Some of Kevin’s writing that we mention in the conversation:

How Has Funding for Federal Agencies Changed Over the Last Decade?
Original analysis showing how Congress has started appropriating trillions of dollars outside of the annual appropriations process since 2020.

The Army Clause: A Forgotten Constitutional Check on ICE, CBP and the Pentagon
Essay arguing for Congress to enforce the Constitution’s Army Clause through a new point of order, which would allow members of Congress to object to appropriations that violate the Army Clause. Co-authored with Scott Levy

My essay on the dawn of partisan appropriations also comes up.

Full Transcript

Matthew Glassman: Okay, hey everybody, I have a special treat today for, anyone who’s listening to this, and that is I’m here with, Kevin McNellis, who is an expert on the, budget and appropriations process. He is a former staffer of CBO on the Hill, a former staffer at CRS, and now he works for a group called Co-Equal, but mainly he is an absolute expert back and forth on the budget process, on reconciliation.

Matthew Glassman: And he’s been doing some incredible work, as we watch, sort of, this process change and morph before our eyes as the spending power is contested, not only between Congress and the Presidency, but the actual, sort of, appropriations process is changing in the 119th Congress before our eyes. So welcome, Kevin.

Kevin McNellis: Hi Matt, thanks for having me.

Matthew Glassman: Yeah, and I do want to let people know that Kevin does work for CoEqual, but he is here in his own capacity, and he is not speaking on behalf of any organization. He’s here as an independent budget expert, and thanks so much for talking to us. And I did want to start just by asking you to describe for us the basics of the budget and reconciliation process. You know, if you start talking to someone about this, and I’ve had this experience.

Matthew Glassman: their eyes start to glaze over, like, it’s all spending, and sort of… everyone’s like, Congress has the power of the purse, right? And Trump is trying to take that away from them. But underneath the hood.

Matthew Glassman: how this money is spent is really crucial to, sort of, policy outcomes. And so, could you just set us straight, on the different types of ways money is spent in the federal government?

Kevin McNellis: Sure, yeah, I’d be happy to do that. So, generally speaking, money is either classified as discretionary or mandatory. And at a high level, discretionary spending refers to the appropriations within the jurisdiction of the Appropriations Committee. So these are the 12 annual bills that are considered every year, as well as, supplemental appropriations and, continuing resolutions. And then on the mandatory side, you have, funding that is outside the control of the Appropriations Committees. So these are mostly entitlements, like Medicaid, SNAP, Medicare, Social Security, where you as a beneficiary have a right, to the benefits, and so that funding is carried out mostly outside the jurisdiction of the Appropriations Committees. And so, the budget process and reconciliation were created in 1974, and it was an attempt for Congress to reassert its fiscal powers after the Nixon administration. And basically, the process that Congress enacted was one that was layered on top of the pre-existing structure in Congress, right? So you had the appropriations committees doing their work every year, you had the authorizing committees, the other committees, overseeing the mandatory programs. And so the budget process created new budget committees, and their goal was to coordinate all of Congress’s fiscal actions, right? The concern was you have tax and spending committees all doing different things and maybe not coordinating. And so the mechanism for that coordination was the annual budget resolution. And this is a document that Congress agrees to itself, the House and Senate agree to it. It doesn’t involve the President, and the goal was to set a plan for the upcoming year, budget plan for the upcoming year, and then that would give instructions to all these different committees that then they would, meet. And, you know, you would sort of rationalize the taxing and spending decisions that Congress makes every year. The reconciliation process is a fast set of fast-track procedures that were designed to make it easier for Congress to reconcile those spending decisions that were made With the budget resolution, sort of acknowledging that Congress needed some flexibility. To sort of adapt, at the end of the year, at the end of the session of Congress, to make sure that the laws that were actually passed actually conformed with the budget resolution that was passed earlier in the year. Originally…

Kevin McNellis: Yep.

Matthew Glassman: Let’s go through this sort of step-by-step. So, it’s 1835, and Congress wants to spend some money, they want to pay for the army out on the frontier, or whatever, and so they pass a law saying, here’s a million dollars to support troops on the frontier. That’s discretionary spending, and maybe there’s not an appropriations Committee yet, but that’s what they’re doing, right? They’re passing a law saying, we’re going to send this much money for this year, and the president will manage the military, right?

Matthew Glassman: Right? We’re also going to have some money for the post office, and this is all discretionary spending, right? And that would be sort of what we would think of traditionally, historically, as how money was spent. Congress appropriates it this year, and then next year they appropriate more, and maybe the agencies or the president ask for it, right? And that’s discretionary spending, and that’s no different today.

Matthew Glassman: Right? When the president asked for $1.5 trillion for the military, that would be a discretionary spending request, correct?

Kevin McNellis: Yes, generally speaking, yep.

Matthew Glassman: And then, so, on the other hand, you might pass a law like Social Security in 1935 that says if you are 62 years old and you meet these qualifications, then you are entitled to these benefits going forward.

Matthew Glassman: And that would be sort of mandatory spending, right? And you’ll get those benefits forever, unless Congress changes the law, right? Sort of set it and forget it. You don’t have to have, sort of, an annual appropriation. Congress will need to fund those accounts to make sure that money gets there, but the actual sort of entitlement is going to exist if Congress does nothing, right? It’s not like the money runs out for the military on the discretionary side, but on the mandatory side, the money just is perpetual, or at least the entitlement is perpetual.

Matthew Glassman: And Congress may need to cough up the money to fund it, but may do that permanently, correct?

Kevin McNellis: That’s right, so, every appropriation, has to, in law, say, provide an amount of funding the purposes that it can be used for, and a period of availability, or how long the funding’s available for. So discretionary, you can think about it as definite amounts, definite periods of availability. You’re gonna get X amount of dollars for time period Y. mandatory spending, generally speaking, is gonna be, indefinite. So, for Social Security, it’s a permanent, open appropriation. There’s no dollar amount. It’s, it’s generated… it’s… the dollar amount is calculated based on the number of beneficiaries and their benefits that they’re entitled to. So, right, and the… the thinking there is you don’t want to have Congress every year thinking about how much money it’s going to give to Social Security when you have tens of millions of beneficiaries that rely on that funding, or, you know. like, workers are making their retirement decisions 30 years from now, right? You want to provide different levels of certainty, and… and control, right? So, right, Congress has, since 1789, primarily relied on annual appropriations for executive branch agencies because it wants to have that power, it wants to have that control over the agencies to make sure they’re responsive. To their priorities and their requests.

Matthew Glassman: And so we have this growing number of entitlements in the 60s, and we still have sitting next to it all this sort of discretionary spending we might be doing on various things, and so the budget resolution is going to tell everybody, sort of. how much they can make changes to these things. And so it’s going to provide the appropriations Committees with a total cap on how much discretionary spending can be had, and it’s going to provide the non-appropriations committees, the authorizing committee, with caps on how much money is available for them to adjust, correct?

Kevin McNellis: Yeah, that’s right.

Matthew Glassman: Yeah. And so the reconciliation process is also going to allow us to quickly reconcile this, and I think the original intent is that it’s going to allow us to reconcile the budget, meaning we can cut spending easily in this fast-track process, or we could raise taxes easily in this process, but the idea might be to bring this stuff in line.

Matthew Glassman: Spending and revenue, correct?

Kevin McNellis: Yeah, I think there’s an underappreciated aspect of reconciliation in that In its original form. there were two budget resolutions. Congress would pass one in the spring, and then it would use a second resolution to make sure that all the decisions in the fall towards the end of the year conformed with the original resolution. And reconciliation was originally designed for that second, or, like, cleanup resolution. And then what happened in 1980 is the Congress moved the reconciliation procedures to the first budget resolution. So really, that’s when you have this transformation in the process, and it becomes no longer a tool for Congress to clean up, sort of, the spending decisions within that current session of Congress, but becomes a way to have fast-track procedures for new legislation. And it was… that transformation started first in 1980, but then it was really transformed in 81, where the Reagan administration realized the power of it, and used it to sort of enact, you know, up to that point, the largest spending cuts In history, really. But that was paired with a, you know, another tax bill, right? But that’s, I think, a little bit of an underappreciated, aspect of this, is that as… I don’t think any of the original authors of the 74 Budget Act really foresaw what they were creating. And so, since that Reagan, you know, the process has continued to evolve since Reagan, but now it’s become this, fast-track set of procedures that are now used for the most prominent, highly partisan pieces of fiscal legislation. But that was… was really not the intent of the… of the procedures to begin with.

Matthew Glassman: Sure, but at a functional level now, when you say reconciliation, as someone who’s sort of half-aware, it just means this is how a unified government can pass sort of legislation on a party-line basis, regardless of whether it reconciles anything, right? You can explode the deficit by cutting taxes as sort of… you can see, you know, Tax Cuts and Jobs Act being an example, or the big, beautiful bill.

Matthew Glassman: Or you can… you can do a lot of spending on a party-line basis, right? And you can see this in…

Matthew Glassman: sort of ARPA, or the Inflation Reduction Act, right?

Kevin McNellis: I think the easiest way to think about it is you have now a complete inversion of the original design of the Budget Act. Now Congress only enacts budget resolutions but for to… to unlock the reconciliation procedures. So they’re no longer enacting a budget resolution to come up with a unified fiscal plan for the fiscal year. They’re enacting it so that they can unlock the fast-track procedures to then pass what, especially since, 2020, have been, the most partisan bills, or, you know, the highest priorities of the majority. And so… Right. As where we sit today, reconciliation has it’s become a tool for majorities to get bills to the Senate that otherwise would not pass, and it’s no longer sort of a fiscal planning tool, at all, or it’s sort of…

Matthew Glassman: Can you…

Kevin McNellis: Yep.

Matthew Glassman: You can see… you can see this right now, in that we’re doing a FY26 budget resolution after all the Appropriations Acts for FYI.

Kevin McNellis: 2 seconds.

Matthew Glassman: minus a couple accounts have already passed. And I think that’s… and, you know, and sometimes people… lament this as not the intent of the Budget Act, but this is how, sort of, institutions work, right? People twist them and game things, and this seems to be sort of the outlet for getting around the filibuster on a set of items without actually having to, sort of, abolish the filibuster. But I think that the important thing, and the thing I want to really talk to you about is some work you’ve done is that these things were still separate. Even as reconciliation was being used as a partisan tool, more and more prominently in the last decade or so, it still was quite distinctive from discretionary appropriations, and that’s the wall that we’re starting to see break down.

Matthew Glassman: There’s no rule that you can’t do discretionary appropriations, these annual acts in a reconciliation bill, but they really hadn’t. And… and…

Matthew Glassman: From a political point of view, why hadn’t this been done, right? Why hadn’t majorities sort of just observed this? I mean, I think the key point here that I guess needs to be stated is that the annual appropriations bills are subject to a filibuster, and therefore they have always traditionally been bipartisan in the Senate. There’s no way around that. Until now, we’re seeing more and more. And if you could just describe sort of where where the hole sort of gets blown in this? Where do we first start to see annual appropriations being used in reconciliation bills?

Kevin McNellis: So, I think that I’ll start with the… the American Rescue Plan, because that’s where we really see… the reconciliation process expanding. And so, what happened in ARP was… a significant, you know, hundreds of billions of dollars that were appropriated, to agencies that normally would have been what’s called a supplemental appropriation, right? Like, the appropriators would have created, a separate act that would have had additional money on top of the annual bills. And the majority at the time decided to use reconciliation instead, right? Because then it’s a 51-vote threshold instead of a 60-vote threshold. And… So that was a serious expansion, and then… in the AARP, there were a few, you know, what we would think of as traditional agency funding, right? A lot of that was pass-through funding to, like, state and local governments, unemployment insurance, but there were a few… a handful of, appropriations to agencies for their core administrative functions. Then in the IRA, you see, you know, the same Democratic majority in the 117th Congress. expand those administrative, types of appropriations, primarily to the IRS for modernization, increased enforcement. And so that’s… you see another sort of step toward a direction that normally would have been much more within the appropriations process. You’re talking about agency funding for core activities, that that’s then being provided for a decade instead of one year at a time. And then, when the Republicans, took control in the 119th, then they used, sort of, that model, for… in OBAD to then provide funding for ICBPP, DOD primarily, you know, also the Artemis mission, you know, NASA funding. So, like, they… they then sort of… there’s this other step forward where now you’re seeing a lot more agency funding, multi-year funding being included. And then now, what we’re seeing with the current ICBP bill is I mean, we’re in a really strange situation at the moment, where now you’re looking at, especially for ice. a situation where this new bill is going to provide funding entirely. Like, there is not going to be an FY26 discretionary Appropriations Act, so it… Right, I think that’s another distinction that maybe gets missed a little bit, is sort of the previous reconciliation bills you could kind of think of as supplemental. Like, they’re giving agencies more funding that they otherwise would have received in the annual act, and now we’re in the situation, particularly with ICE, where the reconciliation process is being used potentially provide all of the agencies’ funding without an annual appropriations Act. And so that’s, I think, another big step towards Congress using an alternative mechanism that historically has just been firmly within the Appropriations Committee’s jurisdiction.

Matthew Glassman: Yeah, so… and… and just to set the timeline for people who aren’t necessarily fully aware of those different bills. ARP was the big last COVID stimulus at the beginning of the Biden administration in February 2021, and IRAs, the Inflation Reduction Act, which was later in the 117th Congress. And then, OBBBA is the big, beautiful bill, which is at 2025, at the beginning of the Trump administration, and now the current CBP and ICE reconciliation is obviously, being considered right now and hasn’t yet passed. And so, you know, what you’re describing, I think, for most people, when they look at that, they say, well, this… the big sea change here is that you’re taking this stuff that was in the… annual appropriations process, which has to be bipartisan because of the filibuster, and therefore has to be a compromise with minority, and you’re moving it over to the reconciliation process, where it can be done on a party-line basis. And that makes sense to everybody, right? So, like, Biden and the Democrats want all this stuff.

Matthew Glassman: They want this extra funding for certain agencies, so they throw it into AARP, they throw it into IRA, and then Trump and the Republicans want extra money for, immigration enforcement, so they throw it into the big, beautiful bill. And then I think what you said’s really important is that now, with CBP and ICE, what we’re seeing is it’s not just extra money for this stuff, but this is going to, in some sense, replace it, right? CBP and ICE are so partisan that they don’t see any way to compromise with Democrats.

Matthew Glassman: So they’re just going to get those agencies out of the annual process and place them into the reconciliation process. And that’s a big change, but you hinted at other changes, too. Like, what is different Besides the fact that it’s a 50-vote majority, and so that we can have this party line legislating over annual appropriations, what else is different about doing this through reconciliation?

Kevin McNellis: Yeah, I think it, So, first, there’s the time period, right? This, so far, reconciliation has been used to provide multi-year money, so, as opposed to 12-month money that would be in, a discretion, you know, an annual appropriations Act. And then, the other… Huge difference is that The Annual Appropriations Acts have what are called general provisions. These are administrative provisions that, place limits on how the annual acts, money can be spent. And they also include very detailed committee report instructions. So in addition to the text of the statute, you also have thousands, tens of thousands of instructions, for the agency about how to implement the funding.

Matthew Glassman: Yeah, let’s…

Matthew Glassman: Let’s take… let’s take these one at a time, because I think both of these… both of these are important. The multi-year… issue is that the typical Appropriations Act coming out of the Appropriations Committee is one-year money, and in federal law, if it doesn’t say how long the money’s for, it’s for a year, and the acts are generally for a year. Sometimes there’ll be two-year money in there, or five-year money if there’s longer.

Kevin McNellis: for some projects.

Matthew Glassman: know your money occasionally. Sometimes you’ll give someone just until expended, but typically it’s a year, and that means the president puts in a budget request after compiling the agencies, they get the money for a year, and then they start all over, and they ask for money the next year, and so they have to keep coming back and begging for more. Now, the reconciliation bills. typically might do more than that, and so the current CBP and ICE money that’s being considered, how many years is that set for?

Kevin McNellis: That, I believe is, 4-year money, I mean, or three-year money, it would go through the end of the Trump administration.

Matthew Glassman: Right, so part of the point here is not just to do this by a party-line vote, right, so that you don’t need to compromise with the Democrats in this case to get this through the Senate, but it’s also to lock the money in. in a way that even a Democratic victory in the 2026 elections of both chambers of Congress wouldn’t necessarily be able to undo this, or have to deal with it, right? You would just get the money now. I think… I think people notice this in, sort of, the, big, beautiful bill. When they said, wow, this is a ton of money for… DHS, right, or immigration enforcement, you know, way more money than they would normally get. But now we’re talking about doing, sort of, their annual budgeting, but on big chunk bases in the beginning of a Congress. And this sort of implies that the second Congress of any presidency, if you were to lose the House, for instance, which is a normal occurrence for any president, right? The last six presidencies have started with unified government, and I believe… all 6 of them? No, not Bush, I guess, but 5 of them have lost one chamber or the other at the midterms. So this would lock in and defeat, sort of, the… the sort of political blowback to the presidency here by getting the appropriations for these things quicker.

Matthew Glassman: The second issue that you bring up is the general provisions. I’m going to read… a lot of people aren’t familiar with these, but these are all over appropriations bills. I… sometimes they’re called limitation riders or things like that, but they always come in the same form. And it’s… it’s how you make policy in an appropriations bill in sort of the strongest way. Because if you don’t want to appropriate money for something, one wimpy way to do it is to not give them any money.

Matthew Glassman: But the stronger way to do it is to explicitly give them zero. Right? Because presidents and agencies, they can find ways to move money around, but if you explicitly give them zero, then they can’t do it. So I’m just reading from the last DHS bill. none of the funds made available in this act may be used to reimburse any federal department or agency for its participation in a national special security event. There you go.

Matthew Glassman: We gave you money, but you can’t use it for this. Where this hits the road is much more sort of important stuff. Like, here’s one that they’ve been fighting over now for the better part of a year. None of the funds made available to DHS by this act may be used to prevent any of the following persons from entering for conducting oversight, any facility used to hold, detain, or otherwise house aliens, right? And that includes a member of Congress and the list. And that was in the last DHS Appropriations Act.

Matthew Glassman: That wasn’t in… the big, beautiful bill, and therefore DHS was claiming they didn’t have to let members into ICE detention facilities, because they were claiming that the money they were using to run those facilities was all coming from the big, beautiful bill in the reconciliation process, and wasn’t coming through the annual act. And so my… the courts are arguing over that, because it does kind of seem like bullshit. It seems very hard to run an ICE facility just on reconciliation money, but they’re claiming it, right? But it does point to the bigger problem here.

Matthew Glassman: And so I want to ask you sort of pers… this is where I… this is where we are now past my knowledge and into yours, exclusively, so now I’m asking questions that I do not have the answers to. Is the reason this stuff isn’t going into reconciliation because just it’s a 50-vote threshold and the Republicans don’t want it in there? Or is it not possible to get these sorts of riders into a reconciliation bill? Would they be potentially not eligible to be there because of the limitations on what you can do in reconciliation?

Matthew Glassman: Yeah.

Kevin McNellis: That’s a really great question that’s, been on my mind a lot recently, and I think the honest answer is, it’s probably a combination of both, but we don’t fully yet know. We have some, like, limited evidence of, from OBA, where… they… the Republican majority was trying to include reporting requirements, other provisions that you would normally see in an annual appropriations Act, and, that weren’t ultimately in the final bill. One was ruled, one of the reporting requirements, there was a parliamentarian decision on the Byrd Rule, which we can get into, but, you know, it’s a limit on reconciliation. So we have some… we have some evidence that there’s some procedural constraints, but I think ultimately it’s going to be a mixture of, well, what does the majority want? What are the negotiations within each caucus? Where do they land? And what was… surprising to me when I saw the bill text was… Sort of, there was not many, what we would think riders or administrative provisions, or there were a few, but there was not, an attempt to bring all of the, you know, it didn’t… there was definitely not an attempt to bring all of the full suite of riders that are in ICE’s annual appropriations bill into the Reconciliation Act. So, whether that’s a Bird Rule issue, a procedural issue, or a political issue, probably from both columns, probably a mixture of both, But that is a huge open question, right? And that gets to the difference between a supplemental and an annual appropriation going through reconciliation. When you have ARP, IRA, Providing supplemental appropriations, you don’t necessarily have the majority trying to bring in general provisions, OBA was different. It was more focused on, agency… core agency functions. The majority tried to bring in some provisions. It looked like, you know, there’s one that tripped… got tripped up on procedure, and then others, it looked like maybe it was just political negotiation, they fell out. But there were still a handful included. So, But generally speaking, this is a huge question, open question that Congress is grappling with, and in my mind, Congress’s reach has exceeded its grasp. It’s very comfortable, obviously appropriating very large dollar amounts through this process, but the oversight mechanisms have not caught up to the new procedures that they’re using.

Matthew Glassman: Yeah. I want to be very clear about this, that we’re now talking about appropriating the actual agency functions, the entire appropriation for things like ICE and CBP, without the myriad of limitation provisions and committee report language and strict requirements that are typically in an annual bill. So we’re increasing the length Of the duration of these appropriations, but stripping them of the general provisions that constrain, sort of, the use of the money, typically.

Matthew Glassman: can be added retrospectively later, in theory. You can put constraints on previously appropriated money, but it seems to me that this is a… huge hole in what’s going on here. And I don’t want people to get the sense that there’s just, like, a couple limitations put on, sort of, annual appropriations. If you look through the annual appropriations bills, there are hundreds of limitation provisions that direct how this money is used in law.

Matthew Glassman: On top of the pile of things that are just in the committee reports that further direct how the money should be spent, and are, you know, held together not by law, but by sort of political force of the committee’s going to consider your request next year, you turn it into a situation where there’s no committee report, where there’s no general provisions. Oh, and by the way, the committee’s not going to consider your request ever again on the appropriations side, and on the reconciliation side, they’re not going to consider it for four years maybe, and you really have sort of a… sort of a floodgate turning on, a huge faucet turning on of money that is much. less controlled by the legislature, and much more open-ended to the executive. And I don’t want people to think that, like. this is some right-wing conspiracy. The Democrats, you know, have been doing a little bit of this too, obviously, with AARP and IRA, they sort of brought this in, but I would fully expect them to take advantage of this in 2029 if they had a unified government as well. This is the kind of thing that I think parties are going to learn very quickly, that they can do.

Matthew Glassman: And so now, you know, I guess the next question is to talk about, sort of. the Byrd Rule, because I think a lot of people, sort of, if they’re… if they’re watching, sort of, what’s going on, they see this weird stuff where the parliamentarian gets to tell you what’s in a reconciliation bill and what’s not, and we see that some of the stuff that is going in for CBP and ICE, the first attempt of the Republicans to write that, the parliamentarians said no, and now, you know.

Matthew Glassman: Trump’s ballroom security is coming into question. So, if you could just succinctly tell us.

Kevin McNellis: Sure.

Matthew Glassman: And, you know, where it came from, and why it matters now.

Kevin McNellis: Yeah, so, the Byrd Rule, is named after Senator Robert Byrd, and it was… developed, like I said, back in the 80s initially, because, when Congress realized the power of reconciliation and started using it, to pass significant legislation. The concern was that it was being, loaded up, right? They became kind of Christmas tree bills, these huge omnibus bills that included a bunch of non… primarily non-budgetary items that would be subject to a filibuster and debate, but because they’re in a reconciliation bill, they were not. So, the Senate developed the Byrd Rule, which has 6 tests of, extraneous, what are called extraneous provisions. So these are ones that don’t have any budgetary effect. They don’t comply with the budget, resolutions instructions to a committee. The… the provision is outside the jurisdiction of the instructed committee. The most contentious one is, whether policies’ budgetary effects are merely incidental to its substantive policy changes. And then, whether it increases, deficits outside of the… it’s called the budget window, the time period set by the budget resolution, and then whether it affects, the old age and survivor benefits, what we think of core Social Security. program, the key other thing to realize about the bird rule is that it’s a surgical, point of order, so senators can raise a point of order saying something violates the Byrd Rule. When they do that, they are literally objecting to you know, it can be a phrase, it can be a word, it can be a whole provision, it can be an entire title. It’s up to the senator raising the objection, but that’s very different than a lot of other point of orders, where you’re objecting to the entire measure, or the entire, you know, bill as a whole. And so, you can think of it as… it’s kind of like a… like an x-ray, almost, or… that’s not the exact right image, but it’s very surgical, so you… it’s… it can strip out a bunch of provisions, but then the bill as a whole continues to be considered. And so… Why is this important? Basically, as reconciliation has become a vehicle for the most, contentious bills, the minority party is going to use the Byrd Rule, very aggressively, to the point where, you know, the bill title and the bill, table of contents gets stripped because it doesn’t have a budgetary effect, right? Like, that’s very common in every reconciliation bill now. So, basically, every provision is going to be objected to if there’s a possible verb rule objection, and so… where we are in the process right now, people are meeting with the parliamentarian, both sides are meeting with the parliamentarian to get the parliamentarian’s judgment about each, provision, and whether it violates the Byrd Rule, because they want to address those issues now, before the bill gets on the floor and could be possibly subject To a point of order on the floor.

Matthew Glassman: Have you ever been in one of these meetings? I’ve never been in one of these meetings with the parliamentarian over the Byrd Rule, but they are fantastical, and anyone who has been there and tells me about them, it sounds like you’re almost at, like, a trial, where you have both sides presenting their case, and then the parliamentarian sits there like a judge, and tells you. Have you been in one of these meetings?

Kevin McNellis: No, I have not been in one of those meetings, but I’ve been sort of adjacent to them, in multiple circumstances.

Matthew Glassman: And it reminded people that the parliamentarian doesn’t have any actual authority over these things. What she’s doing in these cases is telling people how she will advise the chair, and that turns into actual power, because a majority of senators are sort of on the record and going to back the parliamentarian’s interpretation of these things, if push came to shove in the Senate. And so, the parliamentarian does not have any authority in the Senate. She advised the chair, but given that a majority of senators are going to back her advice, she essentially does have the power, to make these decisions, and so everyone essentially defers to her, which has some benefits. But the Senate could sort of overrule the parliamentarian, but that opens up an entire different can of worms that maybe is on episode 2 here. And so…

Matthew Glassman: What happened this week is that the ICE and CBP funding did lose a lot of stuff to parliamentarian rulings, and which branch of the bird rule test tree were those struck down on?

Kevin McNellis: So… we’re still… or I… I am still trying to figure that out. From what we know, comes from the Senate Budget Committee’s ranking member, who has put out press releases and then other press coverage, about what what decisions were made in the meeting with the parliamentarian, and the issues right now appear primarily jurisdictional, as opposed to, budget, you know, whether there’s a budgetary effect or whether it’s merely… there also appears some merely incidental, whether the policy or the funding has a larger policy effect than it does a budgetary effect. But really, like, for the ballroom, specifically. There appears to be a jurisdictional issue, because, environmental… Environment and Public Works, has jurisdiction over DC buildings, and… the current, ballroom text is in the Judiciary Committee’s jurisdiction, and they’re funding the Secret Service for these projects, so it seems, from what we know right now. that there’s an issue with that jurisdictional boundary between what is Secret Service security funding versus a construction project for a public building in DC. I think we’re still waiting, as of this recording, for new text to emerge. what I’ve seen reported is that, Republican staff, have… have said these issues are, fixable, with redrafting, and so… and don’t appear to be a serious concern, at least from what I’ve seen reported. But nevertheless, that seems to be where the issues are at the moment. It’s primarily on the jurisdictional test.

Matthew Glassman: Yeah. So the other feature… so, you know, one thing that I think opens the reconciliation process to criticism over this is that you end up now having a Senate where it’s majoritarian at times for budget-related things, but always has a filibuster for non-budget-related things. So if you’re interested in legislation on abortion, or gun control, or other things that are mostly social issues, I think is the basket you push them in, those things are always going to require super majorities, but if you want to do things that are related to the budget, it’s sort of prizes prioritizes them as something that can be done, on the fast track by a majority vote.

Matthew Glassman: The other feature of the reconciliation process and the budget resolution process is that it has these things called Voteramas, which are basically an opportunity for people to offer unlimited amendments. They never seem to… end in sort of significant amendments being adopted, however, though. What constrains… you would think, like, oh, we can offer unlimited amendments that the Democrats would have all sorts of wonderful amendments that they could make right here, starting with, sort of, just stripping the ballroom funding out. What constrains, sort of, the amendment process in the voterama over these reconciliation bills? How come the Democrats can’t just come in here and now try to get all the… all the ARP funding put back in, or reverse everything done in OBBA in this sort of reconciliation in Voterama? Is it just political?

Kevin McNellis: Just a…

Matthew Glassman: They wouldn’t win, or are there actual procedural constraints here?

Kevin McNellis: Again, it’s… I think it’s a mixture. So, the Voterama is, is created because there’s statutory time limits on, the debate in the Senate. But not the full consideration, of the reconciliation legislation, which is a fine distinction, but Basically, what it creates is a situation where, There’s no… Final limit on… the consideration of the bill as a whole, so then you can… as you keep offering amendments, you eventually hit the time cap, and then senators will go into a unanimous consent to then discharge all of the remaining pending amendments. in addition to those statutory limits, then you just have, like, germaneness issues, right? You have to offer a germane amendment So then that’s also going to be a function of what’s included in the bill. So… Those are the two… primary, constraints, and then there’s, I think, a larger phenomenon where, one of my projects was… I actually was… got very interested in this and sort of figured… actually tried to add up, sort of, the time it would take to get through Votoramas. And… and Voteramas have become less, less, Rama-y, as the part… as the process has become more partisan, and so you’re… you’re generally seeing, you know, there’s… there’s not… they’re not as long because people are offering fewer amendments, and I think it, I don’t necessarily have, like, a grand unified theory for why that is, but nevertheless, it does seem to not… it seems rare when an amendment, breaks through, and generates, significant attention or notice, especially when you’re in a situation where you’re offering amendments usually for 2 minutes at a time, where each side gets one minute to argue for and against it. It just, I think, sort of dilutes the… the ability to focus on any one particular issue, right? If you’re just chugging through dozens of amendments.

