We have been hearing since before the last election that the new Republican House plans to assert its unilateral will to effectively repeal the ACA by denying it annual discretionary funds. They won't be able to actually repeal with control of just the House, so they will effectively repeal by way of the budgetary process.
Now we hear that their new House rules lean heavy to a wide open "Demon Pass".
To understand how these two fit together, and for a preview of coming attractions if the Rs go in for constitutional hardball this year, let's review the unifying concept behind using the budgetary process as an assault weapon. We'll go into govt shutdowns, the dread Demon Pass will make its appearance -- we'll supply all your budgetary terror needs in one not so concise diary -- but the power of the purse is the star of the show.
My top prediction for political year (PY) 2011 is that we will be hearing a lot from the Rs about "the power of the purse". This is how they're going to rebrand what we think of now as govt shutdown, as well as this "Demon Pass".
Their Problem
The problem that the Rs (and more specifically the baggers among them) have, is that they think they won the election based on the claim that the nation stands at the Abyss, and that revolutionary change is needed to pull us back from the brink -- yet they only control the House. The Ds couldn't get much done (certainly nothing revolutionary) even when we had the trifecta. Control of one out of three would, conventionally, only allow the Rs to obstruct even more effectively than they have the past two years, and certainly not accomplish anything major, much less achieve a policy revolution.
To get things done with only the House in hand, the Rs need an unconventional approach. Appealing to "the power of the purse" is the natural unconventional approach for them to turn to for this purpose.
The Power of the Purse
In talking about their coming power grab in terms of the power of the purse, they will be able to exploit for PR purposes one of those fundamental ambiguities the founders put into our Constitution. The Tea Party in particular, and recent conservatism in general, likes to appeal to Originalism as a rationale for whatever revolutionary measures, whatever fresh horrors, they want to see passed. The power of the purse is tailor-made for that line of propaganda. The fact that it hasn't been used, ever really, and certainly not lately, to mean that the House has any sort of greater role than the Senate in the budget process, much less unilateral control over the budget, is no barrier to its use now by these people. The Constitution has been in exile -- or haven't you heard? -- key provisions ignored and bypassed by the socialist cabal that has run this country for generations.
The basic idea of the power of the purse is that the legislature gets total control of the money our govt collects (Art I, sec 8, first few paras) and spends (Art I, sec 9, para 7), and thereby total control of everything the govt does and fails to do, including everything othewise under the authority of the president. The last bit, everything after the "thereby" is the ambiguous element here. The Constitution does not spell out this power of the purse idea that we inherited from the unwritten British constitution, in which, to my understanding, it is an absolute and unchecked power of Parliament, and the fundamental means of enforcing what is, in effect, a represntative democracy, if in form still a monarchy. But the sections of our Constitution cited above, particularly from sec 9, certainly seem to imply that this fundamental idea applies to our federal govt as well.
Now, even before we get to the next step in this power of the purse idea, the part where we talk about whatever special role the House plays in it, something should be said about the power of the purse as enjoyed by the legislature in its entirety. The power of the purse, if absolute, would mean that, if money were denied by the legislature for, say, the position of Atty General, then the incumbent Atty Genl, Eric Holder, is simply finished. He has no more authority, period. He's not allowed to stay at his desk controlling the FBI and the US Attys, he's simply done. The point is that it's not simply a matter of the money. If the power of the purse is absolute, then Holder cannot have his salary picked up by George Soros. He can't volunteer to work for free. If the Congress denies him his dollar a day, that, in effect, denies his continued authority in office, because the office itself is gone, doesn't exist until and unless funded again.
