts, call them RINOs or worse. But it’s the good guys who are taking themselves out of the game before it even begins.

I do have one quibble with Lizza's piece, however- this is not a problem of the Freedom Caucus, per se. The Freedom Caucus is a convenient if pugilistic avatar we too often use to conflate the House GOP’s two biggest problems.

The first issue is residual scar tissue from five years (a decade, really) of pent up mistrust and bad faith that has metastasized into a self-perpetuating cycle of dysfunction. The angst is something that can be ameliorated, although the omnibus debacle shows that simply changing speakers isn’t enough to pull Republicans out of this vicious loop.

The second problem is a deeper and more pervasive one that crosses the “Establishment”/Freedom Caucus divide; namely, the perverse political incentives of deep red districts. If you’re in an R+12 seat, it doesn’t matter if you’re a member of the whip team or you’re a Tea Partying back-bencher- you’re still subject to the same pressures. When your primary election is tantamount to the general, you may not be an HFC member but you’ll be judged against one -- be it by talk radio, conservative blogs, your constituents or your primary challenger.

The problem is that you’ll never get that 246th guy -- the proverbial Louie Gohmert -- and if you don’t get him, you lose those who simply don’t want to be outflanked. This dynamic is why a hell-no rump quickly grows into a vote no, hope yes plurality. You might think Paul Ryan is a swell guy but you like your job more.

Partisan legislative power derives from the ability to command a majority. The moment you must rely on democrat votes, you’ve lost all conceivable leverage. Suddenly a handful of obstinate back-benchers becomes a unwieldy rump that renders you a functional minority party, beholden to the whims of Nancy Pelosi. Meanwhile, for every accommodation you have to make to attract or appease Dems, you lose more Republicans from your rightward flank. Pretty soon it’s a Pelosi bill for all intents and purposes. And perhaps most perversely you’ve played into a self-fulfilling prophecy that true conservatives don’t vote for omnibuses because they are inevitably bad bills.

Funding the government, the vaunted “power of the purse,” represents the single best opportunity to make conservative policy. For better or worse, the spending caps were agreed to weeks ago and locked in. The government was going to be funded- the question is whether members prefer to achieve actual policy victories, however incremental, or preen about purity. In this case many regrettably chose the latter. And unless and until you’re able to realign incentives for deep red seats such that half a loaf is better than none, this problem won’t go away.

Which brings us back to today- many conservatives feel betrayed. They’re angry as hell that they got rid of Boehner but still ended up with the same abysmal result. Cynics would say that this is exactly what The Establishment wants- an opaque deal negotiated in smoky backrooms where they can say they tried while rolling over for Dems and K Street.

But the current reliance on last minute CR/Omni/CROmni bills is not about Boehner. It’s not about Ryan. And it’s not about the Freedom Caucus. It’s about the Senate. For that matter it’s not even about McConnell or Cruz- it’s about Senate Democrats abusing the filibuster to divide Republicans and extort a better deal under the threat of shutdown.

People seem not to know or care that the full (Boehner) House passed six government funding bills through regular order. [They may have moved them all had the Interior Appropriations bill not fallen prey to flag politics.] They seem not to know or care that Senate Democrats forced the omnibus debacle by filibustering the bill that pays the troops. Not once. Not twice. But three times Harry Reid and Chuck Schumer kept the Defense Appropriations bill from even being debated on the Senate floor.

Ultimately this isn’t about The Establishment versus the Grassroots, or Leadership versus the Freedom Caucus. Fixing that dynamic merely gets you a slightly less rancid omnibus deal. As long as Schumer and company can use the filibuster to force Republicans into year-end shutdown theater, you’ll get a circular GOP firing squad and a take-it-or-leave-it frankenbill.

Part of this is a messaging failure- Republicans should be raking Democrats over the coals for this, not patting themselves on the back for reaching a deal. Part of it is a media failure- we heard more about Aaron Schock’s taste in wallpaper than we did about the fact that Dems were blocking troop funding. You can’t make the mainstream media cover this stuff credulously, especially given their cynical view of process and the inevitability of the CR/Omni, but you can and must use conservative media if only to frame the endgame and limit recriminations.

The reason conservatives are so enraged and morale has hit a dangerous low is that most think this was Ryan and McConnell cutting a deal by choice. That because they were unwilling to countenance another government shutdown, Dems were permitted to dictate the terms. Instead of being mad at Dems and holding them accountable, rank and file Republicans are almost wistful- at least Democrats have leaders who know how to fight. Which of course misses the point that Republicans simply don’t have the votes- whether for a decent deal in the House or cloture in the Senate.

