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Matt's Five Points, June 12: The Second Face of Power

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Welcome! I’m Matt Glassman, Senior Fellow at the Government Affairs Institute at Georgetown. Here’s
 
June 11 · Issue #10 · 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 agenda setting, the House Rules Committee, omnibus legislation, the Hyde amendment and member pay, and … the World Series of Poker.
Feedback? Drop me a line or just respond to this email. And you can always catch up with me on Twitter.

What you vote on is as important as how you vote.
Agenda setting is the most powerful hidden force in politics.
One key to understanding legislative politics is the concept of agenda-setting. That is, legislative outcomes hinge not just on how people vote, but also on what questions are taken up for a vote.
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.
Key political actors—majority party leaders, committee chairmen, the president—can sway how rank-and-file members in Congress vote, but they can also influence what subjects are brought up for consideration. Perhaps more importantly, they can prevent measures that are otherwise popular enough to pass from ever being brought up for a vote. This is called negative agenda setting.
In the House, this happens quite often. The Speaker is empowered under the rules to decide who to recognize on the floor. And thus 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 in the current Congress which might have the support of all 198 Republicans but perhaps only about 95 of the 235 Democrats are 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 last 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 its consideration.
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.
But, lo and behold, during the 115th Congress, they did not. 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. The beauty of negative agenda setting is that it leaves no trace. 
But what about positive agenda setting? There is limited time in a legislative session, and lots of things that might be considered. What explains what gets onto the actual legislative agenda?
This is a complicated, core question of political power in a democracy. Most political scientists think about the agenda in terms of organized group competition; as E.E. Schattschneider famously said, “organization is the mobilization of bias.” Various interests in society coordinate, mobilize, and marshal resources to compete to affect the agenda, turn public opinion, and interact with elite political actors who serve as entrepreneurs.
One thing to remember is that political actors are not in control of the positive policy agenda. Events routinely overtake them; natural disasters, foreign relations crises, economic downturns, and day-to-day news all influence what topics get taken up.
Perhaps even more importantly, the relative ability of congressional leaders to drive the agenda ebbs and flows. Powerful presidents obviously take control of the legislative agenda on a regular basis. But so does the electoral calendar. Now that the primary nomination season has begun in earnest on the Democratic side, the competitive interests of those candidates will loom increasingly larger in the media and public attention.
If candidates want to talk about impeachment, or the Hyde amendment, they may find entrepreneurs in Congress who seek to take advantage of the publicity and try to force them onto the congressional agenda.
One key upshot of this is that the dynamics of the primary season—in which a whole bunch of Democrats are trying to win over a whole bunch of Democratic primary voters—may produce a wildly different agenda than congressional Democrats would otherwise like to pursue.

Agenda setting in the House of Representatives
How a bill becomes a floor deliberation.
When we talk about formal agenda setting in the House of Representatives, we usually mean how does a bill get onto the floor of the House, where it can be considered for passage? Under the rules of the House, there are generally three methods for getting a bill to the floor.
The first is by unanimous consent. Any member may seek recognition to offer a unanimous consent request and, if the recognition is gained, may seek consideration or passage of a bill. The drawback to this method is that any other member may immediately object, which kills the request. Unanimous consent means unanimous consent. Likewise, if the chair isn’t interested in your request, they don’t have to bother objecting; they can just refuse to recognize you for the purpose of even bringing it up.
The second method of bringing a bill to the floor for consideration is via suspension of the rules. Any member may seek recognition from the chair and, if recognized, make a motion to suspend the rules and pass their bill. “Madame Speaker, I move to suspend the rules and pass H.R. 3327.” This doesn’t actually suspend the rules of the House; the process of suspending the rules is provided for within the actual rules. What it does is create a formal structure for considering a bill. When you make a motion to suspend the rules, the bill is immediately considered under the following terms:

  • 40 minutes of debate;
  • no amendments allowed;
  • a final vote to pass the bill.

