The Queen of Hearts Shutdown

Through the looking glass on conventional CR wisdom as the House is late—late—for a very important vote

The government shutdown is starting to change people’s minds: Not necessarily the mind of Speaker Johnson, who has kept the House closed for business for nearly a month while attempting to jam the Senate into accepting his one-sided continuing resolution. The minds that are changing are congressional expert commentators who overwhelmingly had expected Senate Democrats to cave after the public came to blame them, as has happened with previous shutdowns. But this one is not like those previous shutdowns. For institutionalists inside the House and Senate, the fight isn’t over the distribution of government funding, but retaining congressional control of how federal funds are spent. For those with a wider aperture, it’s a fight over what kind of a country we want to be.

The expected public reaction to the shutdown has hit in reverse because Republicans are defending both an unpopular policy position and an unpopular White House governing in a way most Americans view as troubling. The typical American might not understand the politics of faction control inside the House and Senate, but have internalized phrases like “checks and balances” and “the power of the purse” since grade school. We can see the glimmer of civics education in a recent Pew poll that found 69% of Americans in agreement that Trump is trying to exert more power than his predecessors and only 12% saying that’s a good thing for the country.

Most people understand the significance of major hikes in insurance premiums on the ACA exchange market. This should include Members of Congress and designated congressional staff, who get their health care via the ACA.¹ Almost everyone enrolled in the marketplace receives the premium tax credits Republicans are letting expire. By one estimate, half of enrollees are self-employed, own a business with fewer than 25 employees, or work for one. These are the same people being crushed by Trump’s tariffs, which Congress did not authorize.

Republican leadership has all but conceded that failing to extend the tax credits in their reconciliation bill was an overreach politically. They’ve lost their own base on the issue, including Rep. Marjorie Taylor Greene. A handful of Republican senators are starting to talk publicly about premium hikes being a bad thing. Meanwhile, the type of bipartisan Senate “gang” that typically finds its way out of such impasses is chatting.

In normal times, we might be witnessing the unicorn case of a government shutdown on the verge of success because of the cross-cutting pressure of popular policy against the partisan unity of the majority (it’s easy to forget that previous Republican-led shutdowns were over spending cuts that were unpopular beyond the GOP base). But of course, these are not normal times. Nonetheless, Republican leadership is insisting Democrats accept a CR first before sitting down to make a deal. This is an Alice in Wonderland approach of suggesting that the verdict comes before the trial.

Speaker Johnson went so far as to gaslight the press with the claim that his plan was to discuss and deliberate health care this fall all along. Who can doubt that Republican speakers are well known for their affinity for Obamacare? Democrats, even those who initially thought a shutdown is worse than resisting the unilateral executive assertions of powers, like Sen. Angus King, are slowly realizing the politics of the situation are aligning with the policy. They simply cannot trust Johnson with a pinky-swear agreement because there is no daylight between him and Office of Management and Budget director Russell Vought.

As we have been emphasizing, it is the ideologues like Vought in the Executive Office of the President that have instigated this conflict since regaining power. Vought sees the federal government as one of the coercive power centers “The Left” uses to force itself upon American society. He and like-minded administration colleagues feel unburdened by precedent or law in trying to destroy government (and other power centers, like universities) and restore the “natural,” hierarchical social order of Christian nationalism to which Vought is committed. Of course, Vought understands that the offices and programs of the administrative state he despises were created through representative democracy via congressional authorization. Hence, Congress is part of the problem.

We bring this up again because Speaker Johnson shares this commitment to the Christian nationalist social and political order and has aided and abetted the administration’s efforts to relegate congressional authority behind a crusading executive. House Republican leadership used a rule in the budget resolution this April to block resolutions against Trump’s tariff policies. The House appropriations package would gut Vought’s legislative branch nemesis – the Government Accountability Office – and handcuff its legal authority to sue OMB over impoundment. He is holding the House out another week not only to avoid the discharge petition on the Epstein files, but to prevent members from being peeled off as is starting in the Senate. He even raised more rescissions in a press conference with the House Freedom Caucus, which has become a major nonstarter for Democrats and a point of contention for Senate Republican appropriators.

Meanwhile, Vought’s hamfisted efforts to unlawfully fire more government employees during the shutdown, remove legally-mandated backpay for furloughed workers, somehow target only blue states, and legally questionable efforts to prevent uniformed military employees from a lapse in their pay have underscored to all but the most inattentive Senate Democrats that any deal that does not address Congress’s power of the purse is not worth the paper it’s written on.

The Senate can choose to act this week. The bipartisan gang gathering is an informal way that leadership allows negotiations to take place while denying that official negotiations are happening. One Senate Republican hang-up is the fear of what Trump will do. He may or may not be involved in the negotiations.