And what is true of this example of the Atty Genl, is true of all of govt, every official, and every agency. If we really have the power of the purse in the Constitution, then Congress is truly the undisputed master of our govt. It can make everything in the Executve Branch disappear, and replace it with something new, except for the president and VP themselves -- all by themselves. Needless to say, especially in this recent era of the imperial presidency, it is not at all clear that many of us actually expect things to fit this ideal of the imperial legislature. And that includes the courts. They struck down the Nixon impoundments, but without a clear ruling on the basic idea. I'm not sure they've ever ruled on the complementary process, whereby the president would try to redirect non-discretionary funds to programs and officials de-funded by Congress, if these programs and officials were deemed necessary to carry out obligations that the govt still must meet by laws that haven't been repealed, even though their discretionary funding has been removed.
The House's Role
But, whatever the extent of the power of the purse under our Constitution, there is the separate question of what, if any, special place the House has, compared to the Senate, in exercising this power. In practice, there hasn't been any discernible difference, but there is Art I, sec 7, para 1, which requires that all bills for "raising revenue" shall originate in the House. It can't really mean nothing, it must mean that the House is supposed to have some different, if not superior, role in the process of funding govt operations. Yet it clearly doesn't make the House the sole arbiter of such matters, because the bit about the House originating these measures is immediately followed by the statement that the Senate gets to add amenments and/or deny its concurrence. So what we have is a suggestion that the House play sopme special, originating role, but this is not folowed through by giving the House sole control.
With respect to appointments and treaties, the special role of the Senate is locked in by differences in procedure -- these don't have to pass the House. But, in this case of spending, there is no such follow through, and, procedurally, the House and Senate are left with equal roles. The practical result seems to be simply no effective special role for the House, despite the apparent original intention that there be some difference.
None Dare Call It Government Shutdown
How does all this theoretical talk get translated into a power play whereby the House takes unilateral control of the budget, and thereby of the govt? Of course they don't get to be the Imperial House just by making this long and tendentious line of inferences and assertions. It's not that they need ideas to make their power play. They have what they need for that. They have the power to hold the govt hostage by simply denying funding. Any one element of the trifecta can deny funding. All they need is the House. If they can win a game of legislative chicken by holding out on funding until they get their way, they get to control the govt that way, and those means are not at all controversial or in doubt.
The problem for them is that those uncontroversial means, legislative chicken, have a potentially fatal PR price. And if the taking of budget hostages is too PR radioactive, then that tool loses its force, because they can't credibly threaten to hold out, and that removes all its power.
What all the talk about the power of the purse gets them is twofold.
Among their True Believers they get an ideological rallying cry to justify the power grab. These folks would be on board anyway with a naked power grab against the Kenyan Usurper and his minions because, in their book, it would just be a necessary counter-grab against our illegitimate power grab -- you know, when we won the election in 2008. But they can milk this power of the purse idea to create a feeling of actual aggrievement on behalf of our sacred Constitution against all who would block the unilateral power of the one part of the Trifecta they happen to control, the House.
Among folks in the middle, they get at least a rationalization with some surface plausibility to lend the naked power grab some cover of legitimacy. But even more than defusing some of the natural tendency of folks in the middle to react against innovative power grabs, doing anything differently than the usual, they get from this idea of the power of the purse redirection and misdirection of attention. They need redirection, repackaging, of the game of legislative chicken they have to win, because its present frame is that of the "govt shutdown", and that frame carries bad PR juju.
The Shutdown Last Time
Now, it is an undoubted good thing that the idea of a govt shutdown is both negative and associated most readily with the Rs since the shutdowns of 1995 and 1996. But the problem with that situation is that we are likely to become complacent that the Rs will not be able to do again, successfully, what they tried in 1995 and failed at so spectacularly.
It's important to remember that what happened in 1995 is that both sides played legislative chicken, both sides shut down the govt, and their threats to keep it shut down until the other side caved is what gave both sides, including our side, power in that situation. We won that round, largely because the other side got the blame for what both sides did, holding the govt hostage.