That sounds great, of course, but there’s a catch: when you suspend the rules, a 2/3 majority is required to pass the measure. So the only things that can come up under suspension of the rules are generally non-controversial measures to which both parties agree. As it turns out, that’s a fair amount of stuff. Most of what the House passes each session occurs under the suspension process; there’s just a lot of bills that are non-controversial.
On most days in session, the House of Representatives spends a fair amount of time considering bills under the suspension process. Note that the Speaker has unilateral formal control over suspensions, since you must be recognized by the chair to offer the motion. This means the majority leadership can control the suspension calendar, and can put it to use as a chit for rank-and-file members seeking to get their non-controversial items on the agenda.
So how does the big, controversial stuff get onto the floor? Under the formal rules of the House, bills that come out of the committee system find their way onto one of several “calendars,” from which they can be called up on certain days in a regimented order, and be considered under the standard procedures of the House rules. This process, however, is cumbersome (and stupid) so it is never used. Instead, the House brings bills to the floor by continually interrupting this process with privileged business.
Normal bills aren’t privileged. You can’t just go down to the floor of House and start screaming “Let’s talk about MYYYYYYYY bill!!!!” That’d be a disaster; everyone and their brother would be down there screaming. Preventing that situation is almost the essence of why we have legislative procedures.
Certain business of House, however, does have the privilege to come straight to the floor. Most of the list makes sense: stuff like conference reports on bills that have passed both the House and Senate already, or bills vetoed by the president that are back for an override attempt, or certain fundamental privileges of the House.
Likewise, resolutions to alter the rules of the House have privilege. And that makes sense: if the members want to change the rules of procedure, they should able to consider such changes with minimal hassle. And that is the basis of how the House considers most controversial legislation: they temporarily change the rules of the House.
It sounds crazy, but it makes perfect sense once you understand it. When the majority leadership wants to take up a controversial bill, they first take up a privileged resolution from the Rules Committee (usually just called “a rule” or a “special order”); that resolution alters the rules of the House to structure the consideration of the controversial bill. It will include language making it in order to take up the non-privileged bill; it will specify how long the bill will be debated; it will specify the amendment process for the bill; and it will usually specify other particulars, such as waiving all points of order or other attacks that might be made on the bill under the rules.
Here’s an example rules resolution (and here’s the companion plain-English explanation from the committee). Now, a rules resolution still has to pass the House; it’s not like the majority leadership can just change the rules whenever they want. There needs to be a majority vote of the House to pass the rule. But these rules virtually always pass. For one, the leadership doesn’t bring them to the floor if they aren’t going to pass.
But more importantly, the majority party in the House tends to hold together as a procedural coalition. Even if majority party members are going to vote against a bill, they rarely vote against a rule. 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. Trying to disrupt the leadership’s agenda setting power by voting against them on a rule on the floor is a pretty big no-no.
And you cannot understate the agenda-setting power of these special rules. Most importantly, they define what bill will be considered and what amendments will be allowed on the bill. Traditionally, bills that came out of committees went to the floor under an open rule, which meant that any amendment otherwise allowed in the House was eligible for a member to raise on the floor. But over the last 40 years, there has been a significant rise in the number of closed rules (no amendments allowed) or structured rules (only certain amendments allowed).
Closed rules and structured rules are the essence of negative-agenda setting. They can prevent amendments that would have majority support in the House but not majority support in the majority party. And all the leadership needs to do is make sure that the majority party sticks together on the vote on the rule. And that discipline can be enforced on members who might prefer the amendment, but don’t want to buck the party on procedure. Easy, at least in theory.
In order to do a closed rule, the Rules committee just, well, reports out a resolution for a bill that bars all amendments. To do (the more common) structured rule, the Rules committee holds a hearing, where members can submit proposed amendments and then come testify as to why it should be allowed in the bill. Then the committee decides whether to allow it. They might want it in substantively (for policy, or to grow the vote), they might want it in politically, they might want it in even though it has no chance of passing, just for messaging, or if they owe a member a favor. And so on. And on. And on. Sometimes, there are hundreds of proposed amendments submitted.
