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Matt's Five Points, January 11: The National Emergency Gambit

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Welcome! I’m Matt Glassman, Senior Fellow at the Government Affairs Institute at Georgetown. Here’s
 
January 11 · Issue #7 · 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 discuss the shutdown, the Invisible Primary, why nominees are being rude to Senators these days, why Senate Dems aren’t pressing as hard as they could to open the govenrment, and a methodological error people make when they think about contemporary politics.
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? Who Knows.
The National Emergency Gambit has taken over strategies.
(As a primer, you might like to read my Shutdown Explainer from last month.)
Here was my take on the shutown two weeks ago:
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.
I’ll give myself small credit for predicting nothing would happen over Christmas and that the Democrats would immediately pass bills to reopen the government on January 3. But those were easy. What I got totally wrong was how dug in the president would be, and how much support he would get for that position from the Senate Republicans, who have shown some signs of unhappiness with the shutdown, but have been far more unified in backing Trump than I expected.
Here’s a good state-of-play article from Matt Fuller. The most important development in the last week has been the mainstream acceptance in DC of a new obvious face-saving off-ramp for the president. Call it the National Emergency Gambit (NEG). Here’s how Eric Columbus put it on Monday:
Over the course of this week, this theory has gone from mere speculation to the conventional wisdom in DC. One thing that I think has gone unappreciated is how much the existence of the National Emergency Gambit is itself affecting the negotiating strategies of the parties. If the NEG option didn’t exist, there would be a lot more incentive for everyone to find their way to the face-saving legislative compromise, especially as the shutdown enters a new phase (actual checks missed by federal employees) and problems start to mount with more agencies. But because the National Emergency Gambit is available, and because it’s a second-best option for everyone, there’s not a lot of reason to bargain. Consider what each side would get out of the NEG:

  • President Trump would get to look tough for his base, showing them he’s doing everything to secure the Wall. He wouldn’t have to compromise, and there’s some chance he might even get something that he could legitimately call a Wall, eventually. In the meantime, he’d get to rail at “liberal judges” for blocking him in the Courts, playing even further to his base and creating even better politics for expedited judicial confirmations in the Senate. Plus, he’d get to end the shutdown and reopen the government.

  • Democrats would get to look tough for their base too, by refusing to give Trump even one penny for a border Wall. They could immediately file lawsuits that would likely delay any actual Wall construction for years, and could plan to hold votes in Congress both to remove Trump’s emergency powers and to specifically prohibit Wall funding in next year’s appropriations bills. Plus, they could kick and scream about Trump abuse of the emergency power statutes, feeding their narrative of an out-of-control president unfit for office and possibly dangerous to our nation. Plus, they’d get to end the shutdown and reopen the government.

  • Congressional Republicans would get to avoid having to take any tough votes in Congress. They could register concerns about the emergency powers, but easily sluff those off rhetorically, deferring to the courts on the legality, and personalizing the result to their own politics. They would not have to formally cross the president or his base, and could aim their fire at whoever made the most sense for them individually: POTUS, the Democrats, both, the process, and/or the leaders. Plus, they’d get to end the shutdown and reopen the government.
Best I can tell, these are second-best outcomes for everyone. The Dems obviously would like to strike a legislative deal with no Wall, and Trump would like the Wall fully funded. But since this is mostly about finding the right optics for a face-saving compromise, rather than substantively making policy progress on immigration, the NEG strategy is probably as good, or better, than any legislative bargain that can be had.
Stop Asking If Someone's Gonna Run For President.
If you’re asking, they probably already are. The Invisible Primary, explained.
I confess that I have very little expertise in choosing party nominees for president. I’m no better than anyone else who reads the newspapers at figuring out who is going to be the Democratic nominee, and my opinion about who should be the Democratic nominee isn’t grounded in anything more than gut instinct. So it was a little disconcerting over Christmas break when those were the questions everyone in my extended family kept asking me.
Fortunately, the third question I kept getting asked—do you think [candidate X] is going to run for president—is an easy one. And the answer is: they probably already are running. Seriously, the most important thing to know about running for president is that the vast majority of people who run for president don’t participate in the primaries, and a substantial portion of those who run never declare themselves official candidates for the office. Instead, they are defeated (or “winnowed” as Jonathan Bernstein and other nomination experts like to say) long before the general public has any idea they were actualy running.