A more commonly articulated senatorial fear is that the House wouldn’t consider amended legislation passed by the upper chamber. It’s amusing to try to take seriously the idea that the Senate would refrain from jamming the House. One way you can tell Sen. Thune is getting nervous is the majority will soon stop Democrats from offering their alternative short-term CR bill. This likely is an attempt to pressure Democrats and to control the media narrative, but I suspect it’s also to ward off defections from more “moderate” Senate Republicans, especially those up for re-election.

Should the Senate pass legislation, Speaker Johnson would feel enormous pressure to bring the House back into session. If he does not, he becomes the face of intransigence, which would focus media attention on him and may embolden Republican rank-and-file members to challenge his leadership. There likely would be a fair amount of pressure from senior appropriators like Tom Cole, who is too savvy to complain in public and too smart to miss that he’s superfluous should the White House get its way.

Once the House reconvenes, it’s highly likely the House would be under enormous pressure to accept the Senate bill as is. The Senate, after all, would rightfully feel like it did all the work and would accept no substitute. Any efforts to change the text would create cleavages inside the House that Johnson likely could not control. His use of extraordinary legislative techniques like a self-executing rule to avoid those cleavages would irritate some Republican members and put him more squarely in the bullseye. Even if the House passed an amended bill, the Senate is unlikely to cave to any of the House’s changes, so any changes that the Senate wouldn’t have signaled support for in advance would be a nonstarter.

Should the House reconvene and accept the Senate’s bill as is, then the ball is squarely in the President’s court. There’s no denying that Trump would own the shutdown should he choose to veto the bill. That would signal a huge shift in the blame game from Senate Democrats to the White HouseIf Trump signs it – assuming Senate Democrats, with tacit Republican support, have insisted on protections for Congress’s power of the purse – the CR’s enactment would mark the first but significant step towards dialing back Vought’s enormous assertions of power.

The House need not wait for the Senate. It could pass the minibus already approved by the Senate, which would reopen parts of the government and go-around the need for a CR for some areas of government. The House could also pass a bill to ensure the troops get paid, although there’s a lot of other folks who also would demand to be paid lest they catch a cold all on the same day. Any of these circumstances would require the House to reconvene, which could allow for Johnson’s coalition to split either by operation of factions within the chamber itself or through the Senate’s reaction to the House’s bills.

It is possible that the short-term CR might not include explicit limitations in that bill in an effort to save Republican face, but with a short fuse. This appears to be what Johnson is playing for, with the promise of further opportunities to enact follow-on legislation. To allow Johnson to save face, we can imagine procedural shenanigans that don’t allow the CR to be enacted unless other legislation is also enacted. Should Johnson insist on such an approach, Democrats would be wise to use that as an opportunity to extract additional concessions.

In addition, there’s no reason why Senate Democrats would not use the exact same procedural tactics to extract additional concessions from the consideration of regular order appropriations bills. It’d be political malpractice not to. Each bill would be an opportunity to further dial back the administration’s efforts to undermine Congress’s power of the purse. Indeed, Congress should go further and dial back OMB’s powers and push forward legislation to strengthen itself. Republicans likely know this, and some may agree, which should only strengthen Democrats’ negotiating hand should they be clever enough to realize it and able to avoid any painful blunders. (The most painful blunder would be for Democrats to get a healthcare fix and not address the checks-and-balances problem, which would represent the best possible argument to immediately remove Sen. Schumer from any leadership position.)

In the alternative, Senate Republicans could go nuclear on the CR or future appropriations bills in an effort to ward off this chain of events. It’s not that likely because going nuclear would undercut the individual powers of each senator. This would create significant amounts of pain for Republican senators who would no longer enjoy the ability to block any particular bill at their whim.

The Senate has already gone nuclear twice this session, and going so now would be the coup de grâce for the old Senate system. While eliminating the filibuster would likely make the Senate work better in the long term, under the current circumstances the American public might not live long enough to see the benefit but every senator would immediately see the downside.

The wildcard is President Trump, who is an expert at knowing which way the wind is blowing. Don’t think for a moment that he wouldn’t undercut Johnson and Vought if he thought it in his momentary interest. We know the rank-and-file will fall in line. It’s a very old story for the MAGA faithful to not blame the king, but his bad advisors.

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War Powers

The Senate defeated a war powers resolution introduced by Sens. Adam Schiff and Tim Kaine Wednesday that would have required the Trump Administration to end military strikes against suspected drug smuggling boats off of Venezuela immediately. Sens. Rand Paul and Lisa Murkowski joined 46 Democrats in supporting the resolution, while Sen. John Fetterman voted with the Republican majority.