Matthew Glassman: I want to turn to, sort of, the political implications of all this now, which I think perhaps is the most important piece here, because one question is, is this going to, sort of. undo the traditional appropriations process. If… if majorities, if unified majorities can just say, well, we’ll bargain with you for a little while, but if you don’t do what we like, we’re just going to put this stuff in a reconciliation bill, like, does that derail? Are we gonna end up in a situation where, yeah, there’s still compromises in the annual appropriations process, and we do some stuff there, but the really partisan stuff now is just going to be moved over to reconciliation? Like, do you… Do you expect that to be what happens going forward here in this process?

Kevin McNellis: I don’t think I have… strong expectations, necessarily, in terms of predictions, other than this is a very open question, and it’s opened up a new field of potential action, and negotiation. So… I’m… Just in the current debate. For example, I’m very interested to see what happens, with the DHS Fiscal year 27 appropriation bill that is being developed in the House right now, and is going to be marked up next month by the House Appropriations Committee. The DHS subcommittee chair has said that he wants to bring oversight provisions into that bill that would affect what’s being appropriated in the reconciliation process. And so… I think you could end up in a world where… the Appropriations Committee’s workload changes, and that they are responsible for overseeing both the annual bills and the funding that’s in, whatever funding ends up getting in the reconciliation bill. I think… On top of that, I think there’s an interesting example from the Inflation Reduction Act and the IRS funding. So that funding became subject to a series of rescissions. Over the next several years after the funding was, enacted, and it’s basically been almost completely rescinded, and so… Right, like… in addition. Congress is always making fiscal decisions every year, right? Like, you’re going to have deadlines in terms of the annual bill. all the annual bills expiring on September 30th, you’re likely going to have multiple CR votes as they sort of, you know, try to negotiate the next round of appropriations bills. You have other must-pass pieces of legislation, and so I think when you see those must-pass deadlines, or those really important deadlines, I think this is just gonna be another dimension along which there’s going to be a negotiation. And so… I think it’s too early to tell or make some, far-reaching prediction, necessarily, about how this is going to play out, other than it’s going to be a very, I think, active site of negotiation, and conflict going forward. But I think, from an institutional perspective, setting aside, you know, partisan politics, I think it’s really important for Congress to start grappling with these questions, developing… well, they’re grappling with these questions, that’s clear. They need to develop, I think, workable solutions, or workable answers to these questions. because otherwise, I think it’s just a… you run the risk of, Congress not fulfilling fully its constitutional spending responsibilities. You know, I think you mentioned the court case. With the visitation rights, and how the administration argued that they were using the reconciliation funding and, you know, and the lack of riders on that funding. To prevent members of Congress from visiting. And I think that cuts, you know, I don’t think there’s a better example that cuts exactly to, sort of, Congress’s own power, right? And you… I think… it’s incumbent on Congress to develop solutions here so that it still has its… Has an ability to oversee, understand, and ensure that the funding is being used in ways that represent the members of Congress and the people they represent, and isn’t just a, sort of a multi-year, check that’s handed over, to the administration, or any administration, right?

Matthew Glassman: Yeah, I think… I mean, I think it is interesting that, you know, you move the CBP and ICE funding over to reconciliation bills, and you don’t have, sort of, the limitations of the general provisions going with them, and then you might have thought in your head, like, oh, well, the reason those general provisions get in and those limitations are there is because the minority on the Appropriations Committee always had a say in this, and so it was part of the compromise, but we see majority members of the appropriations subcommittees looking to put those riders in, and that if you did have sort of a pure majoritarian appropriations Committee, imagine the filibuster’s gone, it’s not as if… sort of the Republican powers that be right now at the Appropriations Committee want sort of a… complete lack of these general provisions on CBP and ICE funding. In fact, we’re getting the opposite from, sort of, the chairs there, who seem to think that’s important. So I think that is sort of a break on the idea that the point here is to get money for long term that has no strings attached, that the president can do whatever he wants. There is still an appetite in Congress for the oversight, it seems, even from the majority party.

Kevin McNellis: Yeah, just one other interesting aspect on that was the bill that passed the House, the DHS bill that passed the House, had a very interesting new general provision that would have required DHS to submit very detailed obligation and spending plans for all of its funding, including the OBA funding. And so I think that’s a very clear signal that the major… the majority in the House was very… was comfortable saying, yeah, we need to… we need this information. And so I think it’s not strictly a partisan story, right? Like, I think there’s, sort of a sincere, recognition that, you know, the current processes are not sufficient to keep Congress informed so that it can make, you know, the fully informed Appropriations and budget decisions.

Matthew Glassman: I mean, this has always been my view. I mean, I think there’s people out there, so the appropriations process is bipartisan because there’s two parties involved, but I’ve always held the view that the appropriators themselves, the types of people in the appropriations committees. tend to be a certain type of compromiser anyway, and that’s part because they have to, but the type of people attracted to the Appropriations Committees tend not to be… the partisan flamethrowers. Even people who are quite ideologically conservative or liberal, like Mr. Cole and Ms. DeLauro, who are the chair and ranking member in the House, that they are sort of get-to-yes via compromised people, which is very natural in appropriations. So none of this surprises me, but what worries me is that people like Mr. Cole and Ms. DeLauro are going to lose power as this politics drives forward to people who don’t have that mindset, right? Who really are sort of partisan warriors. Completely, right? Like, I don’t completely cut out, but that worries me to move so much spending out of the hands of people I generally trust, which is the appropriators on either side of the aisle.

Kevin McNellis: Well, yeah, but I think there’s maybe a scenario where the reconciliation bill doesn’t necessarily include the general provisions, but maybe the annual appropriations bill, which is running on a different track and, different… level of salience, might include the provisions you would need that maybe, aren’t included in the reconciliation bill. So I think I think it’s too soon to tell, but… the idea… like, initially, when I… when we were heading into this debate, I was thinking, like. oh, the key question is going to be, how are you going to fit the general provisions into a reconciliation bill, to comply with the Byrd Rule? And we’re not really in that world, and so it seems like if they happen, it’s going to happen through some other legislative vehicle.

Matthew Glassman: Yeah, I mean, at the bare minimum, we’re going to get a situation where we have a reconciliation bill passed that is immediately providing funding.

Matthew Glassman: But general provisions that don’t exist until at least when? I don’t know, right? Right, exactly. When the CR passes in September.

Kevin McNellis: Yeah, and so I think that’s really important. So, and it’s still such a strange situation, I’m trying to get my mind around it fully, is that… so CBP did receive some funding in the DHS bill that passed. It was lower, but there’s… they still have some funding that’s fully ridered. the bill that did pass has a lot, you know, of the sort of typical administrative riders. What didn’t happen was or ICE was not included, so now you have this situation where I’m still not exactly sure what’s going on with ICE, necessarily, but, like, they are sort of operating in a space that, as far as I know, in the modern appropriations process, hasn’t really happened, Where they go from having an annual bill to not having an annual bill, and then they’re just going to be relying on these, what are functionally. You know, as the text is written, essentially supplemental appropriations that don’t have The administrative limitations, or the committee report instructions. And so, yeah, we’re… until the 27 annual bill passes, we are going to be in a scenario where they’re going to have a lot fewer restrictions on… on that funding.

Matthew Glassman: On that point, the other thing that… and again, this is beyond my, sort of. knowledge base is reconciliation bills aren’t written like appropriations bills, in the sense that I don’t see, sort of, the traditional accounts and appropriating into the accounts for these things. It’s sort of functional into, sort of, particular activities. And so, when we have a, you know, I think… I think I think ICE only has 2 accounts. It has, like, sort of just a general account and a procurement account, and so… but in the bigger picture, how is this stuff sort of crosswalked? So we do the reconciliation process, and we have 19 different things we’re giving money to to these.

Kevin McNellis: Yeah.

Matthew Glassman: How… who and how is that stuff getting translated into actual appropriations accounts over at Treasury for the purpose of tracking, sort of, the inflows and outflows of these things?

Kevin McNellis: Yeah, that’s a really great question. I’ve been doing a lot of analysis of, ICE and CBB’s funding, trying to figure out, exactly what’s going on, and so I’ve been sort of spending a lot of time with the OMB and, Treasury and USAspending.gov’s data. And so, what I know about the OBA funding is that you have these overarching accounts, right? There’s two of them, like you said, the operations and support, and then the construction account. And the OBA funding’s been appropriate… been… Designated within those accounts, and then… within those general accounts, you have what are called Treasury accounts, which then are broken out by periods of availability. And so right now, the OBA funding is in a separate Treasury account within the general account, with its own period of availability, so it is functionally separated, or at least on the accounting basis, it’s separated from the annual funding. But it appears that OMB has assigned that to the traditional accounts, even though in the statutory text of the law it doesn’t say for this account. But I think that’s a really, important, Thing to note is that appropriations bills are… written differently, and it’s kind of remarkable. They’re essentially written in the same format they were in 1789. You can go back and look at, like, the first appropriations bill, and it’s essentially the same format. And… they… I think it’s possible that they could have used that same format in a reconciliation bill, but they chose not to, and so… I think…

Matthew Glassman: In theory, that could plausibly be in the same account at Treasury, but have different general provisions limiting the use of their actual monies? Is that right? I mean, it’s… have different provisions limiting them. It seems like they have to be in somehow functionally different accounts, at least if you’re gonna claim. You’re using… at least if the administration’s gonna claim that it’s using money that… that does not…

Kevin McNellis: Isn’t required.

Matthew Glassman: oh, the general vision, it’s gotta be, like, visible somehow, right? Or, I mean, maybe not, right? But, like, it should be visible somehow, right?

Kevin McNellis: Right, so I think it’s… in the very detailed accounts, it is being segregated, but it’s still being assigned to the overall general account. But I think one of the key, The general provisions for every appropriations bill is the transfer and reprogramming. authority, and that is very specifically tied to accounts. And sort of people who aren’t familiar, transfers are when you move money between accounts, and reprogramming is when you decide to spend money differently within accounts. And so, there are… there are no transfer and reprogramming provisions in the Reconciliation Act, so that’s another way in which there’s just gonna be greater degrees of freedom for the administration to decide how it wants to use those funds that, if it were in an annual appropriations Act. There would be, strict limits, or stricter limits, and then also usually notification requirements, so the appropriators would need to receive notice before, funding decision, or, you know, transfer or reprogramming decisions were made.

Matthew Glassman: Well, I wanted to turn, maybe to wrap up here, to another piece you wrote that was excellent, that you wrote with, Scott Levy, about sort of the Army Clause limitation in the Constitution, because we’re talking about providing multiple-year money here, for your money in some cases, or through the end of the Trump administration, to CBP and ICE,

Matthew Glassman: But the Constitution has a procurement provision to many people that limits, sort of, appropriations for the army to two years, not to the Navy, just to the Army, and perhaps we can talk about the British origins of this, but you wrote a piece that I very much enjoyed, and we’ll link to all this in the show notes, arguing that money for CBP and ICE plausibly should be restricted on the same basis to no long… more than a two-year appropriation. You want to just quickly walk us through that argument?

Kevin McNellis: Sure. So, the Constitution, has very few instructions to Congress about appropriations. It says all funding must be appropriated by law, but other than, sort of, the general quorum requirements for the House and Senate. there aren’t really any other restrictions except that you cannot appropriate funding for more than 2 years for the support of armies. And the argument that Scott and I were making in the piece was The concern the founders had, was that this limitation was important because we… we want to ensure that… the people represented through Congress always have a say about the funding for armies, right? And two years corresponds to the, you know, the term… the… the life of the House, you know, the Senate’s a continuing body, so it’s on a different time scale, but you want every Congress, to have the opportunity to have a choice in how the military is being funded, with the concern that, you know, a president could use the army in ways that would be a threat to the freedoms protected by the Constitution. Our argument is that the Senate should adopt a rule, or Congress should adopt a rule. Actually, the Senate should adopt a rule that, would allow for a point of order Similar to the Byrd Rule, a surgical point of order that would allow members to object to funding, that supports, sort of federal coercive force, or agencies that have coercive force, that would be, you know, in addition to the Army, you know, law enforcement agencies that have the ability to use the threat of coercion to accomplish their goals. And so… our concern is that OBA had multi-year Department of Defense funding, it has the multi-year ICE and CBP funding, and Congress enacted this, without apparently discussing this constitutional question. And so, and we’re seeing the consequences of this, right? And we’re seeing how it’s empowered a presidential administration. And our argument is, to prevent this from happening again, Congress should adopt this point of order to enforce the constitutional, requirement. And so, we think the benefit of this is because it’s a surgical point of order, it would allow any member of the Senate to raise the objection and force the Senate to at least debate it, and consider it fully, in a way that was not done during the consideration of MOVA.

Matthew Glassman: Yeah, so, I mean, you could have… and I’m sure people will, have a spirited argument about whether federal law enforcement should qualify in certain situations or not as military or army under this clause, but that doesn’t matter, because Congress could decide for itself that, from their point of view, appropriating, it does apply, and so it wouldn’t be a separate powers battle, where someone’s in a courtroom arguing that this violates, sort of, the two-year clause. Congress could just adopt and say. all federal law enforcement falls in the Army Clause, and therefore we’re going to create a point of order that limits even FBI funding, for instance, to be no more than two years, or anything else they wanted, right? Congress could do that with anything, but I thought it was an excellent argument, because it skirts this idea that you have to have a battle with the president over this. You don’t, right? Congress is in control of the funding, and if Congress doesn’t want to do two-year funding for federal law enforcement, because they think that is unwise and, you know, conforms with the Constitution’s clause. They can just do it themselves, which I… it’s an excellent paper, I will link to it. You know, a paper like this is always good when you happen to be right, and you do happen to be correct here in your analysis, I think, and so that certainly helps your case. It can get tricky trying to distinguish, sort of, the FBI from ice from uniformed… actual standing army in the United States, but I think it ultimately doesn’t matter as a separation of powers issue, because Congress probably, in my mind, should do less multi-year appropriating than they do anyway, and this would be an excellent place to start, and an obvious place to start.

Kevin McNellis: And I think the rest of the pieces is that we want Congress to develop this rule for itself, right? And not rely on the parliamentarian having to make the decision or a court to make the decision, but we think it’s incumbent on Congress to be proactive here and sort of set clear guidelines, in order to sort of, you know, enforce the constitutional requirement.

Matthew Glassman: This is probably a good place to stop, but is there… is there anything you wanted to get across, Kevin, that we didn’t cover, that is important that I may be ignorant of, or we just didn’t get a chance to get to?

Kevin McNellis: No, I think just in general, I would just sort of say, like. we’re living, obviously, in very interesting times, and these processes are changing, and I think these processes have changed multiple times in the past, right? Like, reconciliation has been completely transformed, since it was created, and… I think it’s just a very interesting time to be engaging with these issues and trying to figure out, sort of… New solutions, and, and, and how Congress is grappling with all these questions. I think it’s, just a very exciting time to try and be, investigating these issues and understanding what’s going on. And, my hope is that we can… analyze this from, like, it’s more of an institutional perspective, right? I think so much the day-to-day is tied up in, sort of, the… lack of a… for lack of a better term, the horse race, or the partisan, who’s up, who’s down, and I think these are structural issues, that… that Congress needs to deal with, and, like, there’s room for… everyone to be involved in that conversation, and it’s not just, the current fight that’s before us, or the current debate that’s before us. It’s, these are going to be open questions, you know, going forward for a long time.

Matthew Glassman: Thank you so much for taking the time to talk this through with me, and you will be coming back here. I have already booked you down for next year, and when we see the results.

Kevin McNellis: Okay.

Matthew Glassman: U.S. process, and we.

Kevin McNellis: Yeah.

Matthew Glassman: what happened to the CBP and ICE friending, but I really appreciate you coming on. Thanks so much.

Kevin McNellis: Okay, thank you, Matt, it was a pleasure.

They would very much like one or both of the older conservative Justices—Clarence Thomas (age 77) or Samuel Alito (age 76)— to retire this year, so that a replacement nominee of President Trump’s can be confirmed by the friendly GOP Senate majority.

If they don’t retire this year, the Democrats might flip control of the Senate in November, giving them leverage to bargain for a more moderate nominee or to outright defeat (or just ignore) any and all Trump nominees. Some Democrats are already promising to do just that.

Strangely, there’s an easy way around such a majority blockade, and it doesn’t require pressuring justices into strategic retirements. Just like an actual naval blockade, you can run a Senate majority nominations blockade by getting your cargo out to sea before the blockade gets set up.

That is, President Trump could nominate—and the current Senate could confirm—any judicial nominations they want, stockpiling them for potential future vacancies that occur next Congress, and removing the next Senate from any role in their consideration.

Think of it as floating storage, out to sea beyond the reach of the blockade.

One reason I’ve been hesitant to write about this is that I don’t think it would be a great development for the Senate if majorities started stockpiling confirmed court nominees for president to later deploy. And I’m decidedly unenthusiastic about giving Trump a good strategic legislative idea.

But given the partisan hardball trajectory we are on—a blockade is coming eventually, whether we like it or not—I think it’s worth laying out the procedural and politics dimensions of blockades and stockpiles.

Wait, is stockpiling really legal?

Yes, it appears to be legal. Every appointment made by the president to a Senate-confirmed position in the executive branch or the judiciary has three distinct components:

• A nomination made by the president;

• The consent of the Senate via confirmation; and

• The actual appointment, via written presidential commission.

Traditionally, we think of all three of these things as happening after a vacancy arises in an executive or judicial office. And that’s usually the case.

But for the first two, it’s totally unnecessary. There’s no requirement that presidents wait for vacancies to arise in order to make nominations, or for the Senate to confirm those nominations.

In fact, this regularly happens in both executive branch and judicial nominations. It allows for continuity and smooth transitions in cabinet positions—we usually have the Secretary of Defense remain in his position until his successor is confirmed by the Senate—and Supreme Court retirements can be—and have been—conditioned on the successful confirmation of a successor. And there’s decades of case law to back this up.

More questionable is whether the president could actually appoint someone—that is, could they literally sign the commission—without there being an actual vacancy in the office or judgeship. The Biden administration believes the president can, but there’s less caselaw and this seems more in dispute.

But it doesn’t matter. For the purposes here—stockpiling confirmed nominees before the other party gets control of the Senate—all that needs to happen is nomination and confirmation. And there’s no dispute that both of those things can happen prior to a vacancy arising.

A second question is whether the president can delay signing a commission for a Senate-confirmed nominee. Again, the answer is yes. The president is under no obligation to ever actually appoint someone who they have nominated and the Senate has confirmed. Until the president signs your commission, you do not hold the office and the president retains full discretion to appoint or not.

But what about across different Congresses? Maybe the president can’t get a nominee confirmed in Congress A and wait to appoint them to the position after Congress B has commenced? There’s essentially no jurisprudence here, but past practice has been that presidents can and do sign commissions and make appointments for nominations that were confirmed in the previous Congress.1

A search of the Federal Judicial Center biographical database reveals eight cases in which a judge confirmed in one Congress was commissioned by the president in the next Congress. This includes five contemporary judges nominated by President Biden, confirmed by the majority-Democratic 118th Senate, and commissioned during the early days of the Republican-controlled 119th Senate.2 I can’t find any evidence of Republicans objecting to these appointments.

A final question is whether the Senate can reconsider a nomination it has already acted upon. That is, can the Senate in Congress B choose to rescind its consent for a nomination already given by the Senate in Congress A. Under Senate rules, there’s a standard parliamentary motion to reconsider. But once that is disposed of—usually via unanimous consent immediately after the confirmation—the nomination is returned to the president, and the Senate loses control of it.3

How did we get here?

Public pressure from partisans to strategically retire from the Court is not new. Democrats mounted a campaign in 2022 to encourage Justice Breyer to retire before the midterms in case the Republicans took the Senate—which he ultimately did.

Justice Ginsburg, on the other hand, ignored similar public pressure to retire during Obama’s term. She eventually died in 2020 while still serving on the Court, allowing President Trump to nominate her replacement, and tarnishing her reputation among liberals.

This sort of public partisan pressure for Justices to retire has arguably increased in the past 20 years, because opposition parties in the Senate have more strongly opposed most nominees to the Court. Gone are the days of Justice Scalia 98-0 confirmation in 1986, or even Chief Justice Roberts 78-22 bipartisan confirmation in 2005.

The last five confirmations have been closer to straight party-line votes: Justices Kagan in 2010 (63-37, 4 Republican votes), Gorsuch in 2017 (54-45, 3 Democratic votes), Kavanaugh in 2018 (50-48, 1 Democratic vote), Barrett in 2020 (52-48, no Democratic votes), and Jackson in 2022 (53-47, 3 Republican votes).

Perhaps more importantly, the nomination of Merrick Garland by President Obama in March 2016 (after Justice Scalia passed away) was never even voted on in the Senate. Under the leadership of then-Majority Leader McConnell, the GOP Senate majority refused to even take up the nomination, setting up a complete majority blockade for the remainder of the 114th Congress.4 When Trump won the 2016 election, the Garland nomination withered, and Justice Gorsuch ultimately replaced Scalia on the Court.

The Garland precedent is exactly what Republicans now fear. If the Democrats win control of the Senate, might they actually set up a majority blockade on any Supreme Court vacancies for a full Congress, in hopes of winning the presidency in 2028 and filling the seats themselves? It’s entirely possible, maybe even likely. And that’s why so many Republicans are pushing for retirements now.

But, again, the retirements aren’t necessary. They could just nominate, confirm, and stockpile appointments right now.

Why hasn’t anyone tried this before?

If you can really stockpile confirmed nominees, why haven’t the parties been doing this all along?

Mostly because we are—and yes, I understand I am abusing the blockade analogy here—entering largely uncharted waters.

Prior to the mid 1980’s—and really prior to 2010—nominations just weren’t highly partisan issues. With a handful of exceptions, Senators mostly confirmed nominees on a non-partisan (or softly-partisan) basis, and opposition parties didn’t spend a lot of time or energy trying to limit the total number of successful confirmations.

The very idea of a blockade—and consequently the necessity of blockade-running strategies—wouldn’t have even occurred to Senators or the parties.

Beginning roughly with the failed Robert Bork nomination in 1986, a steadily growing partisanship entered into confirmation politics. But it was mostly mild—remember, Roberts gets 78 bipartisan votes as late as 2005.

By 2011, however, the intensity had grown considerably, and there was significant Republican obstruction on judicial nominations by President Obama in the 112th and 113th Congresses.

But it was minority obstruction by Republicans—the Democrats controlled the Senate—using the filibuster to block and/or slow down nominations. And a minority blockade in the Senate is easily dealt with by other means: you nuke it.

In November 2013, Democratic Majority Leader Harry Reid successfully invoked the so-called nuclear option, in order to end the filibuster on nominations to executive branch offices and judicial nominations to lower courts. (Four years later, Republican Majority Leader McConnell would do the same to eliminate the filibuster on Supreme Court nominations). The pace of confirmations increased after the nuclear option, as you might expect.

When the Republicans won control of the Senate in the 2014 elections, they did indeed setup a mild majority blockade in the 114th Congress—McConnell refused to bring the Garland nomination to the floor for almost all of 2016—and the pace of confirmations again slowed, though by no means came to a complete halt.

But since the 2016 election, the issue has been dormant. We have never had an opposition party control the Senate since the end of the 114th Congress. The GOP controlled the chamber during all of Trump I (115th and 116th), and the Democrats had the majority during both Biden Congresses (117th and 118th).5 In 2024, the GOP won it back concurrently with Trump winning the presidency.

If the Democrats win the Senate in the 2026 midterms, it will be the first time we have an opposition-majority in the Senate in the post-Supreme Court filibuster era.

And we simply don’t know how such a majority will behave. My hunch is an opposition majority will not have the political stomach (or public support) for a complete and total judicial blockade of all nominations to all courts. As much as that sort of hardball might appeal to some partisans, it doesn’t comport with modern practice, even in our highly polarized age; a significant number of judicial vacancies in the lower courts are still filled by voice vote or unanimous consent in the Senate.

But would an opposition majority blockade Supreme Court nominations for up to two years, in hopes of winning the presidency? I’m not sure, but I can imagine there would be a lot of pressure on Democrats to do so in 2027 and particularly 2028. It wouldn’t surprise me in the least if they did.

And remember: there’s no nuclear option when facing a majority blockade. You can’t just blast your way through it. Trump and the Republicans would have to either negotiate an end to the blockade, try to use public pressure to induce its political collapse, or both.

Or, as I’ve suggested here, they could get the nominations out to sea now.

Isn’t all this bad for the Senate?

Yup. A majority blockade of judicial nominations and a preemptive stockpiling response both seem bad for the Senate as an institution.

Stockpiling has the potential to be a huge waste of time. Taken to its logical extreme, you could imagine the party of the president confirming a nominee for literally all 870 federal judgeships, so that any vacancy that arose in the second Congress of a presidential term, under an opposition Senate, could be immediately filled.

This seems like it would be grossly sub-optimal for everyone involved. It’d require the Senate, the Senate Judiciary committee, and the White House Counsel’s Office, to vet, consider, and confirm tons of nominees who ultimately would never end up being appointed.

It’d be even worse for the nominees themselves—who the hell would want to suffer through the onerous vetting process with no real chance of actually getting the judgeship? And it probably also does the public a normative disservice to have appointees who weren’t vetted recently, or considered in light of contemporary political dynamics.

Stockpiling confirmed nominees would also be another escalation of partisan constitutional hardball, and that’s probably, on balance, bad.

Perhaps most importantly, it would also be an example of a Congress tying the hands of a future Congress. That’s generally something I’m against.

But it seems to be the direction we are headed. The current unified Republican majority is poised to try to enact appropriations for ICE and CBP via the reconciliation process, with the specific goal of locking in the funding for multiple years, precisely to avoid a future Democratic House in 2027 from having a say in the funding decisions.

If this is how unified governments intend to behave—locking in policies that prevent the second Congress of the presidential term from meaningfully appropriating or considering nominations—that will inevitably make Congress less responsive to the electorate, and the executive less responsive to Congress.

As a strategic partisan matter, stockpiling nominees barely looks different than multi-year annual appropriations. The only question is what the public politics will bear. That’s true for blockades and true for blockade-running via stockpiling.

I can imagine strong public resistance to blockades and preemptive stockpiles. I can also imagine it mostly blowing over politically, just as the nuclear option did in 2013/2017, and the McConnell blockade did in 2016.

There’s also an order-of-operations issue here. We may not see stockpiling become politically viable until after we encounter and endure another serious majority blockade. The politics of a preemptive stockpile would be easier at that point.

One way or another, the era of treating Supreme Court vacancies as they arise—and assuming the Senate will be there to process them—may be coming to a close.

Some links to things that are discussed:

Swalwell’s formal resignation

Gonzales’s formal resignation

List of expelled Members, House and Senate

Josh Chafetz’s Congress’s Constitution

Trafficant’s Ethics report and resolution

If I had written that sentence last year, it would undoubtedly have been taken as a reference to aggrandizements of the Trump administration, and a fight over the separation of powers. As much as our previous presidents have stretched the boundaries of executive spending authority, what Trump has advocated for in his second term has really taken it to 11.

The administration has dragged its feet on spending lawful appropriations and defended the practice of impoundment, turning congressional prohibitions on such practices on their head. They have illegally transferred funds to use for purposes Congress did not appropriate them, and illegally used donations to bypass appropriations. The president muses about using tariff revenue for spending Congress hasn’t approved, and about controlling revenue produced by war spoils. They leveraged the government shutdown with a laundry list of dubious spending decisions.1

Despite all this, the most important changes to the appropriations process and its politics are arguably happening in Congress. The traditional bipartisan appropriations process—a wobbly but still-standing relic of a different age—is under serious strain, and its collapse is arguably on the horizon.

Wither Washington’s Third Party?

There’s an endlessly-repeated cliché on Capitol Hill that there are three political parties in Washington: Democrats, Republicans, and Appropriators.

And, you know what, it’s basically true. Appropriators don’t think like partisans. They are compromisers and pragmatists. They prefer moderate deals over partisan gridlock, and want policies enacted more than unresolved issues to take into elections. They care more about actual programs than top-line budget numbers. They don’t like ideological fights intruding on their turf, and they really dislike kicking the can down the road with continuing resolutions.

As partisanship has continued to accelerate in recent years, the appropriators have been a notable source of resistance. They have continually rejected the huge budget cuts contained in the Trump administration’s budget requests, including this year. They countered many of the Trump spending aggrandizements with limitation provisions. They rose up to reject Jim Jordan’s bid for Speaker in October 2023. And they continue to be led by Members who are moderate by temperament, even when they are ideologically not centrists.

Despite the fall shutdown, there’s an argument that the FY2026 appropriations process ultimately proved pretty normal, at least by recent standards. On its face, it doesn’t look like the appropriations process is about to buckle.

But under the hood, the procedural scaffolding and political norms that reinforce the pragmatic moderation of the process are beginning to crack. Under the traditional process, Congress has no choice but to enact bipartisan appropriations. Appropriations bills are subject to a filibuster in the Senate, and no bill is going to gather the 60 votes necessary for cloture absent a bipartisan compromise. This both creates the bipartisan culture at the appropriations committees, and also enforces it.

In the 119th Congress, however, we’ve seen discretionary appropriations both enacted and cancelled by party-line votes. And partisans are clamoring to expand these processes going forward. To the degree they are successful, what we are witnessing is the beginning of the end for the power of the Appropriator Party.