What candidates are doing right now is taking part in the so-called Invisible Primary, the period in the years before the formal presidential nomination process come alive. During the invisible primary, candidates privately seek out donors and potential staffers, court party actors and interest groups, and test their strength in the partisan media and on the ground in early primary states, both to gauge their viability for a full-fledged campaign and to signal to party elites that they are on the radar screen. This is particularly important for lesser-known candidates, who may have fewer national connections to such party actors.
Same thing for more visible activities, like campaigning for other people or visiting far away states. When you see someone take a trip to Iowa or hold a rally for a congressional candidate on the other side of the country, you shouldn’t think “maybe they are thinking about running for president.” They actually are running for president. I highly recommend The Party Decides, the best book on these aspects of the nomination system.
The Party Decides: Presidential Nominations Before and After Reform, Cohen, Karol, Noel
The best way to make sesne of all this is how political scientist Josh Putnam wonderfully frames it: there’s a difference between candidates running for 2020 and candidates who will be running in 2020. There are probably 30 or Democrats currently running for 2020. In all likelihood, no more than 10 or 12 will be running in 2020. Likewise, when a potential candidate announces between now and the beginning of the debates later this year that they will not run, in many cases what they are really saying is that they already lost. They entered the invisible primary, and they were winnowed.
We have a tendency to say someone “declined to run” for president. But usually, those people tested the waters and found they were either too cold, or contained specific sharks. Romney in 2016, for example. Clinton in 1988. Even Cuomo in 1992. Most famously, people like to say that LBJ decided not to seek the nomination in 1968. But that’s nonsense. LBJ was defeated in 1968, after he barely won the New Hampshire primary.
By Bernstein’s count, six Democratic candidates have already dropped out of the Invisible primary: Tom Steyer, Michael Avenatti, Andrew Cuomo, Jason Kander, Martin O'Malley, and Deval Patrick. They looked into the nomination, and when it was obvious they weren’t going to be able to line up the necessary support, the announced they were not going to seek it. Over the next few months, others will do the same. Only when the debates start in earnest will people have to confess to running and dropping out. But don’t make the mistake of thinking these early candidates didn’t run. They did, and they lost.
Why are nominees suddenly being rude to Senators?
It might be norms breaking down. But I doubt that’s the main cause.
Earlier this week, President Trump’s nominee to replace Jeff Sessions as Attorney General, William Barr, made some news when he initially was refusing to take meetings with some Democratic Senators on the Judiciary Committee ahead of his confirmation hearing with the committee, scheduled for next Tuesday. This did not sit well with some Senators. Here’s Senators Klobuchar (D-MN):
Barr has since reversed course, and will be meeting with Klobuchar and other backbench judiciary Democrats before the hearing. But this episode is very unusual, and follows in the footsteps of similarly strange behavior by Justice Kavanaugh, who was more or less yelling at Senators—including Klobuchar—during his Supreme Court confirmation hearing back in September. Nominees for executive appointments and federal judgeships are famously deferential to Senators and historically have been exceedingly careful about not upsetting any Senators, even those who they know will never vote to confirm them. What is going on these days?
A lot of people are looking at these episodes and linking them to the breakdown in Senate norms and the rise of partisan polarization. But while the partisan animosity and the norms breakdown are probably contributory to this change in nominee behavior, I don’t think they are the root cause.
I think this is much more a case of changes to the institutional rules of the Senate. Prior to the nuking of the filibuster for executive branch nominees and lower court nominees (2013) and Supreme Court nominees (2017), any nominee knew that they potentially needed 60 votes to gain their confirmation. This meant they were going to need votes from minority party Senators, which meant they were going to have to make sure they didn’t piss off the minority party. Even if most of the minority party was going to vote against you, being rude to any of them might cost you the 7-10 votes you needed from their copartisans. Now that confirmation votes have become majoritarian, nominees can be confirmed with no votes from the minority party.
Consequently, their incentives to not be rude have radically changed, especially if not being rude or combative might endanger their partisan confirmation. Kavanaugh’s behavior at his confirmation hearing would have been unthinkable a decade ago when Justice Roberts was confirmed. Not because the Senate was less partisan, but because Roberts needed Democratic votes. Kavanaguh’s incentives were different; he didn’t need Demcoratic votes, he needed to hold together a partisan coalition of support. As Josh Huder puts it, the rules have changed.
A second order effect is that presidents are now free to nominate partisan appointees who would have had little or no chance of confirmation prior to the nuking of the filibuster. That is, a decade ago there was a strong incentive for presidents to find appointees who might be minimally palatable to some minority party Senators, and who would, on balance, strike a conciliatory rather than partisan tone in their confirmation process. Unshackled from that constraint of the Senate rules, presidents can now not only appoint more extreme nominees, but may have incentives from their constituencies to appoint nominees who will be partisan crusaders.
