Some Early Lame-Duck Lessons

Published December 8, 2014

National Review Online

The brief lame-duck session of Congress now underway offers a first indication of what a Republican Congress might look like next year, and to me the early signals are disconcerting.

Republican leaders have, as always, faced the challenge of steering a course between doing harm to conservative causes through hyperactivity and doing harm to those causes through under-activity — between insisting at all costs on more than is possible and settling with no struggle for less than is doable. That middle ground is essential because the two extremes are almost equally dangerous, and in similar and often inter-related ways. The government shutdown that happened last year, for instance, was at least as much a function of leadership passivity as of membership hyperactivity. To make real progress toward advancing a conservative vision of government, Republicans will need to find a workable balance between them.

This month, the challenge Republicans have faced on this front was shaped in large part by the president’s decision to unilaterally exempt from legal jeopardy about half the illegal immigrants present in America and to provide them with work permits and related benefits. This constitutional provocation requires a response from Congress (rather than simply a reliance on the courts) but Congress also needs to keep the government funded past the December 11 expiration of the last funding measure. It hardly makes sense to force an all-out budget showdown at this point, while Democrats are far more powerful than they will be just a few weeks from now. So Republicans need to express their opposition to the president’s action and to pass some kind of budget measure, and in a way that reinforces rather than undermines their substantive agenda, their appeal to the public, and their internal cohesion going into next year.

All of that adds up to no easy feat. But in attempting it, congressional leaders have leaned far too much in the direction of passivity and missed a key opportunity to both better unify Republicans and make an important point.

It’s true the Congress can’t actually compel the president to reverse his order at this point. But the struggle for constitutional balance is an ongoing effort, and the absence of an opportunity for a decisive victory is not an excuse for shirking the obligation to exert what pressure is reasonably possible.

In the last few weeks, a number of the members most troubled by the president’s action have asked for an opportunity to vote on a budget measure that would include a prohibition on or reversal of that action. I don’t take them to have thought they could get such a measure enacted into law, but rather to be arguing that House Republicans have to show they want another way, and that Senate Democrats have to be made to defend the president’s action and to show themselves willing to deny funding to the government rather than reverse that action. Once the House passed such a bill, and the Senate rejected it or made clear it would ignore it, then the House could pass the combination of measures Speaker Boehner has sought (an omnibus funding bill for all but the Department of Homeland Security and a shorter-term continuing resolution for that department, allowing its budget to be debated next year).

This would have let House Republicans vote on the approach they would prefer, compelled the House Democrats to express a view on the president’s action too, put Senate Democrats on the record, and forced Harry Reid to cap his term as the worst Senate leader in that institution’s long history by refusing to stand up for Congress’s prerogatives. A shutdown would still have been avoided, but Republicans could have ended this Congress a little more united, and having demonstrated together that they do not abide the president’s action and will continue to push back against his incursions into Congress’s turf.

Maybe House leaders were concerned that their members would vote for the first bill but then withhold their votes from the second set of bills. But it’s not at all clear that they would have had any fewer votes for the CR-plus-omnibus strategy if it had been a fallback proposal than they will now, and in either case the strategy assumes a fair number of Democratic votes to assure its passage. Or maybe they were concerned that the first proposal would spark talk of a shutdown. But such talk in this context would have been short-lived, and would have meant the Democrats had to make plain their intention to defend the president’s action even at the cost of such a shutdown.

Some of the resistance to this approach probably arose, at least implicitly, from the all-or-nothing mindset that has defined a lot of internal strategic debates among Republicans in recent years. There probably are some Republicans who really would want to take this particular fight all the way to a shutdown, or who think that any move that does not achieve an ultimate substantive victory is a waste of effort. But my sense in talking to staff and a few members concerned about all this is that such views are rare at best. Did Republican leaders have conversations that led them to think otherwise? Did they talk to the members whose votes they were worried about at all?

There is probably too little time remaining now to still attempt this strategy in an orderly way, but I hope Republicans don’t see their having avoided or averted it as any great success. Getting to, and through, a final budget vote without having such conversations among the members, and without showing what the House would like to do before falling back to what today’s political realities mean it needs to do, is not a great achievement. To meet their constitutional obligations and to achieve their most important goals in the next two years, Republicans will need to see that starting the right arguments can be almost as important as enacting legislation.

The struggle to rebalance our constitutional system will require congressional Republicans to make and keep the president’s power grabs controversial, and to assert Congress’s will wherever possible. That doesn’t mean they win every fight. It means that by fighting in ways that clarify their views and force the president to be more explicit about his ambitions, they raise the political cost of further overreach. Passivity is a very real danger in this effort; indeed, it is how we got here over decades.

The effort to define and advance the conservative agenda, meanwhile, will require Republicans to see the value of championing policy proposals even when they cannot get enacted (given a Democratic president and enough Senate Democrats to sustain a filibuster). That is how you put your agenda before the public, how you get used to articulating it, and how you force your opponents to defend unpopular positions.

The last few weeks suggest Republicans aren’t quite ready to do this, and that their strategic thinking is too backward-looking. They believe they have avoided last year’s error; I fear they have previewed next year’s error. But the future is not set in stone. The strategy can change, if the party understands that Scylla isn’t really better than Charybdis and seeks the balanced middle way that some members of Congress and some activists have been trying to advance.

Yuval Levin is the Hertog Fellow at the Ethics and Public Policy Center

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