Partisan rescissions: the end of credible commitment

Last summer, Congress rescinded—that is, they cancelled—over $9 billion in funding for foreign aid and public broadcasting. This was not, in and of itself, remarkable. Congress rescinds money all the time in appropriations bills, and $9 billion isn’t even that much money. And it was politically overshadowed by the absurd pocket rescission used by the Trump administration to rescind another $4.9 billion.

What was unusual was the process by which Congress produced its rescission. Instead of appearing in the back of an annual appropriations act, it was done via the rescission process included in the Impoundment Control Act (ICA). Under the ICA process, the president can submit requests to rescind funding the administration no longer believes it needs. If Congress approves the request, the money is rescinded. If it does not, the administration needs to spend the money.

This process is rarely used; presidents have only made formal proposals a handful of times since the 70s. And that’s because (a) Congress typically likes the spending choices it made less than a year ago; and (b) when Congress and/or the president want to rescind funds, they often just build those rescissions into the negotiated annual appropriations bills. Tons of rescissions—proposed by Congress or by the administrations—occur every year. It’s a normal part of budget execution.

There’s a loophole in the ICA, however. The law provides for expedited consideration of any formal presidential rescission request, which means it only needs 50 votes to pass in the Senate. Which, in turn, means that deals struck in the annual appropriations bills—which require 60 votes and are always bipartisan products—can be undone unilaterally on a party-line basis.

The ICA rescission didn’t sit well with anyone. Appropriators in both parties view it as an impediment to forward going negotiations for FY2026 and beyond. It wasn’t much money, but its use creates a commitment problem. As minority leader Schumer put it at the time, how can you cut bipartisan deals if one party can turn around and undo them immediately afterwards? And it shifts the rescission decisions away from the appropriations committee and toward the Senate floor.

From a separation of powers point of view, the use of an ICA rescission can be seen as a good thing; rather than trying to impound funds or otherwise subvert the spending power, the president engages with the process as designed by Congress for rescinding funds he believes aren’t necessary. That’s exactly what Congress wants. But the expedited procedures turn it into a potential sword for partisans to upend compromise deals and, more importantly, make it impossible to cut deals in the first place.

This is more a crack than a flood right now. It’s tough to cut spending, even on a party-line basis; the original request sent over by Trump was itself altered on the Hill, and a 2018 Trump attempt at an ICA rescission was rejected by the Senate. But partisans now have a model for how to upend the deals, and that is going to make the Senate minority rightfully wary of cutting those deals.

Reconciliation: the triumph of party-line appropriating

Of greater concern is the rise of party-line appropriating via the reconciliation process. This week, Republicans have indicated they are going to move funding for ICE and CBP via the reconciliation process in order to end the DHS shutdown, essentially giving up on negotiations with the Democrats. Other Republicans want to throw in military funding.

As I wrote last week, the reconciliation process is set up under the Budget Act as a mechanism for the House and Senate to quickly adopt legislation to, well, reconcile the budget. Like raise taxes or cut mandatory spending programs. It works because it provides time limits on debate on the Senate, which means it’s not possible to filibuster a reconciliation bill, which means you can easily get to a final passage majority vote.

Of course, for quite some time now, parties have found clever ways to use the reconciliation process not to cut spending or raise taxes, but to pass party-line legislation, even in ways that explodes the budget rather than reconciles it. Many of the most important laws of the 21st century were reconciliation bills: the 2009 stimulus; Obamacare; the Tax Cuts and Jobs Act (Trump I tax cuts); the American Rescue Plan (ARPA); the Inflation Reduction Act (IRA); and the One Big Beautiful Bill (OBBBA).

Two general limits have existed on reconciliation up until recently. First, the Byrd Rule, which prohibits legislation in reconciliation bills that isn’t substantially budget-related. Second, reconciliation bills have traditionally not contained discretionary annual appropriations.

But we have seen extensive use of reconciliation for discretionary appropriations in the past few Congresses. ARPA, IRA, and OBBBA all contained significant amounts of discretionary appropriations—over $1.6 trillion in total. The OBBBA contains the DHS money that is funding CBP and ICE right now, as well as the money the president is claiming he can use to pay TSA and other DHS employees during the current shutdown.

Unlike the Byrd Rule, there’s no legal or procedural impediment to using reconciliation to enact discretionary appropriations; it was always norms and the power of the appropriators preventing it from happening. And while appropriators on both sides of the aisle in both chambers are angry about what is happening this week, it doesn’t seem like they are going to be able to stop it.2

Laid bare, the logic of using reconciliation for discretionary appropriations is the destruction of the traditional bipartisan process. While party-line rescissions upend the ability to credibly commit to deals, reconciliation renders the deals themselves unnecessary.

Winners and Losers

A shift toward increased use of reconciliation (and, to a lesser degree, rescission) for annual appropriations is going to create political winners and losers. Here’s a survey of some of the political impacts.

Loser: partisan minorities. This should be obvious, but there are subtle things going on here. Partisan majorities that appropriate via the reconciliation process are unlikely to settle for one-year appropriations. In fact, the GOP play right now with the reconciliation bill can be read as an attempt to lock in ICE and CBP funding for multiple years—perhaps as many as ten according to Senator Graham—to prevent themselves from having to fully negotiate spending levels at those agencies during the divided government everyone expects to be coming next January.3

Winner: the president. Presidents hate filibusters. That’s easy enough to understand—presidents are never in the minority, they have their tool of counter-majority policymaking for when they oppose congressional majorities, and party-line legislating—if available—will usually be driven by, or at least responsive to, the White House. The discretionary appropriations process will become much more responsive to the president’s budget request if it becomes a party-line process. Parties don’t always listen to their president, but they listen a hell of a lot more than the opposition party does.

Loser: oversight. This follows directly from the idea of multi-year partisan money and increased presidential influence. Locking in years of ICE funding gives the agency much less reason to be responsive to congressional oversight and investigation. After all, they will already have their money. Perhaps more importantly, partisan appropriating is unlikely to come with the limitation riders that constrain agency behavior that are so common in the bipartisan process. Annual appropriations aren’t just bargains over spending levels; they are also deals about agency policy.

We’ve already seen DHS exploit the lack of limitation provisions in their OBBBA money to wiggle out of oversight requirements included in their annual appropriations bill. Democrats have insisted that any deal to end the shutdown include provisions that apply those limitations to the OBBBA funds. Now that the shutdown may end via reconciliation, it’s anyone’s guess whether that will materialize.

Loser: the appropriators. At first glance, it might seem like majority-party appropriators will gain influence under a party-line system. I think that’s a fantasy. What’s going to happen is that the moat around the committee is going to dry up, and the decision-making over discretionary appropriations is going to be raided by every other power base under the sun: the leadership, the White House, the authorizing committees reporting reconciliation instructions. The appropriators will still be players, but they will be operating in a much more crowded arena. And on the oversight side, they won’t have a pseudo-monopoly over the phone calls to/from the agency budget shops.

Winner: congressional leaders. Another obvious one. Maybe the biggest winner is actually the Speaker of the House, who will no longer have to figure out a way to make his party eat a bipartisan Senate deal without losing his job.

Loser: the Senate. Speaking of which, any flattening of the filibuster tends to hurt the Senate. People are so used to the Senate rolling the House that they forget how much the filibuster drives that reality. The majority party in the Senate is often less extreme than the majority in the House. Right now, that Senate party can (and often will) throw its hands up in the air and blame the necessity of bipartisan compromise for their inability to move off a bargaining position that shifts the bill toward the center and far away from the House position. Once the filibuster disappears and it’s just an internal-party dispute, some of that leverage is inevitably going to vanish.

Loser: shutdown opportunists. As Gabe Fleisher points out, putting discretionary appropriations in reconciliation bills is going to give unified governments a potentially easy way out of shutdowns, which in turn should make the prospect of trying to leverage a government shutdown less appealing. Good.

The Slow Drip and the Inevitable Flood

An increase in appropriating using tools like the rescission and reconciliation process will not end the bipartisan annual appropriation process overnight. For one, it’s still going to be necessary under divided government, or at least under divided Congress. Even beyond that, this sort of change tends to happen slowly in Congress, and leave all sort of odd incongruities in its wake. The appropriators are not going to go quietly and surrender their massive base of power just because some of their co-partisans have a few funding ideas.

But in the long run, we are clearly headed toward a majoritarian Senate. The current 60-votes-for-everything Senate has only really been around for 15 years and it’s not a stable equilibrium. And the cracks are getting deeper. Nominations have become a fully majoritarian process. On the mandatory spending side, the reconciliation process has long ceased to have anything to do with reconciling the budget, and now exists exclusively to allow party-line legislating. It is very hard for me to believe that the appropriations process was going to survive another 20 years completely insulated from the majoritarian wave. And now it has not.

But the Senate can remain irrational—and self-contradictory—perhaps longer than you can stay sane. A world of three appropriations processes—one for divided government, a second for bipartisan agencies under unified government, and a third for partisan agencies under unified government—seems not only plausible, but much in line with how Congress adapts and changes: slowly, and with new procedures, tactics, and norms coming into play before the old ones are fully swept away. The result is a layered system that looks utterly incoherent, even judged solely on its internal logic.

Questions still remain—how far will partisan majorities take this? Will new majorities (perhaps Dems 2029) aggressively wield rescissions, either via the ICA or reconciliation? And how much will the weakened appropriators resist all of this? But I think we are at the point where we can say that the reconciliation process is a major component of discretionary appropriations politics. The barn door is just highly unlikely to be shut on that.

It has been quite a week in Congress. Some notes, grouped by legislative item.

The SAVE Act and the Talking Filibuster

The SAVE Act has been on the floor most of the last two weeks in the Senate, in what purports to be a so-called talking filibuster but so far doesn’t actually appear to be an attempt to end debate via attrition. For background, here are things I’ve written on the talking filibuster:

• A blog post primer and corresponding video primer;

• Straightening out why “talking filibuster” is such a confusing name for it;

• A discussion of the 1964 Civil Rights Act filibuster;

• A discussion of the 1893 Silver Purchase repeal filibuster;

• My recap/analysis of the SAVE Act coming to the floor;

• My explanation of attrition strategies;

• My FAI podcast appearance with James Wallner discussing all this.

I continue to have a somewhat nuanced view of all this. Strategically, I’m quite sure an attrition strategy to end debate on the SAVE Act will not be successful, and it certainly will not get the GOP a majority vote on the legislation as it currently exists. That’s a fever-dream of the overly-online crowd.

That said, I’m all for them trying, because a talking filibuster is nothing more than getting the Senate on a bill and staying on the bill to deliberate it. And that’s good for the Senate. Part of the dysfunction of the modern Senate is that they’ve completely given-up on floor deliberation. And one path forward in politics is to use the legislative process to demonstrate your intensity of preference.

One thing hard-core opponents of using talking filibusters as strategy get wrong is that attrition strategies can work even if you don't literally use them to get to the end of debate. And that’s because there are multiple types of attrition: physical, procedural, and political.

You could make someone with the floor pass out—that’s physical attrition, it can work if you have a single Senator filibustering you. You could run them out of speeches under Rule XIX—that’s procedural attrition, and it’s the one that has almost never worked.

But you can also try to turn the politics against them. This is the most potent attrition strategy, precisely because it doesn't rely on the rules. You break the opposition by making the politics of continuing the filibuster not worth it for them. That could be because the public turns against them, because they want the Senate to do other things, because they want to go home, etc. So they cut a deal and end the filibuster.

In theory, one really good way to do this is to create a spectacle on the floor via forcing a 24/7 talking filibuster, where you demonstrate your resolve, see if the other side is willing to counterbalance it, and hope to move the public politics your direction.

I think this is the only realistic hope for the SAVE Act talking filibuster proponents. That, of course, will fall short of anyone who thinks they are actually going to procedurally break the filibuster and get to a majority vote on the exact SAVE Act they have proposed.

Now, the current GOP strategy will not create the political attrition. What they are doing on the floor right now doesn’t look anything like an actual talking filibuster. They aren’t forcing Democrats to hold the floor; they aren’t keeping the Senate open for long hours or on the weekends; and they aren’t staying exclusively on the SAVE Act at the expense of other legislation. It looks more like the same-old 60-vote Senate than it does an attrition strategy.

I also think that the lack of appetite for demonstrating intensity among the GOP is partially because most GOP Senators don’t actually want a compromise here, or even a law. I think they want the issue in the Fall midterms. They know a law won’t actually do much if anything for voting security, and the issue might play well electorally with their base both before and after the election.

On the other hand, opponents of the SAVE Act have been ridiculing a get-on-the-bill-and-stay-on-it strategy, and that really annoys me. There’s a very procedure-oriented viewpoint out there that says “the talking filibuster can never succeed procedurally, so therefore it’s a bad idea politically” and I just don’t think that’s right.

It does a disservice to the Senate (and to legislative politics in general) when we take this attitude (I’m guilty of it at times). It undersells the public role of legislative politics, the price discovery aspect of the floor, and the role that effort, deliberation, and time play in forging compromises.

So, again, I don't think the SAVE Act is going anywhere via a talking filibuster strategy. But I bristle at the idea that proponents shouldn't try, and really bristle at the disdain people have for the idea of trying.

A few procedural notes:

• This doesn’t look like a historical talking filibuster, in part, because Majority Leader Thune isn’t treating it as one. They have adjourned day to day, which resets the count of Rule XIX speeches each Senators can make. They have ended at relatively routine time each evening. He has filled the amendment tree on the bill, which has the effect of prohibiting Democratic amendments but also means the underlying bill can never be reach via attrition; the immediately pending question is a second-degree amendment on a motion to refer. They also have left the bill several times to consider other legislation—including several nominations. That’s fine—executive business doesn’t displace the SAVE Act, and even legislation that does isn’t a major problem—but it doesn’t keep any pressure on the SAVE Act.

• Thune has also filed one cloture motion in relation to the bill—on a stripped-down voter-ID amendment. This was a political move to attack Democrats (including Minority Leader Schumer) who claimed to favor voter-ID. Interestingly, Thune had to take down most of the filled tree in order to get the voter-ID amendment attached. This took longer than you might think, for very-detailed procedural reasons. He had to get rid of the motion to refer before he could offer a second-degree amendment, but he had to table the motion to refer (instead of just withdraw it) because the yeas and nays had already been ordered on, because you can’t offer a second-degree amendment (to the motion to refer) until they have been ordered. Having fun yet?

The DHS Shutdown

Both the House and Senate approved legislation on Friday ending the DHS shutdown, which is now the longest shutdown in history. Unfortunately, they weren’t the same pieces of legislation.

At approximately 2:20am on Friday morning, the Senate passed by unanimous consent an amended version of H.R.7147, which contained a bipartisan compromise to provide appropriations for all DHS agencies except ICE and CBP, which can continue to operate on funds provided in the One Big Beautiful Bill.

This was transparently an attempt to jam the House; moments after passing the bill, the Senate adjourned by unanimous consent until April 13, with just four pro forma sessions between now and then. By passing the bill and leaving town, the Senate handed the House an up-down decision: accept our compromise, or leave DHS shut for another two weeks.

Senate leadership probably figured the House would capitulate, because (1) the lines at TSA at the airport are obviously giving Members serious political earfulls from constituents; (b) there was almost certainly a huge bipartisan majority in the House to pass the compromise; and (c) jamming the House is standard operating procedure in the Senate.

The House did not capitulate. Instead of putting the Senate compromise on the floor, Speaker Johnson and the GOP leadership put a two-month continuing resolution for all of DHS on the floor, which passed 213-203. Afterwards, the House adjourned under Speaker authority until April 13th, with only pro forma sessions until then.

Why did Speaker Johnson refuse to put the Senate compromise on the floor? Mostly because he was getting an earful from a sizeable percentage of his House GOP conference, many of whom were furious about the Senate deal.

This is a common problem for Speakers—being caught between a Senate deal that has the support of a majority (or even supermajority) of the House but significant opposition (or even majority opposition) within the majority party. It has seriously frustrated every GOP Speaker since 2010—Boehner, Ryan, McCarthy, and Johnson—and is arguably what brough each of the firs three down. Speakers need to maintain the backing of their conference, and it takes a lot of political capital to pass bills with the majority of your conference voting against them.

One question you might ask is why didn’t the supermajority in the House that favored the Senate compromise take action? They could have voted down the Speaker’s preferred legislation and made a play to substitute in the Senate deal.

One answer is that this is the essence of House politics. In the modern House, the Speaker almost always has a partisan majority that gives him this deferential backing to create a procedural coalition. That is, backbench members vote in lockstep on procedural matters such as what bills to consider and what rules to consider them under, even if they are opposed to the actual legislation.

They do this because the benefits they receive from the party, such as committee assignments, electoral support, and the help of other party members on bills they do like, outweigh the small costs of occasionally having bills on the floor they oppose. Bucking the party on procedural votes is a serious transgression.

Quite obviously, the House had the votes for either the Senate deal or for the Johnson House GOP alternative. But so long as his procedural coalition remained intact, Johnson had the choice of which one to put on the floor. His only concern was weighing the politics of the two options—substitute the two-month CR and leave DHS closed, or go with the Senate compromise and face the wrath of his caucus. He evidently saw the latter as the least-worst option. Anyone who says these are easy calls has never been in this sort of legislative box.

The DHS saga also brought back into the open the depth at which the House and Senate dislike each other at times. The vitriol being directed at the Senate by GOP House members during the day on Friday was not pretty. It wasn’t hard to identify the cause, either: a combination of substantive anger over the compromise mixed with the resentment of being jammed. From the point of view of a House Republican, all the Senate had done was shift the blame for the shutdown onto them, unless they adopted a plan they didn’t like. And they weren’t wrong.

A few procedural notes:

• The House considered their DHS substitute as a self-executing rule. That is, the rule they passed did not structure a floor debate and deliberation over the DHS substitute amendment; instead, it literally directed that the amendment be adopted upon passage of the rule. This further protected Johnson from chicanery, since the only vote would be the procedural vote, where the norm of party unity under the procedural coalition is stronger.

• The House had to overcome a clear procedural problem on Friday: in most cases, a rule reported from the Rules Committee needs to layover for a day before it can be considered on the House floor. Luckily, it has to layover for a legislative day, which is defined in the House as the period between adjournments. So the House simply adjourned for an hour, and when they came back into session, voila!, a new legislative day and the ability to take up the rule. They did, of course, have to actually start a new legislative day, and that meant saying he prayer, approving the journal, and saying the pledge of allegiance for a second time.

• The Senate probably didn’t do themselves any favors by passing their compromise bill by unanimous consent. It left them open to the plausible (but wrong) charge by House opponents of the deal that the compromise didn’t actually have majority support in the Senate, but instead was pushed across the floor when Senators weren’t looking. And indeed, only five Senators were on the floor when the deal was passed by unanimous consent. But the plan had been hotlined—each Senate office was notified in case they wanted to object—and no one noticed their intention to object. But still, holding a roll call vote at 2:30am—or waiting until later Friday morning—that resulted in a 73-21 passage (or whatever) might have tipped the politics in the House.

• The Senate adjourned for two weeks under a unanimous-consent agreement that prohibits any business from being conducted during the four pro forma sessions. But they have at least three ways they can break that agreement and get back into business-conducting session. First, by unanimous consent: any Senator can make a request at the pro forma sessions to modify the agreement, even the presiding officer. If no one objects, business can be conducted. Second, by agreement of the majority and minority leader. Under a standing order adopted in 2004, the leaders can jointly modify any adjournment order if necessary. Finally, the president can, in theory, call them back into session under the Constitution—even though they haven’t adjourned sine die.

• One thing lurking behind all of this is the president’s announcement that he is going to pay TSA workers with DHS money from the One Big Beautiful Bill. This is an important piece of the politics here, but I’m going to wait until later in the week and fully discuss it on its own.

A common thread: the disembodied Senate

One thing that the politics of the SAVE Act and the DHS appropriations together is what I call the disembodied Senate. This is the phenomenon in which Senators observe what is going on in the Senate, marvel at or lament what is going on in the Senate, but seem completely unaware that they have any agency whatsoever to affect what is going on in the Senate.

This was on full display today with Senator Lee (R-UT):

What Senator Lee would like is for someone to go down to the Senate floor during one of the pro forma sessions this week, get recognized by the presiding officer, and make a unanimous consent request to either (a) modify the unanimous consent order governing the two-week adjournment so the Senate can return and consider the House DHS bill; or (b) simply pass the House DHS bill by unanimous consent.

It’s a hell of a thing to observe but not do, given that any Senator can unilaterally attempt to do it. But we see this all the time in the Senate. I don’t mean to pick on Lee here—this is a problem in the entire Senate, and he’s far from the worst offender—but the same problem is afflicting him on the SAVE Act. He spent weeks demanding Thune do something—try to bring the SAVE Act to the floor—than any Senator can unilaterally try to do. Just go down there and make a motion to proceed!

Underlying this problem is both a rational and irrational feature of Senate game theory. The rational feature is that there are benefits to being a team-player and precious little that you can do if everyone else hates you and refuses to work with you. And so rocking the boat by objecting the UCs that everyone else wants and making rogue motions to proceed to legislation that will probably fail can get you a bad reputation and create real costs. By complaining on social media and not actually being a pain in the ass, you can get some political points without fully pissing everyone off.

But it’s also true that if you just do things in Congress, they have to deal with you. Yes, you have to be judicious in your exercise of power, but at some point you have to try to exercise that power, if you care about the outcomes. So many Senators are locked into the team play theory of the Senate that they’ve created a self-fulfilling prophecy. Nothing happens in the Senate until the majority and minority leader forge a compromise, because no one tries to do anything until the majority and minority leader forge a compromise.

All Roads Lead to Reconciliation

Of course, the other thing that unites the SAVE Act and the DHS approps are the increasing number of Members who are looking toward the reconciliation process as a mechanism to pass them into law.

The reconciliation process is setup under the Budget Act as a mechanism for the House and Senate to quickly adopt legislation to, well, reconcile the budget. Like raise taxes or cut mandatory spending programs. It works because it provides time limits on debate on the Senate, which means it’s not possible to filibuster a reconciliation bill, which means you can easily get to a final passage majority vote.

Of course, for quite some time now, parties have found clever ways to use the reconciliation process not the cut spending or raise taxes, but to pass party-line legislation, even in ways that explodes the budget rather than reconciles it. Many of the most important laws of the 21st century were reconciliation bills: the 2009 stimulus; Obamacare; the Tax Cuts and Jobs Act (Trump I tax cuts); the American Rescue Plan; the Inflation Reduction Act; and the One Big Beautiful Bill.

Two general limits have existed on reconciliation up until recently. First, the Byrd Rule, which prohibits legislation in reconciliation bills that isn’t substantially budget-related. Second, reconciliation bills have traditionally not contained discretionary annual appropriations. But we have seen extensive use of reconciliation for discretionary appropriations in both the Inflation Reduction Act and the One Big Beautiful Bill—which contains the DHS money that is funding CBP and ICE right now, as well as the money the president is claiming he can use to pay TSA starting this week. And the Byrd rule is ever under attack in the Senate by those looking to stretch it to accommodate their ideas.

This week, we’ve seen both the SAVE Act and DHS appropriations come up as potentially included in a second-reconciliation bill this year. I’m with James Wallner that the SAVE Act could only be shoehorned into the Byrd rule by essentially destroying the Byrd rule and opening the floodgates on what can go in reconciliation bills. That will probably keep people from succeeding if they try. On the discretionary appropriations, I don’t see much hope in stopping the trend, and I think we are entering a period where the annual appropriations ride on a dual-track during unified governments—bipartisan compromises in the regular process, and majority-party plus-ups for partisan-coded agencies in the reconciliation bills.

Here are some links to thinks we mention:

Philip on the IEEPA decision.

Philip on the better-than-expected appropriations process.

Philip’s book, Why Congress? and a short-form version of the argument, Congress Indispensable.

Kevin Kosar on Secret Congress.

Kevin McNellis on discretionary appropriations in reconciliation bills.

Me on the Talking Filibuster.

This was true for almost 150 years. Then, in 1933 it was changed. Under the 20th amendment to the Constitution, the terms of the Representatives and Senators will henceforth begin at noon on January 3rd of odd-numbered years, and the terms of the president and vice-president will begin at noon on January 20th. In addition, the amendment directs Congress to assemble at least once a year, at noon on January 3rd, unless by law they appoint a different day.

Why were these changes necessary? What was wrong with the old calendar?

Put simply: the Framers screwed up the calendar. Badly. And their error had enormous consequences for 19th century politics.

They were awesome, but far from perfect

There’s a tendency in popular political culture to assign the Framers a laughably extreme degree of reverence, one way or another. In one popular view, they’re treated as god-like figures who could do no wrong and wrote an infallible Constitution. In the other view, they’re or a bunch of rich elites who designed a self-serving barely-democratic government, which rigged the system against the common man and completely sidestepped the obvious moral question of the day.

Obviously, both of those views are silly. But it takes a fair amount of looking to find a more honest assessment of the Framers; that they were reasonably noble but still self-interested representatives, struggling to adjudicate complicated multi-dimensional issues of political power, with little precedent to guide them and no crystal ball to see an utterly unfathomable future, and through part skill and part luck they landed on a pretty darn good constitutional design, which turned out to have a pile of flaws but a basic stability that allowed a modern nation to emerge mostly unscathed, despite being born in the age of both industrial and democratic revolution.

I often like to point out to students and other observers that the Founders weren’t even trying to build anything resembling modern America. Many people have it in their head that what the Founders intended and accomplished in 1787 was the Jacksonian version of American politics that dominated the antebellum era. But that’s nonsense; the Early Republic of the Founders was radically different than what emerged 40 year later.

The Founders blueprint was for a republic version of the 18th century British mixed system of government. Any number of features of antebellum America—suffrage, rotation in office, parties, loyal oppositions, mass political media, public opinion—would have not only surprised the Framers, but also run contrary to their intentions, understandings, and normative vision.

And the Framers decidedly had no idea what was coming. My favorite anecdote in this regard is the debate at the convention in 1787 over how to handle new potential states in the west. A delegate raises concerns that new western states will have very different interests than the existing Atlantic states, and might come to dominate the nation politically. Gouverneur Morris, a smart and forward-thinking delegate from Pennsylvania,3 responded that there was “no chance new states will ever outnumber the existing ones."

The Founders can, of course, be forgiven for their inability to see America’s future. But given the historical (and arguably disastrous) importance of today—the original turnover day for Congress and the presidency—in their 1787 constitution, we’re going to focus on one of its most remarkable flaws. Because this was a mistake they should have seen (and sort of did see) coming.

The ridiculous old federal calendar

Prior to the 20th amendment, the federal political calendar was frustratingly out of sync, with serious consequences.

In Article 1, section 4 of the Constitution, the framers wrote that the Congress “shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.” December was chosen, in part, because it was compatible with the agricultural calendar.

The problem arose when the terms of the Representatives, Senators, and President began on March 4, 1789. This created a peculiar situation: the first session of each Congress was set to begin in December of the odd-numbered years, with the Members having been elected a full 13-months prior, in November of the prior even-numbered year.

Even worse, the second session of any Congress did not begin until December of the even-numbered year, after the elections had been held for the next Congress (generating the concept of the “lame duck”). Furthermore, the second session was known as the “short session” because it was only 3-months long, leaving little time to do anything besides the appropriations bills.

This had enormous ramifications in the 19th century: during any two-Congress presidential administration, both second sessions were lame ducks, and the first session of the second Congress was conducted with the presidential election looming. As David Potter has written, this tended toward the first-session of the first Congress of an administration being the only real chance for major legislative successes. Dilatory actions in the second session could produce large concessions, as the hard-deadline of March 3 loomed; indeed, an enormous amount of second-session legislation was signed on March 3, often with the President sitting in the Capitol racing to beat a midnight deadline.

Consider the 1860 election: Lincoln and the GOP won in November, with South Carolina seceding on December 20th, 1860. But Lincoln would not be inaugurated until March 4, and the new Congress was not scheduled to meet until December of 1861! (They actually met in special session called by Lincoln on July 4). Instead, a month after the election, Buchanan's state of the union message was read in the early days of the second session of the old 36th Congress, which was left to try to broker a solution to the secession crisis. And a repudiated administration was left to try to solve the winter crisis and developing stare down in Charleston harbor.

How did they achieve this absurd mess?

So where did the March 4th date come from? Why didn't the terms of the members coincide with the start date of the session, as they do now?

The framers screwed up.

Thy did not specify on which date the new government of the United States would begin, in part because it was not known how long the ratification of the Constitution would take in the states. Most likely, they thought the ratification of the Constitution would be complete by spring 1788, such that elections could be held during the summer, followed by the selection of Senators and Presidential electors, all in time for the government to begin on the first Monday of December 1788. That way, the terms of the President and Members would correspond to the constitutional calendar, with the first session of each Congress beginning at the same time.

However, the ninth state did not ratify the Constitution until the end of June 1788 and only 11 states had ratified by September. Since there was not enough time to hold elections and begin the new government in December of 1788, the Continental Congress was faced with an unappealing choice: either delay the start of the still-fragile new government for an entire year (and begin in December 1789) or set a start date for the new government that did not coincide with the constitutionally-set calendar.

So on September 13, 1788, the Continental Congress — based on the practical need for time to hold elections and select Presidential electors in the states, as well as a desire not to delay the new government for an entire year — specified the first Wednesday in January 1789 as the day for electors to be appointed in the states, the first Wednesday in February 1789 as the date for the electors to assemble and cast votes for President, and the first Wednesday in March as the start day for the new government.

This is a worse problem then it initially appears. Once the new government began on March 4th, the date could only be altered by Constitutional amendment, since the terms of the Representatives, Senators, and President were fixed at exactly two, six, and four years, respectively. (They couldn’t simply shorten the 1st Congress and start the terms of the 2nd Congress in December). The only plausible remedy would be Constitutional amendment.

