Congress Tries to Avoid A(nother) Shutdown

Happy Wednesday! After sticking it out far longer than anyone expected, a longshot Republican presidential candidate finally saw the writing on the wall yesterday, dropping out of the race and endorsing Donald Trump.

Farewell, Ryan Binkley. You gave it your all.

Quick Hits: Today’s Top Stories

• French President Emmanuel Macron suggested on Monday that European troops could potentially be sent to Ukraine, but other European leaders quickly shot down the idea. “There’s currently no consensus to send ground troops in an official and open way,” Macron said after a meeting with other European leaders in Paris, but noted, “Nothing should be excluded. We will do everything that we must so that Russia does not win.” German Chancellor Olaf Scholz rejected the idea, saying, “There will be no ground troops from European states or NATO.” Russian President Vladimir Putin’s press secretary, Dmitry Peskov, said in reaction to the comments that war between NATO and Russia would be inevitable if troops were sent to Ukraine, and NATO Secretary-General Jens Stoltenberg reaffirmed yesterday that there are “no plans for NATO combat troops on the ground in Ukraine.”
• Germany will host two days of peace talks in Berlin beginning today with officials from Armenia and Azerbaijan. The two countries have been negotiating a potential peace treaty over the last few months, but tensions have remained high in the aftermath of an incident earlier this month near the Armenian-Azerbaijani border in which four Armenian troops were killed. Last September, Azerbaijan forcibly took control of a contested but autonomous Armenian-majority territory, Nagorno-Karabakh, prompting more than 100,000 people to flee to Armenia.
• Republican and Democratic congressional leaders met with President Joe Biden on Tuesday to discuss plans to avoid a government shutdown that could begin as early as this weekend. “It was both a productive and intense meeting,” Senate Majority Leader Chuck Schumer told reporters outside the White House yesterday, although he also noted the two sides remained far apart on a foreign aid and border security package. House Speaker Mike Johnson said he was “very optimistic” about the government funding talks and said the leaders believe “we can get to agreement on these issues and prevent a government shutdown.” Absent any congressional action, the government will partially shut down on Saturday at 12:01 a.m.
• Biden and former President Donald Trump were projected to win the Democratic and Republican presidential primaries in Michigan on Tuesday night, respectively, further increasing the likelihood of their rematch in the 2024 presidential election.* Trump has now prevailed in all six contests on the GOP side, and was leading former Gov. Nikki Haley in the Wolverine State 68 percent to 27 percent with 94 percent of the vote tabulated. Haley has vowed to stay in the race until at least Super Tuesday. Biden collected more than 81 percent of the vote in Michigan, but a protest movement among progressive voters to mark ballots as “uncommitted” in a show against the president’s support for Israel netted over 13 percent.
• The Justice Department’s antitrust division launched an investigation into UnitedHealth Group, the Wall Street Journal reported on Tuesday. The healthcare giant controls UnitedHealthcare, the country’s largest insurer, and Optum, a health services provider. Investigators are reportedly scrutinizing the ties between the company’s insurance business and Optum, since the subsidiary also sells services to UnitedHealth’s insurance competitors, potentially creating a conflict of interest. In 2022, the Justice Department lost its bid to prevent Optum from acquiring a health-tech company, Change Healthcare.

Congressional Funding Time Warp

Here at TMD, there are a few events around which we can set our watches: presidential primaries, debates, Federal Reserve meetings, and, every few months, writing a newsletter that includes the words “looming government shutdown.”

Just like clockwork, here we are again. House lawmakers are back on Capitol Hill today—for the first time in more than a week—with only three working days to forestall a partial government shutdown that will take effect Friday night, March 1. (The leap year thankfully gives them a whole extra day to negotiate.) The text for these funding bills is still MIA, leading some members, including allies of House Speaker Mike Johnson, to grumble about the legislative hemming and hawing that has put them on such a tight deadline for the fourth time since the end of the last fiscal year in September. While Johnson has several times promised and repromised that the days of continuing resolutions would be over, another stopgap funding deal that would extend government funding at current levels seems increasingly likely. 

Not for the first time, we ask: How did we get here? In early January, as the clock ticked down on the previous continuing resolution (CR) that temporarily extended government funding until mid-January, Johnson and Senate Majority Leader Chuck Schumer agreed to a deal that would set topline spending at $1.59 trillion—almost $900 billion in defense spending and just over $700 billion for other spending. The CR also left in place some $70 billion in non-defense spending negotiated by former House Speaker Kevin McCarthy and President Joe Biden last year. All told, the cost of funding the entire government for this fiscal year would ring up to $1.66 trillion. 