This theory, of course, only holds under unified government. The next time the Senate is controlled by the party not holding the presidency, I expect we will return to a much more conciliatory nominations process, in which candidates play down their partisan allegiances and manage to not be rude to Senators, of either party.
In the bigger picture, this points to a blind spot many people have about political norms. A lot of norms are honest-to-goodness extra-legal practices that hold because there are social/culture beliefs about them that are enforced by the threat of punishment from voters or other political actors. The classic example is the 2-term presidential limit, prior to the constituional amendment. Nothing held that in place except the fear of the voters and party leaders smacking down anyone who dared try for a third term. But a lot of other things we consider norms—including the deferential behavior of executive nominees—are really just incentivized consequences of the institutional structure of the rules. This isn’t to say that there aren’t norms in place—after all, Barr is going to take the meetings with Judiciary Dems—but they aren’t the key feature. As soon as the rules change, the norms cannot themselves effectively constrain behavior.
Senate Democrats Aren't Forcing The Shutdown Issue.
It’s mostly because the minority leader fears the power consequences.
Yesterday, Senate Democrats attempted to bring up two bills in the Senate that would have reopened the government. The first bill (H.R.21) would fund all the outstanding FY2019 appropriations bills for the remainder fo the fiscal year, except for Homeland Security. The second bill (H.J.Res.1) is a continuing resolution for the Department of Homeland Security that would go until February 8, allowing negotiations over border security/wall to continue, but with the government open. Both bills passed the House last week.
The action in the Senate did not take very long. While there were a lot of speeches—this is the Senate, after all—the actual procedural consideration of the bills was very short. Here’s the transcript of the entire attempt to bring up H.J.Res.1:
It was all over in about 10 seconds. Senator Van Hollen asked for unanimous consent to bring up the bill, consider it, and pass it, without any debate. Majority Leader McConnell objected. And that was the end. Had no one objected, the bill would not only have been considered by the Senate, but it would have been passed by the Senate. Contrary to common belief, the Senate can, and does, act very quickly on things in many instances.
No one, of course, expected anything to happen other than exactly what transpired. For all their talk about going to the floor to bring up these bills, this was merely the execution of a lame talking point by the Democrats. They got to say they tried, and that McConnell is blocking the bills that would reopen the government. It will all be forgotten in half a news cycle, if it penetrated the news cycle at all.
But the Democrats had other options. There are two main ways bills come to the Senate floor. The most common way is the one Democrats tried yesterday. They asked unanimous consent, or UC, to take up their bill. UC is exactly what it sounds like—every Senator must agree. If any individual Senator objects, then the consent request fails. In essence, UC is the Senate ignoring its rules of procedure (and Senators setting aside their individual rights under those procedures) in order to take speedy action. UC request are extremely common in the Senate—many are granted every day—and are used for purposes large and small. (Here’s my old blog explainer on UC; here’s a good CRS report.)
But, of course, there’s also a way to bring a bill to the floor under the rules, without setting them aside by unanimous consent. Any Senator who has control of the floor can make a motion to proceed to a bill, known as an MTP. “Mr. President, I move to proceed to consideration of H.J.Res.1.” In general, the advantage of making an MTP is that, unlike a UC request, it can’t be torpedoed by a single objection from another Senator. The downside of an MTP is that it is a debatable motion, and therefore subject to a filibuster. Often, the majority leader will try to bring a bill to the floor by UC, and if that fails, he’ll immediately make a motion to proceed to the bill, and perhaps seek to end debate by going through the cloture process (which. as you probably know, requires 60 votes).
The weird thing about the Democrats actions yesterday is that they could have made a motion to proceed and caused a lot more pain for the GOP. Once a motion to proceed had been made, McConnell could not have gotten rid of it simply by objecting. Properly executed, the motion would have become the pending business of the Senate, and debate on it would have continued until it was disposed with. And assuming the proponents are even minimally determined, there’s really no way to dispose of a motion to proceed without a vote. You could wait until no Senator wishes to speak and the vote to defeat the MTP. Or you can, at any time, make a motion to table the MTP, and try to kill it immediately. But in either case, Senators have the right to a recorded vote.
