The current lame-duck session has been very strange.
Lame-duck sessions of Congress are usually defined by fairly clear expectations about the next Congress. One party thinks its power will be greater in a month and wants to push things off until it takes the reins, and the other is in a rush to act before its position grows weaker. But the current lame-duck session has been very strange so far, because no one really has a clear idea of how the next Congress is supposed to work, or of what they should be trying to achieve right now.
This is in part because the mood created by the last election doesn’t quite match its institutional implications. Democrats walked away from November’s election feeling intense relief, while Republicans were left sorely disappointed. But as a practical legislative matter, the election achieved much of what Republicans could have hoped to gain from a midterm at this point. The GOP was not empowered to exercise meaningful legislative leverage, but Republicans don’t have many clear legislative goals right now, and so there wasn’t much they were going to do with leverage anyway. They just want to stop the Democratic agenda, and they will.
If they had to choose, Republicans would have preferred a narrow Senate majority to a narrow House majority so that they could stop judicial appointments as well as legislative measures. But otherwise, as a practical matter, they have the blocking power they sought.
And yet, the narrowness of the Republican victory in the House has meant that even some Republicans aren’t simply striving to derail the lame-duck session and push key decisions into the next Congress. It’s hard to see how anything is supposed to get done in the next Congress. The weakness of the coming Republican House majority is a daunting prospect for Republicans themselves. And that weakness — or rather the movement of the locus of weakness from the Senate to the House — is likely to be the key fact to understand about the coming Congress.
Institutional weakness, rather than strength, has been the key factor in our constitutional politics since at least 2017. In the Trump era, the president’s weakness in terms of traditional executive power defined a lot of what happened in the system. The fact that he couldn’t be counted on to do the president’s job was why everything was so uncertain on all fronts. President Biden has been exceptionally weak, too, and his inability to set priorities for his party while it has held narrow majorities in both houses of Congress has been a source of much frustration for the Democrats. But it has been the narrowly divided Senate that has been the weakest constitutional link in these two years, and therefore the focus of attention.
In essence, both President Biden and the House Democrats have been willing to sign on to anything that could pass the Senate in this Congress, because they knew that almost nothing could. House Democrats didn’t want to take political risks for the sake of measures that would then just die in the Senate, and so they let the Senate start every major legislative effort and then basically waited around to see what would make it through — filling their time with futile complaining and posturing. Biden, too, was never going to veto anything that successfully passed the Senate, and so he did not use his veto pen at all in his first two years. Like Trump was during his presidency, the Senate has been the focus of everyone’s attention in the last two years, not because it has been strong but because it has been weak.
That Senate-dominated phase of the Biden era is now ending. The weakest constitutional link in the next Congress will be the narrowly Republican House. Kevin McCarthy (assuming he makes it through the gauntlet that awaits him next month and becomes Speaker) won’t have a president or Senate in his own party’s hands to defer to, but he also won’t have much maneuvering room to bargain with the Democrats on behalf of his conference. He will be responsible for a lot but empowered over little.
That doesn’t mean House Republicans won’t do anything. They will have some excellent committee chairs, and there is reason to expect that their penchant for oversight will extend beyond petty partisan symbolism and toward some real governing questions (though there will surely be plenty of petty partisan symbolism).
But oversight is most of what we should expect to see, even in the authorizing committees. There is likely to be essentially no discretionary legislation that can make it through Congress. And even must-pass bills will have a hard time getting through, because House Republicans haven’t quite figured out how their voters want the new Republican Party to feel about spending bills. Even the sorts of budget riders that sometimes pass for substantive lawmaking in gridlocked times will be far from sure things.
Because the House and not the Senate will be the locus of weakness, and also because spending bills are required to start in the House, these difficulties will make it very hard for anything like the regular budget process to happen. House Republicans will want confrontations but will enter them without enough clear substantive priorities to get themselves out. They believe they benefit from being embroiled in battles but not quite from successfully applying leverage, since gains achieved that way inevitably also come with concessions. You can already see this pattern in the lame-duck session, with some House Republicans demanding (maybe even as the price of voting for the Speaker) that their leadership not agree to an omnibus bill, and yet not offering a clear sense of what their leaders should pursue instead. And they are pressuring some Senate Republicans to demand the same of their leaders too.
They may intend this as a show of force, but making your own leaders look hapless and denying yourself any role in the legislative process tends only to strengthen the other party. If you announce in advance that your vote is not available at any price, then no one has any incentive to deal with you, and ultimately you are likely to get run over. It’s hard to understand how House Republicans have not learned this lesson over the past decade, but here we are again.
Above all, though, this suggests that raising the debt-ceiling will be a huge problem in the next Congress. In all of the debt-ceiling theatrics of the past decade and more, I have really never once thought that Congress would actually fail to act in the end. But the peculiar weakness of the House in the next Congress leaves me thinking that will be a very real possibility. If you game out the pressures House Republicans would face in a debt-ceiling showdown, it is hard to see how an increase makes it through.
This, too, is a function of a very tight majority in a divided Congress. House Republicans don’t exactly want Congress to fail to raise the debt ceiling. They would like the debt ceiling to be raised while they stand on the sidelines and criticize it. Members of the minority in Congress often have this attitude. As a Democratic senator from Delaware named Biden put it in 2006:
My vote against the debt limit increase cannot change the fact that we have incurred this debt already, and will no doubt incur more. It is a statement that I refuse to be associated with the policies that brought us to this point.
But Republicans look likely to bring this disposition into the House majority. Once a few members stake out a position against lifting the ceiling, another hundred will be afraid to stand to their left. And the Speaker will be powerless to move them, and disinclined to try.
In some periods of divided government, reaching back to the 1950s, the president’s party has made concessions in return for a debt-ceiling increase in response to precisely this attitude. Both parties have done this. But the Democrats seem to believe that the lesson of such bargains in the Obama era was that they should not make substantive concessions on the debt ceiling again. That may be wrong, but it appears to be the strongly held view of the party’s activists, and President Biden has rarely proven able to resist those activists so far in his term. What’s more, Republicans don’t have many obvious demands to make in return for a debt-ceiling increase — at least not ones directly tied to budget rules or spending. There are plausible concessions they could ask for, such as Mitt Romney’s “Trust Act.” But these tend to lack the tone and pitch that House Republicans will seek. So it isn’t obvious what demands they would make. They want to complain about raising the debt ceiling, rather than to do something else in particular.
If that doesn’t change, Democrats would need to step up, as the majority party usually does. But the psychology of being the minority in the House will make it harder. And they may also think they would be well served by a crisis they can blame on Republicans.
Right or wrong, this is a recipe for disaster. And it suggests one important conclusion for members trying to figure out how to approach what remains of this lame-duck session: Both sides should recognize that they are not well equipped to benefit from a debt-ceiling showdown, and that they would benefit from avoiding such a showdown in the next Congress by acting now. There is some reason to hope that key members on both sides in both houses do see this. But hope is not a strategy, and for the moment, I don’t see a strategy.