As is often the case, this September has been marked by one crisis after another in Washington. It took a last-second stop-gap spending bill to head off a government shutdown, which could yet happen when that bill expires in early December. Unless the federal debt limit is increased, suspended, or evaded by October 18 (according to U.S. Treasury Secretary Janet Yellen), the federal government will begin to default on its obligations and the global financial system could collapse. Unless conflicts between moderate and progressive Democrats over linked infrastructure and budget-reconciliation bills are resolved instantly, Joe Biden’s agenda will stall and perhaps his entire presidency will collapse in ruins.
Clearly, Chicken Little was right!
On closer examination, however, nearly all of the immovable deadlines and deeply entrenched procedures and precedents feeding the current drama in Washington are contrivances of Congress that just seem intractable but really aren’t. Let’s take a look at the underlying factors that led to this moments of peril — most of which members of Congress could change if they wanted to stop all this dysfunctional lurching from crisis to crisis.
The most obvious way in which Congress manufactures crises is via its own schedule, complete with recesses that are sometimes treated as though they came down from Mount Sinai on stone tablets. Most hallowed is the August Recess, which is obligatory every year and is treated with the gravity of a divine edict during election years, when members are frantic to get home and campaign lest opponents claim they are “out of touch.”
The August Recess played a significant role in this year’s manufactured crisis, since it reduced the time available for negotiations on the appropriations measures needed to avoid a government shutdown, and the budget reconciliation bill that is at the center of the current freakout. If disputes over the present conflicts continue, congressional leaders will have to navigate around such obstacles as the Columbus Day recess and the end-of-session Christmas break, for which members pine just like children awaiting Santa Claus.
Mere traditions can powerfully shape and extend and pace of lawmaking, particularly in the last part of the year.
Without question, Congress’s most destructively powerful habit is the reluctance, which often morphs into a flat refusal, to enact controversial legislation during an election year. Thus, when important legislation begins piling up towards the end of an odd-numbered year, as is happening now, you get the kind of artificial sense of urgency that thrills Beltway insiders and gives enormous power to trouble-makers like Senators Joe Manchin and Kyrsten Sinema.
The near-ban on election-year legislative productivity is all the stranger when you realize that in any one election year only a third of the Senate is up for reelection, while the vast majority of House members are not seriously endangered. Obviously the narrow margins of control Democrats currently possess, compounded by the historical likelihood of midterm losses, gives the entire Congress an elevated stake in the electoral prospects of a relative handful of colleagues.
A more fundamental and perennial tradition that makes even less sense is the difficulty House and Senate members, even of the same party, exhibit in communicating regularly and exhibiting minimal respect for each other’s interests. Anyone who has worked on Capitol Hill (I was a Senate staffer for a while and dealt with both chambers as a state government lobbyist and then as a think-tanker) can tell you that the House and Senate function like different planets in different solar systems. This can enormously complicate bicameral chores like simultaneous passage of time-sensitive legislation and House-Senate conference reports.
The debt limit
While the power to incur debt secured by the full faith and credit of the United States was suggested in Article VI of the Constitution and made more explicit in the 14th Amendment, the idea of a limit on public debt was only introduced by congressional statute in 1917 and then codified as a general limit on federally incurred debt in 1939.
Extending or suspending the debt limit has become a highly symbolic vote in Congress usually made via bipartisan agreement to share the “blame,” since such measures are persistently unpopular (Americans either do not understand or do not care that the debt limit accommodates debt already incurred, not new debt). The debt limit has been modified 15 times since 2001 alone, most recently as part of a two-year comprehensive budget deal that expired on July 31, 2021.
The refusal of congressional Republicans to consider a bipartisan debt limit measure this year has led to a lot of contrived rhetorical gymnastics in both parties (with Republicans making the specious argument that those tax-and-spend Democrats have the singular obligation to take responsibility for debt incurred as much under Republican as under Democratic administration) and now a debt-limit “cliff” in October that really could produce a calamity. But there is nothing magic about the statute setting the debt limit, and no inherent obstacle to modifying or even abolishing it.
The appropriations process
Believe it or not, the federal fiscal year (running from October 1 to September 30) was not stipulated by the Founders. Nor was the requirement of annual appropriations keyed to said fiscal year, though the Constitution does limit military appropriations to a maximum duration of two years (reflecting an 18th-century fear of standing armies).
The idea of funding discretionary spending via 13 separate annual appropriations bills is entirely a congressional contrivance, much of it reflecting the ancient desire of lawmakers to create specialized fiefdoms for senior members who chair appropriations subcommittees (collectively they are sometimes known as the College of Cardinals like the Catholic Church potentates who elect popes).
