In Congress, Real Legislating Only Happens at the Top

Fiscal-cliff negotiations — like nearly everything else in Congress these days — are run by a clique of leaders with little rank-and-file input.

Senate Majority Leader Harry Reid, D-Nev., left, and Senate Minority Leader Mitch McConnell, R-Ky., right, attend a ceremony to award the Congressional Gold Medal posthumously to Constantino Brumidi in recognition of his artistic contributions to the United States Capitol building, at the Capitol in Washington, Wednesday, July 11, 2012. 
Dan Friedman
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Dan Friedman
Nov. 29, 2012, 10:39 a.m.

As the lame-duck ses­sion began this week — with an un­ex­pec­ted di­ver­sion in the form of a fili­buster-re­form de­bate on the Sen­ate floor — one Re­pub­lic­an pro­ced­ur­al gripe seemed truer than ever: The real le­gis­lat­ing in this Con­gress oc­curs only at the lead­er­ship level. And de­fi­cit-re­duc­tion talks are the latest il­lus­tra­tion. Com­mit­tees, chair­men, once-cru­cial mod­er­ates, “gangs,” vot­ing blocs, and the en­tire House Demo­crat­ic Caucus will have little in­flu­ence on the ne­go­ti­ations.

The di­vided Con­gress set the dy­nam­ic for the cliff talks. In the 111th Con­gress, when Demo­crats ran the House and Sen­ate, the search for 60 Sen­ate votes drove the fate of meas­ures such as the health care over­haul and the stim­u­lus plan. Now New Eng­land Re­pub­lic­ans and Blue Dog Demo­crats, whose votes were ar­dently sought back then, have no par­tic­u­lar lever­age. Con­gress will not be wait­ing on Sen. Olympia Snowe, R-Maine, to avert the cliff. Today, top aides ne­go­ti­at­ing with the White House — such as Mike Som­mers, chief of staff for House Speak­er John Boehner, and Dav­id Krone, chief of staff for Sen­ate Ma­jor­ity Lead­er Harry Re­id — wield more power than even most seni­or law­makers.

There are a few ex­cep­tions: Sen­ate Fin­ance Com­mit­tee Chair­man Max Baucus, D-Mont., and House Ways and Means Chair­man Dave Camp, R-Mich. Their pan­els won’t mark up a bill, but they can in­flu­ence policy de­tails be­cause they will prob­ably be asked to draft a tax agree­ment, and those com­mit­tees have the ex­pert­ise to weigh in on what is feas­ible. A seni­or Fin­ance Com­mit­tee aide, for ex­ample, told lob­by­ists this week that a pro­pos­al to cap tax de­duc­tions for the wealthy would have to be vet­ted by the pan­el to de­term­ine if it can work.

The House is Pres­id­ent Obama’s biggest obstacle to a de­fi­cit deal, mak­ing Boehner the key GOP ne­go­ti­at­or. Be­cause Sen­ate Re­pub­lic­ans are sure to ac­cept any deal that House Re­pub­lic­ans pass, they mat­ter less. House Demo­crats might mat­ter if so many Re­pub­lic­ans op­pose a com­prom­ise that Boehner needs Demo­crat­ic votes, but the re­mote odds that they would scuttle a deal backed by Obama lim­its their lever­age. Re­id, who has long fret­ted that the White House will give on en­ti­tle­ments without ad­equate re­com­pense, is work­ing to align his mem­bers to op­pose any agree­ment that in­cludes im­me­di­ate en­ti­tle­ment cuts.

This week’s talks fo­cused on a two-part deal. In the first phase, be­fore the year-end fisc­al cliff, Con­gress would al­low the fed­er­al gov­ern­ment to bor­row more while be­gin­ning to pay down the debt by in­creas­ing tax rev­en­ue. It would also ap­prove spend­ing cuts to ap­pease the GOP. After avert­ing the cliff, rel­ev­ant com­mit­tees would then draw up tax- and en­ti­tle­ment-re­form plans or face man­dat­ory cuts if they fail, ac­cord­ing to con­gres­sion­al aides in both cham­bers. The aides said that talks between the White House and Boehner’s staff stalled this week as both sides urged the oth­er to make an ini­tial pro­pos­al re­gard­ing spend­ing cuts. Boehner said on Thursday that “no sub­stant­ive pro­gress has been made.”

The secrecy of those talks has giv­en com­mon cause to polit­ic­al op­pon­ents. The Sen­ate Budget Com­mit­tee’s top Re­pub­lic­an, Jeff Ses­sions of Alabama, de­rided “a group of people meet­ing in secret” who will likely write a bill without his or most his col­leagues’ in­put. “We’ll be told it has to pass be­fore the dead­line, or we’ll have a crisis,” Ses­sions com­plained in a TV in­ter­view. Mean­while, Sen. Bernie Sanders, I-Vt., who op­poses en­ti­tle­ment cuts, said that lead­er­ship should not give the rank and file “a fait ac­com­pli.” Sanders told Na­tion­al Journ­al he has sought as­sur­ances, so far without suc­cess, from the White House on en­ti­tle­ments.

How ef­fect­ively Sen­ate pro­gress­ives can band to­geth­er could af­fect ne­go­ti­ations, Sen­ate lead­er­ship aides say. On Tues­day, Sen­ate Ma­jor­ity Whip Dick Durbin spoke for many in his caucus when he said in a speech that deal­makers should leave en­ti­tle­ments alone for now. (He con­ceded that changes to Medi­care and Medi­caid should be con­sidered as part of a long-term solu­tion.) Durbin is also a mem­ber of the “Gang of Eight,” which has spent nearly two years try­ing to draft a far-reach­ing de­fi­cit-re­duc­tion agree­ment. The group has not met re­cently and will prob­ably not factor in­to the cur­rent talks. “It’s a long shot now,” Durbin says of chances that the gang will pro­duce any pro­pos­al this year.

Sen. Bob Cork­er, R-Tenn., by con­trast, has draf­ted a bill. Earli­er this month, he said it was the “wrong time” to pro­mote his plan to re­duce the de­fi­cit in one swoop, rather than go­ing at it piece­meal. But as ne­go­ti­at­ors tried to avoid the im­me­di­ate deal he sup­ports, Cork­er changed course. He used a Wash­ing­ton Post op-ed to tout his plan, which he re­leased on Tues­day. Still, Cork­er said his goal re­mains help­ing Boehner and Obama reach a deal. “They are the ne­go­ti­at­ors, not me,” Cork­er said. Which makes him and his col­leagues, yet again, bystand­ers.

This art­icle ap­peared in print as “Again, From the Top.”

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