What the Continental Congress should have done was originally make the date of the terms of the first Members retro-active to December 1788, allowing the 2nd Congress to be elected in summer 1790 and begin in December 1790; instead, the 2nd Congress was elected in summer/Fall 1790, the 1st Congress had its second session beginning in December 1790, the 2nd Congress began its term in March 1791, and the 2nd Congress’s first session began in December 1791.

Had the original vision of the Founders been in place in 1860, Lincoln and the newly elected Congress would have taken control in December 1860, prior to South Carolina secession, and months before Fort Sumter had been rendered a showdown by the inaction of the Buchanan administration and the stalemate in the second session of the 36th Congress. This is not to say that calendar caused the war. But it certainly didn’t help.

Enter the 20th amendment

There’s a folklore belief that the delay between FDR’s election and the his inauguration was what spurred the amendment into being, but that’s largely urban legend: similar proposed amendments had passed the Senate every Congress since 1923, and the successful amendment was out of Congress well prior to the 1932 election, with specific language that it would not go into effect, even if passed, in time for the 73rd Congress.

Why didn't they fix the problem earlier? One possibility was the old Senate: prior to the ratification of the 17th amendment in 1913, action by the state legislature was needed to pick Senators. But virtually all state legislatures held their sessions early in the calendar year, after Fall elections. If the federal calendar was adjusted to pull the terms of Members back from March into December, there was a real possibility of a large number of absent Senators in the first session, the state legislatures having not yet met.

Well, what about adjusting the start date of the session to match the March 4 term date? That was not possible, either, for an even more basic reason: the weather. I’ll let the Senate Committee on the Judiciary explain that:

[It is true that you could have a session] after the 4th of March, but [this would] not give the new Congress very much time for the consideration of important national questions before the summer heat in the Capital City makes even existence difficult and good work almost impossible. it is conceded by all that the best time for legislatures to do work is during the winter months. Practically all the States of the Union recognize this fact and provide for the meeting of their legislatures near the 1st of January.

More evidence for Nelson Polsby’s air-conditioning theory of American politics!

When the 20th amendment was drawn up and ratified, it also fixed a nagging secondary problem of the old calendar: since the President’s term and the congressional terms were identical, in any case where no one got a majority of the electoral votes and thus Presidential selection was handed to the House, it was the old outgoing House that got to vote, which made little sense. Under the 20th amendment, the Presidential term begins 18 days after the term of the new Congress, allowing the incoming House to choose the President in such a situation.

In case you just woke up from a coma, last week the Supreme Court struck down President Trump’s worldwide tariffs, 6-3, in a long-awaited decision.

In one sense, Learning Resources vs. Trump is a very straightforward case. Everyone involved, including the administration, agreed that the president does not have any inherent constitutional authority to impose tariffs, which are wholly within Congress’ exclusive power to tax. The only way, therefore, that the president could impose a tariff would be if Congress had, by law, delegated him that authority.

And thus the only question the justices needed to answer was just that: did Congress delegate to the president the authority to tariff when it enacted the International Emergency Economic Powers Act (IEEPA)1 in 1977?

Too simple to not be complicated

Congress did not. That’s the answer from Chief Justice Roberts’ majority opinion in Learning Resources v. Trump. Here’s the Chief:

The President asserts the extraordinary power to unilaterally impose tariffs of unlimited amount, duration, and scope. In light of the breadth, history, and constitutional context of that asserted authority, he must identify clear congressional authorization to exercise it.

IEEPA’s grant of authority … falls short. IEEPA contains no reference to tariffs or duties. The Government points to no statute in which Congress used the word “regulate” to authorize taxation. And until now no President has read IEEPA to confer such power.

Given how straightforward Roberts’ ultimate conclusion is, you would be forgiven if you were surprised that the nine justices wrote seven different opinions that ran a total of 170 pages. As it turns out, nobody really agrees all that much about how to think about vague delegations of congressional authority.

Three of the conservative justices (Chief Justice Roberts, Neil Gorsuch, and Amy Coney Barrett) believe that the Major Questions Doctrine (MQD) applies here—raising the bar for executive claims of delegated congressional authority when the president is trying to do something of “economic and political significance.” In such cases, rather than giving the executive branch the benefit of the doubt in close calls, there needs to be “clear congressional authorization.” They decided IEEPA falls short of that, and ruled against Trump on these grounds.

The three liberal justices (Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson) believe that a plain reading of the IEEPA statute using the normal judicial tools of textual analysis (and, for Brown Jackson, the legislative history) show that Congress did not delegate tariff authority to the president. They joined the majority holding, but reject the logic of the Major Questions Doctrine. For them, the bar doesn’t even need to be raised. The tariffs fall on normal analysis of delegated authority.

Three of the conservative justices (Brett Kavanaugh, Samuel Alito, and Clarence Thomas) believe the opposite: that the IEEPA statute does provide a clear congressional authorization for the tariffs, but also argued that this case should not be held to the Major Questions Doctrine standard, because it deals with foreign affairs. They dissented.

To make it even more confusing, everyone decided they needed to have their say. Chief Justice Roberts wrote the majority opinion. Justice Barrett wrote a solo concurrence outlining her general thinking about the MQD. Justice Kagan wrote a concurrence (joined by the liberals) arguing you don’t need the MQD at all in this case. Justice Brown Jackson wrote separately that you should really look at the legislative history of IEEPA. Justice Kavanaugh wrote the principal dissent, which was joined by Alito and Thomas. Thomas wrote a separate, bizarre dissent in which he opined extensively on separation of powers.

And Justice Gorsuch wrote a long solo concurrence in which he spoke elegantly about Congress and its role in our system, but also took the time to explain to the rest of the justices why they were all a bunch of rank hypocrites. He chided the liberals for accepting absurdly vague statutes as congressional authorizations during COVID and on student loans when Biden was president, and then he lambasted the conservative dissenters for rejecting such statutes when the issue was expansive EPA authority.

But, for me, the most galling feature of the opinions is what goes completely unsaid in all of them. The Court is grappling at length to understand what Congress meant when it enacted IEEPA, but Congress never actually enacted—and probably never would enact—this version of IEEPA.

The Court did.

Congressional delegation, ratcheting-up, and the legislative veto

In order to make good public policy, Congress has to delegate authority to the executive branch. In some sense, that’s what we mean by governance. Congress can authorize things and provide money for them, but Congress is simply not going to figure out how to create a COVID vaccine and the best way to distribute it to 300 million people. That’s an executive function.

And it’s also what Hamilton was getting at when he talked about “energy in the executive.” Good governance needs good executive leadership. Congress has neither the expertise nor the capacity to respond to problems in real-time. All it can do is outline the mission and provide the resources.

The quality of governance ultimately rests on executive problem-solving and decision-making. Congress (or any legislative body, even a PTA) can write all the good law it wants, but without smart executive decision-making in execution, the end product will be garbage.

And whenever Congress delegates authority to the executive branch, it faces a basic principal-agent problem: how do you ensure that the authority will be used by the executive branch in ways that conform to congressional intent?

This should be a familiar problem to anyone who has ever delegated authority to someone or received delegated-authority from someone. It’s not different than any parent-child or manager-employee relationship.

Executive branch officials—like any child or employee—often have their own ideas about not only how to do things, but what the mission itself should be. And they can be very clever about using delegated power in creative ways that weren’t intended, even to the point of absurdity.

It’s basically impossible to write a law that preemptively addresses every possible executive aggrandizement; language just can’t be that precise, and when you do make it absurdly precise you tend to handcuff the very executive discretion that underlies good government. And that’s before we consider bad-faith on the part of executives.

Congress has lots of standard tools for dealing with this, which again should be familiar to anyone in a family or workplace relationship. None of this is rocket science. It’s just like dealing with a teenager when you give them money to go buy a birthday present for their aunt. You do oversight by checking up what they bought and how much they spent. You impose penalties for improper use, like if they spent it on themselves instead. You threaten reduced resources or removal of future delegated authority.

And, ultimately, if nothing else works, you put new conditions on the delegated authority or actually withdrawal it all together. Same with Congress. It’s really not different.

Congress, however, faces a distinctive ratcheting-up problem. Unlike the parent-child relationship, Congress faces an asymmetry in its ability to delegate power and to subsequently withdraw it. Congress can provide the executive branch with delegated authority by majority vote in the House and Senate, but in order to withdraw that authority, it needs either the consent of the president (highly unlikely), or a 2/3 supermajority of each chamber in order to override his veto.

This has resulted, over time, in an accumulation of executive branch power; all the president needs is 1/3 of one chamber in order to block congressional attempts to reduce delegated authority.

Now, there are ways for Congress to deal with this. Most notably, they can set authorities to expire (or sunset, as it is typically called), so that inaction withdraws the authority. That eliminates the ratcheting-up problem while retaining Congress’ authority to extend the delegated authority by majoritarian vote if they so choose.

In fact, this is the subtle reason that the “power of the purse” is so powerful; it’s not just that Congress controls the money, it’s that the money runs out. Because they naturally sunset, annual appropriations automatically favor Congress. The executive branch must come begging for more, and inaction leaves them with nothing.2

Beginning in the 1930s, Congress increasingly dealt with the delegation problem via another strategy: the legislative veto. Congress would provide authority to the president or other executive-branch officials, but reserve the right to overturn any individual use of the authority, via passage of a concurrent resolution in the House and Senate. This was an elegant solution to both the basic dilemma of delegation and the ratcheting-up problem; the executive branch could be given significant authority to problem-solve, but a bare majority in Congress could overturn specific uses of it.

Over the next 50 years, Congress enacted hundreds of legislative vetoes. And if presidents didn’t like them—and they definitely didn’t—it didn’t stop them from signing the laws. They wanted the delegated authority, and the legislative veto was the cost of getting it. Congress also got creative with the legislative veto, passing laws allowing a single-chamber to cancel an executive action via resolution, or in some cases even allowing a single committee to do so.

When Congress enacted IEEPA in 1977, it contained a legislative veto. The way IEEPA works is that the president cannot unlock its significant delegated authorities until he declares an emergency under the National Emergency Act (NEA). And the NEA provided for a legislative veto, via which Congress could end any declared national emergency by passing a two-chamber concurrent resolution to that effect. It also included fast-track procedures for consideration of the veto, meaning it would not be subject to a filibuster in the Senate.

This essentially retained majoritarian congressional control over presidential uses of IEEPA. If Congress didn’t like an action the president took using his IEEPA authority—be it a sanction, asset freeze, or (gasp!) tariff—they would have the authority to overturn it, by majority vote, without the cooperation of the president.

But wait, you say, didn’t the House and Senate already both vote to overturn some of the the IEEPA tariffs put in place by Trump by declaring an end to the NEA emergency that triggered the authority? Yes, they did. Three times in the Senate (here, here, and here) and once in the House.3

But those were largely symbolic political votes, because the Supreme Court destroyed the legislative veto 40 years ago.

Chadha: a debatable decision, a dumb one, and a truly dumb one

In 1983, the Supreme Court decided INS v. Chadha. Jagdish Rai Chadha had been subject to deportation for overstaying his visa, but applied for a suspension of the deportation, which was allowed under delegated discretionary authority Congress had given to the Attorney General in the Immigration and Nationality Act (INA), conditioned with a one-chamber legislative veto over use of the authority.

After successfully receiving a suspension of his deportation, the House of Representatives disapproved of the suspension via resolution, and Chadha was ordered deported. He sued, arguing the legislative veto was unconstitutional. Ultimately, the Supreme Court agreed. The legislative veto was dead.4

INS v. Chadha is not a crazy decision on the basic merits. There’s a reasonable argument to be made that the exercise of the legislative veto is functionally an act of legislating, and by not involving the president or the Senate, the specific veto in Chadha violates both the bicameralism requirement and the presentment clause of the Constitution. And, indeed, that is what the majority opinion argues.

But there are reasons to be skeptical, both as a formal constitutional matter and a functional separation-of-powers one. The dissent notes that before Congress delegated the suspension authority to the Attorney General, Chadha would have needed a private bill in Congress to remain in the country, which would have needed the approval of House, Senate, and executive to be enacted. Under the legislative veto at issue, all three of those actors also needed to consent: the AG to approve the suspension, and the House and Senate not to overturn it.

Perhaps more importantly, the dissent also observed how well the legislative veto fit into the modern structure of the administrative state. Congress had chosen to build a large and powerful executive branch, and the legislative veto gave them an excellent tool to be confident they could maintain control over it. Take away the legislative veto, and you put Congress to a difficult choice: decline to build much-needed executive governance capacity, or go forward with much less control of it.

In my view, the legislative veto in Chadha should have been left in place (we’ll return to this later). But it’s certainly debatable. The real sins of Chadha are its scope. Rather than just strike down just the perhaps egregious form of the legislative veto at hand—a single-chamber override of an administrative action about a single person—the majority struck down every legislative veto in existence. It’s the single-biggest nullification of congressional law in the history of the Court, striking down hundreds of provisions. Including two-chamber legislative vetoes of regulatory authority (such as IEEPA/NEA) that seemed at least somewhat less problematic than the INA authority at hand.

But even worse than that, the Court chose to sever the legislative vetoes from the laws in which they were placed. That is, the Court removed the legislative vetoes but left in place the delegations of authority! This completely wrecks the intention of Congress with regard to these laws, because there is no way to assume that Congress would have delegated the authority without the veto, and every reason to believe exactly the opposite: that the delegations and vetoes were a carefully-chosen balance that reflected the obvious trade-offs Congress faced when delegating authority to the executive branch.5

Of course, Congress could just rewrite the laws with tighter restrictions on the delegated authority, or withdraw it all together. Oh wait, they can’t! Because the ratcheting-up problem means that the status-quo is now “delegated authority with no legislative veto.” If Congress wants to change that—and why wouldn’t they want to change that, after a key tool of control was removed from the laws—they would need either the consent of the president (good luck), or a supermajority vote in Congress to override his veto.

The results were all too predictable. In most cases, Congress faced presidential opposition when reshaping post-Chadha, and could neither withdraw the various executive authorities nor put comparable substitute restrictions on its use. On many major authorities that formerly had legislative vetoes, the best Congress could do was put in wimpy joint resolutions of disapproval—essentially fast-track procedures for legislation objecting to executive actions, but which needed to be signed by the president. That essentially meant they would need a supermajority to overturn anything. It’s almost useless.

It’s all fun and games until Trump shows up

After Chadha, an interesting thing happened: Congress kept passing laws with legislative vetoes in them. Hundreds of them. And presidents kept signing them. So much so, that a fair number of scholars don’t think Chadha had much substantive effect. They point out that legislative vetoes of both the “report and wait” variety and “prior-approval” variety exist all over the appropriations process, and that executive agencies strongly adhere to them. They may be informal, but they still work as an oversight tool and a governance mechanism.

I think this is half right. These informal mechanisms, in my experience, work extremely well in the appropriations process. For reprogramming decisions especially, the prior-approval process—where agencies need to get sign-off from the committee leaders before moving money around within accounts—is fully entrenched and working really well, especially for Department of Defense money. But that’s in part because of the nature of the annual appropriations process; as discussed above, money naturally sunsets and you have to come back and beg for more, with inaction favoring the legislature. The repeated game guarantees Congress an easy and obvious way to punish disobedience; the delegated authority, when it’s in the form of money, always expires.

Much less impressive has been Congress’ ability to control use of the emergency powers delegated to the president via the NEA and IEEPA, as well as the post-Watergate constraints of Nixon-era presidential overreach, in the War Powers Resolution and the Impoundment Control Act. The substitution of joint resolutions of disapproval for legislative vetoes has tilted all of these laws toward the presidency, and made congressional attempts to curb executive actions under them mostly inert. And, indeed, declared emergencies have skyrocketed in the last several decades; there are currently 51 in effect, some of them dating back decades. A massive proportion of them are IEEPA emergencies; many people just accept IEEPA now as a regularized tool of presidential trade power.

And yet, as Chafetz convincingly argues, Trump has really taken this to a new level. He declared over 20 emergencies across his terms in office, and both of his signature non-legislative policies—the wall on the southern border and the global tariff system—were accomplished via emergency authority. Even more to the point, both the wall and the tariffs were accomplished by emergency authority that both chambers of Congress later voted to overturn—and which would have been overturned under the legislative veto construction of those laws—but which fell short in the post-Chadha-age, because the joint resolutions of disapproval could be (and were) blocked by presidential veto.

The Court Takes Up the Tariffs But Forgets the Legislative Veto

Hopefully, all this makes clear why Learning Resources v. Trump is so frustrating. Nine justices spend 170 pages arguing about whether Congress has delegated tariff authority to the president in IEEPA, without ever bothering to mention at least four pieces of relevant history here. That Congress intended to have much more control over all uses of IEEPA. That they voted this year to end the tariffs in question in the case. That such a vote would have been successful at ending the tariffs had their version of IEEPA still been in force. And that version of IEEPA doesn’t exist because of previous decisions of the Court.

On a fifth relevant point, however—that Congress faces the ratcheting-up problem when trying to claw back delegated power—Justice Gorsuch does show up in defense of Congress:

When a private agent oversteps, a principal may fix that problem prospectively by withdrawing the agent’s authority. Under our Constitution, the remedy is not so simple. Once this Court reads a doubtful statute as granting the executive branch a given power, that power may prove almost impossible for Congress to retrieve. Any President keen on his own authority (and, again, what President isn’t?) will have a strong incentive to veto legislation aimed at returning the power to Congress. Perhaps Congress can use other tools, including its appropriation authority, to influence how the President exercises his new power. Maybe Congress can sometimes even leverage those tools to induce the President to withhold a veto. But retrieving a lost power is no easy business in our constitutional order.

From a legislative power point-of-view, this is simultaneously excellent and enraging. Excellent because judges rarely speak so plainly about the actual political context of separation of powers issues; much more often, they say things that amount to “Congress can change the laws if they don’t like them,” which is sometimes the right perspective but almost always sidesteps the ratcheting-up problem of delegated authority. That Gorsuch is so sympathetic here (and elsewhere) to the realities of legislative politics is heartening.

But it’s equally infuriating, because Gorsuch quite clearly sees that this reality means the Court must be the primary defender of Congress in the face of executive overreach in cases of vague delegation of congressional power. Rather than even muse about the return of the legislative veto—or offhandedly suggest that a belated-striking down of IEEPA itself by overturning the severability decisions might be worthwhile (that would never happen, to be clear)—Gorsuch simply places the Court front and center as The Decider.

Of course, as 170 pages prove, the Court is thoroughly divided as to how to actually decide these things. Instead of Congress policing its own delegations of IEEPA power via the legislative veto, the Court will now continually struggle to decide, case by case and tortured doctrine by tortured doctrine, how much power Congress delegated. Courts obviously have a role to play here—even with the legislative veto, a statutory construction ruling on the applicability of IEEPA to tariffs might be needed—but the wholesale substitution of court rulings for legislative vetoes is sub-optimal for any number of reasons.

First, it doesn’t allow Congress to ok some IEEPA tariffs but not others; that’s a flexibility you might like in a vague delegation of power. Second, it doesn’t allow the current Congress to set the standard, instead locking-in court rulings as forward-going precedent. Related, and third, it doesn’t allow the standard to fluctuate with day-to-day politics; changing circumstances for policy actions are the province of Congress, not the courts. Fourth, it forces Congress to write overly-narrow delegations of authority; the legislative veto gives Congress a permanent safety-valve to not worry about overly-broad delegations. Fifth, litigation takes a long time; Trump’s now-illegal tariffs have been in place for over a year. And finally, it unnecessarily draws the courts into these cases; all of this would be moot if the legislative veto existed.

Congress isn’t blameless here

The best case for overturning Chadha and restoring the legislative veto is a simple one: Congress can produce a virtually-identical statutory structure to the one-chamber legislative veto that would almost certainly be constitutional, by combining sunsets and joint resolutions of approval.

Imagine a delegation of authority to the executive branch that has the following restrictions: any use of the authority (say the declaring of an emergency) requires a 72-hour notification and waiting period after it is announced, before it can go into effect. At the end of that waiting period, the authority expires without going into effect, unless Congress passes—and the president signs—a joint resolution approving the use of the authority, which has fast-track authority in both chambers.

It’s not really possible to distinguish the substantive effects of this from a one-chamber legislative veto. In both cases, Congress delegates authority that either chamber can subsequently block with a simple majority if it disagrees with the use. In fact, the main way you can distinguish this is that it perhaps puts Congress too much in the driver’s seat, since, unlike the legislative veto, inaction blocks the use of the delegated authority. And maybe it creates a lot of work for Congress to affirmatively approve everything.

In any case, this isn’t a hypothetical. Various bills in Congress during the Trump era have proposed to reform existing delegated powers by converting them from joint resolutions of disapproval to sunsets-plus-approval mechanisms, particularly with regard to the NEA. The most common arrangement is to provide short sunsets (often 30 calendar days or 20 legislative days) absent congressional approval via a fast-track process. In 2024, the Senate Homeland Security and Government Affairs Committee held a hearing on the topic and reported out NEA reform legislation. To date, however, Congress has not enacted anything.

One question is why didn’t Congress take this up earlier in the wake of Chadha. The obvious answer is: they did. But the ratcheting-up problem stood in the way. The weak substitutions of joint resolutions of disapproval that replaced a number of the legislative vetoes were enacted under the post-Chadha conditions, in which the delegated authority had been severed but remained with the president. That made it nearly impossible to claw back the authority, and consequently impossible to use the delegation as carrots so the president would consent to stronger mechanisms of control like sunset-and-approval. The same problem remains today with any of these reforms.

But Congress also deserves some of the blame. Since Chadha, there’s been no excuse for using joint resolutions of disapproval rather than sunset-and-approval arrangements. But in several cases—most notably the Congressional Review Act, which passed with a veto-proof majority as part of other legislation—Congress used disapproval mechanisms. Not surprisingly, the Congressional Review Act has been mostly useless, except when administrations change hands; presidents simply aren’t going to sign legislation overturning their own administration’s regulations. Other times, Congress has simply not acted.

Likewise, Congress often chooses to not sunset delegations of authority that, in my view, should never be given to the president on an open-ended basis. This is most notable with Authorizations for the Use of Military Force (AUMFs). Smart practice for Congress would be to sunset every AUMF at two years; not only would that prevent what happened with the 2001 and 2003 AUMFs for the global war on terror and Iraq—which were stretched and used as justification for things for decades—but it would also be more responsible for each Congress to be forced to take formal responsibility for ongoing wars.

The Court did lasting damage to the separation of powers in Chadha, and they are not turning back. Restoring the balance will be up to Congress.

Here are some things I found worth reading and pondering this week, with quick comments by me on each.

1.Gabe Fleisher, DOGE’s Final Failure.

As always, it’s a lot easier to say you are going to budget-cut than it is to get Congress to actually cut spending. Not only did DOGE not cut its goal of $2 trillion (that was always laughable), but government spending increased in 2025. And rather than enacting Trump’s proposed budget cuts, Congress ignored them and increased total discretionary spending in FY26. One big-picture takeaway here is that both Trump and his adversaries have strong incentives to overstate the effect he is having on policy. Trump wants you to believe he is massively reshaping the federal government…and the Democrats want you to believe the same thing. See also Yuval Levin here.

Another takeaway is, as always, if you want any durability for your policies, you have to get them into law. Unilateral executive action looks ferocious, but it’s mostly a weak substitute for getting what you want from Congress. Note that the only durable DOGE cuts were to USAID and public broadcasting, and those were done via statutory recission, in Congress, which the administration has now ruled out trying again. Everything else is mostly a sandcastle waiting to collapse. At least on spending. Trump has been more successful in reshaping the federal workforce. What a leaner, somewhat-less-professionalized civil service means absent cuts to resources, however, it’s quite clear. Matt Grossman muses here.

2.Matt Yglesias, AI Progress Is Giving Me Writer’s Block.

I must confess, I have felt this viscerally teaching undergraduate public policy. In some basic sense, no medium or long-term policy matters until we either navigate the transition to artificial general intelligence (AGI) or realize it’s not actually going to happen on the 3-6 year time horizon so many futurists and Silicon Valley types are now expecting. And to the degree AGI is its own existential-level crisis—economic or literal—its perceived proximity means it should/will be prioritized. And so existential issues with time-horizons one order of magnitude longer—like climate change—seem relatively unimportant to focus on.

Of course, maybe this is all overblown, and AI is either not coming any time soon, or will be less disruptive than people think. Watching and experiencing the transformation from LLMs to AI agents has made me bullish on rapid progress and associated economic dislocations, but it’s super easy to over-index on stuff like this as soon as you start investigating it. But I don’t really buy friction arguments that AGI will take time (years?) to filter through society; adoption of AI is fast, not slow. And the political opposition built on economic dislocation may be countered by medical breakthroughs that make breakneck advancement more popular (and rational) than currently predicted.

3.Nate Silver, Will AI Terminate Democracy?

I must confess that I find this entire genre of political theory hard to wrap my head around, there’s just so many angles from which to consider it. And I spend a lot of time thinking about democracy. One strategy prior to prediction is to just try to organize the various strands to build a general taxonomy of how AI might impact politics:

• Altering political conflict. This is everything from new problems (AGI-induced unemployment, privacy concerns, rights and liability of agents) and new classes of policy (AGI taxation, universal basic income) to new coalitions/parties (anti/pro tech divides, physical/ knowledge labor classes) to natural questions about the public/private nature of AGI in society (public utility? state-owned? privatized?). In essence, AGI as a policy issue and an object of politics.

• Altering power dynamics. This includes traditional corporate concerns—would this new technology concentrate wealth among a new economic elite, or expand the economic inequality gap in American society—but also libertarian concerns about the surveillance state and futurist concerns about AGI as an independent political actor itself. AGI as a disruptor of the underlying scaffolding of civil society in a liberal democracy.

• Altering the democratic process. This would include everything from the explosion of information that could inform voters and policymakers or mislead them, the impact of AI systems actually making government decisions, and the integrity of elections in a world of AI manipulation tools. Essentially, AGI as a transformer of politics that raises questions of democratic resilience.

• Altering the state/citizen relationship. What happens in a world of runaway abundance not produced by human labor? Authoritarian regimes might find it easier than ever to survive, untethered from the need for humans to fuel economic productivity or warmaking capacity, and more capable than ever of population control. Democratic regimes responding to popular opinion might become hopelessly inefficient in comparison, and tend toward authoritarian policies. This is the true sci-fi shit.

Related: Noah Smith You Are No Longer The Smartest Type Of Thing on Earth and this episode of the Dwarkesh podcast with Anthropic CEO Dario Amodei.

4.Andrew Barber, On Leaving Professional Poker.

Should be of general interest. Poker is both a more normal job than most people think, and still a very weird one. One of the weird aspects that Andrew neglects here is that there is literally no friction to entry, or exit. No capital investment, no regulatory hurdles. No hiring process. As the famous saying goes, “a professional poker player is anyone who says they are a professional poker player.” You can be truly self-employed, unencumbered by any interpersonal relationships. At least in theory. This makes it easier to do all sorts of things that don’t really work in other industries, like sorta-quitting a dozen times and coming back to it a dozen more, without much if any career penalty.

See also: Brad Owen getting disillusioned with the ever-maturing poker industry.

5.Kevin Kosar, What’s Wrong With Congress? and Helping Students See Congress is Not Gridlocked.

Count me on team Congress-Is-Taking-Too-Much-Shit-Right-Now. I’m certainly a believer that Congress has given away too much power to the executive and should reclaim some of it (see next few items below) but the idea that Congress is impotent or doing nothing is cartoon-caricature silly. When it’s not busy completely ignoring the administration and setting federal spending levels, the secret congress is busy passing all sorts of important legislation. Some of the disconnect is partisan incentives to food fight for the public, some of it is partisan incentives to hype executive dominance, and some of it is lazy elite and populist punditry in the long tradition of hating Congress when it’s actually losing that people hate.

See also: a profile of Tom Cole. There was a normal appropriations process! Things sometimes work.

6.The Economist, The Crummiest Job in Washington.

One thing that is definitely wrong with Congress is that the job sucks. Especially in the House, and especially if you actually want to make policy. I was talking to a retiring 4-term Member I ran into on the Hill after the ‘24 election and he straight-up said to me, “Coming here was the worst decision of my life.” It’s not hard to understand why: you have almost no power, you spend all your time raising money, there are more death threats than ever, and everyone hates you. And so policy-types are quickly being replaced by party soldiers who don’t mind any of that.

I honestly have no idea why someone looking to make a policy impact would want to be in the House of Representatives at this point. Endless mind-numbing electoral politics that never stops, just to get 1/435 of the legislative power in one half of the legislature. Just go run for school board or mayor. Such a better ratio of good you can do to bullshit you have to put up with. And there’s evidence all of this is scaring people off from Congress.

See also: How a Congressional Office Actually Works.

7.The Supreme Court decision on Trump’s tariffs.

I very much enjoyed Jack Goldsmith’s immediate reaction to, and analysis of the decision, and I agree that what we are seeing here is the Roberts’ Court solidifying the dual philosophical idea of a unitary executive that is very tightly vertically integrated in terms of presidential control of the executive branch, but well out over-its-skis in terms of creative use of statutory power granted by Congress. That’s probably good news for Democrats who figured the Court was just a front for GOP politics, but bad news for those same Democrats interested in governance via creative executive branch problem solving.

The most interesting concurrence—and the one everyone is talking about—is the Gorsuch one. To me, the most significant feature of it is that Justice Gorsuch is actually grappling with the so-called ratcheting-up problem, in which Congress can give the executive a power by bare majority, but can only undo it with a supermajority (because the president will veto the repeal). The Court has usually just left the legislative process as a given and said stuff like “Congress can always repeal this stuff if they don’t like it,” but here Justice Gorsuch is acknowledging both that such repeals are unrealistic on their own terms and that the imbalance of the ratcheting-up problem is an actual constitutional feature worth accounting for.