The tendency of appropriators to miss the annual end-of-fiscal-year deadline is in part a product of the congressional budget process that makes appropriations the last step in the annual cycle of spending decisions. And miss them they do, as the Pew Research Center noted in 2018:
[I]n the four decades since the current system for budgeting and spending tax dollars has been in effect, Congress has managed to pass all its required appropriations measures on time only four times: in fiscal 1977 (the first full fiscal year under the current system), 1989, 1995 and 1997.
Sometimes, as in this year, Congress cannot get any regular appropriations bills enacted on time, which makes a stopgap, catch-all appropriations measure (often known as a continuing resolution or CR because they typically extend current-year funding levels for most programs) extremely important. These bills are often the vehicle for various hostage-taking exercises and partisan shenanigans since they’re “must-pass” legislation. You’d think the failure of the “regular” system to work as intended would lead to major congressional appropriations reforms. But it hasn’t so far.
The budget process
Congress chose to curb the lordly power of appropriators in 1974 via the Congressional Budget Act, which established a process for regular establishment of targets for federal spending, taxes, and debt by the whole Congress. Aside from joint budget resolutions setting those targets, the Act created an enforcement measure called “reconciliation” that was intended to serve as a last resort if congressional committees (and particularly appropriators) rebelled against the targets. “Reconciliation” was transformed into a legislative juggernaut in 1981 when the Reagan administration figured out it could be used at the beginning instead of the end of the budget process to package huge swaths of legislation with spending or revenue implications into one giant bill. It’s been used off and on since then by both major parties when either of them controlled the White House and had working majorities in both congressional chambers (e.g., by Republicans to enact the Bush tax cuts in 2001, and by Democrats to enact Obamacare in 2009).
The budget process has become barnacled with arcane rules over the years, with the most prominent being the Senate’s Byrd Rule, which limits reconciliation bills to provisions that are mostly, not just “incidentally,” about setting spending or tax levels. Because the Senate parliamentarian is in charge of interpreting the Byrd Rule, this unelected staffer has obtained enormous power over legislation even as more and more legislation has been consigned to reconciliation. And that development is the product of the most important and arbitrary congressional tradition of them all: the filibuster.
The recent transformation of the Senate filibuster from a sparingly-used weapon deployed by Senate minorities to protect their most important priorities (most famously by southern segregationists defending Jim Crow) to a de facto supermajority requirement for all significant legislation has been hugely significant, particularly as it has paralleled a period of intense partisan polarization. While both parties contributed to this development, it has become particularly central to congressional Republicans in alliance with a small faction of Democrats who enjoy the power it gives individual senators.
Certainly the filibuster is the single most important cause of congressional crises and “cliffs.” Stopgap appropriations bills, debt limit measures, and the increasingly rare bipartisan bills like the infrastructure “deal” now pending in the House, are all simple statutes subject to the filibuster. And because it cannot be filibustered, budget reconciliation bills like the one hanging fire in the both Houses right now are becoming even bigger and more consequential (former Republican House Speaker Paul Ryan once called reconciliation “a bazooka in my pocket” for working his party’s will in Congress).
In practice, the filibuster gives the minority party in the Senate vast obstructionist powers, while reconciliation shifts a great deal of that power to any faction of the majority party willing to go to the mats to prevent a bill from passing on a party-line vote. When congressional majorities are exceptionally small (as they are right now), deal-making becomes exceptionally complex with floating coalitions within the majority party and even single members threatening to blow everything up.
The filibuster, however, is not in the Constitution, and can be limited (as it was in 2013 by Democrats and 2017 by Republicans) or even eliminated by a simple majority vote changing the Senate rules. While most Democrats now support either a filibuster “reform” to exempt certain high-priority issues like voting rights or other fundamental rights; or a total abolition of the disreputable tactic, the noisy opposition to any change in the system from Democratic senators Manchin and Sinema has made that impossible. And therein lies much of the crisis facing Congress right now.
As Ron Brownstein points out, the 2021 filibuster casualty list includes various voting rights measures; a police reform effort; gun safety and immigration reforms; and legislation to codify abortion rights. But ultimately most of the current crisis in Congress is attributable to the filibuster as well. Without the filibuster, avoiding a government shutdown or a debt default would be easy. Without the filibuster, items now being crammed into the budget reconciliation bill would be passable as individual measures, as used to be the case routinely; and bills excluded from reconciliation via the Byrd Rule (viz. a $15 minimum wage and a path to citizenship for millions of immigrants) would be viable as well.
The madness can stop
Those who whine about the trouble facing Congress as this fateful year of 2021 begins to wind down really need to come to grips with how much congressional dysfunction is self-imposed. It will take some courage and imagination for Congress to reform itself, but if the right leadership is there we could see a renaissance for congressional accountability and the public’s right to know how Americans are being governed. And if Joe Biden, Nancy Pelosi and Chuck Schumer want the kind of legacy earned by their long years of service, they should not let this year end without making reform of how Congress operates not a boring “process issue” in which only political scientists are engaged, but the biggest priority of them all.