We can quibble about what did or didn’t make it into the omni and why- but ultimately it reflects a breakdown in the process that must be addressed. For all the talk of progress under the GOP majority, a broken Senate lies at the heart of a chronically dysfunctional Congress that has lost the trust of the American people. We’ve known for over a decade (under both parties) that the weaponized filibuster was a problem. But given the mutually assured legislative destruction of a post-“nuclear” Senate, Republicans are faced with a prisoner’s dilemma.

Reid threw the initial gauntlet by removing the filibuster for nominations, essentially daring the GOP to open the door further. But doing so is a risky move with limited utility given the inevitably Obama veto. If you don’t think Leader Schumer would pull the trigger himself to send a bill to HRC at the first opportunity you haven’t been paying attention- but that’s no reason to give him pretext much less precedent.

So if you don’t want to walk into a majoritarian Senate trap but you want to avoid the perennial CR/Omni/shutdown nonsense, what can you do?

Jay Cost over at the Weekly Standard makes a persuasive case for a limited filibuster fix that would return the Senate Appropriations process to regular order. Writing with Randy Barnett back in November, Cost articulates precisely what the Dems were up to just before we watched it occur in real time:

When the minority is of the same party as the president, it can use the filibuster to prevent the majority from disciplining the president through the spending power. In recent years, Senate Democrats have discovered that if they block individual appropriations bills, the entire operation of government will inevitably be rolled into an omnibus appropriations bill, and the majority must either accept it in toto or face a partial shutdown of the government.

Cost and Barnett suggest implementing a rule change that would prevent appropriations bills (and only appropriations bills, as defined under Rule XVI) from being filibustered, allowing the Senate to work its will and reassert its Constitutional prerogative over spending.

To be sure there are practical and political hangups with this approach. As Cost mentions, the default reliance on the omnibus approach spares Senators from taking difficult votes. Reid was so intent on protecting his vulnerable members that he held a vote on only one of 65 individual appropriations bills in the last five years of his leadership. (The one passed, 97–2.)

But mutual bipartisan discomfort is all the more reason to embrace this change and disrupt the cozy and familiar if haphazard cycle of auto-pilot CRs and ad hoc omni deals. Remove the rebuttals and excuses, let sunlight into the backrooms, and if it means the President has to make good on his SAP threats to veto troop funding, so be it.

Not so long ago, divided government was the ticket to making DC work. Today it’s a recipe for a government by crisis, careening from cliff to spending cliff with bouts of impotent brinksmanship in between. Republicans must get their House in order for the good of the party. They need to fix the Senate for the good of the country, and what’s left of its faith in government.

Addendum

This piece has generated a good bit of interesting feedback which itself deserves a brief acknowledgement.

The biggest pushback has been the short shrift that was given to the shutdown threat (or lack thereof.) Indeed, determined to demonstrate that the GOP Congress has the ability to govern, GOP leaders unequivocally took the idea of year-end brinkmanship off the table.

Now you might argue that Republicans suffered no electoral penalty for the events of 2013, and in fact scored massive victories the following year. But shutdown chicken is a tactic, not a strategy. Pursuit of this approach inherently means that regular order has broken down, and your only choice is another CR/Omni, however favorable its terms. Let’s say GOP leaders sticking to their shutdown guns “works”- Obama and the Democrats cave, and Republicans manage a slightly better deal. This still doesn’t change the structural problem that is paralyzing the system and forcing government-by-crisis.

Ultimately it’s that paralysis- and the monstrous, opaque, take-it-or-leave-it back room deals that ensue- that feeds voters’ cynicism and disillusionment. At least under regular order members can fight the good fight on their issues and put their colleagues on the record. People can accept failure. What they can’t abide is failure theater- a kabuki crescendo culminating in an ugly deal that achieves nothing for the ostensible majority.

So if your goal is to win a few policy scraps from Harry Reid and Chuck Schumer, perhaps a well-executed game of chicken can get you there. But so long as the filibuster affords them the ability to block any and all funding bills from reaching the President’s desk, shutdown drama will always be a Congressional food fight from which Obama remains politically immune.

The only way to break this perverse cycle is to reform the filibuster and empower the Senate majority to take up individual spending bills as the House already does. Beyond restoring order and transparency to the most basic and essential task of Congress, this reform would also invert the political dynamic. Instead of hiding behind his Senatorial protectors and their procedural shields, the President would be forced to make good on his repeated threats to veto all spending bills and thus own the consequences of a lapse in government funding.

This piece focuses on the dysfunction of Republicans on a micro level to drive home a bigger macro point- that without fixing the system, namely by reigning in the filibuster, we’re simply debating how palatable the unwieldy back room deal will be at the end of the year. Instead of aiming for a “better” or more conservative Omnibus, it’s time to break the cycle altogether and make the Senate work again.

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