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Congress Left for Recess on Temporary Miracle

The pre-Christmas crush of business in Congress at the end of a session is often hurried, harried and harrowing. This time was different. Both chambers completed action on one of the year’s most important bills Dec. 23 with most Members not even in town.

It was two days before Christmas, and all through the Congress not a creature was stirring except for some hapless clerks and a handful of Members designated to mimic the motions of lawmaking. Everyone else was already back home, snug in their beds, while mystified citizens were left scratching their heads: Just how did this immaculate conception of a public law come about?

The two main items left to be completed before the holidays were appropriations to keep the government running and several expiring items: the “payroll tax holiday,” unemployment compensation, the “doc fix” for Medicare payments and mortgage relief on fees and premiums.

While there was always the possibility of a government shutdown if Congress couldn’t agree on final spending levels, House and Senate appropriators avoided that prospect by negotiating two bipartisan packages: first, a “minibus” bill that bundled three of the 12 regular bills into one; then a “maxi-bus” combining the nine remaining bills. Although most assumed that was a clincher, a last-minute hitch arose when Senate Majority Leader Harry Reid (D-Nev.) threatened to hold up action on the maxi-bus until Congress cleared the taxpayer relief measure.

That ploy backfired when some prominent Democrats complained they didn’t want to be blamed for holding the government hostage. So the maxi-bus was allowed to proceed to enactment with the understanding that Congress would then act on the tax relief and unemployment compensation bill.

On Dec. 12, the House had passed a full-year extension of the expiring measures together with a provision directing the president to approve within 60 days the Keystone XL pipeline from Canada to Texas unless he determines it is not in the national interest — a decision otherwise put off until after the election, pending environmental studies.

The bill had not been reported by any of the 12 committees of referral, and no floor amendments were allowed. Once passed, it met with stiff resistance from the Senate and the president over some of the “pay-fors” (to offset the costs of the bill) and the pipeline provisions.

What freed the appropriations bill for enactment was a bipartisan deal worked out between Reid and Senate Minority Leader Mitch McConnell (R-Ky.) to provide for a two-month extension of the expiring tax and unemployment provisions (they couldn’t agree on sufficient pay-fors to cover the full year), along with the 60-day deadline for the pipeline decision.

Speaker John Boehner could not sell the Senate compromise to a Republican caucus that was steaming and screaming like a tea kettle at full boil. So the Ohio Republican informed his Senate counterparts and the president that the House majority was holding fast for a full-year extension.

The Republicans’ whip notice originally called for a motion to concur in the Senate amendment. However, the GOP Conference did not want to be perceived as being totally negative when it voted that down. The procedural alternative was a special rule providing for a motion to disagree with the Senate amendment and request a conference to work out differences. Yet, before that even came to a vote in the House, Reid sent his Senate charges home for a month.

After the motion to request a conference was adopted by the House, Boehner appointed eight Republican Members to the conference committee. But House Democratic leaders balked at providing their list of conferees, and Reid didn’t even formally acknowledge the request.

House Republicans (or at least the GOP conferees) were left home alone, holding a bag that grew heavier as public opinion and the national media weighed in on the grinches about to steal Christmas from middle-class taxpayers and the unemployed.

It was comparable to the time in 1996 when then-Speaker Newt Gingrich’s Republicans, having failed to enact any appropriations bills for several weeks running, learned that they, and not President Bill Clinton, were being blamed by their constituents for the government shutdown. Under pressure from Senate Republicans and the public, the House GOP relented and reopened the government.

In much the same manner, Boehner informed his troops by conference call that he was going along with the Senate deal for a two-month extension — this time without giving them a chance to reply. The Republicans’ political majority hung in the balance.

Reid and Boehner agreed to pass a newly introduced bill by unanimous consent, meaning that unless someone objects, the bill is passed without a roll call vote or need for a quorum. The new bill contained the Senate’s bipartisan compromise and a few minor tweaks for small business. Enactment of the new bill kept the original bill alive for the requested House-Senate conference, and House Democrats promptly appointed their conferees. Congress has until Feb. 29 to reach an agreement. Christmas miracles in Congress have a very short half-life.

Don Wolfensberger is a Congressional scholar at the Woodrow Wilson Center, resident scholar with the Bipartisan Policy Center, and former staff director of the House Rules Committee.

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