And a recorded vote seems like something the Democrats might like on a motion related to the issue of reopening the government. They could all vote yes and the Republicans would need to almost unanimously vote no. Furthermore, it would put a lot of waffling GOP Senators into a tough spot. Would Susan Collins (ME), Cory Gardner (CO), Martha McSally (AZ), and Lisa Murkowski (AK) all vote with McConnell to kill consideration of the bills? Perhaps. But they wouldn’t be happy about having to take the vote. And if they somehow didn’t end up voting with the GOP, then all of a sudden the Republicans would need to begin a filibuster against the MTP, as it would have the votes to pass, potentially putting the legislation on the floor.
So why didn’t the Democrats do this? I think the core reason is that the minority leader (currently Senator Schumer, but this isn’t specific to him) in the modern Senate has a vested interest in maintaining the agenda-setting norms of the Senate. Although any Senator can make a motion to proceed, current practice in the Senate is for virtually all motions to proceed to be made by the majority leader. In fact, this is the essence of the majority leaders power. He has one fundamental advantage over other Senators. Under precedent, he is recognized first if he and another Senator is seeking to gain control of the floor. This allows him to always be the first to speak and, consequently, first to make a UC request or motion to proceed. And thus he’s in charge of the agenda.
The minority leader has incentives to support this norm. First, he may one day become majority leader, and in that case would much prefer that all Senators defer to his agenda-setting power. But more importantly, the minority leader wants to maintain a grip on his decision-making power on behalf of the minority. If minority Senators defer to his strategy, it affords him a lot of power. Furthermore, if the majority leader knows that minority Senators are going to defer to his strategy, it allows for easy bargaining between the majority and minority leader, which in theory helps the Senate run more smoothly, but definitely also increases the power of both leaders.
This collusion between the leaders to centralize power and bargaining among themselves is quite strong these days. One of the tenets of it is that individual Senators can make UC requests, but only the majority leader can make motions to proceed. But it’s also a house of cards. If the minority leader starts implementing strategies that include rogue motions to proceed, it’s only a matter of time before individual minority Senators—or even backbench majority Senators—start getting ideas about using the motion to proceed to do some agenda-setting of their own. And that would directly impinge on the strategic control the minority leader currently is afforded by his caucus.
There’s a pervasive culture in the Senate right now of backbench Senators working through their leaderships, rather than asserting themselves on the floor, either through agenda-setting or the amendment process. Just ask James Wallner, who has been raging about this and its negative effects on the Senate and American politics—for over a decade. Including yesterday. Whatever value this culture creates for streamlining the Senate and reducing the messiness of a freewheeling floor—and I’m with Wallner that the value is pretty dubious—it tends to create passive Senators and political fights that lack action, much less the satisfaction of adjudication. And right now, the Senate could use some of both.
Modern Politics Is Different, But Maybe Not New.
It’s entirely possible the mid-20th century was just exceptional.
I was born in 1978. That made me just old enough to remember the Cold War, but not really old enough to be scared by it. I remember playing “Russians vs. Americans” on the playground in grade school, but I don’t remember being viscerally scared of nuclear war in 1983. The Berlin Wall came down when I was 11, and by the time I was following politics as a young teenager, even Republicans were talking about cutting the defense budget and gaining the peace dividend.
Likewise, I was 23 on September 11, 2001. Already an adult. In effect, I lived my formative years during one of the most serene and calm spans of politics in American history. No serious global threats. No existential dangers. For me, and for people my age, politics was boring. It was budget fights and silly scandals; tech booms and the Y2K problem. I can distinctly remember thinking when I was about 21 that the most interesting things that were going to happen in my lifetime were the Internet and the Gulf War. Oh, for world affairs to be so boring.
I still carry this with me today. For me, the 90s was (and kinda still is) my baseline for how American politics should operate. Which is totally insane, because the 1990s were basically an anomaly. What I lacked (and still sometimes viscerally lack) was perspective. Most of American history was nothing like the 90s. External threats, even existential ones, have been pretty normal. Contentious, even deadly, internal politics has shaped much of American history. Intense hardship and fear have often structured mass politics.
I say all this because my personal story is far from unique. A lack of historical perspective guides a lot of thinking about contemporary changes that place in society. It’s a real methodological problem. Anytime something changes from how it was a generation ago, the temptation is to assume that what was going on a generation ago was how things have always been, and that the current developments are a deviation from normal. But it’s often the case that the deviation was what was happening a generation ago, and that the “new” developments are actual a return to an earlier normal.
Two often-cited contemporary examples illustrate this. The first is the thesis of Bowling Alone, the famous Robert Putnam book that shows a massive decline in Americans’ participation in civic/community social activities since the 1950s. There’s nothing wrong with Putnam’s analysis; his evidence is quite clear and persuasive, his basic thesis almost certainly correct.