When I worked on the Legislative Branch Subcommittee at House Appropriations, structured rules were our best friend. We would pass our bill out of the Appropriations Committee, and then when it went to the Rules committee, they’d consult with us about which proposed amendments from members we thought we might take. They didn’t have to listen to us, but they often wanted our advice about the amendments (we knew the bill better than they did), and we certainly could persuade them in many situations if there were disagreements.
Here’s the counter-intuitive part: you don’t mind accepting the really crazy proposed amendments (like “cut legislative branch spending by 50%”), because those will be defeated on the floor. The ones that actually scare you are things like “cut leg branch funding by 2%” since those are highly likely to pass if members are forced to vote on them. So we’d mostly want the rule to be closed—it was our bill after all, we liked it the way we wrote it—but if they had to allow some amendments, we wanted crazy ones.
All of this is why it’s commonly said that, in the House, “it’s not the vote that matters, but what gets voted on.” The majority party leadership has strong control over the shape of the bills, strong backing from the majority party for the rule that enforces that control, and almost certainly will win the final vote on whatever they choose to put on the floor. So the real question becomes what they will put on the floor.
And that gets fought out among the majority party members themselves, often during the process of writing the special rule that will control the bill. Which, of course, happens at the Rules Committee.
This week, the Rules Committee is considering a rule for handling the big omnibus appropriations bill that is going to come to the floor later this week. They are writing a structured rule that will only allow certain amendments. Over 500 amendments have been submitted to the committee for their consideration as part of the rule.
And some of these proposed amendments are high-profile. Notably, there is a proposed amendment to strip out the Hyde Amendment, which would effectively end the ban on federal funds being used for abortions. Right now, it looks like the Rules Committee is *not* going to allow that amendment in the rule, meaning if the rule is adopted, proponents of ending the Hyde amendment will not have the chance to try to strip it out of the bill.
In general, there’s a balancing act here; the leadership obviously has amendments it wants to keep off the floor, but they also need to pass the rule, which means they have to have a give and take with members and factions that want to alter the rule. Although the Rules Committee is composed of members chosen by (and tightly aligned with) the leadership, they ultimately need 218 Democratic votes to pass the rules, so there will be negotiations.
Omnibus legislation is a key part of agenda setting.
Agenda-setting isn’t just positive and negative. It’s also packaging.
One thing that gets overlooked in all the talk about negative and positive agenda setting is the role of packaging bills together. So-called omnibus bills are often derided in Washington—often because they are seen as the result of the failure of the appropriations process—but clever packaging of proposals is often at the heart of good legislative leadership.
The general concept is pretty simple. If you don’t have the votes for something, you might be able to pass it anyway if you attach it to something else that you do have the votes for.
There are a variety of flavors of this concept. It comes up all the time in under the concept of “must-pass” legislation. Everyone knows that there are certain bills that must go on the agenda each year and be considered: the appropriations bills, an increase in the debt limit, the NDAA, etc. If you can get your proposal attached to any of those things, it’s almost certainly going to pass. And so everyone jockeys to get their stuff attached.
But leaders can also use it to try to entice votes on things people might otherwise oppose. Lots of people like defense spending. Lots of people who really like defense spending aren’t crazy about spending on the Department of Health and Human Services. And lots of people who don’t love defense spending do love spending on Health and Human Services. If you are having trouble building a majority for either bill, just throw them together!
The key issue here is that members only get one vote; it’s not divisible. When there’s good stuff and bad stuff in a bill, you can’t vote “maybe.” So members are often left with tough choices; vote for the stuff I like but have to eat the stuff I don’t like, or vote against the stuff I don’t like but have to vote against the things I do like. This can become a real bind when you envision the attack ads (fairly or, more often, unfairly) run against members because they voted for a tiny bad provision in a massive, overall good bill.