So, yes, it's great that the other side got blamed for what the mythology has made the great sin of threatening a govt shutdown. But it's not so great when our side will also, just as in 1995, have to use the threat of a govt shutdown to prevail in any future game of legislative chicken. All the other side has to do to not only get rid of the onus of irrepsonsibility in starting a game of legislative chicken, but to actually transfer that onus to us, is to redirect the blame for for the game, to reframe how the game is perceived.
How it Will Work This Time
Their main ploy for reframing the issue in terms of substance is this whole newfound concern over the deficit. Wait, did I say "concern"? How could I call it a mere "concern", when, their whole noise machine shouts at us 24/7 lately, We Stand at the Very Brink of the Abyss, and have since the Rs stopped being in charge of increasing the national debt. Before that, of course, deficits didn't matter.
But they need a reframing in terms of procedure as well, and that's what the power of the purse talk will get them. If something dramatic is not done, the nation goes over the edge into the Abyss, but gridlock and politics as usual stands in the way of the simple common sense cuts that need to be made to literally rescue the nation from budgetary meltdown. It's a good thing that the ordinary, common sense Tea Party patriots can see, once you start reading the Constitution at the beginning of each legislative day, that that document gives us a way out, a way to cut through the gridlock so that the needed decisive action can be achieved by those patriots in the House. The power of the purse will save us! Well, they hope that focusing on the ins and outs of that question will save them from being labeled as the agressors in a "govt shutdown".
Demon Pass and The Filibuster
In addition to this new concern for the deficit, and the cover story of the power of the purse, for them to prevail in the game of budgetary chicken, they will need to prevent any budget measures from being developed and becoming available as alternatives to their proposals. If they fail to do this, if D ideas about spending are allowed to become embodied as legislative alternatives, then the budgetary chicken that is the reality of the process comes to the surface, and the end game at the end of the FY looks more like 1995, with competing budgets available, and the R alternative seen naturally as the aggressor because it is new and different.
They prevent any D alternative from taking shape by means of the rules of the House and the Senate.
On the Senate side, they take advantage of D refusal to face the reality that the filibuster is dead as a right enjoyed by both parties. It rests on a mere Senate rule, which can be changed at any time by a simple majority. The Rs have proven that when in the majority they will, as needed to protect their ability to pass what they really want passed by a simple majority, squelch any threatened D filibuster with the threat of withholding the privilege of the filibuster from the Ds. Despite that, we insist on pretending that the filibuster is some sacred right, and so freely extend the privilege to the Rs. Of course they will abuse it in the next Congress just as they did in the Congress just ended, to create an extra-Constitutional requirement for 60 votes for anything in the Senate. Specifically to this discussion, the Rs will use the filibuster to prevent there being any Senate alternative to the House budget available for consideration.
Meanwhile, we now learn that on the House side, the incoming majority will use its ability to change the rules in order to loosen the standards for Deem and Pass to the extent that the leadership can practically dictate the contents of the House's budget proposal. Ds and "moderate" Rs in the House will not be able to unite behind any measures that the leadership opposes. There won't be any debate that the leadership might find unwelcome.
The result will be that when the crunch time arrives, there will be only one alternative possible, a budget proposal entirely to the liking of the House leadership. It will be their way or the highway.
The End Game
As October nears, we will have been bombarded for months with PR about the dire fiscal straits the country is in, and that decisive action will is necessary, and how only the House, reclaiming the power of the purse, can save us. There won't be any D budget proposal available as an alternative.
If the other side is smart, they will also have taken the precaution of having used their noise machine to decry the evils of threatening to shut down the govt to get your way in budget negotiations. This campaign will probably include the gimmick of offering to split off "core" govt functions, things all parties agree the govt should be doing, from the controversial stuff. This will be presented as a means to avoid the Demon Shutdown that all repsonsible parties should subscribe to. Of course, their list of core stuff will not include what they don't want funded, and will include some stuff that we don't want funded, but we won't have our own list of core stuff ready as an alternative.
So, when crunch time does arrive, does our side hold tough, and threaten to shut down the govt unless, say, the ACA is funded? Really? Think so?