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Matt's Five Points, December 28: Negative Agenda Setting Rules Us All

December 28 · Issue #6 · View online
Matt's Five Points
Welcome! I’m Matt Glassman, Senior Fellow at the Government Affairs Institute at Georgetown. Here’s my regular newsletter that usually includes five points at the intersection of DC politics and political science, and often some links to interesting things I’ve been reading or listening to this week. 
In this issue, I make a shutdown prediction, explain negative agenda setting, and discuss the first day of a new Congress.
Feedback? Drop me a line or just respond to this email. And you can always catch up with me on Twitter.

When will the shutdown end?
Unclear, but my money is on shortly after the new Congress starts.
(As a primer, you might like to read my Shutdown Explainer from last week’s newsletter.)
The partial government shutdown that began on Saturday has entered its second phase. Phase one was the technical lapse in appropriations, which began last Saturday at 12:00am. Phase two began Wednesday, when most federal workers came back from the Christmas holiday, and most agencies actually began the orderly shutdown procedures. As I see it, phase three will begin if there is no deal to reopen the government when the 116th Congress starts next Thursday, January 3rd. And phase four will begin on January 11, when furloughed federal employees using EFT actually get their first reduced paycheck.
It looks like there will be no resolution to the shutdown during phase two. Formal chamber action was strictly pro forma on Thursday, with another pro forma session scheduled for Monday (Dec 31) and a Senate session on Wednesday (Jan 2). But negotiations have basically stalled, and everyone more or less agrees that there’s an unusual lack of urgency compared to previous shutdowns.
What should we make of this? There are four key features to the situation:
  • There’s little appetite, and not enough votes, in Congress to actually build a wall—the unified GOP Congress ignored the issue for the entire 115th Congress, and the House GOP had to absolutely twist arms and buy-up votes to pass the $5B bill last week. It’s a complete dead-letter in the Senate.
  • The president is desperate to appear tough on the issue—the anti-immigration portion of his base has become activated in the last month, and he can’t afford for them to turn on him.
  • Congressional Republicans would prefer to not embarrass the president—they don’t really want a wall and were happy to bury it from the agenda (see below), but now that it’s front and center on the agenda, they don’t want to be seen as slapping Trump in the face on the issue. This is quite natural; even when co-partisans disagree, they prefer to do it gently.
  • When phase three starts, there’s an easy out for everyone—once the Democrats take control of the House, a face-saving deal will be readily available that allows (1) Trump to claim his tough stance won him some concessions, which he will call a Wall; (2) the Democrats will claim they reopened the government without providing $5B or building a wall; and (3) congressional Republicans can talk any side(s) that fits their individual needs, be it supporting POTUS, blaming Democrats, and/or praising the deal.
What’s going on here is that we aren’t really sorting out the policy so much as the politics of explaining the final outcome. I’m with James Wallner:
James Wallner
This is a bizarre shutdown. Just checked in after a few days and saw that nothing has changed. Senate will be out until next week? Odd way for Republicans to fight for what they ostensibly want. Appears that they are waiting for cover from a Democratic majority in the House.
It’s highly likely that the shape of the final deal is known: a small increase from the $1.3B in border security funding in the current Senate-passed bill—could be $1.6B, could be $2.1B—that Trump will call wall money and the Dems will call border security money; perhaps some small gift to the Dems to offset that concession; and all of it wrapped in either a CR into February or full-year appropriations that put the final bow on the FY2019 appropriations cycle. What we don’t have is the proper structural situation for everyone to be able to explain away that outcome as they’d like.
Could there be a bigger or smaller deal? Sure. We could get a clean CR that reopens the government but just pushes the deal off until the new deadline, perhaps February 8. We could also get a huge deal, in which Trump gets a wall but the Democrats get comprehensive immigration reform. But my bet is that we get the obvious face-saving deal for the president, and we get it rather quickly. Could there be no deal? Sure. Maybe there is a substantive policy fight over the wall that will drag on as both sides dig in. But I doubt it.
So I’ll predict the following: nothing happens during the remainder of phase two, the Democrats immediately pass a bill in the House to reopen the government on the first day of the new Congress (Thursday, 1/3), and the face-saving deal is passed such that the government opens for normal business on Monday, 1/7.
Explainer: What is negative agenda setting?
It’s one of the keys to understanding congressional (in)action.
Last week, it looked like a deal was at hand to avert the shutdown. The Senate passed a bill, by voice vote, containing a continuing resolution that would fund the government until February 8 but did not contain money for a border wall as requested by the president.
In the House, there was almost certainly a majority—perhaps even a veto-proof majority—in favor of the Senate-passed bill. The House, however, never voted on the Senate bill. They instead voted on and passed a different measure, which provided $5B for a border wall and just under $8B for disaster relief. That measure was a complete dead letter in the Senate, and thus came the shutdown.