Some of this problem is of the Court’s own making. For generations, Congress had a perfectly good solution to the ratcheting-up problem: the legislative veto, which let Congress grant the president authority but retain the right to veto any individual use of that authority with a bare majority vote in Congress. The Court ruled that it was unconstitutional in 1983. One way to think about the contemporary drive toward a major-questions doctrine for the legislative branch is the Court grappling with the mess they made in the wake of the demise of the legislative veto. Indeed, the IEEPA power Trump used to impose the tariffs contained a legislative veto. And this is the real rub of the ratcheting-up problem: we are talking about a presidential authority contained in a statute Congress never passed in its current form; it’s essentially a product of a Court’s decisions. But I’m going to write much more about this later this week.

See also: Illya Somin on the decision.

8.Related: Trump’s press conference and wild policy reaction to the Supreme Court decision.

The obvious political victory for Trump in this spot is to just give up on the tariffs while going full-populist by blasting the Court as a bunch of elites standing in the way of good policy. Then he gets rid of a bad policy in practice, while retaining the benefit of it as a political weapon. He’s certainly railing against the Court, but he seems unable to let go of the tariffs, and now he’s looking around for ever-more-tenuous ways to continue them. As Liam Donovan likes to say, Trump’s superpower is his ability to claim victory in any circumstance—see, for example, the ICE withdrawal from Minnesota—even when he has been completely defeated. That seems to be failing him here, because there’s no clean way to claim actual victory.

One thing I know is a dead-end is Congress. There’s a majority in both chambers against at least some of the tariffs. A ton of GOP Members are happy the Court struck them down, and wish Trump would just let it go. And the prospect of getting the GOP to raise taxes by law in an election year is just pure folly.

9.Related: Ross Douthat advice to the administration.

This is obviously a smart list, but also totally at odds with Trump's instincts, brand, political style, and substantive politics. For better or worse, he's built on governance as spectacle and politics as zero-sum warfare. Mostly worse, but in any case not going to change.

In addition, the administration seems to be totally done with its legislative agenda. They’ve more or less ruled out a second reconciliation bill, and the White House doesn’t even seem to have any policy proposals. Some of this is normal sixth-year-of-a-presidency stuff, where the juice is just gone; most presidents turn to foreign policy at this point in their second term. But one would excuse Republicans for thinking a unified government might do more durable policy change.

10.This snowfall chart.

Three takeaways. First, the DC metro area is in an absolutely horrible spot for competent policy on dealing with snow. Far enough north that there will be a major storm not infrequently, but too far south for it to make sense to commit the resources necessary to adequately deal with major storms in any way other than a complete shitshow. The end result is frustration and misery.

Second, I grew up in Upstate NY but never really internalized just how unusual the situation is up there. It’s essentially the only place in the country where major cities are located in the three worst snowfall zones. Indeed, Syracuse, Rochester, and Buffalo are the three snowiest major urban centers in the country, and the cities in Michigan and Wisconsin benefit from being on the west side of the Great Lakes and aren’t hit hard by the lake-effect storms.

Third, I had no idea it ever really snowed in Arizona or New Mexico.

11.The Boys of ‘80 documentary about the Miracle on Ice hockey team.

Highly recommended. They do a great job of balancing contemporary interviews with these now-70-something men and footage of them as 20-something roughly-college-age boys. It didn’t help that my kids pointed out they would be in their 60s if we went that long again without winning the Olympic tournament.

Watching the gold-medal game yesterday, I was reminded of one reason I always particularly loved college/Olympic hockey: the one-and-done nature of the tournaments creates both the possibility of a Miracle on Ice—there’s simply no way we beat the Soviets in an NHL-style 7-game series—and makes every game maximally critical.

That’s both obvious and underappreciated. Hockey is a high-variance sport, and both the U.S. and Canada were arguably lucky to have made it to the gold-medal game, each surviving prior near-losses in the knockout round. As much as the NHL playoffs are the greatest sporting event in the world, Olympic hockey is arguably even more terrifying to watch.

Everything produced about the 1980 team always centers it around the malaise of late 70’s American economic and Cold War troubles. It’s weird to imagine the future documentaries produced about the 2026 team being set against the backdrop of partisan and political discontent of our age, and it makes me rethink a lot of the received wisdom about the role the ‘80 team played in reviving national pride.

12.Related: Capital One Arena getting a truly awful makeover.

The general trend in converting stadiums into high-end corporate experiences at the expense of raucous fan zones continues, and it’s not good for people who actually enjoy live sports. And this plan for Capital One Arena in DC is egregious even conditional on the general trajectory of things. As soon as someone says “vertical transportation” to describe an escalator and “curated culinary experience” to describe eating at a hockey game, you know for sure they’ve completely lost the plot. There are going to be seven different types of luxury seating in the new “Halo” level of premium seats, and I don’t think I can name seven different ways to sit at a hockey game. I honestly wonder if one of them is going to be a faux-authentic set of wood bleachers like we used to sit on at college games at Union, presumably for 25x the price.

The sad thing is that I’ve already noticed a downgrade in the game-day hockey fan experience at the arena. The crowd is quieter. There are strangely empty seats in the most high-valued locations. You see more people barely paying attention. My biggest worry, however, is that Ted Leonsis has misjudged the market. DC is a very dangerous place for an overpriced hockey product that isn’t winning. The Caps have been unusually good in the Ovechkin era, but that’s coming to an end. Miss the playoffs for a few years, and that arena is going to resemble an empty warehouse on game-night. This isn’t Michigan; there’s a fair-weather fandom here and a bottom to the supply of hockey goodwill. Doubly-so if your arena feels like a cruise-ship, and has prices that correspond.

13.Ezra Klein interviews White House reporters Ashly Parker and Michael Scherer.

Interesting throughout, and not pretty. The main takeaway remains that the White House still has no traditional information flow or policy process of any sort. As a governing entity, it just becomes chaos, with all the resulting policy mess in the executive departments and agencies: airspace is closed and then abruptly reopened, TSA shuts off Precheck and then turns it back on, tariffs are adjusted daily, hospital ships are weirdly sent to Greenland, DHS seems to be one big power struggle between incompetent factions. There just doesn’t seem to be an interagency process, or much coordination at all.

Unlike Trump’s first term, there also don’t seem to be any adults in the room. Instead, it’s a bunch of placating the president’s tornado style, and tolerating the resulting chaos. But that leaves open large questions of how much the president is actually delegating and how much individual operators are just freelancing behind his back. The Klein interview posits Trump as sort of just making decisions while he watches TV; you don’t need a policy process when the boss makes all his decisions instantly by gut instinct. It also saves a lot of meeting time.

14.Related: maybe competence matters?

In my view, partisans underrate competence, and even more generally underate governing. In the partisan mind, the policy is either good or bad, and that’s mostly a function of it as an abstract idea, not as an implemented policy. Removing all of the nuance of implementation conveniently helps transform policy into ideology, and makes electoral and legislative determination a higher virtue than flexibility and pragmatic problem-solving. This is also why some partisans prefer to talk about Congress. Legislation is more abstract than implementation.

The issue is that most folks aren’t partisan enough to care about ideology over outcomes, and outcomes—rather than ideology—are the realm of both governing competency and a sizable fraction of public approval. Partisans can certainly work to change this; one good way to square the circle is to create more hardcore partisans. But it’s not nearly enough. No one cares if you have a great election slogan or pass your bill. In the end, all you can do to please voters is change the material conditions of the country. If you can’t govern your way to that, you’re left just hoping the economy does it for you.

15.Matt Green on the rise of the discharge petition in the House.

We had gone decades in Congress at one point without a discharge petition—the formal mechanism where a rogue majority in the House can set the agenda without the support of the partisan majority leadership—successfully being used to move legislation. Leaders hated them and threatened to punish majority party Members who signed them. They were essentially signaling tools of the minority and maybe some renegade mavericks. Now they are back in force, being used left and right to move bills.

Some of this is the lack of a procedural majority in the House, and the resulting chaos. Neither Speaker Johnson or former Speaker McCarthy have been able to secure the deference from their party necessary to dictate the agenda. Everyone is contesting it—from the House Freedom Caucus on the right to the moderates in the middle. Combine that with a narrow majority and an ideologically stretched conference and weak leader, and there’s a lot of people deciding they are going to block the agenda. And that’s given rise to a culture of dissidence, especially as the Speaker has given up on trying to punish people and has accepted his plight. Once you normalize blocking the leadership agenda, it’s not a huge leap to trying to substitute your own agenda. The Freedom Caucus may be content with not doing things, but the GOP moderates have substantive policy demands.

One question you might ask here is why the discharge petition has become the preferred vehicle of malcontent expression in the House. At first glance, it doesn’t make a lot of sense. It’s slow. You have to gather the support for it publicly, forcing Members to take a stand against leadership before they know they are going to get any payoff. Why not just plan in secret and hijack the floor by voting down the previous question on a rule? Then you can set whatever agenda you want, instantly. My guess is that the slow, public nature of the discharge petition is actually a virtue. It’s essentially a commitment device. Once you get people to sign it, they’ve already publicly bucked the leadership. The hard political lift is done. So you don’t have to worry about cold feet and people bailing on your secret plan to hijack the agenda via defeat of the previous question.

16.The talking filibuster continues to be, well, talked about.

This coincides with the SAVE America Act now having 50 cosponsors in the Senate, meaning a filibuster (rather than a lack of votes) is plausibly now the thing holding back its passage. Impressively, Representative Roy put out a memo that gets the procedures correct. None of this changes the reality that breaking a filibuster by making the minority talk is an extremely difficult prospect. It’s not clear it has ever been successfully accomplished.

Forcing a talking filibuster has generally been used for spectacle purposes, to signal intensity (on both sides) and perhaps shift the public politics of an issue. That’s why it might still happen here. I don’t think Majority Leader Thune or the other Senate Republicans are under any illusion they could actually break the Democrats over this, but many Republicans—especially those that won’t have to answer quorum calls at 2 a.m.—probably think the PR value of such an exercise might yield electoral or public opinion fruit.

But starting a talking filibuster—much like starting a shutdown—raises the more-difficult question of how you end it. There aren’t a lot of obvious face-saving ways for the majority to just give up on the Senate floor and, sunk-cost fallacy aside, the logic of throwing in the towel might look worse to Trump and others as time goes on, given how much the appearance of looking weak weighs on their political calculations. I suspect this is one thing holding a lot of Senate Republicans back. Unless you do some cringe-worthy stunt like announcing ahead of time how long you are going to force the minority to talk before you give up, the open-ended nature of the exercise raises the stakes on your eventual inevitable capitulation.

17.Teens stopped going out.

The decline in hanging-out in-person in groups has been well-documented, and is actually a pretty longstanding trend in America that was well-documented at least back to Bowling Alone, which captured at a minimum the amazing civic and social community built by the World War II generation and its subsequent decline among Baby Boomers and GenX.

But the wholesale substitution of online coordination and interaction in the 21st century seems qualitatively different, or at least feels scarier as an adult observing teenagers. And it’s not just hanging out. Teens stopped dating. And drinking. I’m hard-pressed to even understand the social world of the modern teenagers, and I live with three of them.

Whatever you make of that, my niche view is that people—all people, not just teenagers—don’t host enough, which I think of as fundamentally different from going somewhere with people. I know a lot of people who are uptight about having people over to their home, but I really can’t think of anything that is easier and makes people happier than being with people they know in a private setting.

Some of the problem is people make too much of it. You don’t have to clean your house, you don’t have to serve fancy food. You don’t have to plan it three weeks ahead of time. Just invite people over. Maybe for a card game. Maybe to watch a sports event. Maybe literally to just hang out. My guess is you’ll be shocked at how receptive people are.

A lot of those things are going to happen again on this second walk-through, and when they do we will breeze by them with just a link to the other post. The focus here will be on normal-ish stuff that didn’t happen on the first walk-through.

If you have not read the part I post, I recommend doing so before reading this one.

Walking Through A Second Day in the House

Let’s start. It’s the morning of February 12, 2026.1 You crack open yesterday’s congressional record from Wednesday, February 11th and turn to the proceedings of the House. We can walk through it, letter by letter.

A. The House met at 11 a.m. and was called to order. Wait, why did the House meet at 11 a.m. instead of noon? And where’s the morning-hour debate? Well, the resolutions providing for the hour of meeting of the House adopted the first day of Congress and then again on the first day of the second session of Congress (H.Res.6 and H.Res.976, respectively), state that unless otherwise ordered the House will meet at noon on Wednesdays.

Likewise, the order adopted by unanimous consent from January 3, 2025 that sets up the morning-hour debate states that "when the House convenes pursuant to an order other than H.Res.6 (and superseded by H.Res.976) , the House shall convene for the purpose of conducting morning-hour debate only as prescribed by such order.”

As it turns out, the House adopted an order by unanimous consent the night before, adjusting the meeting time for today to 11 a.m. That supersedes the resolution providing for the normal meeting time and triggers the alternative provision in the morning-hour order. Since no morning-hour debate was provided for in order specific to today, no morning hour debate occurred.

B. The Speaker Pro Tempore was designated. This was covered in part I. Rep. Evans is in the chair to start the day.

C. The Regular Order in the House begins. This was covered in part I. Under Rule XIV of the House, we start with the prayer, the reading and approval of the journal, and the pledge of allegiance to the flag. As usual, no one objects to dispensing with the reading of the journal.

D. A Special Order of Business Interrupts Regular Order. Absent any privileged business or unanimous consent requests, the House would now continue with its order of business under Rule XIV. As discussed in part I, that almost never happens. Here, we see Rep. Roy from the Committee on Rules call up H.Res. 1057 and ask for its immediate consideration. The resolution qualifies as privileged business that may interrupt the normal order under Rule XIII, Clause 5 because it is a special order of business reported by the Committee on Rules.

A special orders of business—typically just called a “rule” on the Hill—is the primary device by which the majority party controls the agenda on the floor for legislation that does not have the bipartisan support necessary for a 2/3 majority to pass it by suspension of the rules. Since the regular order of business provided in Rule XIV does not allow for the timely consideration of whatever the majority happens to want to do, they must seek to alter the regular order of business. And they typically accomplish that by adopting a resolution from the Rules Committee that temporarily alters the regular order and makes it in order to bring up the legislation they want to consider.2

Of course, in order to do that, you have to actually pass the resolution adjusting the regular order.

E: Consideration of the special order of business begins. Under House rules, privileged resolutions brought up in the House providing for a special order of business are considered under the hour rule, with the first hour controlled by the Member who called up the resolution. Here we see Mr. Roy yield half of his hour to the minority, for the purpose of debate only. The is not required, but longstanding custom in the House. In effect, each side will control 30 minutes of debate on the resolution, but the minority manager of the time can only use it for debate, and may not make any motions when he has the floor.

What exactly is in the privileged resolution they are debating? H.Res.1057, if adopted, would do five things:

• make in order and set the terms of consideration for S.1383;

• make in order and set the terms of consideration for H.R.2189;

• make in order and set the terms of consideration for H.R.261;

• make in order and set the terms of consideration for H.R.3617; and

• adjust clause 6(a) of Rule XIII from February 13th to September 30th so that resolutions for special orders of business from the Rules Committee related to continuing resolutions for appropriations can be considered the same day as they are reported from the committee without a 2/3 vote. Under current rules, such resolutions would have to wait a day for consideration absent a supermajority.

So, again, the point of adopting this special order of business is to make in order the consideration of bills the majority would like to take up today, but cannot under the regular order of business. And also set the terms of consideration for them. Here’s the text of how the rule structures consideration for H.R.3617 (emphasis mine):

Sec. 4. Upon adoption of this resolution it shall be in order to consider in the House the bill (H.R. 3617) to amend the Department of Energy Organization Act to secure the supply of critical energy resources, including critical minerals and other materials, and for other purposes. All points of order against consideration of the bill are waived. The amendment in the nature of a substitute recommended by the Committee on Energy and Commerce now printed in the bill shall be considered as adopted. The bill, as amended, shall be considered as read. All points of order against provisions in the bill, as amended, are waived. The previous question shall be considered as ordered on the bill, as amended, and on any further amendment thereto, to final passage without intervening motion except: (1) one hour of debate equally divided and controlled by the chair and ranking minority member of the Committee on Energy and Commerce or their respective designees; and (2) one motion to recommit.

Four things the rule does worth noting: (1) makes it in order to consider the bill; waives all points of order someone might try to bring against the bill or its consideration; (3) orders the previous question—more on this soon—to preclude any amendments to the bill prior to a final vote; and (4) allows for an hour of debate.

But none of that can happen until a majority in the House agrees to the special order of business. And so the debate on the resolution from the Committee on Rules begins, with half of the time controlled by Rep Roy for the majority, and half of the time controlled by Rep. McGovern (ranking Member of the Rules Committee) for the minority.

When all time for debate had been yielded back, Mr. Roy was still in control of the floor under the hour rule:

F. A motion is made for the previous question. At the end of debate, Rep. Roy moves the previous question. A successful motion for the previous question ends debate, bars the offering of further amendments, and brings the House to an immediate vote on the underlying resolution. It is a primary tool used by a majority in the House to quickly work its will and bring about final decisions; the lack of a motion for the previous question in the Senate is what enables filibusters.

If the motion for the previous question is defeated, it would allow a Member in opposition to control a second hour of debate, during which they could offer an amendment to the underlying resolution. This essentially never happens in the House; the majority leadership leans extremely hard on their Members to never vote against the previous question on a rule resolution. If a majority did defeat the previous question, they would essentially have hijacked the floor and could set the agenda themselves.

In this case, the previous question wins on the voice vote.

G. The yeas and and nays are demanded and ordered. Rep. McGovern demands a record vote and 1/5 of the Members present agree. This was covered in part I. An electronic vote is taken, and the previous question is ordered, 216-214.

H. The resolution for a special order of business is voted on. With the previous question ordered, no more debate is in order, and the chair puts the question on adoptions of the resolution. By voice vote, the resolution is agreed to.

I. The yeas and and nays are demanded and ordered. Rep. McGovern demands a record vote and 1/5 of the Members present agree. This was covered in part I.

An electronic vote is taken, and the resolution is agreed to, 216-215. It is not common for special orders of business to be rejected; traditionally, the majority party sticks together, as leaders negotiate the agenda with the party in caucus, and the backbenchers accept the results of the negotiations on the floor. But in the 118th and 119th Congresses, with their narrow majorities and factional disputes among the GOP majority, this procedural coalition has fallen apart. Lots of special rules have failed, including a slightly different version of this one, just the day before. And if you can’t pass the rule, you can’t interrupt the regular order with what you actually want to do.

J. S.1383 is called up pursuant to the just-passed rule. Having been made in order by the resolution for a special order of business, Rep. Steil calls up S.1383 pursuant to the rule. As the rule allows for one hour of debate, equally divided and controlled by the chair and ranking member of the Committee on House Administration (it is normal for debate time to be controlled by the leaders of the committee of jurisdiction), the debate proceeds.

After the hour of debate, pursuant to the rule, action continues on S.1383.

K. Debate ends and consideration of S.1383 continues. Rep. Steil yields back his remaining time for debate, and the chair announces all time for debate has expired. Following the special order as adopted in H.Res.1057, the previous question on the bill is considered order, and a largely pro forma vote is taken on the third reading of the bill.

L. Rep. Morelle makes a motion to commit. Under the rule as adopted in H.Res.1057, no motions are allowed after debate and before a vote on final passage, except one motion to commit. This is an opportunity for the minority to have the bill sent back to committee. Why would the majority allow this motion to be in a special order of business? Because under House Rule XIII, clause 6(c), a special order of business reported from the Rules Committee may not preclude the minority from making a motion to recommit.

This is a traditional prerogative of the minority. It virtually always fails on a party line vote. Prior to the 117th Congress, the motion to commit (or recommit as the case may be) had somewhat more teeth, as the rule allowed for 10 minutes of debate on the motion and the minority could offer instructions with the motion that essentially turned it into an amendment, which guaranteed that they would always get a vote on at least one amendment to the bill.

Since the 117th, however, the rules have allowed neither debate nor instructions, meaning all the minority can do is talk during general debate about what they would change in the bill if the motion to (re)commit were successful. This has essentially foreclosed the possibility of the minority amending bills via the motion, or putting majority Members to tough votes.

M. The yeas and nays are demanded on the motion to commit and the vote is postponed. After the voice vote on the motion to commit, Rep. Morelle demands the yeas and nays, and the chair postpones further consideration under clause 8 of Rule XX, in order to create a vote stack later in the day. This was covered in part I.

N. Consideration of H.R.3617. After the postponement of consideration of S.1383, Rep. Weber calls up H.R.3617, pursuant to the rule. The rule provides for virtually identical terms of consideration as it did for S.1383, so we need not go through it here. There is an hour of general debate, a motion to recommit, a demand for the yeas and nays on the motion, and a postponement of further consideration:

After the postponement of consideration of H.R.3617, you might expect the House to consider the other two bills that were made in order by the rule. But instead, some other privilege business interrupts:

O. Calling up H.J.Res.72, to terminate a national emergency. Rep. Mast is recognized and calls up H.J.Res.72 pursuant to an order of the previous day (February 10). What is going on here?

This is an effort to end the tariffs put in place last year by President Trump. Under the National Emergency Act—which is the authority by which Trump put in place certain tariffs—there are a set of statutory rulemaking procedures by which Members of Congress can quickly force a vote on legislation to overturn presidentially-declared emergencies. For most of the 119th Congress, the House majority has prevented these votes from taking place by passing special rules that essentially prevented the consideration of such legislation for a certain period of time.

That period of time, however, expired earlier this month. And when the House attempted to extend the period of time when you could not bring up such legislation by placing it in a special rule for the consideration of other legislation, it was defeated. That was the rule that did not pass on the previous day, February 10th. It was a major defeat for the GOP leadership, and for the White House.

After the rule failed and the House refused to prevent the consideration of legislation to terminate the national emergency, Rep. Mast made a unanimous consent request to structure consideration of the legislation (had he not, other Members would have had the ability to call it up on their own). The unanimous consent request provided that: (1) the resolution be in order to consider at any time; (2) there be an hour of debate, equally divided and controlled; and (3) no other motions be allowed en route to a final passage vote. Essentially, it was a unanimous consent request to create a special order of business.

And so consideration of H.J.Res72 followed a similar pattern to consideration of the previous two bills today, except there was no motion to recommit, since the unanimous consent request is not under the same limitations as a resolution reported from the rules committee.

In fact, we can zoom ahead through consideration of H.J.Res72 and one of the other bills provided for in the special order of business (H.R. 261) since they all followed the now-familiar pattern of debate, vote, and postponement.

After consideration and postponement of H.R.261, three messages were received from the President:

P. Messages from the President. The Chair laid before the House communications from the president, fulfilling statutory obligations to notify Congress when he makes adjustments to tariffs under the Trade Expansion Act of 1962.

Q. Recess at the call of the chair. After receiving the messages from the president, the chair calls a recess at 4 p.m. under the Rule I, clause 12(a) authority. This was covered in part I.

R. Vote Stack. At 5:16 p.m. the House is called to order and the recess expires. The chair announces that proceedings will resume on the questions previously postponed, and announces the order votes will be taken. Recall that up to seven votes may happen:

• the motion to commit on S.1383 and, if it is defeated, final passage of S.1383;

• the motion to recommit on H.R.3617 and, if it is defeated, final passage of H.R.3617; and

• the motion to recommit on H.R.261 and, if it is defeated, final passage of H.R.261; and

• final passage of H.J.Res.72, which does not have a pending motion to recommit.

We discussed the convenience of the stack in the previous post. Note the first vote is 15-minute vote, but the chair announces the 6 subsequent votes will be 5-minute votes.

All of the motions to (re)commit fail, and all of final passage votes succeed.

You may wonder what happened to the other bill (H.R. 2189) made in order by the special order of business? They chose not to bring it up. The provisions of the special rule make it in order at any time, and so they can choose to wait and call it up on another day. In fact, it was brought up the next day, on February 12th.

R. Unanimous consent to discharge a resolution and consideration of it. After the vote stack, the House will return to the regular order of business, barring interruption. But there’s always an interruption. Here, Rep. Miller asks unanimous consent to discharge a resolution (H.Con.Res.72) from committee and consider it. It is granted. The resolution is non-controversial—it provides for the use of emancipation Hall for a commemoration—and it is agreed to by voice vote. Almost no one is in the House chamber, most Members having left after the vote stack.

S. Fixing the time of meeting tomorrow. Rep. Miller asks unanimous consent that the House meet at 9 a.m. the following day (instead of noon). There is no objection and thus it is ordered. Note this will also preclude the morning-hour debates.

T. The Speaker begins to entertain one-minute speeches and special order speeches. Legislative business apparently over the night, the chair begins to entertain one-minute speeches, and then special order speeches. These were covered in part I.

After special order speeches are done, it’s time to adjourn:

U. The House adjourns for the evening. At the end of his special order speech, Rep. Schweikert moves that the House adjourn. A voice vote is taken and the adjournment is agreed to at 8:14 p.m. Under the previous order created by unanimous consent, the House will come back at 9:00 a.m. the following day, and there will be no morning-hour debate.

Wrap Up

I always recommend people who are interested in what is going on in the House do these sorts of walk-throughs. But once you get the feel for the House floor by going through the congressional record like this a few times, it’s much easier to use the daily digest, which includes everything we saw here, but cuts out all of the actual debate.

One thing that confuses a lot of people—and also happens to be pretty hard to get a good layman’s explanation of on the internet—is what exactly is happening on the House floor day-to-day.

Honestly, the easiest way to get the rhythm of the House is to actually just sit down and watch it, or review the congressional record (which is much more efficient. Once you do that a few times, you will be well-equipped to use the actual useful internet sources.

So I thought I’d walk you through two consecutive days worth of the House floor, the way I often did it each morning at CRS: by actually reading the congressional record. Think of this as a companion piece to my basic explainer on legislative procedure, which you might want to review prior to this walk through.

Walking Through A Day in the House

Let’s start. It’s the morning of February 10, 2026. You crack open yesterday’s congressional record and turn to the proceedings of the House. We can walk through it, letter by letter.

A. The House met at noon and was called to order. Why did the House meet at noon? On the first day of Congress and then again on the first day of the second session of Congress,1 a resolution (H.Res.6 and H.Res.976, respectively) was agreed to, stating “that unless otherwise ordered, the hour of daily meeting of the House shall be 2 p.m. on Mondays; noon on Tuesdays (or 2 p.m. if no legislative business was conducted on the preceding Monday); noon on Wednesdays and Thursdays; and 9 a.m. on all other days of the week.

But wait, you say, if the resolution says the House meets at 2 p.m. on Mondays, why is it meeting at noon today? Good question! On the first day of the Congress, the House also agreed to a unanimous consent request that, when the House meets pursuant to H.Res.6, it meet two hours early for morning hour debate, one of the various opportunities for Member to talk on the floor unrelated to pending legislative activity. During morning hour debate, Members can speak on the floor for up to five minutes each. No legislative business can take place except for the filing of committee reports. It’s just a chance to talk.

B. The Speaker Pro Tempore was designated. The Speaker is rarely in the chair actually presiding in the House. He’s got better stuff to do than sit there and listen to the debate. Under Rule I, Clause 8(a) of the Rules of the 119th Congress (adopted via H.Res.5 on the first day of the Congress), the Speaker may appoint a Member to perform the duties of the Chair. A rotating cast of Members perform the duty, some of them excellent at the job, others newbies just learning.

C. And that brings us to morning-hour debate. Under the terms of the unanimous-consent request, the parties alternate control of the floor, the opportunity to speak is based on lists submitted by the leadership, and it all has to wrap up no later than 10 minutes before the House is scheduled to be called to order for regular legislative business.

And no, none of the other Members are there listening to this stuff. The House chamber is essentially empty during most debate, and certainly during morning hour non-legislative debate.

And that’s also a key to looking through the record. It may seem like a lot to read, but you can skip all of the substantive debate that you don’t care about. So let’s blow through all of the morning-hour debate, which featured speeches by Rep. Subramanyam (honoring a constituent, talking about a bill of theirs, voicing concerns about the IRS), Rep. Joyce (on the SAVE Act), Rep. Taylor (honoring constituents and various local groups), and Rep. Luttrell (honoring a high school basketball team).

D. At the end of morning hour debate, the hour went into recess. The unanimous consent agreement that structures morning hour requires the chair to use the Rule I, clause 12(a) authority of the Speaker to put the House into a recess “for a short time” at the call of the Chair. Under the agreement, the House is now in recess until the 2 p.m. meeting time for legislative business. At exactly 2 p.m., the Speaker pro tempore (notice it is a different Member now (Mr. Wittman) than it was at the beginning of morning hour (Mr. Smith)) calls the House to order, as required under Rule I, Clause I of the House.

E. The House now proceeds with it’s regular legislative order. Rule XIV of the Rules of the 119th Congress sets the daily order of business in the House. The only thing that can disrupt this order is privileged business. The first three things in the order—the prayer, the reading and approval of the journal from the previous legislative day, and the pledge of allegiance to the flag—are rarely disrupted. The prayer and the pledge are straightforward, but the snappy approval of the journal seen here is accomplished because no member demands a vote on actually reading and approving the journal. Such demands are very rare.

F. One minute speeches. After the prayer, journal, and pledge, it is unusual for the House to continue along the normal order of business as set forth in Rule XIV. Instead, the House tends to operate by continually interrupting the would-be normal order with either privileged business or by unanimous consent of the House. Here, the Chair has chosen to entertain unanimous consent requests for one-minute speeches. The Speaker has full discretion about entertaining unanimous consent requests in the House, and lays out their policy with regard to them on the opening day of each Congress. In the 119th, as is recent practice, the Speaker allows for one-minute speeches and usually entertains a set number of them at the outset of the day. These are, again, opportunities for Members to speak on any topic, but do not give you the floor for any other purpose. Given that you only get a minute to talk, they can often be wonderfully fiery or humorous.

