Shutdown: Rescissions and the Nuclear Option

Democrats cannot make a deal with a counterparty who can't be trusted to stick to that deal. Also, how the next few weeks could determine the fate of the filibuster.

A government shutdown starting this Wednesday looks a lot more likely than not. There are many good articles about how this works, who it hurts, economic impacts, etc. So instead of that usual material, I’ll focus on two pieces of this accident-going-out-to-happen: rescissions and the so-called nuclear option.

Rescissions and the Rule of Law

This was the penultimate paragraph in an NYT article from yesterday:

And furious over the White House’s repeated efforts to cancel spending that Congress previously approved, they have suggested that bipartisan spending agreements also need safeguards to restrict the Trump administration’s ability to claw back such funding.

I would have stressed this at the top. The Trump administration, led by their budget director Russell Vought and partially (I’ll explain) blessed by SCOTUS, recently—and unilaterally—cancelled, aka rescinded, close to $5 billion in spending on foreign aid that the Congress had previously appropriated to be spent this fiscal year (the one that ends midnight on Tuesday).

Yes, this is unusual. It’s also illegal. They literally broke a law when they refused to spend this allocation without Congressional approval. The SCOTUS conservatives, ftr, didn’t rule on the law. They ignored, as is their wont these days, the merits of the case, and ruled for the admin on a technical, who-has-standing-to-bring-the-case issue.

So, here’s the bigger issue for the shutdown: Unless D’s get an iron-clad agreement from Rs to stick to any spending package on which they agree, with significant punishments for unilateral rescissions (i.e., when the White House decides not to honor the allocation), no deal. Why would anyone cut a deal with a party that just showed you they won’t stick to such deals?

And yes, I recognize that if you can’t trust them to spend the resources they agree to, why trust them when they pinky-swear this time they will? There’s no great answer for that but, again, these agreements are legislation, as in “laws.” If you break them, you can and should be sued. That’s still at least something of a deterrent in this benighted moment. There’s also a technical timing fix that would make it a lot harder for the admin to break this law (read Brendan Buck, who’s been clearly and forcefully sounding this alarm).

Going Nuclear

Suppose the Ds follow this advice and refuse to deal without a guarantee against unilateral presidential rescissions. A shutdown must follow. Ds are also holding out for health-care putbacks, including extending tax credits to make health coverage in the ACA exchanges more affordable, and restoration of Medicaid cuts from the Rs big, bad budget. Reasonable asks, and especially re the ACA credits, there are some Rs who know this could insulate them from the anger they’re already seeing from constituents who are pissed that these guys are pushing hard in the wrong direction on one affordability issue after another.

But given Trump’s dismissiveness of any of the Ds claims, at least thus far, and the fact that Senate Rs neither think nor act independently of the president, these terms could further push toward a shutdown.

What happens next?

There is one possible outcome that hasn’t gotten much attention at all, though its use cannot be dismissed: Senate Republicans use the “nuclear option”—suspending the filibuster—to reopen the government.

This, of course, is a parliamentary procedure where the Senate majority votes to suspend the filibuster, enabling them to pass laws with 51 votes instead of 60 (there’s no filibuster in the House).

If that sounds like a radical, far-out possibility, know that there are many recent e.g.’s of precisely this legislative move. Of course, budget reconciliation is often used by both parties to get around the filibuster: this was the case with the Affordable Care Act, Trump’s Big Budget Bill and many other big legislative initiatives. But there have also been a number of smaller recent filibuster suspensions, most notably on confirming Trump’s nominees but also regarding a rule from the Clean Air Act.

For the Senate Rs to go this unprecedented route to end a shutdown without any D votes would be a very big deal, and would, essentially, end the filibuster. That has pluses and minuses. This isn’t exactly the optimal timing for taking down a check on presidential power.

On the other hand, the filibuster has become a huge blockage to government functionality, to the will of the majority, and thereby to democracy. I’d rather get rid of it at a safer time, but if this is how things play out, I won’t bemoan its loss.

[BTW, if there’s a shutdown, there’s a decent chance the BLS won’t have the staff in place to put out the jobs report on Friday. It would, instead, get released later. I’ve long argued that, rather than try to cook the numbers themselves, which is a lot harder than it sounds, it’s more likely that the administration will just try to suppress or delay the data. This is one way to do that.]