If floor time is the "coin of the realm" in Congress, as lawmakers like to say, then congressional leadership adopted a deflationary policy this year.
After a seven-week recess, the Senate will spend September and one week in October working in the nation's capital. The House will be in Washington even less, as it is out of session the entire month of October.
That leaves precious little time for lawmakers to pass any of the remaining items on their agenda this year. Still, the compressed calendar is less a constraint imposed upon Congress than an acknowledgement that the home stretch of an election is a bad time to convince lawmakers to cast potentially controversial votes.
"Keeping the lights on is the best we'll probably hope to do," one senior GOP aide put it.
That's pretty standard for a presidential election year, Republican leadership aides emphasize. Congress goes into a holding pattern when the White House is up for grabs. That means that Congress may only do the one thing that lawmakers have to do each year — fund the government — and let two of the most interesting congressional debates of the last two years end with a whimper.
"We will end up funding the government — that will happen," Rep. Mark Meadows, R-N.C., said. (AP)
The one thing Congress must do
Fiscal issues have generated most of the drama in Washington since Republicans took control of the House after the 2010 midterm elections, most notably with the attempt to defund Obamacare in 2013 that ended in a 16-day government shutdown. This year should see a tamer spending process.
"We will end up funding the government — that will happen," Rep. Mark Meadows, R-N.C., the House Freedom Caucus member who introduced the resolution to depose then-Speaker John Boehner in 2015, told the Washington Examiner.
House and Senate GOP leadership has tried to fund the government through regular order — that is, by passing 12 individual appropriations bills through each chamber of Congress and convincing the president to sign each of them into law — but that's not going to happen. "We started the process earlier than we have in the modern budget era," a senior Republican Senate aide said in the party's defense.
Even so, a series of controversies delayed the process. The most ominous sign came in May when a relatively uncontroversial energy and water spending bill collapsed due to tension between gay rights and religious liberty issues.
Rep. Sean Patrick Maloney, D-N.Y., offered an amendment that would allow the federal government to withhold contracts from any business that refused to hire someone based on his or her sexual orientation or gender identity. The amendment passed with the help of 43 Republicans, despite concerns from conservatives that the measure would require religious organizations to hire people who oppose their beliefs and require the companies to let transgender people use the bathroom of their choosing. As a result, about half of Republicans abandoned the bill, whereas Democrats refused to vote for the spending package despite achieving such a victory for their socially liberal base.
Between the struggle over what should be easy spending bills to pass and the types of appropriations bills that Congress almost never passes through the regular process, such as the financial services spending bill, congressional negotiators have much to address before the Sept. 30 government funding deadline.
The politics could be a bit dicey. Republican presidential nominee Donald Trump mocked the GOP repeatedly for passing an omnibus spending bill during the lame-duck session last year, and he might decide that such attacks could boost his presidential hopes for a second time. Those complaints could be amplified by a band of House conservatives who want to roll back the spending increases that Boehner agreed to in his final act as speaker. An omnibus could provoke a high-stakes fight over social issues such as the Maloney amendment, just before the election, but it's possible that lawmakers would agree to a short-term truce on those issues. That's because Senate Democrats might not want to give vulnerable Senate Republicans, such as Kelly Ayotte of New Hampshire or Ohio's Rob Portman, a chance to break ranks with the GOP on a high-profile issue.
"You could have a Portman or an Ayotte voting with the Democrats," a second senior GOP Senate aide told the Examiner. "Because then they can talk about how bipartisan they are and vote on an issue that's important to their state."
Congress might try to punt by passing a continuing resolution to fund the government at the current spending level of $1.067 trillion. That might be politically preferable to an omnibus bill that would raise spending to $1.070 trillion. A continuing resolution could extend into the lame-duck session or all the way into 2017, but Trump's aversion to fiscal conservatism has scrambled the calculus for some lawmakers.
"I don't think it's the traditional situation where you try to punt it to the next administration because you can't wait to get your people in there," the aide said.
Free-trade legislation is a traditionally Republican issue that had a champion in President Obama. (Bloomberg)
Dying on the vine: TPP
Senate Majority Leader Mitch McConnell and his leadership team in 2015 convinced Republicans that they would need to prove they could govern by passing bipartisan bills that had enough support to avoid a Democratic filibuster. It was a modest agenda, from the perspective of conservative ideologues, crafted in light of the number of Senate Republicans running for re-election in blue states.
"I want to focus on the things that I think can actually get 60 votes in the Senate," Sen. John Barrasso, R-Wyo., told the New York Times in August 2014.
Free-trade legislation was the most significant item that fit that bill. It's a traditionally Republican issue that had a champion in the Democratic White House, because President Obama was trying to negotiate a Trans-Pacific Partnership with 11 other Pacific Rim countries as part of his "pivot to Asia."
GOP leaders introduced a bill to grant "fast-track" authority to Obama, a standard step in trade deals that allows Congress to vote yes or no on the trade pact without adding amendments. In practice, what was regarded as a boring, albeit significant, legislative process turned into a bipartisan public relations disaster.
Union members of the Democratic base, who hate trade deals, predictably revolted. In the context of a Democratic presidential primary fight with Sen. Bernie Sanders, Hillary Clinton, who helped negotiate the deal as secretary of state, walked back her support for the deal.
