The six key crossroads of the legislative process

Mathematicians define a “null set” as a set with nothing in it — a set that essentially does not exist. The ideologically charged divisions of the new Congress make an easy path to enact must-pass legislation — like the impending Department of Homeland Security (DHS) funding bill — a null set.

{mosads}Faced with government shutdowns, debt ceiling extensions and tax code chaos, for the next two years congressional leaders will confront a riddle worthy of the Sphinx. What bill is conservative enough for the House, but progressive enough to muster the support of a sufficient number of Senate Democrats to survive the 60-vote rule and then to gain the signature of the President Obama?

As they wrestle with the riddle of must-pass legislation, congressional leaders will find themselves at six key crossroads in the legislative process. The DHS appropriations bill poses the first road trip on this byzantine map. The omission of DHS funding from December’s “Cromnibus” bill stemmed from a fundamental divide among Republicans over how to respond to Obama’s executive actions on immigration policy. That division remains as the Feb. 27 deadline to keep DHS operating approaches. Although the recent federal court decision stalling implementation of the executive actions may push the deadline back and result in a short-term extension of funding, it is likely that the issue will still confront Congress. Already, we have arrived at, and passed, the first two crossroads.

Crossroads No. 1: The House — a Republican bill or a bipartisan bill?

Because the Constitution requires that spending and revenue bills originate in the House, the House will often comprise the first key crossroad, as was the case with the DHS bill. The House GOP leadership had the choice of attempting to pass a bill with mostly or exclusively Republican votes, or to pursue a broader bipartisan vote. Driven by their opposition to the president’s executive actions on immigration, GOP leaders opted for a bill that won virtually no Democratic votes.

Crossroads No. 2: Sixty votes in the Senate?

Senate GOP leaders stood at the next juncture. Because they chose to retain the provisions that block the president’s immigration actions, the measure needed 60 votes to pass. It got only 51. The overwhelming opposition of House Democrats was an obvious precursor of this result. The House now lies dormant in the Senate.

Crossroads No. 3: A veto and a veto override?

In the unlikely event that in the future a controversial House bill that garners little or no support from House Democrats passes the Senate, the spotlight would then shift to the president, whose veto pen would likely be poised and ready. Since a veto override would be virtually impossible given the need to corral a minimum of 13 Senate Democrats, the likely result of any journey to Crossroads No. 3 is a return to Crossroads No. 1.

Crossroads No. 4: A bipartisan Senate bill or not?

Now that the House bill has failed in the Senate, GOP Senate leaders must decide whether or not to pass a bipartisan bill that can muster 60 votes. Recent news reports detail divisions not only between Republicans and Democrats on what to do next, but also between House and Senate Republicans. While such deliberations are certainly critical to the substance of the eventual law, whether or not the Senate passes a bipartisan bill, the road leads us to Crossroads No. 5, which in turn takes us back to Crossroads No. 1.

Crossroads No. 5: Return to Crossroads No. 1 and the “Hastert Rule.”

Like the childhood game “Chutes and Ladders,” gliding into Crossroads No. 5 slides us back down to Crossroads No. 2. Once again, House GOP leadership must choose whether or not to pursue a bipartisan bill that can pick off House and Senate Democrats. A severely complicating factor is whether choosing the bipartisan path jeopardizes their ability to hold enough GOP votes to satisfy the Hastert Rule, which bars floor action on bills that do not enjoy the support of a majority of the Republican majority. If the GOP leadership cannot pass the test of the Hastert Rule, they face a shutdown of at least some DHS functions, or the tricky prospect of passing the bill with large numbers of Democratic votes and only a minority of their own members.

Crossroads No. 6: House Democrats take the stage.

When faced with the prospect of a shutdown or gaining votes from House Democrats, GOP House leaders will likely opt to seek Democratic votes. This is where House Democratic leaders face the test of cohesiveness. A cohesive caucus can advance Democratic priorities. A more splintered caucus enables the GOP to get more of what it wants.

The election of a bipartisan bill at Crossroads No. 5 makes the remainder of the process rather simple. The House passes the bill, the Senate follows suit and the president signs it. This is the point at which authors typically shake their heads and wag their fingers at congressional leaders and bemoan their lack of skill and devotion to the country. Why, the critics ask, didn’t leadership just get it done right at Crossroads No. 1?

These critics, with all due respect, are missing two critical points. This map is hard to navigate because Congress is filled with people who believe deeply in their respective points of view. They are not easily given to being steered away from their passionate positions. I say, thank God for that! It is called “democracy.” The critics also opine about how they would get the work done sooner and more efficiently. I doubt very much that is true. But I have no doubt that the current crop of congressional leaders will in fact get the job done. I strongly suspect that if their most harsh critics were required to walk this road map as substitutes for our congressional leaders, they would reach a very different conclusion about the difficulties of congressional leadership and the abilities of the men and women serving us today.

Andrews served as a member of the U.S. House of Representatives from New Jersey for nearly 24 years. He currently leads the government affairs practice at Dilworth Paxson LLP.