On Congress: A few Farewell Thoughts

Kenneth Gold | January 12, 2017

When the 115th Congress convened last week it was immediately faced with a range of important issues: the promised repeal of Obamacare, the passing of an FY17 budget resolution, proposals for major tax reform, an overhaul of entitlement programs, what to do about the massive federal debt, and a full slate of confirmation hearings in the Senate.

Yet perhaps the most contentious fight between Republicans and Democrats involved a painting by an 18-year old student that depicted the 2014 events in Ferguson, Missouri that won a local art competition in the district of Democratic Congressman Lacy Clay, who had hung the painting in a tunnel that connects the Capitol with the House Office Buildings. By Tuesday, Republicans who found the painting offensive had taken it down three times and returned it to Congressman Clay’s office, who has then promptly rehung the painting on each occasion.

At the end of the month I’m retiring from the Government Affairs Institute after nearly 25 years as Director. There’s much that I’ll miss – my colleagues at GAI, the participants in our classes, and for the last three decades being an observer of Congress. There are also things that I won’t miss.

Congress is more partisan than ever, and more dysfunctional.  Yet it’s no less important that federal personnel develop a sophisticated understanding of the legislative branch. It’s still up to Congress to authorize and appropriate funding for every department and agency, and to conduct ongoing oversight of every federal program.

In one week a new president will take office who has promised to “drain the swamp” in Washington, put in place a federal hiring freeze on day one, and severely cut or dismantle several federal agencies. He intends to spend billions of dollars on building a wall and dramatically increase defense spending while at the same time shrinking federal revenue through tax cuts. None of these things can be accomplished of course without Congress’s approval.

The degree to which the Republican majorities in the House and Senate will support the new president’s initiatives is in many cases unclear. And major legislation still requires 60 votes to pass in the Senate, and in the 115th Congress Republicans have 52 seats, two fewer than they had in the 114th.  Although the majority will be able to use reconciliation to pass certain budget related legislation with a simple majority, they can’t afford to lose more than two votes to pass those measures. And in the House, it’s unclear to what degree the Freedom Caucus will be able to continue to derail the leadership’s agenda as successfully as they did in the 114th.

Also bear in mind that the constitution created a system of checks and balances that prevents any one branch from dominating the other. Article 1, Section 7, Clause 2 of the United States Constitution states that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States”. So Congress can’t enact laws without the consent of the President; and the President can’t enact laws unless they are first passed by both chambers of Congress.

Article 1, Section 9, Clause 7, states that “No money may be drawn from the Treasury, but in Consequence of Appropriations made by Law”. The appropriations clause places important limits on what a President can do on his own. Major initiatives require funding, and only Congress can provide that funding. In addition, Presidents can’t simply decide not to obligate funds that Congress appropriates money for. The law that created the current budget process – the 1974 Congressional Budget and Impoundment Act – specifically makes it illegal for the President not to spend funds appropriated by Congress.

Presidents are limited by the Constitution, and by specific statutes which prohibit them from making changes to the federal government without the consent of Congress. Unified party control of the White House and Congress does not in itself ensure that major changes in policy will occur.

Over the last eight years, hyper partisanship and unwavering opposition to President Obama by congressional Republicans has dominated the typical law making dynamic between the executive and legislative branches.  Although the president-elect and the majorities in both chambers are Republicans, there are likely to be significant policy differences in the new Congress, some of which are already emerging. In this circumstance, it’s likely that we’ll see those institutional differences between the branches play a much more important role.

The more politicized the environment, the more important it is for federal executives to understand that environment, including having a sophisticated understanding of how Congress really works; and how to be most effective in that environment.

Ken Gold is director of the Government Affairs Institute

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Categories: 115th Congress, Congressional Policy Issues, Revise & Extend, Updates