This episode was a good example of negative agenda setting. Most people understand that one way to influence policy outcomes are to sway the way legislators vote on an issue. But perhaps a more important power—what political scientists Peter Bachrach and Morton Baratz famously called the “second face of power”—is the power to decide what is actually voted on.
Negative agenda setting is the practice of preventing measures that are otherwise popular enough to pass from ever being brought up for a vote. In the House, this happens quite often. The Speaker is empowered under the rules to decide who to recognize on the floor. Consequently, she decides which non-controversial suspension measures will be considered. In many ways, this is just practical; there are too many non-controversial bills that members would like to pass, so someone has to decide which ones will be taken up in any given Congress.
More importantly, the Speaker uses her discretion over the agenda to prevent legislation from reaching the floor that is supported by a majority of the House, but not by a majority of the majority party. Consequently, bills like the CR—which likely would have had the support of all 197 Democrats but perhaps only about 100 of the 236 Republicans—are often kept off the agenda because they don’t serve the interests of most members of the majority party, despite have support of more than 2/3 of the whole House.
Negative agenda setting isn’t new. The majority party in the House has routinely used it since the 19th century. Republicans notably used it this Congress to prevent an immigration/DACA deal from making it to the floor. Democrats notably used it last time they had control of the House to prevent pro-gun legislation from making it to the floor. So long as the members of the majority party who would support the legislation acquiesce and don’t rebel against the party leadership, there’s no way for the supporters of the popular bill to secure it’s consideration.
Why didn’t the Republicans who would have supported the CR rebel? A few reasons. First, it can be costly to buck the party on procedural matters. Party leaders have control over a variety of resources Members need to achieve their political and policy goals, such as committee assignments, campaign funds, favored status for a member’s bills and amendments. Second, there’s a large gap between what a member will vote for once they are forced to take a vote, and what they will work to push onto the floor agenda.
Finally, the mechanism that a floor majority has at its disposal for getting consideration of a measure the leadership opposes—the discharge petition—is a cumbersome and lengthy process. Supporters of the CR simply did not have enough time. While they might have been able to secure a CR vote by voting down a special rule and taking control of the House floor by procedural force, such a move strikes at the heart of leadership control, and is consequently considered a grave offense against the party, with corresponding consequences for members who try it.
Leaders, of course, can buck their own party and override the logic of negative agenda setting. This is how Republicans have ultimately passed most appropriations in the last decade: GOP leaders have put bills on the floor that aren’t all that popular with their own party, and relied on Democratic votes to pass them. Speaker Ryan could have taken the same tack with the CR last week, but chose instead to side with President Trump and use his agenda-setting power to instead force a shutdown.
Negative agenda setting is not confined to issues that have floor majorities but not a majority of the majority party. It can also be used to bottle up the president’s agenda. Most House Republicans would probably have felt compelled to support the parts of President Trump’s agenda that were not traditional GOP priorities, had they come up for a vote. Indeed, when the $5B border wall finally got to the floor last week, they begrudgingly supported it.
But notice how much of Trump’s agenda never made it to the floor during the 115th Congress: almost none. The GOP took up traditional Republican priorities: tax cuts, deregulation, repeal of Obamacare. Where the president’s agenda was different—on trade, tariffs, infrastructure, and sharp budget cuts—the issues never came to the House floor. The beauty of negative agenda setting is that it leaves no trace. GOP Congressmen were quite hesitant to cross Trump during the past two years when formal votes were taken; but they were quite happy to ignore his agenda and use negative agenda setting to make sure it silently fell by the wayside.
Nor is negative agenda setting exclusively a practice of the House. In the Senate, there is no corresponding figure to the Speaker with so much discretion over the agenda; all Senators are formally equal in their ability to bring legislative items to the floor. Nevertheless, institutional developments have created a modern environment in which Senators are extremely deferential to the strategies of party leaders, allowing those leaders to make strategic choices on behalf of the party, including choices about the agenda. Majority Leader McConnell, for example, has refused to take up the so-called Mueller-protection bill, despite the fact that it clearly has majority support among Senators.
This could become quite relevant next week. If the new Democratic House takes up and passes the old Senate-passed bill that provided a CR until February 8 but no border wall money, McConnell will be in an odd spot: he will probably have the power to use negative agenda setting to prevent the bill from coming to the Senate floor and passing, but he will have to do it in the context of having previously brought to the floor and passed the very same bill. I don’t doubt that he’ll be happy to do just that, probably citing that the position of the president has changed, but if nothing else it will be a stark example of the agenda-setting power in Congress.
Twelve Twitter Accounts to Follow This Year
Follow these to help you understand DC polics in the 116th Congress.