Only Congress has the authority to declare war. Congressional assent is also required to authorize the use of military force. The 1973 War Powers Resolution grants the White House the authority to use military force for 60 days unless Congress acts to extend that authority or curtail its exercise. The original law gave Congress the authority to pass a concurrent resolution to rescind this authority, which notably did not require presidential agreement. However, a Supreme Court decision weakened Congress’s authority such that only a joint resolution or bill will suffice, and it is subject to a White House veto, undercutting a major purpose of the law.

Sens. Schiff and Kaine’s joint resolution cited President Trump’s February 20 designation of Tren de Aragua as a designated foreign terrorist organization as the start date of hostilities. Trump is, of course, overreaching when declaring alleged narcotics traffickers as terrorists, and thereby eligible for treatment under emergency powers granted by Congress to the White House. The blog Just Security has a useful discussion of the legal issues raised by this lethal military attack.

The resolution noted that the administration has not provided Congress with “sufficient information” about what the vessels targeted in four strikes were carrying, what threat they posed to the United States, their destinations, or “the purported domestic authority or international legal basis to conduct the strikes.”

The White House called three people killed in the September 15 strike “unlawful combatants,” echoing the language of the George W. Bush administration to justify actions against suspected terrorists. It also described the suspected drug smuggling as an “armed attack.”

The Senate did, meanwhile, adopt Kaine’s amendment to the NDAA repealing the authorizations for the use of force for both wars with Iraq via voice vote. One of its opponents, Sen. Roger Wicker, said he saw “how the wind is blowing” on the issue and avoided a roll call vote. This is an illustration of how sticky AUMFs are, the dangers of loosely drafted legislation, and the tendency of the executive branch to expand the terms far beyond what Congress intends.

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Lawmaker Surveillance

The Senate Judiciary Committee released a subpoenaed document revealing that the FBI had acquired phone records data on nine GOP members during its investigation of the January 6, 2021 insurrection. The data included when and to whom lawmakers made calls between January 4 and 7, 2021 and the duration and location of the call. It did not include the call’s content. However, access to metadata can provide significant amounts of information about a target, including their location and the person with whom they were speaking.

The FBI did not obtain a warrant for this data, only grand jury approval in the investigation of President Trump’s role in the insurrection.

There is a long and pernicious history of executive branch surveillance of Congress in the conduct of its official duties. Congress also has left itself vulnerable by not sufficiently hardening its infrastructure. There is not enough information to know whether this information gathering was done with due care and respect for the legislative branch.

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Odds and Ends

Flawed security bill: Freedom of the Press Foundation’s Caitlin Vogus explains the First Amendment-related problems with the Cruz-Klobuchar bill trying to shield members’ private information on the internet. The provision was added to the NDAA in the Senate.

Factions: The publication of the rules of the major factions inside the House would be very helpful to those of us trying to understand their impact on the chamber. Rep. Steve Cohen inadvertently gave us a peek into their consequences by departing from the Progressive Caucus for breaking with it on votes too often.

Casework innovation: Civic’s casework product manager Megan Rickman Blackwood provides an in-depth look at the unified casework tagging project undertaken by the House Digital Service team and how it already is shaping congressional-facing products.

Telltale sign: Remember: member office staff turnover usually says a lot about someone.

The First Branch Forecast is published by the American Governance Institute. It’s written by Chris Nehls and edited by Daniel Schuman.

1. The effect on Members of Congress and staff are unclear to us, although OPM does describe how members get their healthcare. Members and staff obtain their work-supplied healthcare through the Affordable Care Act. For context, salaries for full time political staff in the House starts at $45,000; the bottom rung of paid staff in the Senate is not fixed, but it is around that number. There are also countless paid interns, who earn considerably less. Most members of Congress earn $174,000, although a few in leadership earn more. Members and staff can obtain healthcare through other mechanisms, such as from their spouses (or the Veterans’ Administration or Medicare if they meet eligibility requirements), and Members also obtain care from the Office of Attending Physician after paying a premium.

Per OPM, the formula for government contributions to Member and staff healthcare is as follows: “The formula for government contributions is the same formula used for other federal employees. The government contribution will equal the lesser of: (1) 72 percent of amounts OPM determines are the program-wide weighted average of premiums in effect each year, for Self Only and for Self and Family enrollments, respectively, or (2) 75 percent of the total premium for the particular plan an enrollee selects.” There’s a benefits calculator on the website.

How does this interact with the expected rise in premiums? I have no idea.

The Washington Post looked at who will lose out when ACA health care subsidies expire, explaining “80 percent of the people who benefit from them live in states that Donald Trump won in the 2024 presidential election…. The typical person with an ACA plan is an adult in their mid-40s with an income between 100 and 200 percent of the federal poverty line, or about $21,000 to $42,000 for a family of two.” People who have higher incomes will become responsible for the full cost of the premiums.