In one sense, this happens all the time in appropriations. They are, by definition, omnibus bills, since a single appropriations bill alone will have funding for hundreds or even thousands of different programs, projects, or activities. But it can create a lot of political problems for people. The Hyde Amendment is a good example. It’s a limitation amendment that bars federal funding for abortions. It has been featured in appropriations bills annually for decades. Virtually every member of Congress, even those adamantly in favor of federal funding for abortions, has voted for the Hyde Amendment as part of a larger bill, even though they would never vote for it as a stand-alone measure.
But back to packaging. As a separation of powers issue, omnibus legislation is a powerful tool for Congress. Under the Constitution, the president can only accept or veto bills as a whole, he can’t reject portions of them. And thus Congress can leverage omnibus legislation to force the president to sign legislation he would almost certainly reject as stand-alone measures. This was clearly the case with the FY2018 omnibus; Trump grumbled as he signed it, complaining that there was too much garbage in the non-defense portions, but that the defense money was worth it. He noted he would never do that again, but like most people facing packaged legislation, he was probably just frustrated.
Packaging doesn’t always work. In fact, the original omnibus bill—the compromise of 1850—was a complete failure as a legislative strategy, and highlights one of the dangers of trying to use packaging strategies to gain votes. If members care more about blocking things they hate than about getting things they care about, omnibus bills are doomed to fail. And that’s what happened in 1850. There were to large factions that didn’t want to compromise—southern slavery supporters and northern free-soil supporters—and a tiny faction in the House that wanted a compromise. When Clay put the omnibus bill together, the strongest slavery proponents and the strongest free-soil proponents all hated it!
The trick that Douglas used to pass the compromise was also packaging, but of the other form: he broke the omnibus into it’s component parts! In this way, the small faction of compromisers was able to vote with the southerners on the things that were slavery-friendly, and with the free-soilers on the things that were anti-slavery. Once the shape of the legislature was known, it became obvious that the correct packaging for compromise was not omnibus, but separate.
Stepping back, this matters not just for bills, but also for the special rules resolutions that structure the deliberations of the bills. Sometimes the necessary packaging to get your coalition together is the inclusion of an amendment that will allow some of your members to go on record for or against something, regardless of whether it passes. If that’s the package you need to get the votes, that’s often what ends up in the rule.
Members of Congress need a pay raise
Public opinion, agenda setting, and packaging.
Members of Congress need a pay raise. They haven’t had one since 2009. In real dollars, they are making 23% less than they were a quarter-century ago. And there’s lots of evidence that the level of Member pay is affecting who comes to Congress, and who sticks around in Congress, for the worse.
The problem is they make $174,000.
And that’s both a big number and a small number. It’s a big number compared to the median American household income. Which means the typical voter is going to look at and just get angry when we talk about raising it. But it’s a pretty small number when you compare it to what many highly-successful, well-educated Americans might make, especially when you factor in the problem of having to maintain two residences in expensive locations, or the need for your spouse to quit their job to support your career.
And so you end up in the awful situation where that big number needs to get bigger, but most voters absolutely hate the idea. Members of Congress are just loathe to take votes on things that show them spending any additional money on themselves; I have never met a member who wouldn’t like to have more staff, or better-paid staff, but many of them are absolutely terrified of voting for such things. And their own salaries are absolutely the worst of the worst. It’s an automatic electoral headache for them.
Nevertheless, we need to pay members. Over the years, Congress has developed some clever strategies to avoid having to take votes in member pay. Most recently, the 1989 Ethics Reform Act setup a system in which Congress would automatically got a salary increase tied to the ECI and the pay raise for federal employees, unless they affirmatively voted to block or alter the increase. This worked fairly well—increases were only blocked 6 times out of 19 years—until the financial collapse of 2008-2009. Since then, Congress has affirmatively voted to block the pay raise every year, effectively nullifying the entire process.