The task, then, was to negotiate how exactly all that money would be allocated across the twelve appropriations bills that fund the federal government. Unsurprisingly, Johnson’s right flank was unsatisfied with the spending levels in the first place, with the House Freedom Caucus (HFC)—a rabble-rousing group of Republicans—saying Johnson should have used the threat of a shutdown to leverage a lower topline number. Some on the right flank of Johnson’s conference wanted more aggressive, unrelated, and ultimately doomed policy riders added to the spending bills. All of that slowed negotiations as the year’s first drop-dead funding date, January 19, loomed. 

Facing a shutdown, Johnson reneged on his promise to make the previous CR the last, opting instead to extend government funding with another “laddered” CR, which funded some agencies to March 1 and another tranche to March 8. Why laddered? “I think the logic of the laddered CR is a mystery to most people simply because I think most people think … it’s policy related,” Josh Huder, a senior fellow at Georgetown’s Government Affairs Institute, told TMD. “This is not a policy solution. It doesn’t make any inherent sense to delay the funding of eight appropriation bills by a week. It makes no government sense; it makes no continuity sense—from any perspective, it doesn’t make sense.” Rather, Huder said, it’s a political effort to appease both of the warring factions inside his own conference: the Freedom Caucus and everyone else. 

Since that last CR, the story hasn’t changed much. Come Friday, Congress has to pass four appropriations bills to fund the departments of Housing and Urban Development, Veterans Affairs (which includes military construction), Agriculture, and Transportation, plus a handful of other sub-cabinet agencies like the Food and Drug Administration. Then, next Friday, the remaining eight funding bills are due—including funding for the Defense Department and the Department of Homeland Security, which manages border operations. If funding isn’t approved, those agencies will move to essential activities only, creating backlogs, halting additional services, and furloughing thousands of federal employees.

As the House was adjourning for its Presidents’ Day recess earlier this month, even some members normally sympathetic to Johnson’s conflict with the hardline faction were concerned at the tight turnaround necessary to avoid a shutdown upon their return—and seemed to pin some of their frustrations on the speaker. “It’s time to get on with the deal rather than dither,” said Republican Rep. Patrick McHenry of North Carolina, who served as speaker pro tempore after McCarthy’s ouster and is retiring at the end of his term after nearly 20 years in Congress. “We can do it,” he added, looking skeptical even as he said it. When asked if the problem was Johnson’s indecision, he said, “Look, we need the speaker to be better.” 

Rep. Garret Graves, a fellow Republican member of the Louisiana delegation, suggested sarcastically that Johnson must be “getting tired of winning” in the face of challenges on the floor from his right flank that have led to several high-profile losses recently.

Negotiations are ongoing, but once again, conservative policy riders are emerging as a sticking point, though many of the Republican demands would be dead on arrival—to use a phrase familiar to the speaker—in the Democratic-controlled Senate. For example, as part of the agriculture funding bill, Republicans want to hold funding for Women, Infant, and Children (WIC) benefits steady, though the program, which provides supplemental food for low-income families, is facing a shortfall. Another proposed rider would reverse a rule from the FDA that allows mifepristone—an abortion pill—to be sent through the mail.

In a call with members on Friday, Johnson tried to lower expectations about the status of controversial policy proposals. “I don’t think anybody on this call thinks that we’re going to be able to use the appropriations process to fundamentally remake major areas of policy,” Johnson reportedly told his conference. “If you’re expecting a lot of home runs and grand slams here, I admit you’ll be disappointed. […] These bills will be littered with singles and doubles that we should be proud of, especially in our small majority.”

But following that promise of “singles and doubles,” there was a critical whiff: Text for the first round of appropriations bills was expected Sunday night but still hasn’t been released, pushing the likelihood of a CR to avoid a shutdown ever higher.

That seemed to be the conclusion the Big Four congressional leaders—Johnson, Schumer, Senate Minority Leader Mitch McConnell, and House Minority Leader Hakeem Jeffries—came to on Tuesday after a meeting at the White House with Biden. “The speaker said unequivocally that he wants to avoid a shutdown,” Schumer said after the meeting, adding that they’d “need some CRs to get that done.”

In a separate statement to the press, Johnson said that he was “very optimistic” that Congress would avoid a shutdown, but didn’t explicitly say a CR would be needed. On Tuesday evening, the speaker’s office suggested a CR for both rounds of appropriations would be possible—kicking the deadline to March 22—only if it were “part of a larger agreement to finish a number of appropriations bills, ensuring adequate time for drafting text and for members to review prior to casting votes.” 