More surprisingly, Republicans came under intense pressure from traditional GOP voters who never recovered from the 2008 economic crisis. Obama's executive orders on immigration helped poison the well, and Sen. Jeff Sessions, R-Ala., denounced Obama's immigration and trade policies as twin attacks on the working class. Trump echoed that refrain. Drudge Report devoted a steady stream of negative coverage to "ObamaTrade."
It took more than a little procedural chicanery to pass the fast-track legislation. The passage of time hasn't made the trade agreement look any better to voters, convincing McConnell and GOP leaders that the legislation should not receive a vote before the elections.
"I don't think the rise of Donald Trump has done anything to help TPP," the second GOP aide said. "It's something that a set number of people believe in it very strongly and anyone on the fence is happy to watch it die."
That leaves supporters of the Trans-Pacific Partnership hopeful that McConnell and House Speaker Paul Ryan will hold votes on the agreement during the year-end lame-duck session. "There is a pathway forward here," U.S. Trade Representative Michael Froman told the New York Times.
Backbenchers in both parties will revolt if they take that step, however. "If we can't get it done before the election, then we ought to get it done when the new Congress is seated," said Rep. Steve King, R-Iowa.
At the moment, GOP leadership seems to feel the same way. "The chances are pretty slim that we'd be looking at that this year," Senate Majority Leader Mitch McConnell told reporters in mid-July.
All the pressure points tend toward delay. If Clinton wins, proponents can look for the deal to be revived, despite her stated opposition. "Nobody believes her because she helped negotiate it," the second Senate GOP aide said. But if Trump were to win the White House, trade deal backers would be flouting a national mandate against the agreement.
"Are we really going to do [TPP] — it's close to NAFTA in size — during a lame-duck session?" a senior Senate Republican aide said. "It's a pretty big 'f—k you' to the voters, pardon my language."
Criminal justice reform has attracted the broadest, most counter-intuitive coalition of supporters of any legislation pending this year. (AP)
Also dying: Sentencing reform
Criminal justice reform has attracted the broadest, most counter-intuitive coalition of supporters of any legislation pending in the House and Senate this year.
President Obama's senior adviser, Valerie Jarrett, has met repeatedly with Mark Holden, the general counsel to Koch Industries, whose libertarian owners are the chief bogeymen of progressive activists and politicians but are big supporters of sentencing reform.
In the Senate, the pending package has broad bipartisan support, while bridging the divide between conservatives and the GOP establishment. Majority Whip John Cornyn, R-Texas, and Tea Party Sen. Mike Lee, R-Utah, are two of the lead negotiators in the upper chamber. House Judiciary Committee Chairman Bob Goodlatte, R-Va., has spent months developing an alternative suite of proposals.
In the halls of Congress, observers could be pardoned for thinking that criminal justice reform looks like an idea whose time has come, especially with some prominent GOP lawmakers rejecting the Republican Party's law-and-order orthodoxies. "Just as the government has the power to punish those who break the law, it has a corresponding duty to use its coercive powers responsibly — to sentence offenders on an individualized basis and no longer than necessary," Lee said in October 2015 speech at the Heritage Foundation.
Unfortunately for the would-be reformers, the political environment that choked the trade deal also seems toxic for the sentencing bills.
"If it feels like there is any momentum related to that bill, it's against [the bill]," a senior GOP aide said. Sessions, once again, is the chief congressional opponent of the bill, but this time he has been joined by first-term Sen. Tom Cotton, R-Ark. "Law enforcement is able to arrest or identify a likely perpetrator for only 19 percent of property crimes and 47 percent of violent crimes," Cotton said in May. "If anything, we have an under-incarceration problem."
Such arguments reflect deep divisions among Senate Republicans. When the topic is discussed in Senate GOP lunches, low-key senators such as Jim Risch of Idaho provide table-pounding denunciations of the Lee-Cornyn effort. McConnell maintains public neutrality on the issue, even though his top lieutenant is a chief architect of the Senate sentencing reform package. But McConnell has long made clear that he doesn't want to hold votes on bills that unite Democrats and divide Republicans. That makes it unlikely he'll allow a vote on the package ahead of the general election.
"It's very divisive," a senior GOP aide said. "You're going to bring a bill to the floor and have your own side literally rip each other limb from limb?"
It's possible that Goodlatte and House Republicans adopt legislation that reflects more conservative criminal justice reform priorities. "I think the jury is still out on that, whether it will happen," Meadows said.
That leaves Senate backers of the sentencing reform in the unusual position of depending on House negotiators to thread the needle between the desire for conservative criminal justice reform prioritities and the necessity of having bipartisan support for the bill to clear the Senate. "But, as we all know, the window is closing," Cornyn told the Examiner.
But a senior Senate staffer whose boss opposes the sentencing reform bill believes that any legislation is doomed to failure, because the sentencing reform "brand is so toxic" that the negotiations can't be salvaged this year.
"It's a tough sell back home because what you're doing is letting out nonviolent drug offenders and for many there is no such a thing as nonviolent drug offenders," Meadows said. "They're all — drug-trafficking, at some point, is violent at some part of that food chain."