G. As it turns out here, only one 1-minute was entertained. The Chair then put the House into a Rules I, Clause 12(a) recess at 2:04 p.m., just four minutes after calling the House to order. The recess ended at 3 p.m. Such recesses are used to schedule floor action in the House; it would be known by the Members that the leadership was planning to take up the next set of business at 3 p.m., so everyone could easily plan around it. Note we have a third Speaker Pro Tempore (Mrs. Fischbach) at 3 p.m.

H. The House begins considering suspensions. Absent any privileged business or unanimous consent requests, the House would now continue with its order of business under Rule XIV. That almost never happens. Here we see that Rep. Bice is making a motion to suspend the rules. This is a privileged motion under Rule XV, Clause 1 that can interrupt the normal order of business. It essentially allows Members to ask to do more or less anything without regard to the rules of the House. Most of the time, as is the case here, it is just basic requests to pass bills. Rep. Bice is asking to suspend the rules and pass S.3075, a bill to create a congressional time capsule.

Suspending the rules and passing bills is the most common way for the House to approve legislation. The Chair has total discretion about whether to entertain a motion to suspend the rules—with the caveat that it is only allowed on Monday, Tuesday, and Wednesday under the House rules—so the leadership can arrange ahead of time for a set schedule of bills they want to pass via suspension, and they publish a list of bills that will be considered in the House via suspension each week. Once a Member is recognized and moves to suspend the rules, the specific procedures of the suspension motion kick in: a maximum of 40 minutes of debate on the motion/bill,2 no amendments allowed, and a 2/3 majority required for adoption of the motion.

This last provisions means that suspensions must have bipartisan support. That has traditionally meant they were non-controversial, but in the 118th and 119th Congress we have increasingly seen some use of suspensions on major legislation, as the GOP leadership has needed to cut deals with the Democrats to move appropriations bills and other must-pass legislation. Generally, the leadership will not schedule a bill for suspension unless it is backed by both the chair and ranking member of the committee of jurisdiction.

H. After a brief debate, the motion to suspend was brought to a vote. As is common, no one spoke against suspending the rules and passing S.3075. All allotted time was yielded back by the Members controlling the time, and thus the Chair put the question on suspending the rules and passing the bill. A voice vote was taken, the chair declared that the ayes had prevailed in getting 2/3, and thus the bill was passed. unanimous consent, the available motion to reconsider (which allows anyone who voted for the bill the right to bring the vote back up) was laid on the table, which has the effect of killing the right to reconsider and finalizes the vote.

This is all done very quickly by the chair without much thought. No one is opposed to this legislation, and no one is going to offer a motion to reconsider, so the chair simply states the obvious and moves on. Any Member, however, could object if they wished to retain the right to reconsider the vote on the suspension. In that case, someone would need to actually make a motion to reconsider, another member would make a motion to table the motion to reconsider and the House would need to vote to do so.3

Also note that there was no roll-call on the suspension motion. Except where required by the Constitution or House rules, votes in the House are done by voice, and the yeas and nays are only required if demanded by a Member and the threshold set in the Constitution (1/5 of those present) backs the demand. Here, no one demanded the yeas and nays, and so the voice vote carries the day.

The House then proceeded to consider seven other motions to suspend the rules and pass bills, in the exact same manner. We can skip the debate:

On two of these motions to suspend and pass bills, something important happened:

I and J. The yeas and nays were demanded by a Member. On the two motions to suspend and pass H.R. 6644 and H.R. 1531, respectively, a Member demanded the yeas and nays. When this happens, the chair asks those favoring a vote by the yeas and nays to stand up, and if 1/5 of those present stand, the chair orders a record vote. This is all very perfunctory and the chair rarely actually tries to count the 1/5; they almost always just automatically order the record vote.

Note here, however, that they don’t actually take the vote. Instead, the chair uses their authority under Rule XX, clause 8 to postpone the vote. Under the rule, the chair can postpone certain votes for up to two days. Here, the purpose of the postponement is to prevent Members from having to walk back and forth to the House floor constantly; by stacking up all the votes at a convenient and announced time, the Members are freed up to deal with other representative duties without having to worry about being interrupted by floor votes.

K. Processing of Communications. Throughout the day, various communications from the Senate, the president, executive branch agencies, and elsewhere will be received in the House and formally dealt with on the floor, as time permits and the schedule is convenient. Here the Chair is laying before the House a committee resignation by Rep. Beyer, and the resignation is accepted by (implicit) unanimous consent. Routine.

D2. Another recess under Rule I, Clause 12(a). The suspension motions for the day that the chair is going to entertain are complete, and so at 5:04 p.m a recess begins, which goes until 6:30. Why 6:30? Because that is the time that the leadership has previously announced to the Members that the vote stack will be taken on all of the suspension motion that included a demand for the yeas and nays. (See letter D for more on recesses.)

L. Resumption of the Postponed Suspension Motions. After the recess ends and the House is called to order at 6:30 (yet another Speaker Pro Tempore), the chair announces that the proceedings previously postponed under Rule XX will now resume. The record vote will take place via electronic voting. Under the rules of the House, the first vote of any stack must be open for at least 15-minutes, but subsequent votes may be reduced to 5-minutes by the chair at their discretion under Rule XX, clause 9. The chair exercises that discretion, which sets up a 15-minute vote on the motion to suspend the rules and pass H.R. 6644 and a 5-minute vote on the motion to suspend the rules and pass H.R. 1531.

M. The votes are taken on H.R. 6644 and H.R. 1531. As you can see, the vote on H.R. 6644 is 390-8, with 33 people not voting. As that is more than 2/3 in favor, the rules are suspended and the bill is passed. Ditto with H.R. 1531, which is 395-2.

N. The House returns to one-minute speeches. The Chair now exercises their discretion to allow unanimous consent requests for more one-minute speeches. Eleven one-minute speeches are made by Members. It is now 7:10 p.m. and virtually all of the Members have left the chamber for the evening. Legislative business is done for the day. Not technically—the floor is still open for business—but the leadership has made it known that the only thing left that will be entertained is non-legislative debate. That’s just good management practice, and the standard way the floor is run.

N. Special Order speeches commence. Under the announced unanimous consent policies from the first day of Congress, the Speaker will entertain longer so-called special-order speeches under certain policies. These are just like one-minutes, except that you get to speak for up to an hour. You have to sign up with the party leadership, they can’t run past 10 p.m., and there is no more than 4 hours worth of them on any given night. Their genesis is similar to one-minutes—Members want more opportunities to speak on the floor than are available during the normal legislative process.

These things were the bane of the floor staffs’ existence back when there were fewer restrictions and Rep. Gohmert was going the full hour all the time, but now they are much more constrained. Here we see Rep. Clyburn getting 60 minutes for a speech honoring black service members, and then Rep. Haridopolos getting 60 minutes for a speech on affordability, which he shares with a few other Members by yielding them the floor at various points:

Rep. Clyburn uses his full hour. Rep. Haridopolos and friends do not. Right around 9 p.m., the special order speeches end.

O. The House adjourns for the evening. At the end of his special order speech, Rep. Haridopolos moves that the House adjourn. A voice vote is taken and the adjournment is agreed to at 9:01 p.m. Since this is a simple adjournment—rather than an adjournment to a specific time—the House reverts to its previous orders regarding the time of meeting and morning debate, and consequently the House is now set to meet at 10 a.m. on February 10th for morning debate, and 12 p.m. for legislative business.

The remainder of the congressional record is a compilation of actions taken on the floor that aren’t implicated by debate:

This includes: executive communications received by the House, reports filed by committees on legislative items, bills introduced by members, and co-sponsors added to existing legislation.

Wrap Up

I always recommend people who are interested in what is going on in the House do these sorts of walk-throughs. But once you get the feel for the House floor by going through the congressional record like this a few times, it’s much easier to use the daily digest, which includes everything we saw here, but cuts out all of the actual debate.

Coming next: In part II of this two-part series, we will examine what happens on February 10th, when the House takes up legislation via a special order of business reported from the rules committee, the standard way of moving legislation in the House that doesn’t have bipartisan support.

Here are the show notes and helpful links:

What’s going on in Congress

The text of the SAVE Act.

Rep. Luna’s twitter feed.

Senator Lee’s twitter feed.

A breakdown of the rule vote on the CR.

Majority Leader Thune’s cool reaction to the talking filibuster.

Big Picture Takeaways

The Senate standing rules.

The procedural history of the 1964 Civil Rights Act.

Senate Procedural Basics

The Senate standing rules.

The Rules of the House of Representatives.

Roberts’ Rules of Order.

Senate Rule XIX.

The @ringwiss twitter account.

Why the Talking Filibuster isn’t used

James Wallner’s approach to the talking filibuster.

Other Ways of Ending Debate

CRS overview of Senate filibusters and cloture.

Contemporary Senate problems

My old blog post on filibusters and cloture and why it’s hard to count them.

Changes that could be made

Molly Reynolds and her great book.

I’ve been reading a lot about the US invasion/operation/strike in Venezuela that led to the capture and arrest of President Nicolas Maduro. I learned things from the perspectives and/or reporting of Gabe Fleisher, John Yoo, Gil Guerra, Calen Razor, Ben Geman, Missy Ryan and Ashley Parker, Ian Ward, Hans Nichols, Anne Applebaum, Punchbowl, Politico, Noah Rothman, Brookings, Chris Cameron, John Dickerson, Jonathan Bernstein, Richard Hanania, Jamie Dupree, Elizabeth Saunders, James Fallows, Bloomberg, Jack Goldsmith, Julia Azari, Dan Drezner, Nate Silver, Ezra Klein, David French, and many more.

I’m still having trouble wrapping my head around all of this. Here are some things I’ve been thinking about, grouped by topic.

Legal vs. Political

1. The entire substantive debate over the formal legality of presidential war1 annoys me. As I wrote during Syria in 2018, war is a political issue, not a legal one. No court is going to adjudicate this, much less constrain a president from acting.2 And that’s a good thing.

2. That said, arguments about the “legality” of a war—before or after an action—serve an important political purpose: influencing public opinion. And they can be effective. Presidents seek congressional approval—formal or informal—for military operations because elite consensus strengthens foreign policy legitimacy. Conversely, elite dissent signals the public to be wary.

3. Presidents—even, yes, Trump—worry about popular opinion. And while voters mostly don’t care about foreign policy, when they do turn against military action, presidential approval ratings plummet. Trump will never face a ballot again, but when a president is unpopular, other political actors find it easy to challenge them and thwart their policy and political goals.

4. Beyond rhetorical arguments about legitimacy designed to influence public opinion, political actors adjudicate control over the war power by using their authorities to assert power and constrain other political actors. The president can order military strikes. Congress can fund or not fund the military. The president can veto or sign such funding limitations. Congress can pass or not pass authorizations or restrictions. The president can abide by them or not. Congress can impeach and remove him.

   

5. We often end up where we are—the president conducting a limited operation—precisely because of the constraints of elite and public opinion, coupled with the threat of formal congressional action. It sometimes seems like a president is acting purely unilaterally, but in practice Trump’s (or Obama’s) options are hemmed in. You just aren’t going to get an Iraq 2003-type of invasion on zero congressional approval, much less notification.

6. In the long-term, the presidency has accumulated more war power. That’s obvious. Presidents have direct incentives to care about institutional power; Congress has a collective action problem, the cross-pressure of individual substantive goals, and a risk-averse tendency to shirk responsibility. And partisans talk a good game about separation of powers when they are out of power, but ultimately just want to occupy the White House, not constrain it.

7. And it compounds. I liked Jack Goldsmith’s legal assessment about the invasion not because it matters much, but because he nicely lays bare how the executive compiles precedents via dubious actions and then uses them to justify future dubious actions. Just like with the spending power. Pretty soon, voters either like or accept presidential control, and that weakens the ability of Congress to fight back.

Congressional Involvement

8. The administration did not notify congressional leaders ahead of time about the operation, much less seek chamber-wide authorization. The former was probably a political mistake. Their logic—at least according to Secretary Rubio—seems to be a worry about leaks, which is of course also a worry about pushback and opposition. The immediate trade-off is that you risk greater elite and public backlash, post-hoc. I mean, I’d be pissed off, and I think the various leaders are too.

9. I must confess, I don’t actually think Congress is out to lunch here. They aren’t doing what I’d ideally like—formally constraining the administration with limitation provisions in appropriations bills prohibiting funding for certain military activities, or barring military activities under the war powers resolution—but that’s mostly because they disagree with me substantively, not because they aren’t paying attention or acting.

10. To wit: The Senate took up a measure to specifically limit administration war powers action in Venezuela, and it failed 49-51 to be discharged. Ditto with a measure related to Iran, 47-53. The House rejected a similar measure about Venezuela, 210-216. The Senate is going to vote again Thursday on another Venezuela measure. It will also probably fail. You can lament it—I certainly do—but while Congress hasn’t affirmatively approved Trump’s actions, they have affirmatively rejected constraining them.

11. Now, might we be better off living in a world where the president has to come to Congress and get prior approval for these things? I think so. But as I wrote on my new blog(!) this weekend, that ship completely sailed out of the harbor after WW2. Congress does vote each year—at least once, and arguably twice— about presidential war power, when they annually fund the most powerful standing military in history.

12. So one story here is a capacity issue. Prior to WW2, the occasional military buildups were routinely drawn down to almost-laughably small levels. The president couldn’t undertake too much adventurism, because the army more or less didn’t exist. Congress didn’t become weak-kneed in the 20th century; instead, the world changed and Congress decided we need a huge standing military to deal with the speed of a potential WW3. Once that capacity existed, an almost inevitable side effect is small-scale adventurism.

13. It’s not particularly difficult to dictate how the money for our stunning military is used. Congress does it all the time. The NDAA passed this year demands that the administration not alter the troop levels in certain countries. The appropriations bills routinely contain all sorts of limitation amendments barring things. And Members are preparing amendments to the DoD appropriations bill to bar funds being used for further adventurism. They probably won’t pass. But that’s Congress substantively rejecting something, not sitting on their hands.

14. There’s a partisan argument of the form this is idiotic, Matt, of course the issue is that the Republicans in Congress are lackeys for Trump and would never constrain him. I don’t really buy it. Democrats, in this sense, don’t constrain Democratic presidents any better. This is a story of long-term institutional change, which has been partly one of legislative atrophy, partly one of legislative shirking of responsibility, and partly a byproduct of a legislature responsibly responding to changing time by augmenting the executive.

Separation of Powers and War Decision-Making

15. Confession: it makes me uncomfortable when people talk about war powers and discuss the Founders’ intent or the original meaning of the constitution. I don’t think appeals to either of those things make sense, on their own terms, as a rationale for the distribution of war powers in the 21st century.

16. That said, I am generally a believer in a large/greater congressional role in these decisions, chiefly for three reasons:

    1. Legislatures are generally more conservative about war than executives;

    2. Legislative involvement creates broader public consideration; and

    3. Consensus war is more likely to be successful.

17. Note that none of this is an appeal to law or Founders' intent, though much of the 1787 reasoning for arranging war powers they way they did rests on similar beliefs drawn from their experiences. And the rule of law is obviously important, and we want it upheld, but it's a very abstract idea in any individual case of potential warmaking. For me, the substantive advantages of consulting Congress are the real value of the system.

Trump’s Foreign Policy, Substance and Process

18. This issue of process creates substance carries over to the administration. One striking thing about the Trump presidencies has been how much decision-making has been centered in the White House and close cabinet, rather than through the classic interagency process put in place in the wake of the buildup of the modern presidency in the 1930s. It was wild when they wrote the original travel ban in 2017 without consulting the relevant implementing agencies, and it’s wild now to see such bureaucratic freelancing.

19. Again, this isn’t process for process’s sake. The reason the executive branch mechanisms for this stuff are in place are because it works better. The White House—any White House—just doesn’t know much. And it misses all sorts of unknown unknowns. The reason you work through the various agencies and actors is because they can alert you to policy and political problems en route. It’s tempting to bypass them—just like Congress, they leak and push back and all the rest—but you risk a worse policy and less buy-in when you do.

20. And, of course, the immediate mission itself was a stunning display of effective US planning and execution. But it has become plainly obvious in the wake of the operation that there’s no consensus administration plan for what comes next in Venezuela? and quite possibly an ongoing struggle inside the administration over the answer to that question. Somehow, the Secretary of State, the Secretary of Defense, the president, and the White House Press Secretary didn’t seem to have a coordinated policy position on that coming out of the operation.

21. Now, every White House has a tendency to want to centralize decision-making in-house. You have true loyalists in the politicos there, uncompromised by agency-capture or the compromises of Senate confirmation. But Trump is extreme on this dimension. Shoot from the hip, go with your gut, and hope for the best. He’s the only president of my lifetime who seems to truly fit the personalist regime moniker, where the best laid plans may come crashing down on a whim.

    

22. This is related but not quite the same as saying Trump is an authoritarian or a dictator or whatever else you hear on MSNBC. Because, again, this is a question of wisdom rather than law. Bush and Clinton and Biden had essentially the same theoretical free hand in internal executive-branch decision-making. But they adhered to the traditional process because, on average, it works better. Even as it annoyed the hell out of them and constrained them.

23. This circles back to one of the most striking things about the ongoing US actions with Venezuela—how little effort the administration put into convincing anyone about the importance of the mission, or the nature of the problem itself. Not the public, not Congress, not even the rest of the administration itself. No one seems to have a real sense of the larger what or why. This is complete political malpractice, and seems surely related to the ongoing soft public numbers for the policy. I wish I was surprised.

24. None of this is to say that things will go poorly, and I’m certainly not saying the mission was a bad idea. Maduro was a brutal dictator and I’m glad he’s gone, and I hope this all goes well and it very well might. But the nature of personalist leaders is to miss risks and cause unnecessary fuckups. Those are all possible too under the best of executive processes. But this is a percentage game, and you want to play the percentages.

25. I disagree with the notion that there’s no Trump doctrine. It seems more or less obvious to me that Trump: (1) views the world as led by great powers led by great leaders; (2) great powers need to be respected; (3) lesser powers can and should be exploited, and if you instead ally with them you are a sucker missing an opportunity and not a great leader; (4) everything is zero sum. This leads to a basic foreign policy of (1) unwinding American international commitment with weak powers; (2) expanding our influence locally in the western Hemisphere; and (3) staying out of the way of other great powers in their spheres of influence.

26. Read this piece by Elizabeth Saunders. One upshot of this doctrine is that the post-war global order is rapidly fading, and what comes to replace it is fully unknowable.

27. That said, I don’t think Trump’s Venezuela actions are themselves going to tempt other great powers to make similar moves. I saw a lot of people saying “well, now the US will have no leg to stand on if China takes Taiwan” and that just seems like nonsense to me. It has never been the moral high ground that has prevented China from taking Taiwan, it has been the threat of the US military protecting it. That could change, of course, but right now it hasn’t.3

28. I have no idea why Trump wanted to do this. Drugs. Oil. Migrants. China. Just Flexing Power. It’s all possible. But how the administration thinks—and talks—about this going forward will not just be a past-tense clue as to why it was done, but all a building block of how this is thought about going forward. Which makes it all the more striking that one plausible reason has been so absent from the discussion: democracy.

29. And that’s surprising, not only because Venezuela is actually a good candidate for plausible successful regime change toward democracy, but because a stable democratic Venezuela would be a huge help to US interests with regard to all of the other plausible goals.

Cheers,

Matt

At our New Year’s Eve party Wednesday night, it happened with three people left in the game. Geoffrey, Anna, and Tess. One adult and two teenage girls, standing around our island countertop, trying their best to figure out how the hell they were even going to get the game restarted, let alone finish it.

The problem was that twelve other people—those of us who had already been eliminated—were having the time of our lives making it difficult for them to proceed. Someone had turned the stereo up. Like, all the way up. Someone else was working the kitchen lights, flashing them on and off at roughly 5 flickers a second, creating a strobe effect throughout the room.

Four or five people were drumming their hands on the countertop as loud as they could. Separate people were loudly arguing various concerns in Geoffrey, Anna’s, and Tess’s ears. And Eugene—who had seemingly been eliminated in the previous round—was loudly protesting that he wasn’t actually out and strenuously demanding to be dealt in.

Geoffrey made eye contact with me and just started shaking his head. Anna and Tess had given up for the moment and were just staring around the room in wonder. All three of them looked like they might crack at any second and deliver a huge Shut the Fuck Up to one or all of us.1

But of course, that’s exactly what we wanted.

Because then they’d be out of the game too.

A Good Dumb Game, Made Great by a Brilliant Rule

Old-fashioned Spoons is a pretty good dumb game. Get n people, n-1 spoons, and a deck of cards with n ranks, the rest removed. Put the spoons in the middle of a table or island countertop and have everyone sit/stand around it. Deal out the cards so everyone has four. Then have a leader say “pass” about once every three seconds, everyone passing a card left each time.

If you make 4 of a kind, you can grab a spoon. The instant anyone grabs a spoon, everyone can grab a spoon. The person without a spoon gets a strike. Unless no one has 4 of a kind, then the first person who touched a spoon gets a strike. Set it all up again. Rotate everyone one spot around the table. Repeat. We play two strikes and you are out. If someone gets out, reduce spoons by one and cards by one rank. Continue until one person is left.

It’s so stupid but so much fun. And it’s impossible to play without constantly laughing. The intensity of the mad dash for the spoons often takes rookie players by surprise. And the ferocity of normally-calm people is both hilarious and revealing. People dive across the island. The spoons end up on the floor and you see people throw body checks. Minor injuries are not uncommon.

As I wrote last week, you really haven’t lived until you’ve seen your quiet, unassuming neighbor dive across your kitchen counter in her Christmas sweater to try to rip a spoon out of a child’s hand, all while everyone—including the neighbor and the child—is losing it laughing.

But, in the end, traditional Spoons is not a game you ever want to play. Because Talking Rule Spoons completely and utterly dominates it in all respects.2

Ok, the talking rule: once someone is out—and immediately upon them being out—if you communicate with them in any manner, you are also out.

This ups the mayhem dramatically. Because at the end of a round, players who are left are trying to deal the next round, not fully sure if a new person has gone out—was that their second strike?—and 4 or 5 people who are definitely out will be loudly demanding to be dealt in or asking random questions.

And if you even acknowledge any of it, you are out. And so your wife is impatiently asking over and over "what time are we going to get the desserts out?" as your kid is whining for your help while your sister is claiming you forgot to deal her in.

The obvious beauty of the talking rule is that it keeps everyone involved in the game, even after they are eliminated.

The more subtle beauty is that it destroys the very structural foundation of the game itself. Traditional Spoons takes a break between deals, and if there are any problems or disputes, you can easily work it out. Talking Rule Spoons destroys the very idea of between and deal and work it out.

Consequently, the game has two phases. Until the first person is eliminated, you are just playing traditional Spoons. The moment anyone is out, the game becomes the Talking Rule Spoons meta-game, a snake eating its own tail.

Rules, Meta-rules, and the Impossibility of Enforcement

Talking Rules Spoons requires a few meta-rules for people who are out. Ours are very simple. If you are out:

• you may not touch the spoons;

• you may not touch the cards;

• you may not touch the players or throw things at them; and

• you may not impede the basic mechanics of the game.

The last rule is usually explained with the examples that you cannot place your hands in front of the eyes of one of the players, nor may you stand at (or on) the island in a way that makes it more difficult for players to pass the cards.3

Anything else—and I mean anything else—is fair game. You can stay at the island. You can scream. You can bang on the table. You can ask people endless questions. You can dispute rulings. You can demand to be dealt in. You can loudly say “pass” out of sync with the game. You can fake grab at spoons. You can start tossing a football back and forth across the table with someone else who is out.

This all immediately creates wonderfully delicious problems. The first and most important one is that it becomes very difficult to figure out what happened at the end of a round. You enter a grey area where you cannot be sure what happened, but you need to figure out exactly what happened.

Someone will be not holding a spoon. That definitely gives that person a strike. But was it their second strike? Are they out? They will be saying they are not in either case. So you can’t trust them, which means you can’t talk to them. And if they are out, did anyone else accidentally talk to them? Is there anyone you can trust to talk to so you know how many spoons and cards need to be setup for the next round? Did I mention four people will be banging on the table and screaming things at your during all this?

The core problem is that reasonable dispute resolution requires (1) understanding the facts of the situation; and (2) applying the rules to the facts. But both of these things are really hard to accomplish if you can’t talk to people, and particularly if you can’t respond to arguments people are making, even if you know for sure the arguments are ridiculous.

One extremely common Great Moment in any Talking Rule Spoons game is when you are huddling across the island with two other people who you know aren’t out, saying things like “I’m only talking to Dan right now. My understanding is that Sarah just got her second strike, so she’s out, and I’m pretty sure Michael talked to her, so he’s out, so we need to get rid of two spoons and two ranks of cards.” And Dan just looks at you and says, “But I think Anna talked to Michael, was that before or after Michael talked to Sarah?” And you just break down laughing, because you barely heard what he said, because Sarah, Michael, and Anna are all loudly protesting various facts of the matter.

The other delicious moment is the one that opened this post—when the people who are out are flagrantly stretching the limits of the don’t impede the game rule. This puts the still-in players in a bind, because they don’t really have any recourse to enforce the meta-rules except to appeal to the better angles of the out-players nature, in the hopes that individual bad behavior will be shut down by other players who are out. Is it going to be Lord of the Flies or Hayek’s Spontaneous Order?

Talking Rule Strategies

One glorious aspect of Talking Rule Spoons is that a good elimination via the talking rule is almost as satisfying—and sometimes more satisfying—as winning the game. So people go hard trying to bust people once they are themselves eliminated.

The strategies used as an out-player are limited only by your imagination. I’ve been playing for 30 years, and I still see genuinely novel stuff all the time. But generally, there are four categories of plays you might make, depending on your goals:

First, if you are earnestly trying to get someone out, subtle techniques are the best. Walk away from the table for a few minutes, then pop back in and ask someone a normal question unrelated to the game in a calm voice. Stuff like “Where are the paper plates?” or “What time should we have dessert?” can work well.

I busted second earlier this month on a devastating “Mr. Matt, can I charge my phone here?” from a neighborhood teenager in a two-family game. I blurted out “of course,” and didn’t even realize I was cooked. Only one person was out and the game was still very sedate. Devastating.

Game-related incorrect queries can also draw emotionally-charged responses. “I thought you got out?” and “You have a strike, right?” sometimes trip people up before they can rationally collect themselves.

But the key subtle technique is playing it cool the moment you go out. More people bust on the talking rule at the end of a hand than any other time. The chaos and the uncertainty of what happened make it much easier to catch people.

If you don’t rant and rave like an idiot when you bust—easier said than done—you can often drag someone with you just by saying “who doesn’t have a spoon?” or “did you see Dave hit the floor there?” right after the mad dash. And even if you got out four rounds ago, the end of round chaos is a great spot to drop a disagreement about what just happened and see if you can get anyone to bite.

The second category of plays are annoyance gambits. The goal here isn’t necessarily to get people out immediately—though boiling someone over and getting them to lose their temper and scream at you is a truly fantastic badge of honor—but rather to bring up their anger level so you can soften them up for subtle plays later. General game disruptions are classic. Bang on the table. Get everyone who is out to call “Pass” loudly and randomly out of sync with the game. Turn the lights off. Turn the music up. Open the windows during the winter.

Personal annoyance gambits also work well. Stand right in someone’s ear and talk nonsense to them for a whole round. Or grab a whistle and blow it right behind them.

A third excellent set of plays are attacks on the game. First off, interject yourself into all discussions about what is going on. And dispute everything. Second, make lots of fake spoon grabs. It’s not uncommon late in a game to see multiple hands fake going for the spoons after every pass. And while getting someone to wrongly grab a spoon doesn’t always get them out—it might be only their first strike—it is very satisfying when you pull it off.

The last category of talking rule plays are the fourth-wall gambits. You see some stunning stuff here, especially from kids. The basic idea is to start doing things that are truly external to the game, daring someone who is still in to tell you to stop. Are you 17 years old and both of your parents still in the game? Just ask them if it’s ok if you have a beer, and when they don’t answer just go crack one open and start chugging it in front of them. My buddy’s 12 year-old went and found his credit card and started ordering Fortnite V-bucks. Grab your wife’s phone and start reading her texts out loud. Go find your sister’s diary.

Some of the best fourth-wall work are the fake emergencies. Earnest interrupt the game and claim the dog got loose, or some red wine spilled on the carpet, or that two kids broke the TV in the basement. The possibilities are endless.

When my middle daughter was about 11, she pretended to fall down the stairs during a game, after being the first one out. We were 98% sure it was a play—I mean, the Bayesian posterior probabilities here are absurd—but she was legitimately crying and screaming and all of us were standing around her at the bottom of the stairs and what the hell do you do when a tween is laying on the floor shrieking “Daddy, my ankle! Please, this is real!” for more than 3 minutes?

We broke down and talked to her. Because we are idiots.

The Game Theory of Spoons

There’s not that much to the actual game play in Spoons. You have four cards and you keep passing them. Then you try to grab a Spoon. And you try not to talk to people who are out. But there are a few tricks.

First off, remember that the goal of the game is not to make four of a kind, but to grab a spoon. Therefore, one strategy you might deploy—especially when you are on the end of the island and don’t have that many spoons within reach—is to give up on trying to make four of a kind. Don’t even look at your cards. Just pick up whatever is passed to you and send it to your left on the next pass. Keep your eyes on the table so you can get out of the blocks quickly when someone else makes four of a kind.