There are other possible off-ramps to avoid a shutdown, though their odds are slim. Johnson could quickly bring the appropriations bills to the floor with the support of Democrats. Since hardline members keep tanking “rules”—procedural votes that allow leadership to bring measures to the floor for passage with a simple majority—and would likely do so again if they didn’t get their way on some of the more controversial riders, Johnson would have to pass the bills under a “suspension of the rules,” when passing a bill requires a two-thirds majority and therefore help from the minority.

It may be too late for the regular process to play out, given the bills also need to clear the Senate—though Vice Chair of the Senate Appropriations Committee Susan Collins said earlier Tuesday that several of the bills could be ready soon, while acknowledging a “partial” CR may still be necessary to give lawmakers a few more days. A minibus, which combines the bills that are ready for a vote into one spending package, could streamline the process, but would likely further anger Johnson’s right flank, which opposes such packages on principle.

It’s also quite possible that some hardliners don’t want a spending deal at all. According to the agreement negotiated by McCarthy and Biden last year to avoid defaulting on the national debt, if new, full-year funding hasn’t been passed by April 30, an automatic, across-the-board funding cut goes into effect that would reset funding to fiscal year 2023 levels and shave off 1 percent. The math is tricky, and not everyone agrees exactly which agencies would be affected or by how much. Nevertheless, this could provide the HFC with a fairly aggressive cut they’ve long advocated for.

For HFC member Rep. Chip Roy, the solution is passing a full-year CR to force those cuts—though it’s worth pointing out that inaction would eventually have the same effect. “This plan would mean a real, measurable policy win,” Roy wrote in an op-ed for the Washington Examiner last week. “If we throw that work away, we will not only have wasted our own time and efforts, but we will also have walked away from the people we are supposed to be fighting for. If we fail to use the tools at our disposal to get this done, why would people believe us about cutting spending in the future?”

Johnson’s funding predicament is simply an indication of the fundamental problem that plagues House Republicans, Huder told TMD. “You can’t lead a party that’s not functionally a party,” he said. “At least, not one that works together.”

Worth Your Time

• Writing for the Wall Street Journal, William Galston argued that Congress is running out of time to reform the Insurrection Act of 1807. “The Insurrection Act is a collection of statutes enacted between 1792 and 1871 that grant the president the authority to deploy the U.S. military on American soil and use it against Americans,” Galston wrote. “As an analysis by the Brennan Center for Justice at New York University Law School makes clear, every key term in the act—‘insurrection,’ ‘rebellion’ and ‘domestic violence,’ among others—is undefined, and a Supreme Court decision handed down nearly two centuries ago leaves the act’s interpretation and application in the president’s hands. … To be sure, the military can’t carry out the president’s order in ways that violate other statutes or the Constitution, but it’s hard to see the basis on which a threshold decision by the president to deploy troops could be challenged in the courts. The risks of leaving such unfettered power in the president’s hands are obvious, as is the need to reform the Insurrection Act to limit the president’s discretion.”

Presented Without Comment 

Republican Sen. J. D. Vance of Ohio: “I look at [Federal Trade Commission Chair] Lina Khan as one of the few people in the Biden administration that I actually think is doing a pretty good job. And that sort of sets me apart from most of my Republican colleagues.”

Also Presented Without Comment

Justice Samuel Alito, during oral arguments of NetChoice, LLC v. Paxton:

I mean, if your—if—let’s say YouTube were a newspaper, how much would it weigh?

Also Also Presented Without Comment

CNN: Wendy’s Will Soon Begin Testing Uber-Like Surge Pricing

Toeing the Company Line

• We took last night off from Dispatch Live, but be sure to check out the two shows we hosted over the weekend: special coverage (🔒) of the war in Ukraine and The Dispatch panel at the Principles First summit. 
• In the newsletters: Nick argued (🔒) that replacing Biden as the Democratic nominee at the party’s convention is the least bad option. 
• On the podcasts: Jonah is joined on the latest episode of The Remnant by James Kirchick, the prolific pundit and author of Secret City: The Hidden History of Gay Washington.
• On the site today: Charlotte explores the increased use of drones and U.S. efforts to counter them, Drucker notes how Nikki Haley’s voters are feeling increasingly unwelcome in today’s GOP, and Jonah argues the Republican Party is as divided as it was in 1992.

Let Us Know

Do you think Speaker Mike Johnson has handled his job uniquely poorly, or would anybody placed in the role struggle given Republicans’ slim majority and fractious conference?

Clarification, February 28, 2024: Updated to make clear President Joe Biden and former President Donald Trump’s primary victories on Tuesday night were in Michigan.