This year, the House Committee on Appropriations reported out a Legislative Branch Appropriations bill that did not contain the language blocking the pay increase. If that bill were to pass and become law, members would receive a 2.6% adjustment based on the ECI data, meaning a $4,500 increase to $178,500.
As you might expect, there has been some screaming. Although it appeared that congressional leaders had a bipartisan agreement in principle—these things are much easier politically if you can get everyone on both sides to hold hands and jump—the rank and file have been less than cooperative. A lot of members see political profit in rallying against these pay increases, and dozens of members have submitted amendments to the Rules Committee, hoping to get one made in order to block the pay increase.
And so we’re back to packaging and agenda setting.
The leadership knows very well that if one of those amendments makes it to the floor, there’s no chance it won’t pass; many members will feel compelled to vote for it, many others will be terrified to vote against it. The only way to get the member pay increased is to use the agenda setting power of the rules committee to prohibit any of those amendments from the floor during the consideration of the omnibus.
But that creates a whole other danger: that they rule itself might fail when they bring it to the floor. Members of the majority party are not typically inclined to vote against their own party’s rule, but with dozens of Democrats already co-sponsoring amendments to block the pay raise, and some Republicans certainly intent on turning the debate on the rule into a crusade against the pay raise, it’s almost certainly the case that the leadership is worried about the rule failing on the floor, which would temporarily delay the entire underlying omnibus appropriations bill.
One option the leadership has is just to fold, and allow an amendment blocking the pay raise, which will pass. That may yet happen. But they haven’t given up trying. Yesterday evening, they announced they were pulling the Legislative Branch Appropriations bill out of the omnibus package. That’s a signal to me that they didn’t have the votes to prevent the blocking of the pay raise, but that they think they might be able to yet negotiate a deal.
For now, however, the small issue of the pay raise has reshaped the omnibus, as the various factions continue to fight over agenda.
I'm headed to Vegas for the World Series of Poker.
The biggest game in town.
I’m going to the World Series of Poker for a week starting Friday, and I couldn’t be more excited!
I’m definitely playing event #34 ($1K deepstack) on Saturday, but my schedule beyond that is pretty wide open. I may play event #37, I may just grind single-table satellites, and I may look for a good 20/40 cash mix. If you are interested in poker or otherwise would like to follow my progress, I threw up a separate Twitter feed (so my normal one wouldn’t get clogged with chip stack updates). I’ll probably also keep a blog diary.
I grew up in a very cutthroat card-playing family, and I still play a lot of poker, duplicate bridge, and Oh Hell. I cut my teeth in competitive poker before the early 2000s boom, mostly playing Seven Card Stud at Turning Stone in upstate NY and then at Foxwoods and Mohegan Sun in Connecticut.
I still think of myself as a Stud player, but I picked up hold'em in graduate school, when I was a regular in a game at Yale that became a legend, and featured numerous players who became recognizable faces in the poker/gambling world: Alex Jacob, Vanessa Selbst, Ariel Schneller, Nate Meyvis, Ben Morris. I was not a favorite in those games, but I did learn a lot. And it served me well as poker exploded over the next 5 years.
These days, I play a regular home game, a local tournament series, and take occasional trips to MGM National Harbor to sit in the small NLHE games or play the mid-limit mixed if it goes. But I play just as much, if not more, bridge and Oh Hell.
I haven’t been to the WSOP since 2006, which seems like forever ago. And I haven’t spent a week on my own, immersed in nothing but poker, since then either. I have very fond memories of showing up at Foxwoods with my backpack, my roll, and my wits, just to see what the day wold bring. Looking forward to that feeling.
Thanks!
Thanks for reading. I’ll be back again in two weeks! In the meantime, follow me online or reach out via email. I’d love to hear from you!
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