An alternative play that also works well is to help the person on your left. At a crowded island, it’s very easy to see the other players cards, and if you have a pair card for someone at the start of the hand, you should feed it to them as your first pass, before they pass its twin away. Once you know what they are collecting, you will know when they make four of a kind before they do. That’s quite useful.

A second strategy you see a lot is people who just refuse to talk to anyone. They try to go the whole game completely buttoned-up. It’s a solid move, if you can pull it off. Just commit yourself to not talking. At all. The problem is that it also makes you a target for annoyance plays. People who are out really come after people who seem to be trying too hard, and so if you are going to go this route, expect to have someone camped out on your ear pretty quickly.

Third, throw a lot of fake spoon grabs. That’s just fun. And you’ll be surprised how often you can catch someone with it. But it also softens some people up and slows them way down when a real spoon grab is initiated, which can occasionally be the difference between you getting a spoon and a strike. Here’s an early game fake-grab from New Year’s Eve that nailed someone for a strike:

Finally, take advantage of the chaos. Absolutely enforce the rotation rule after each round when you are on the end of the island and in a disadvantaged position. But if you are in the middle and no one else is pushing for a table rotation, let it go and reap the benefits. Rules only matter if someone is trying to enforce them.

And in Talking Rule Spoons, that’s a lot harder than you might think.

Sure, there’s a lot of serious gaming going on right now. The WSOP is having its annual winter series in the Bahamas. Ditto the World Poker Tour, which is in Vegas right now for its championship. And every credible home card game in the country is running its annual club championships sometime in the next week; my Oh Hell club has its championship on Wednesday, and my home game poker tournament series championship is Thursday.

So did I do any preparation for those events over the weekend? Nope. I spent Sunday afternoon watching the pathetic Giants and working out the formal strategy for my family’s annual Christmas-night Yankee Swap.

The World of Gloriously Dumb Games

For those unfamiliar, Yankee Swap (or White Elephant, or Dirty Santa, or just a grab bag) is a popular gift-giving game played at lots of holiday gatherings. Everyone brings a wrapped present and puts it on the table. You then draw numbers to set a pick order. When it’s your turn to pick, you can either take a gift from the middle and unwrap it, or steal any gift that has already been unwrapped. If your gift gets stolen, you have the same options. Rinse and repeat until everyone has a gift.

Yankee Swap is a dumb game. And I mean that affectionately, like how Philip Seymour Hoffman’s Lester Bangs describes rock n’ roll.

Dumb games are not stupid games. Stupid games—like Tic-Tac-Toe or War—aren’t worth playing except to kill time. Dumb games, played by people with the right balance of too-much-competitiveness, little or no self-consciousness, and laugh-while-you-play absurdity, can be utterly transcendent. A frantic energy in an all-consuming artificial world, as you chase a victory that means literally nothing and everything. All while you can’t stop laughing.

Musical Chairs is the classic of the genre. Pit has stood the test of time as one of the best commercially-sold dumb games, but Hungry Hungry Hippos is best-in-class (though Drone Home is great too). The dumb card game Gabes is the single one I’m most nostalgic for, having played it endlessly for an entire summer with my neighborhood friends when we were 14.

But the greatest of the dumb games is Talking Rule Spoons—and don’t worry, you’re going to get 3,000 words on that later this week. You really haven’t lived until you’ve seen your quiet, unassuming neighbor dive across your kitchen counter in her Christmas sweater to try to rip a spoon out of a child’s hand, all while everyone—including the neighbor and the child—is losing it laughing.

As far as dumb games go, Yankee Swap is decidedly mid. And that’s being generous. It’s not frantically-paced like so many of the great dumb games. Too many normies play it who are too shy about stealing a great gift, and who would never do it purely for the spite and the laughs. You can get stuck with a bummer gift that no one will ever steal and basically be out of the game. It takes a bit too long. And the stakes are a little bit too high; you are playing for actual prizes rather than just the bragging rights of crushing your friends and family at a dumb game.

The Useless Game Theory of Yankee Swap

My family is very into games, both serious and dumb. We also love deconstructing the strategies, especially for the dumb games. I mean, who doesn’t get into hour-long arguments on Christmas evening about proper Hungry Hungry Hippos tactics?

Naturally, our Yankee Swap is pretty cutthroat. In the gloriously dumb way. No one thinks twice about ripping the best gift out of grandma’s hands. Everyone cheers raucously when someone does it. People angle strategically for the best gifts, and generally are thoughtful about strategy. Lots of hooting and hollering.

If you look around the internet, you can get a lot of advice on how to “win” at Yankee Swap, but the problem is that the advice is almost always too generic. Yankee Swap strategy is very sensitive to (1) the rules you are playing under; (2) the distribution of value of the prizes; (3) the relative preferences of you and your competitors; and (4) the degree to which other players will be ruthless EV maximizers and/or make plays out of spite.

So while it’s fun to look at the game theory of a Yankee Swap, it’s not actually all that helpful beyond setting up the basic principles of strategic play, which aren’t that hard to derive without game theory.1

But we’re still going to (briefly) do it. Here’s the plan: first, I’m going to lay out the rules for my family’s Yankee Swap. Then we’ll walk through the game theory of it under constraints that make the game solvable, in order to understand some of the dynamics. Then we’ll relax the assumptions and talk about strategy for the real-world of my mom’s living room on Christmas night.

One Decent Way to Play Yankee Swap

Here are the Yankee Swap rules my family uses:

1. Everyone puts a wrapped gift on the table, so the number of gifts equal the number of players. This is also the number of rounds that will take place. So ten people, ten gifts, ten rounds.

2. Each player draws a number out of a hat. That is the pick order. Each number corresponds to a round.

3. The person with number 1 goes first and picks a gift to unwrap. Anytime a gift is unwrapped, that is the end of the round.

4. The person with number 2 now starts the second round. They may either steal the gift from player 1, or unwrap a gift. If they unwrap a gift, round two ends and player 3 begins a new round. if they steal a gift, the player who had the gift stolen may unwrap a gift and end the round, or may steal another gift.

5. No gift may be stolen twice in the same round. Once a gift is unwrapped and a new round begins, all gifts are again eligible to be stolen.

6. The game ends when the last gift is unwrapped. If you are playing with 10 people, this will be at the end of the 10th round. When the last gift is unwrapped, everyone gets the gift they currently hold.

These are not the only reasonable rules for Yankee Swap, but I think they are the best. The main thing to avoid is gift-stealing cycles. You can’t have Alice and Bob and Chris just stealing the same gift in a circle until someone becomes shamed and gives up. That’s stupid. Some people cap the total number of times a gift can be stolen, but that artificially limits strategy and takes gifts out of play early. The above rules mean every gift is in play every round until the game ends, but limits the endless steals of the same gift within rounds. It’s a solid system.

Of course, the steal rules also form the basis of all Yankee Swap strategy.

Solving My Family’s Yankee Swap, Under Constraints

We have to add two constraints in order to make this game solvable.

1. The prizes must all be fully known; and

2. All players must have identical preference orderings.

The easiest way to do this is model the prizes as money. So, for example if you have five players, make the gifts $5, $4, $3, $2, $1.

Now we can start looking at some games. First, the trivial game with two players, Alice and Bob. We have gifts of $2 and $1. In the random draw, Alice has drawn round 1 and Bob has drawn round 2.

Alice goes first and opens a gift. Round 1 ends. Now Bob can steal the gift or open the unwrapped one. The strategy is trivial—Bob steals if Alice has opened $2, but opens the unwrapped gift if Alice has opened $1. Since Alice cannot steal the $2 back—remember, gifts can only be stolen once per round—she is forced to unwrap the $1, which ends the game.

So the expected value of this game for Alice is $1 and for Bob is $2. The strategic insight is obvious but important: if you go last under these rules, you will always get the best gift. If the best gift is already unwrapped, you will steal it and the game will end before anyone can steal it back; if the best gift is not unwrapped, you will unwrap it and the game will end. Going last guarantees the best prize.

Now consider the three player game, the first non-trivial one. Alice, Bob, and Chris have drawn numbers 1, 2, and 3, respectively. There are wrapped prizes of $1, $2, and $3. What are their expected values for playing the game?

Well, we know Chris is always going to get the $3. He goes last, so he will always steal it or unwrap it. His expected value for the game is therefore $3. What about the other two? This can easily be worked out by common-sense logic:

Alice goes first. There are three scenarios, which each happen 1/3 of the time:

1. If Alice unwraps the $1, no one will ever steal it from her. Bob is going to unwrap, since all the wrapped gifts are better than $1. So she is stuck with $1 and Bob and Chris and essentially playing the 2-player game with $2 and $3 prizes. Whatever Bob draws, Chris will end up with the $3, either by stealing or unwrapping. [Result: Chris $3, Bob $2, Alice $1]

2. If Alice unwraps the $3, Bob will steal if from her, and Alice will then be forced to unwrap. If she unwraps the $1, Chris will steal the $3 from Bob, and Bob will unwrap the $2, ending the game. If she unwraps the $2, Chris will steal the $3 from Bob, Bob will steal the $2 from Alice, an Alice will unwrap the $1, ending the game. [Result: Chris $3, Bob $2, Alice $1]

3. If Alice unwraps the $2, Bob has the first real choice of the game. He can either steal the $2, or he can unwrap, getting either $1 or $3.

   1. If Bob steals the $2, Alice unwraps getting either $1 or $3. If she unwraps $1, Chris unwraps the $3 and ends the game. If she unwraps the $3, then Chris steal the $3, and Alice gets to steal the $2 from Bob, who then has to unwrap $1 and end the game.

   2. If Bob unwraps, he either gets $1 or $3. If he unwraps $3, Chris steals it, Bob then steals the $2 from Alice, and Alice unwraps $1 and the game ends. If Bob unwraps $1, Chris unwraps $3 and the game ends.

   This means Bob stealing or unwrapping is equivalent. In either case, he gets $2 half the time and $1 half the time. [Result: Chris $3, Bob $2 half the time and $1 half the time, Alice $2 half the time and $1 half the time]

Now this is interesting. If Alice unwraps $1 on her first turn, she is obviously stuck with it. If she unwraps $3 on her first turn, she also ends up with $1. But if she unwraps $2 on her first turn, somehow she sometimes gets to keep it. What is going on here?

There are two strategic insights: first, if you get to pick second in the last round, you get the second best prize. Everyone knows that Chris is going to start the last round by getting the $3. So if you can get the $3 in round before that, you know that Chris will steal if from you in the last round, and then you can get the $2. That’s why it does Alice no good to unwrap the $3. Bob can just steal if from her, knowing that Chris will steal it from him in the last round, and that he will then be able to either steal or unwrap the $2.

Second insight: if Chris unwraps to start the last round, Alice and Bob get stuck with whatever gifts they are currently holding. That is, there is no chance for Bob to steal, since Chris unwrapping the $3 ends the game.

And this is why Alice does better when she draws the $2; it sets up two parallel situations, both of which can help her: if Bob steals her $2, she has a chance to unwrap the $3 and therefore get the second pick in the last round after Chris steals it from her; or, if Bob doesn’t steal, he has a chance to draw the $1, and Chris will end the game by unwrapping the $3.

Here’s a table showing the outcomes and expected values of the 3-person game:

But again, the specific outcomes are less important than some of the strategic implications:

• If you go last in this game, you always get the best prize;

• If you hold the best prize going into the last round, you get the second best prize;

• If you unwrap the worst prize, you will always be stuck with it;

• If you unwrap a great prize early, it doesn’t help you much.

I won’t bother going through the details, because it gets too complicated to do by common sense, but here are the outcome and EV tables for the 4-player game:

Let’s consider the strategy for Chris. He gets to go first in round 3. He knows that Dan is going to get the $4 gift in round 4. So why is Chris’ EV less than $3? Why can’t he just grab the $4 gift in round 3, ensuring that Dan will take it from him, and he can then steal or open the $3 gift in the last round?

Because the $4 is only available to steal half the time. The other half of the time, when it is Chris’ turn to go at the start of round 3, the $4 gift is still wrapped. And unless the two unwrapped gifts Bob and Alice have are the $1 and $2 gifts (leaving the $3 and $4 gifts wrapped), it cannot help him to unwrap. He is always no worse off (if the wrapped gifts are $2 and $4) or better off (if the wrapped gifts are $4 and $1) stealing the $3 gift from Alice or Bob.

When he does steal the $3 gift, he hopes that the $4 gift remains unwrapped, so Dan will unwrap it and he can keep the $3. When Alice or Bob unwraps the $4, they now hold the best prize going into the last round, and will be able to steal the $3 from Chris, which will leave him to steal the $2.

One strategic upshot of this is that stealing is usually as good or better than unwrapping. Unwrapping great gifts doesn’t let you keep them, and unwrapping the worst gifts leaves you stuck with them.

Notice also how important the random draw for pick order is under these rules. You usually end up with the prize that corresponds to your pick. Any strategic advantage you can get from smart play will be within the constraint that your pick number controls a lot of your destiny.

Relaxing the Constraints: Basic Real-World Strategy

When you get to the real world Yankee Swap at my family’s house later this month, you run into three realities that complicate the basic game theory:

• No one knows what the gifts are, or how good they are. This applies both globally and during the game. The broad dictate in our Yankee Swap is to put in something worth $20-$50, but that’s a very loose constraint. And you do get about 1/4 of the entries being complete gag gifts. So the ex ante distribution of value isn’t known. But neither is the value of the remaining unwrapped gifts at any point in play; in the toy games above, when there is one gift left, all the players know its exact value. In my mom’s living room, no one knows whether it’s a sweet set of cutting boards or a gag DVD box set from the 90s. The game plays very differently if the distribution of prizes is 20% great, 50% ok, and 30% gag garbage than if it’s 10%, 10%, and 80% across the same dimensions. You can make estimates about your relatives, but you can’t know for sure.

• Everyone has different preference orderings for the gifts. In the toy games, we make the preferences uniform among the players by converting everything to money. But there’s no way to solve for an equilibrium with Alice, Bob, and Chris if we are looking at a toaster, a phone case, and sweater, unless we know their preferences. And even if we can correctly guess their ordinal preferences, we still don’t know the relative utilities.

Luckily, both of these realities imply strategic actions that you can use to improve the chances you get gifts higher up on your preference list than you should based simply on the random draw that assigns you your round number.

The key strategic insight:

• The maximizing strategy is the one that will allow you to go earliest in the last round, since that allows you to both see all the gifts and get a gift that can never again be stolen from you. Obviously, whoever has the last number is going to go first in that round, and they are going to get whatever gift that want, except for the one remaining wrapped gift, which they cannot risk opening, as it may be a gag gift. If you have the last number, congrats, you won by sheer luck. If you do not have the last number, your basic strategy revolves around figuring out how to pick second in the last round, which comes down to figuring out how to get the gift that the person with the last number wants most. Essentially, you want them to steal from you first in the last round.

• The good news is that you know who is going to pick last right from the start! If it’s Aunt Mary, then you know you should be aiming to be holding the gift that is Mary’s first preference as you head into the last round. So long as Mary steals that from you, you will get your top pick, excluding the remaining wrapped gift and excluding the gift Mary just stole from you.

• The bad news is twofold: first, even if you know Mary’s preferences perfectly, you won’t know what Mary’s preferred gift is until the round immediately beforehand, when you will see all but one of the gifts Mary can choose from. Second, even if you do spot something early that you know Mary will put top value, you can’t just grab it early. Someone else might take it from you. Your safest path is to acquire the gift that Mary wants in the round immediately before she picks, such that no one else can take it from you.

If you’ve ever thought about something recursively, you can probably see where this is going. The clear winning strategy under my family’s Yankee Swap rules is to continually steal the gift that the person who goes first in the next round wants the most. That way, you will always go second in each round, and can continue to steal the most desired gift of the next person to go, so long as it’s not the same most-desired gift as the person who just stole it from you.

Indeed, a “perfect game” in our Yankee swap would be something like having the 6th pick, stealing the visible gift the person who picks 7th likes best, then stealing the visible gift the person who picks 8th likes best, and so on, until you steal the gift the last person likes best, they steal it from you on their turn, and then you pick whatever you want from the rest of the gifts.

Someday, god willing, I will do this.

There are complications.

One was mentioned above: if two people in a row have the same top preference, you will not be able to get it, because it will just have stolen from you.

But the most important complication is that if anyone else catches on to what you are doing or figures out the strategy, they can start doing it and preempting you. The person with pick 8 doesn’t have to steal from you the gift you know they like best, they can steal the gift they know the person with pick 9 likes best! Then they get to second next round…unless the person with pick 10 also catches on! This strategy is not in equilibrium. It’s exploitative, and relies on other people making honest picks instead of strategic picks.

And that gets to the general heart of the strategy. You need to be stealing things that other people prefer, rather than things that you want. Your whole goal is to stay in the game and maximize how early you get to pick in the last round. You can only do this by holding a popular item. You should absolutely steal something that you don’t really like but you know everyone else loves.

And for the love of god, you really need to avoid unwrapping. There’s a lot of advice about Yankee Swap along the lines of calculating average values and such, but the bottom line is that you need to be very risk averse with unwrapping, because there’s a huge negative asymmetry in unwrapping a bad gift.

If you unwrap a gag gift, you are stuck with it. No one is ever stealing from you. And if you unwrap an ok gift, you are going to be way down the steal chain in any given round, which means you may be forced to unwrap again, rather than steal one of the opened gag gift and lock yourself into garbage. And every time you are forced to unwrap, you risk locking yourself into a gift no one else wants.

So set aside your preferences and aim to always be holding a gift that is popular and will likely be stolen early in the round. That will allow you to steal another popular gift and keep you early in the order in subsequent rounds. That advice alone will do you well. Steal good stuff, even if you don’t like it.

To really maximize your EV, take into account the preferences of the early pickers in the future rounds, both the person holding the number that goes next and the people likely to be stolen from early on. When it is your turn to steal, you need to consider the preferences of the next person in the pick order, and then the preferences of the person they are likely to steal from first. Those are your targets.

Unwrapping Strategy

What if you have one of the very few first numbers? You are almost certainly going to have to unwrap at some point, because it’s going to be your turn and every visible item will either already have been stolen that round, or will be a useless gag gift that takes you out of the game.

There’s obviously no substitute for being a complete luckbox and landing one (or more) killer early unwraps that you are forced to take. That can also draw some great resentment from the crowd.

But it’s important to remember that unwrapping isn’t random. There’s not a great signal from the size of the gift or whether its a box or bag, but the wrapping paper can give you a clue as to who brought the gift, and that is incredibly valuable information.2 As much as knowing peoples’ picking preferences can help you make steal decisions, knowing their Yankee Swap purchasing decisions might be worth more.

First and foremost, if you can identify someone who would never put a gag gift into the mix, that’s your go to if you are forced to unwrap. Guarantees you something of value. After that, you are looking for the big spenders. This is why it’s hard to grab stuff my sister put in; she has a really polarized Yankee Swap Buying Range. Her good stuff is easily going to be the best stuff in there, and will set you up nicely for strategic play. But she also goes gag maybe 25% of the time. 3

***

Of course, all of this assumes that none of my relatives read this article and take it to heart. Not an unreasonable assumption. But then again, so is the assumption that your quiet neighbor won’t launch herself across the table for a spoon.

Enjoy all the dumb games this month!

Here are sixteen items I found interesting reading or listening to this week. All are recommended, even though I often found myself in disagreement.

#1. Matt Yglesias, Folding A Winning Hand Isn’t Moderation. There’s an ongoing fight between online nerdy progressive and abundance-type Democrats about whether the party should moderate in order to do better in elections. But what this article mostly solidified for me is that it’s really hard to pin down what exactly makes someone a moderate, or what exactly it means to be moderate. I discussed this with my public policy undergrads last night, and we came up with at least eight distinct dimensions of moderation, many of which correlate at times but not always:

• You have a middle-ground position on a policy issue(s). This feels like the classic definition. Some people are hardcore pro-choice. Some are hardcore pro-life. If you don’t like abortion but think it should be legal in the first trimester but with waiting periods and such, you’re a moderate on abortion. Or take Lincoln on slavery in 1858. Doesn’t like it. Wants to prevent its expansion westward. Not in favor of immediate abolition where it exists. And if you repeatedly take moderate positions on individual issues, you yourself are a moderate.

• You buck your party on important issues. You are a congressional Democrat, but you are strongly pro-gun and pro-life. Neither of those positions are ideologically moderate—you are the real deal on life and guns—but since you fall in the middle on some collective ideological scores/scales and you vote with both parties at times, and your own party has to work hard to keep you from bolting at times, you are a moderate. In the aggregate, this is the type of moderation (I think) Yglesias likes and evangelizes: Democrats should just dump some of their really stupid unpopular positions—like backing trans athletes in women’s sports and hating on cops—in order to create a more moderate bundle of policies and (hopefully) attract more voters. I tend to agree with him about that.

• You don’t like either political party and/or you are a swing voter. This applies more to voters than elites, and overlaps with the related concept of the “independent.” Your policy positions aren’t necessarily moderate, but the collection of them makes you dislike both parties and feel alienated from each of them. Maybe you want a higher minimum wage and you really dislike immigration but you hate the ACA and want handguns banned and you voted for Clinton and then Trump. You are orthogonal to ideology and/or at least the partisan organization of issue.

• You are a compromiser. This is the first dimension of moderation that is theoretically completely independent of ideology. Some people in Congress like to cut the deals and get half a loaf, and some people are true believers who refuse to bargain. This is obvious to anyone who’s ever been in any group decision, anywhere; people have different preferences about the value of coming to an immediate policy outcome, different time horizons for success, and different tolerations for anger and gridlock. One structural feature of Congress is that certain jobs more or less require compromise. Appropriators and leaders come to mind. Tom Cole is not an ideological moderate. But he goes for half a loaf all the time. Kevin McCarthy was not an ideological moderate. But he had to cut the deals. And this is why they draw the ire of their party hardliners.

• You are a pragmatist. This follows from having a compromise temperament, but I think is distinct. One way to think about it is as a preference for incremental policy gains over holding out to try to win bigger political victories that might unlock more sweeping change. The eight Dems who backed the CR preferred a deeply compromised outcome over holding out for some plausibly-better outcome down the road. Another completely different angle to this is that people driven by or responsible for on-the-ground outcomes often end up being moderates. It’s why it’s easier to not be a moderate in Congress, and harder in the governors’ mansions. The executives have direct responsibility for on-the-ground outcomes, the legislators don’t. So during COVID, we saw a lot of Republican governors take moderate positions, and a lot of Republicans in the House minority take outlandish extreme positions.

• You are a Burkean conservative. One hallmark of many moderates is that they basically think the system works. They may not love how the elections went and they may have lots of ideas for policy changes, but at the end of the day they believe in the status quo process and the existing institutions of governance. And they are generally scared of the people—left or right—who explicitly want to burn it all down, and skeptical of the people who seem a little too comfortable with things that might risk burning it all down in order to secure policy gains. For many of these moderates, Trump is scary but so is Mamdami.

• You represent a swing-district that went the other way presidentially. Jared Golden and Don Bacon both seem like moderates on many of these dimensions, but they also are practicing a distinct type of electoral politics, something like “I might fit well with my constituents on policy, but I belong to the wrong party for my district and I have to deal with that” politics. Note this is different than being a pro-life, pro-gun Blue Dog Democrat in Georgia in 1990, where you might perfectly represent and fit in with your district, both on ideology and party affiliation. Golden and Bacon need to go out of their way not just as a matter of issue positioning, but also as a matter of partisan identity in both DC and Nebraska/Maine. And their entire state of being as political creatures in the party system forces them to concentrate more energy on re-election and all that entails.

• You are a policy wonk. This is a huge phenomena in DC. If you really dig into an issue that you care about, it eventually boils down to a set of trade-offs that almost always makes it more complicated than the interests on each side of the issue publicly want to admit. And so you naturally begin to see things both ways. And this sometimes makes you a bad/weird candidate on the stump because you end up trying to explain stuff in way too much nuance. Obama and Romney both suffered from this, and it’s why the 2012 election is so unique: two moderates threw health care white papers at each other while everyone else tried to pretend they were crazy extremist partisans.

A lot of this is not directly related to the question at hand for Yglesias and his interlocutors on the internet and in the Democratic party, in part because the question of how a party moderates is somewhat different than the various ways an individual might be a moderate.

But I do think this gets at Yglesias’ frustration at the individual Senators who chose to cut the deal with the GOP to reopen the government; Matt is entirely correct that that they weren’t the most obvious policy moderates in the Senate, and plenty of ideologically more moderate Dems did not vote for the deal. But the ones who did had a a lot of markers of other types of moderation, especially the temperament of compromise and pragmatism. And in some cases, the structural backgrounds. Shaheen and Durbin are appropriators. Hassan, Shaheen and Kaine are former governors. King, Rosen, Cortez-Masto, and Fetterman are from obvious swing states. In some ways, it all makes sense.

#2. Central Air podcast on the Epstein files release. Like the participants on the podcast, I’m more or less bored by the Epstein saga. The whole thing feels way too much like banana-republic politics. There’s a Benghazi political feel to the Democrats picking up the Epstein conspiracy and running with it purely to make political hay, especially after all these years of it being a looney rightwing story. I don’t begrudge them their political grist—politics ain’t beanbag—but I just can’t bring myself to care. If there were people left to prosecute, DOJ would have almost certainly done it by now, under one POTUS or another. It’s a titillating story and a populist dream to see such awful elite behavior and condemn it, but not much else at this point.

I also think there’s a fair amount of potential harm. I don’t have any specific sympathy for people like Larry Summers, but it’s also plainly obvious to me that people found to be doing sleazy things or having friendships with awful human beings shouldn’t be exposed by the government absent some actual charge of criminal behavior. And it’s bad precedent to blow up peoples’ privacy simply because their unethical but legal behavior became known to the government in the course of a criminal investigation. I couldn’t care less what happens to Larry Summers or his career, but there’s something icky about the government’s role in his demise at Harvard.

#3. House and Senate passage of the Epstein release bill. Now this is interesting, and instructive as to the dynamics of legislative politics. After all these months of wrangling, the bill passed the House 427-1 and the Senate by unanimous consent. This was a classic example of how roll call votes often distort the underlying politics and preferences on an issue. The key is that legislators have two uses for their vote in the chamber: (1) to affect the outcome of the vote; and (2) to signal their position on the matter. Often these are tied together: if you hate slavery, want to restrict slavery, and want to signal that you hate slavery and want to restrict it, you vote in favor of the Wilmot Proviso.

But just as often, the two things aren’t necessarily linked. For one, a really easy way to defeat a proposal is for it to never get to the floor. This is especially true if you don’t like something but don’t really feel like publicly opposing it. And Members have lots of gradations of support for things beyond simply their vote. Setting the agenda—both positively and negatively—is a key power of the majority party in the House, and making sure that votes don’t come to the floor on issues the Members of the majority want to avoid is a basic competency of the leadership.

The flip side of this, of course, is that when things do come to the floor in the House, it’s almost never in doubt that they are going to pass. And once you know something is going to come to the floor and is going to pass, your vote is no longer about affecting whether or not it is going to pass; now all you are doing is signaling your position about something that is going to happen. And that changes your calculus from “do I want this to pass” to “what does this signal mean in the context of forward-going politics.”

And that’s what creates the “Vote No, Hope Yes” caucus on tough votes, and the easy votes against big deals. And it’s also what herds people together and creates 427-1 votes on issues that didn’t have enough strength to get to the floor a week earlier. There are just a lot of issues where you don’t want to be on the wrong side of them once they are going to happen. So all of the opposition goes into keeping it off the floor, but once that dam breaks, everyone votes for it.

I’m going to do a whole piece on roll call votes sometime soon, because I think they are generally overused in political analysis of congressional behavior, but it’s important to see them for what they are—decision devices and signaling devices.

#4. Molly Reynolds on the power of the purse. One annoying feature of the end of the shutdown is that a lot of the challenges to administration actions are now moot, either legally or politically, but they will now be filed away in the administration toolkit as political precedents. Decades down the road, when all of the fight and the opposition to them is lost in the sands of time.

#5. Max Spitzer on the origins of the Speaker’s adjournment and recess authority. I’m on the board of our neighborhood pool—seriously folks, hyperlocal politics is the place to be—and we were working on revising our bylaws this week, and one set of decisions was about supermajority voting thresholds for various things, like special assessments or literally dissolving the corporate-membership structure, and the related question of whether this stuff should be a supermajority of a quorum or a supermajority of the whole membership. As you would expect, it gets pretty painful for everyone 20 minutes into a discussion of such things.

And there’s just a very basic sense in which it’s totally unimportant in practice and a waste of time—when is anyone going to try to dissolve the corporate structure of the pool!—but I think you really want to nail this stuff down, because when it does come up you will be glad there’s no ambiguity and that you thought through worst-case scenarios, because the substantive climate in which something like this arises is almost inherently not going to be a calm, reasoned discussion of procedure. The Speaker’s unilateral adjournment/recess authority is a ticking time-bomb, we got a mild sneak preview of it with the shutdown, and we should patch so we never have to deal with it in the wake of it exploding.

#6. Nate Silver on how much football has changed. Interesting throughout. And you don’t need Nate’s analysis to notice the basic change. It’s obvious. You sit down and watch an NFL game this year and it doesn’t even feel remotely like the sport as it was in the 1990s, or for that matter, 2023. One general thing to note here is how much small changes in rules or tactics—like the yard-line a touchback comes out to—affect the global strategies of the participants. Another is how particular improvements in player skill—namely kicking ability—is almost totally asymmetric in favor of offense. Combine those two things and the percent of drives that end in a score has skyrocketed, and the resulting cascade of major strategic adjustments is almost incredible. Going for it on 4th down. Favoring safe short passes and runs over long throws. Trying not to leave teams even 30 seconds of time at the end of halves.