But it’s also clear that the argument lacks historical length. We don’t get a clear view of what Americans’ participation in social activities was like prior to World War II. And there’s a fair amount of evidence that the WW2 generation represents the exception, not the norm. Their shared cultural experience of the 1940s bound them together in ways Americans were not bound, either before or after. Far from society tumbling downward from historical close-knit communities, we have actually just returned to normal, after the passing by of the exceptional, and exceptionally community-driven, world war 2 generation.
The second, and more important case, is the contemporary partisan politics. There’s an overriding sense in DC that politics has become more partisan and nasty. It’s almost certainly true. But because many people’s frame of reference is the politics of the mid-20th century, they misconstrue what is actually happening. The post-war period was the nadir of partisanship in Congress; it was also the most exceptional period in American history on this dimension. Here’s a chart of congressional partisan polarization since the end of Reconstruction.
Using this metric, contemporary politics is more polarized than ever. But it’s not radically different than it was 100 years ago, it’s just radically different than everyone’s go-to baseline: the post-war period, and specifically 1960s. We don’t have varying cross-party coalitions all the time in the House across all sorts of different issues, we don’t have a huge bipartisan alliance on of the major issues of the day, like we did with civil rights. But those things don’t make today’s politics unprecedented. They just make it more like it was before the short period of time when things operated that way, which happens to be our standard frame of reference.
Tyler Cowen wrote about some of the upshots of this earlier in the week:
American politics will return to the precedent of the 19th century. Then, there was lots of fake news; partisanship was extreme; the media was very biased; Americans reacted politically with extreme emotions and all debates seemed to be full of rancor and bitterness. So in some fundamental ways, this country has not changed. We had a break from that state of affairs in the 20th century because we had the major enemies of the Nazis and then the Soviets. But as those enemies disappeared, we’re fighting among ourselves more, and the nation will go back to an earlier version of its politics, which were highly dysfunctional. You had plenty of people becoming president who probably should not have been.
I tend to agree with this assessment, but would make a few broader claims, with some caveats. The broader claim is that highly partisan politics, even if it is not necessarily ideal, is a perfectly reasonable way to structure a functioning government. It doesn’t conform to our 20th-century baseline understanding of American politics, and it may not match our normative good-government fantasies about democracy, but it is not an inherently unworkable system. There’s a lot to hate about 19th century politics in America. But there’s no reason to believe, as many people worry about our current politics, that it wasn’t a sustainable form of governance, or that it’s often fundamentally illiberal character was the only way to make it work.
The caveats are that, while partisanship is not some modern invention, there are many structural features of contemporary politics that do diverge from the 19th century, and it’s not clear how they will interact with 19th-century levels of partisanship. The first is the nationalization of American politics. In the post civil-war era, American politics was still quite decentralized. We’ve never had partisan polarization to this level with nationalized parties, and individual members very much tied to implicit national party platforms.
The second, and more important caveat, is that we’ve never had parties this polarized in the age of the modern presidency. During the 19th century, Congress was the center of the government; the presidency was a weak and resource-starved office, often subservient to the party bosses and congressional leaders who held the real power. Since the dawn of the modern presidency during the New Deal, that has largely reversed. The president is now party leader, commanding outsized control over both the party platform and the political fortunes of his copartisans. If there’s any concern about our system surviving modern partisanship, it’s most certainly a question about whether the partisanship will diminish Congress at the expense of an increasingly all-powerful executive.
There are, of course, lots of other differences between now and the 19th century. Technology is improved, our country is vastly more wealthy, global affairs are more closely tied to our economic and political futures. All of these things may interact with the rising partisanship, perhaps in bad ways but also perhaps for the better. But it remains true that nasty, partisan politics is nothing new. And therefore you should be careful about using it as evidence of systemic collapse of our political system. Lamenting the politics of the 1960s is odd enough on its face; don’t give in to the temptation of positing it as somehow a normal we must regain if we want to avoid catastrophe. It was much the exception.
Five Things I Enjoyed Reading This Week
Weight Loss Is a Rock Fight - The Atlantic
Opinion | The People vs. Donald J. Trump - The New York Times
Does Trump really have ‘absolute power’ to declare a national emergency? Let’s examine the statute. - The Washington Post
Exasperated Democrats try to rein in Ocasio-Cortez - POLITICO
The 5 Corners Of The 2020 Democratic Primary | FiveThirtyEight
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!
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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