Sarah Binder (@bindersab) | Twitter
Josh Huder (@joshHuder) | Twitter
Elizabeth Saunders (@ProfSaunders) | Twitter
Stan Collender (@TheBudgetGuy) | Twitter
Molly Reynolds (@mollyereynolds) | Twitter
Gregory Koger (@GregoryKoger) | Twitter
Julia Azari (@julia_azari) | Twitter
Jonathan Bernstein (@jbview) | Twitter
Rachel Bitecofer 📈🔭🗿💪 (@RachelBitecofer) | Twitter
James Wallner (@jiwallner) | Twitter
Jennifer Victor (@jennifernvictor) | Twitter
Josh Chafetz (@joshchafetz) | Twitter
Watch The First Day Of Congress Next Week.
The pageantry is important. There will also be substantive action.
Under the constitution, the 116th Congress will begin at noon on January 3rd next week. I highly recommend watching the opening day activities (here’s a good CRS guide to the technical details). Nothing can beat it for pure democratic pageantry.
The presidential inauguration is a beautiful celebration of the passage of executive governing power, and (as I’ve written before) the State of the Union Address is a wonderful reflection of our constitution’s separation of powers system.
But opening day in the House is the essence of peaceful self-government as envisioned in the Constitution. There will be a moment, sometime between now and January 3rd at noon, when the 115th adjourns sine a die, ending their 2nd session of meeting. At that point, no legislature will exist with the power to act. And shortly later, in a moment totally unappreciated by most, a new meeting of the Republicthe 116th such congresswill convene.
On the surface, this is mostly mundane. The Constitutionas implemented by law, rule, and customdirects the proceedings. But at another level, this is deeply profound. One set of citizens complete their governing tasks and step aside; another set steps up. It’s so routine you don’t think about it. But this transfer of power, in the legislature and under law, defines our system of government. And the one place this is recognized is on the House floor, really the only place where a pageantry befitting the moment occurs.
Although the Constitution allows House to set an alternate first day by law, this year they convene at the Constitution time: 1/3, noon. And so they will show up. With their families. With their kids. Under rule and custom, the Clerk of the House runs the show. The Constitution is in charge. First move is to satisfy the requirement that a quorum exists: and so they have a quorum call. Second order of business is to elect a Speaker. They do it by voice vote. You really should watch. This is a democratic moment.
They then vote on rules to be used in the chamber, fulfilling another Constitutional provision to make their own rules of proceeding. And in the final basic Constitutional action for the day, the members of the 115th Congress are sworn into office. It’s all over rather quickly, but that belies the magnitude of the moment. A Republic, our republic, has once again proven itself. Not as a powerful nation. Not as a mighty army. But as a rare civilization that perpetuates itself peacefully under law.
The first day of the 116th Congress will also be substantively important to politics. While a significant number of the decisions that will shape the next two years have already been made (see item #3 here), here are three things to watch for on opening day:
  • How much dissent is there on the Speaker vote—Minority Leader Pelosi has sewed up her election as Speaker, and any Democrats who vote against her will be doing so for signaling reasons rather than actually trying to defeat her. And Pelosi has surely released them to do so (she wants them to get reelected too!). Still, there’s a big difference between a handful of dissenters and a full plate of 15 or 17, if only because it will signal their need to separate themselves from the leadership on future votes during the 116th.
  • What the Democrats change in the House rules—Incoming majorities in the House always make tweaks to the chamber rules. One rule in question will be term-limits for committee chairmen. The GOP put in this rule in 1995; the Democrats removed it in 2009; the GOP brought it back in 2011. I supsect there will be some pressure to keep the rule—there are certainly good arguments for rotating in chairs—but I’m strongly against it. The experience with it under the GOP has been bad, with committee chairs lacking experience, not being able to build power bases, an atrophy of oversight, and a strengthening of the central leaders. A second question is whether the Democrats will create specific select committees under the rules to deal with any of the Trump-related scandals. This is a treacherous thicket of internal committee turf battles and external public relations strategies.
  • How will the shutdown be dealt with—the Democrats have strongly signaled that they will pass a bill on opening day to reopen the government. That could means a clean-ish CR, perhaps the Senate-passed bill from December 19, pushing a final deal off until February or so, or it could be a more comprehensive bill that finishes off the FY2019 appropriations and stakes out a concrete position on border wall/security funding. Further, how many House Republicans vote for the bill?
Three Things I Really Enjoyed Reading This Week
And What Can You Say About Paul Ryan? | HuffPost
How Much of the Internet Is Fake? Turns Out, a Lot of It, Actually.
How Mark Burnett Resurrected Donald Trump as an Icon of American Success | The New Yorker
You should listen to our podcast.
We feed Congress experts beer and get them talking.
My colleagues at the Government Affairs Institute and I regularly talk congressional politics with Hill scholars, reporters, and other experts on our podcast, Congress, Two Beers In. And they’re always on their second beer when they start talking.
Congress, Two Beers In by Government Affairs Institute on Apple Podcasts
We have some great guests lined up for January, but are always looking for more. If you think you’d make a good fit, let us know. 
Thanks for reading. I’ll be back again next week! In the meantime, follow me online or reach out via email. I’d love to hear from you!
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