The other side of this is the fan experience. Every major sport has undergone a strategic revolution in the analytics age, but some are more visible than others. A baseball game looks roughly the same as it did 30 years ago. The NHL has opened up quite a bit, but that’s mostly on specific large rules changes in the 90s/00s. Basketball and football, on the other hand, are fundamentally different. I used to think high school football was the most exciting version of the game, because the kickers routinely missed extra points and teams always went for it on 4th and 7 from the 18 or whatever in the 1st quarter, and that stuff literally never happened in the (comparatively boring) NFL. But now things have largely reversed; many high school kickers are competent from 30-35 yards and the game looks more like the old boring NFL, and the modern NFL kickers are so good that teams consider going for it on 4th down on their own half of the field because making it probably worth 3 points and punting is so much more likely to produce opposing points.

#7. Tyler Cowen, interview with Blake Scholl on air travel. One of the most fun and interesting podcast episodes I’ve heard this year. This sidebar on Congress and why defense stuff is built all over the country instead of in a central location is simultaneously correct, naive, and maybe changing:

SCHOLL: Congress. Yes. This is a congressionally optimized supply chain because the way you get a defense program to become a program of record is you maximize the number of votes. You put one process step in every congressional district. By the way, this will be very, very terrible if we actually go to war.

COWEN: How do we fix that systemically? We’re going to have Congress, no matter what. You and Jennifer Pahlka get together and come up with what kind of plan?

SCHOLL: Nobody wants to be the only one who cuts things in their home district. I also think about this in the shower. Maybe I shower too much. I think the Newt Gingrich playbook is underrated. Congress runs together on one platform, and they all agree to be in on something, I think might actually be really important. It doesn’t necessarily have to be partisan. Imagine if we had a bipartisan campaign for the next Congress, and everyone agreed on a few things that are like, “Hey, we’re going to all be in this together. Maybe we’re going to balance the budget, and maybe we’re going to change defense procurement in some way that it doesn’t fix this effect.”

I don’t know what the exact solution is. I think a congressional team all in on the same agenda, because everybody could say, by the way, obviously, we can’t be porking every district. So long as that’s a district-by-district decision, it gets perpetuated. I think there needs to be a team or a theme, and I think this actually could be sold to the public because at a certain level, it’s obvious that it needs to be fixed, and obviously good for America.

Correct that you build support and votes by localizing benefits—I think the space station was literally built in 400+ House districts. Naive that this can be undone by simply developing a bipartisan campaign to avoid it. And perhaps changing now that American politics is nationalized much more than it was a generation ago. Congress looks and functions a lot less like an incumbency-protection scheme than it did 40 years ago, Members have far less ability to drum up opposition party support in districts via local projects, and on major party agenda items we see some evidence of Members choosing party over district. “All politics is local” is far from dead—far from dead—but it isn’t the no-brainer reality in Congress that it was in the 1970s.

#8. Gabe Fleisher on historical uses of the discharge petition. One might ask why the discharge petition rules even exist—why would the majority party provide a way for a tiny handful of their Members to combine with all of the minority in order to do hijack the floor agenda and do something 90% the majority party Members dislike? One functionalist answer is it routinizes, slows down, and makes highly visible a process that could always be done on the fly by a rogue faction anyway; it’s easy enough for a handful of majority party Members to combine with the minority and stop all leadership agenda setting on the floor dead in its tracks until its demands are met, so why not provide a mechanism for doing it that makes it more predictable, observable, and gives you more time to head it off. Also note that the sharp rise in successful discharge petitions as of late might be due to things like cross-party dissatisfaction or back-benchers becoming more strategic and willing to employ hardball, but probably can be explained almost totally by the thin majority margins in the House.

#9. Richard Hanania, on the GOP, racism, nativism, and economics. The title of the article—Should the GOP be more explicitly racist?—is bombastic and misdirecting, but the actual discussion is enlightening. The political problem of having to pretend nativism is about economics and not culture/race leads to obviously dumb economic policy proposals like trying to limit H1-B high skill visas, and precludes the most obvious post-liberal path nationalist conservatives could tack to win-win (from their perspective) on the issue—just endorse an illiberal foreign-worker system like those of the gulf states. Get the economic benefit and the nativist hierarchy. To be clear, this is a normatively good political problem—I’m not wishing conservatives had the right political climate to run on an illiberal foreign-worker platform—but it is helpful in understanding the thicket created by contemporary nativist sentiment and economic reality.

#10. Modestly-related: James Traub on the tougher citizenship test. Count me as a fan. I’m sure some in the Trump administration see this as a way to slow the process of creating naturalized citizens, but cementing deeper civic knowledge into Americans is a worthy goal. If you don’t see America as a blood-and-soil nation but instead a community bound together by a common creed, we have to have ways to nudge forward that creed. Making the entrance exam tougher isn’t going to miraculously change anything, but it’s directionally correct. It’s the same reason I find the singing of the national anthem at high school sporting events a good idea, and find it odd that so many lefties find it distasteful.

#11. Modestly-related: Kelsey Piper on student grades having almost no signal value at this point. There’s a tornado of interests here—administrators, parents, students, teachers—that have selfish incentives to either want inflated grades or find it too exhausting to fight with those who do. One sidecar is the collective action problem. If other high schools or colleges are inflating grades, what happens to our students/children in the eyes of colleges an employers if we don’t join in? Reputational effects might work, but that seems dicey. And so you get systems like the one I observe in Fairfax County, Virginia: rolling gradebooks and bonus points for honors/AP classes and endless grade grubbing and thus an equilibrium where a 4.2 GPA is neither particularly standout nor great evidence of student achievement. Note this signal problem is in theory distinct from the question of learning outcomes, but those are falling too and so it’s hard to see them as unrelated.

#12. This chart of the “shrinking” middle class. Nothing sets off people in my world more than discussions surrounding three indisputable facts: (1) global extreme poverty has declined astonishingly over the last 30 years; (2) Americans have become significantly more wealthy in the last two generations; and (3) wealth inequality in America has risen and continues to rise.

#13. Varieties of post-liberalism. A useful chart/explainer.

#14. Daniel Schuman interviews James Curry. A dimension of legislative politics nobody really talks about is access to information. I’ve said it before, but the best way to get what you want at the PTA meeting is to ambush people on an issue they barely knew was on the agenda. Just show up with a fully prepared presentation, including a handout with a crisp analysis. Just be polite but firm and they will never know what hit them and you will get your way.

The leadership version of this in Congress is to guard the legislative text and the negotiations from the rank-and-file (and, often, the public) for as long as possible. I had direct experience with this at the House Appropriations Committee. We wouldn’t let the other Members of the subcommittee see the draft bill until mere hours before the subcommittee markup, and we wouldn’t let them take copies of it away with them after the markup. We’d take their input beforehand, of course, and try to make sure their priorities were in the bill, but we weren’t going to let them pick it apart line by line for a week before the markup. Insane!

And once your draft bill had to be fully public—back then 72 hours before the full committee markup—you wanted it on the House floor ASAP, lest the vultures around town have too much time to organize against every little provision they didn’t like.

#15. Aphantasia. This is the condition in which you can’t see mental images, and I have a moderate case of it, like between #3 and #4 on the chart at the beginning of this article. The weird thing is that I had no idea about it until maybe 5 years ago when I stumbled across something on the internet—I just assumed everyone saw mental imagines the same as me. And the fact that we don’t seems both creepy and important, adjacent to the stoner conversation idea that maybe we all see the various colors differently. I’m with Matt Yglesias that the linked article focuses too much on the downsides, but the more profound idea for me is that there are aspects of human experience that differentiate us in very basic ways and possible with profound consequences, that we still barely understand or even recognize.

#16. Tyler Cowen on American democracy and why so many people have mistakenly exaggerated its death. I am long on record that what we are seeing in the U.S. right now is much more likely to retrospectively look like a (in my view, negative) transformation of the constitutional order within our democracy than a major erosion of the basic democracy itself, so this confirms my priors and YMMV. Tyler offers five explanations for the mistaken death pronouncements, but an obvious sixth is that many of the pronouncements are strategic, either for purposes of political influence or—more often—for in-group signaling dynamics, a liberal version of the MAGA based ritual.

The shutdown is (almost) over.

After negotiating a deal over the weekend, on Monday the Senate voted 60-40 to pass a package composed of (1) the full year FY2026 appropriations bills for Agriculture, Legislative Branch, and Military Construction and Veterans’ Affairs (the so-called minibus); and (2) a continuing resolution through January 30, 2026 for the remaining 9 unpassed FY2026 bills.

On Tuesday night, the House rules committee met and teed up the bill to go to the House floor on Wednesday, where is should pass as part of the vote stack between 5-7pm. The president will undoubtedly sign the bill, and that could open the government as early as tomorrow morning.

The shutdown impasse ended when five new Democratic Senators (Kaine from Virginia, Rosen from Nevada, Durbin from Illinois, and Shaheen and Hassen from New Hampshire, joined the three who had consistently voted to reopen the government (Fetterman from Pennsylvania, Cortez-Masto from Nevada, and independent Angus King from Maine) to provide enough votes for the deal to overcome a filibuster in the Senate.

If you want to read the best detailed summary of the what’s in the deal, I recommend going straight to the Senate appropriations committee’s mouth and looking the summaries of the MilCon bill, the Agriculture bill, and the Legislative Branch bill, and the section-by-section breakdown of the CR portion.

I found interesting and informative things about the deal and the politics in analysis by Josh Huder, Jonathan Bernstein, Josh Barro, Nate Silver, Dan Drezner, Matt Ygleisas, Ezra Klein, Gabe Fleischer, John Lawrence, Michael Cohen, Jonathan Chait, Dave Karpf, the Central Air folks, and of course Liam Donovan’s twitter feed.

Here are 28 quick thoughts of my own.

The Immediate Policy Outcomes

#1. That the Democrats did not win their top-line policy demands on health care or presidential spending encroachment by shutting down the government is totally unremarkable and you should be skeptical of anyone who claimed it was ever possible and, in particular, anyone who continues to claim it would have been possible if they held out longer.

#2. I’m unimpressed by many of the alleged policy wins Democrats are pointing to in the new Senate CR/minibus; the SNAP funding, the reversal of October RIFs, and the backpay for furloughed federal employees are all internal issues to the shutdown and none would have been necessary if the shutdown didn’t happen in the first place—and all have bipartisan support anyway.

#3. The main policy win I do see is that the Senate has successfully jammed the House Republicans (and, to a lesser degree, the administration) on the three full bills in the minibus, and in particular on the Legislative Branch bill that prevents the gutting of GAO appropriations oversight; this was probably going to happen anyway—the Senate routinely jams the House majority on appropriations bills—but getting the House conservatives to vote for it with a smile on their faces is not nothing.

#4. Getting a guarantee of a future vote in the Senate on the ACA subsidy extensions is absurdly thin gruel and you should laugh at anyone who tells you it’s more than a fig leaf; the Senate effectively already took a version of that vote on Monday when they rejected a procedural motion from Senator Baldwin and holding another vote next month will be slightly-higher profile but ultimately not worth much.

#5. Prior to the shutdown, I thought ACA subsidy extension was a policy that was likely to be approved after a compromise (perhaps by tightening eligibility and/or combining it with something like a tariff-bailout for farmers); it’s now a fair bit less likely, because the increased salience of the issue has turned it into a partisan existential matter. Secret Congress theory and all.

#6. Passing an amended version of the House-passed CR—which was basically a necessity at this point, since the House-passed CR is set to expire on November 21—did require the House to come back to DC in order to pass the bill as amended, meaning Representative-elect Grijalva will be sworn in (tin-foil hat conspiracies aside), but also that the Epstein drama will be back in the news this week.

The Politics of Ending the Shutdown

#7. A truism of politics is everyone thinks their side is too moral and disorganized to be as effective in the face of their amoral, ruthless opponents, but I actually think it might be right that Trump has a higher tolerance/indifference to suffering and that trying to break him in a public pain contest is/was a fool’s errand.

#8. As a short-term public opinion matter, the Democrats took far less blame for this shutdown than I expected; I suspect this is some combination of (1) Trump’s shutdown behavior; (2) shutdowns moving beyond the partisan event horizon and now just reflecting presidential approval; (3) media/public orientation toward the parties, both fair and unfair; and (4) the general unpopularity of the Trump administration right now.

#9. Trump’s shutdown approach really was dumb; he managed to project a strategic indifference/disengagement to it with regard to it being a pressing problem that deserved his attention, but also tried to tactically leverage it to pursue ideological goals, and in the process muddied the water about who was taking the hostages and who was trying to just get the government reopened.

#10. The administration moves on SNAP were particularly befuddling—right after we got done discussing how it would be politically insane for Dems to go to court to try to stop the illegal payments to troops, Trump went to court to try to stop having to provide food to poor people—and (likely) paid a big price for it in public opinion, but again, if you are trying to signal resolve in a political pain contest, you could do a lot worse.

#11. With Trump’s popularity falling and the Dems exceeding expectations in the various elections last week, I don’t think it’s unreasonable for people to wonder why Democrats threw in the towel here, but the general what-the-fuck-were-we-even-doing-this-for sentiment that I’m getting from a lot of liberals is the right question, just posed at the wrong time; shutting down the government was always, at best, the least-worst option, and the endgame was always going to include the Democrats agreeing to reopen the government in exchange for very little, if anything, of substance—and if you didn’t understand that, fine, but it should be apparent that it’s at least plausible now that we are at the high-tide of political value the Dems can wring out of this, and if you think another week, or two, or month of this was going to substantially change it for the better, you need to explain why and how.

#12. My basic sense is that maybe a third or half of the Senate Democrats (1) did not think continuing the shutdown was going to yield any significant further policy or political gains, but (2) was going to produce further suffering among various constituencies and (3) held a fair amount of individual and/or party political risk if Thanksgiving travel turned into a complete shitshow, and (4) might thus potentially throw away the marginal wins included in the negotiated deal.

#13. A better leader than Schumer could have held the shutdown coalition together longer—I certainly don’t think he’s the strongest legislative leader around—but that’s a different take than arguing Schumer orchestrated the ending of the shutdown or was purposefully looking for the off-ramp; we don’t have enough reporting right now to know his exact dealings with the moderate defectors, but my guess is that Schumer would not have personally given up at this particular point if he had the unilateral power to keep it going; consequently, I don’t think it’s exactly right to say the Democrats or Schumer caved—parties are collections of individuals, and while they can try to coordinate and sometimes succeed at it, in the end there’s nothing leaders can do if 10 Senate Democrats adamantly decide they want the government back open and the leaders can’t convince them otherwise.

#14. Exactly 8 Democrats voted for the Senate deal and it got exactly 60 votes in the Senate—meaning no Dems vote in favor just for position-taking purposes; that suggests there may have been a fair number of “vote no, hope yes” Dems, who wanted this over but definitely didn’t want the wrath of the Dem base.

#15. The split vote of Senators Warner (no) and Kaine (yes) from Virginia are instructive here; the most likely explanation is that Kaine just won reelection last year, while Warner is up in ‘26 and wants to avoid any semblance of activist wrath that could lead to a primary challenge next year.

#16. There was no chance the GOP Senators were about to modify the filibuster in order to end the shutdown; that was a fever dream of the odd Trump/liberal coalition last week and a predictable final political argument of Democratic shutdown dead-enders after the deal was cut.

#17. The filibuster is politically beneficial to (1) individual Senators; (2) Senate majority and minority parties; and (3) the Senate as a chamber; the last one in particular is undervalued in public discussion—the Senate wins more than its fair share of House-Senate negotiations because of the filibuster—and it’s one subtle reason why it was easier to nuke the filibuster on nominations. which do not implicate House opinion/negotiations.

#18. Moderate Senators particularly like the filibuster because it (1) makes them players when they are in the minority; and (2) shields them from tough spots when they are in the majority—if you kill the filibuster, they lose their power in the minority and get all the pressure put on them in the majority; in effect, moderates accept overall less policy passing in exchange for policy always moving their direction, regardless of who is in charge.

#19. None of this is great for getting public policy that reflects majority popular opinion as expressed through elections and you wouldn’t design a legislature with the filibuster today if starting from scratch, but it’s just one of many counter-majoritarian features of the federal government that aren’t included in the design of most modern democracies—the veto, a malapportioned upper chamber, and bicameralism itself are all vestiges of 18th century Anglo-American political thought and practice; the filibuster is an easy target because it’s so easy to change, but it only really affects a very narrow window of policymaking—unified governments that have 50 but not 60 votes for something in the Senate.

The Forward Going Politics

#20. Democrats may benefit politically from having the ACA issue rather than the policy; it makes many upscale liberals uncomfortable to think this way, but it’s sound electoral logic to not take your best issue off the table, and double so when the other party has unilateral control of the government.

#21. That the activist base of the Dems has returned to being livid at the leadership for how this has ended is not surprising and there’ a good chance Schumer is toast as Senate Dem leader next Congress, which is of course a big turnaround from the heady days of the first two weeks in October; on the other hand, coalition management was probably the driving force that caused the shutdown, and to come out of it with an activist base angrier than you went in can only be seen as as failure of such management.

#22. Whether the Democrats “won” the shutdown in some objective sense isn’t really important for forward going politics—the key takeaway from the last month is going to be how the parties come to understand what happened; this is part of the reason we are seeing such a furious fight among internal Democratic party actors, all of whom want to influence the accepted party understanding in ways that benefit their future interests and goals (that’s fine!).

#23. My personal hope is that the Dems end up seeing the shutdown as a failure because (1) shutdowns are objectively bad for governance; and consequently (2) we do not want to normalize them as effective politics; that is/was the lesson the GOP finally learned after 2013 and 2019, but I’m definitely worried that the lack of serious political pain for the Dems this month may lead us right back into another shutdown in the coming years.

#24. Of immediate concern, of course, is that the new CR (covering the nine appropriations bills not finalized in the deal) only goes through January 30, 2026 and that creates another possible round of brinksmanship and another possible shutdown; I see a lot of liberals doing some—frankly crazy—talking about how the year-long SNAP funding and such would insulate some pressure points in a second shutdown and that it might be more effective, but I suspect there will be little to no appetite for a second shutdown among the 8 Dems who voted for the deal, and without them, you literally don’t have the votes.

#25. Democratic Senate primary candidates and would-be 2028 presidential candidates are falling over each other to condemn the ending of the shutdown, and what this mostly tells you is how powerful the party activists are in primary elections; this is a huge driver of partisan polarization—much more so than gerrymandering—and a massive driver of behavior on Capitol Hill, as Members do everything they can to avoid primary challengers, which boils down to never leaving an opening to your party activist flank side.

#26. Related, the shutdown is the latest sign that the congressional Democrats may be in the early stages of a party convulsion along the lines of the 2010s GOP, where an activist wing starts playing ever-increasing hardball in primary elections and on the Hill; there are dozens of political ramifications to this, but one obvious one is that we may get a cycle of Dem primary upsets where an extremist defeats a strong general-election candidate in a swing state, a phenomena the Senate GOP struggled with almost a dozen times in the last 15 years.

#27. There’s little evidence that the shutdown will itself directly affect the 2026 or 2028 federal elections—voters typically have higher priorities on election day than procedural fights in Congress from over a year ago; that, however, understates the role that things like a shutdown play in shaping power dynamics within parties and among candidates, and my guess is that shutdown might come to represent a watershed moment for Dems, pushing out on the margin old-style politicians like Schumer in favor of younger, more combative activist actors.

Cheers,

Matt

Gambling—legal or illegal—naturally has both costs and benefits. The main benefit is that a heck of a lot of people really enjoy it as a form of entertainment; go anywhere where people are gathered in leisure activity, and you will quickly observe recreational gambling. It undoubtedly adds to the happiness of many people. It also raises a heck of a lot of tax money for states.

The biggest problems mostly stem from addiction, and they are far from trivial. In many cases, gambling addictions are just as destructive, or more destructive, than alcohol or drug addictions. Problem gamblers often have difficulty holding a job, and may face financial ruin. They often become socially isolated and have increased rates of suicide. And it can often be hidden from friends and family much longer than other addictions that have more obvious physical manifestations.

There are also negative externalities for society. Problem gambling is associated with domestic violence and higher rates of divorce. It highly correlates with criminal activity. And there’s a reason many people are NIMBYs about the building of new casinos in their neighborhood; the generalized economic returns do not outweigh the localized problems that seem to inherently come with casinos.

It’s not at all surprising that many Americans have moral concerns about gambling, and reservations about its legal expansion.

Here are ten thoughts on sports betting, how it fits into the world of gambling, and how it is changing in the modern age.

#1. Gambling is an umbrella word for an incredibly wide variety of activities.

It’s actually pretty weird that we loosely group all the following together:

• four friends betting $25 each on their Saturday afternoon golf match;

• playing blackjack at a casino for $25 a hand;

• putting $25 into an online betting market on the outcome of the Virginia gubernatorial election;

• buying a $25 lottery scratch-off ticket;

• playing poker for $25 at your kitchen table with your family;

• betting your buddy $25 on the outcome of the Army-Navy football game;

• entering a $25 Scrabble tournament that has cash prizes;

• simultaneously playing five $5 online poker tournaments; and

• dropping $25 into a Vegas slot machine.

Each of these things involves gambling $25. But they aren’t even remotely the same activities. Some of them—especially the Scrabble tournament—might not even strike you as gambling at all.

#2. The individual and societal impacts of gambling vary across these types. The moral concerns of cash prize Scrabble tournaments are just completely different than those of state lotteries, and the socially optimal level of weekend golf betting among friends is almost completely orthogonal to that of casino blackjack. Naturally, such distinct moral, social, and economic dimensions suggest varying public policies we might consider for each of them.

Here’s a back-of-then-envelope five-point empirical framework for thinking about the relative individual and social value of the various types of gambling, with corresponding points:

• Is it skill-based or random? Betting on your own physical or mental skill is, on average, less potentially destructive than betting on random outcomes, because it partially separates the gambling from the activity. If the activity can be enjoyed without betting on it, that’s usually a good sign; as the USGA notes in its guidelines for gambling on golf, it’s not at all objectionable when it’s not the primary purpose of the golfing. On the other hand, nobody plays roulette without betting on it. [For the empirical framework, assign one point for skill-based gambling, zero points for gambling on random outcomes.]

• Is it against other competitors, or is there a house? Betting against other competitors is a neutral playing field. Betting against a house creates a third-party commercial incentive to encourage more gambling, at a faster pace, for higher stakes. In effect, the house has a market incentive to create and facilitate problem gambling. [One point for betting against other competitors, zero for betting against the House.]

• Is it negative expected value? It’s certainly possible for winning gamblers to be problem gamblers, but much of the individual problems and negative externalities of gambling come from the lost money, plain and simple. And if the gambling has a negative expected value over the long-run, it’s just going to create way more losing. [If all the money that goes into the bet comes out to one or more winners, one point. If the activity entails a rake, vig, or hold that goes to a house, either half a point or zero points, depending on if it’s small or large.]

• Is it a social or solitary activity? Problem gambling is highly correlated with loneliness, and gambling alone inherently misses out on all of the positive externalities of human interaction. On balance, if you need to call up some friends and meet up with them to engage in a gambling activity, that’s going to be net significantly less destructive than any solo gambling endeavor, all else equal. [If the gambling activity typically occurs in a group of two or more humans, 1/2 point. If they are people you know, another 1/2 point. If you generally do it alone, zero points.]

• How often do you make an individual bet? The speed of gambling matters. It’s harder, on balance, to chase losses and compulsively gamble more than necessarily should if you don’t have actual opportunities to wager. So if a wager’s outcome doesn’t settle for 3 hours, that’s a lot less potentially dangerous than if the outcome settles in 3 minutes. (Related to this, but not exactly the same, is the friction involved in making a wager. How much effort is required to actually bet? But more on that later.) [If there are 30 or more minutes between each possible wager (that’s an essentially random number I just made up), one point. If there are less, zero points.]

Notice that I have not included the monetary size of the wager as a dimension. That’s largely because it’s independent of the type of gambling; you can bet a tiny amount of a large amount on essentially any type of wager. And that is not to say it is unimportant—betting beyond your means is perhaps the surest sign of problem gambling—but instead a recognition that it’s a universal potentially problematic dimension of all gambling endeavors.

#3. Here are the scores of some common gambling activities under this framework. Maximum score would be five—indicating a gambling activity that is skill-based, against other competitors, not negative EV, a social activity, and with long periods between bets. A zero would indicate betting on random outcomes, against the house, with negative expectation, alone, in rapid succession. Again, this is a back-of-the-envelope framework and also reflects some judgement calls I made (e.g. do you know the people at your local poker room? Are you alone at a blackjack table? Is blackjack a game of skill? Is it really skilled to bet on horse races for most people? etc.)

Family poker tournament: 5

Betting with friends on a golf match: 5

Public Scrabble tournament: 4.5

Betting your buddy you can make a 3-point shot: 4

Home game poker for cash: 4

Public card room poker tournament: 3.5

Betting on a horse race you are at: 3

Public card-room poker for cash: 3

Online poker for cash: 2

Casino table games: 1-2, depending on game/conditions1

Mega Millions lottery ticket: 1

Lottery scratch-off ticket: 0

Online roulette: 0

Casino slot machine: 0

I think this list roughly validates the back-of-the-envelope framework, in the sense that eyeballing this roughly corresponds with how I think most knowledgeable gamblers would rank the destructiveness of the various activities.

#4. Slot machines are very, very bad. They got a zero on my framework, but that probably understates how awful they are. If you want the full and devastating details, just read Addiction by Design. Everything about the slot machine reflects more than 100 years of research and testing on how to best create and maintain gambling addicts.

Even at low stakes—like “$1” machines—you can gamble a massive amount of money very quickly, with almost zero “friction,” which is anything and everything that puts time or difficulty between you and your next wager. The negative EV and the variance of the machines are set precisely to maximize long-term monetary losses. They are installed in long maze-like banks specifically to give problem gamblers the feeling of being alone and hidden, where they can get in the “machine zone” trance and ride a dopamine drip until the money is gone.

Even worse, slot machines are huge moneymakers for casinos. It’s easy to think of a blackjack table as the symbol of a Vegas casino, but those days are long gone. Unlike an image you might have in your head from the 1960s, the vast majority of the space at any casino is now allocated to slots, not table games. They have a bigger house advantage. They have much lower labor costs. And they allow problem gamblers a much more conducive environment to enable their addiction.

I think I have only played a slot machine twice in my life. The most recent time was when my family was on vacation in Vegas, and the MGM-branded credit card I have (primarily to get free parking at poker rooms) had also generated me about $100 in free slot play. I was shocked at how quickly I blew through the $100—it literally took me like 3 minutes.

#5. Thesis: the more a gambling-activity resembles a slot machine, the more we should worry about it. In some sense, every game you play against the house at a casino is just a dressed-up slot-machine, a negative EV gamble, but less efficient because of the friction required to attract people to play it who don’t enjoy using an actual slot machine. That’s what I see, anyway, anytime I am walking through a casino to get to the poker room.

And so the blackjack table has a dealer because people like the human dealing real physical cards and you have to deal the real physical cards out and so you can only actually make a wager about once a minute instead of once every 5 seconds and the house edge is much, much lower on those bets anyway. Ditto with the craps table, except there the house also has to put up with the very social nature of the endeavor, with people spending time getting girls to blow on the dice and boisterously celebrating together when they win. All of this makes blackjack and craps—the most prominent of the social table games—very unlike slot machines.

But both blackjack and craps can easily be made to more closely resemble a slot machine: you can remove the humans. One way to do this is to literally convert the casino table games into table-game slot machines; lots of Vegas casinos now have sections where you can play blackjack or roulette or craps in an automated format, without a real deal or other gamblers sitting next to you. Less friction, faster gambling.

Of course, the other way to turn all of this into a slot machine is the internet, which is the ultimate friction-reducer. Not only does it make a hand of blackjack go faster, it removes all of the friction of even getting to a casino.

People are right to be very worried about internet gambling. It turns a lot of types of gambling more or less into slot machines.

#6. Sports betting is increasingly looking like a slot machine. There is a version of sports betting that’s actually a really great and positive form of gambling. It’s the one done by a massive number of Americans every week in the fall: office NFL pick’em pools. Like the one my mother-in-law did for years in the faculty lounge at the high school she taught at. It scores really well on my framework—somewhere between a 4 and 5 depending on if you think it’s skilled (more on this in a moment). Ditto with March Madness college basketball brackets. And ditto with betting your buddy $20 on the outcome of the Giants-Redskins game, because you each like one of the teams.

But modern sports-betting is trending in exactly the opposite direction. There has always been a pretty big illegal market for serious sports betting against a house, that’s not new. But the legalized version has at least three new features. The first, of course, is that it’s legal. Illegal bookmakers certainly have/had profit motives in the past, but they didn’t have the ability to advertise endlessly during NFL broadcasts. Or directly sign partnerships with the sports leagues themselves.

Second, again obviously, is the internet. Putting the sportsbook in everyone’s pocket dramatically reduces the friction to place a bet, and also makes it easier to make a negative EV bet against a house than to make a neutral EV bet against your friends. I don’t think it was particularly hard to find a bookie in 1994, but it still took some effort, some risk, and some trust. Now the human interaction is completely gone. Just you and the machine.

Third, and related, is that the internet unlocks the full potential of continuous betting. Once upon a time, a sports bet was a slow wager. The fastest wager you might be able to make, pre-internet, was something like a bet on the first quarter of an NFL game. Now you can literally find bets on the outcome of the next play. The lines on games are constantly updated, minute-by-minute, meaning there are dozens of betting opportunities, constantly, during an NFL game.

#7. Related, the expected value of sports bets are getting worse. The house edge on a traditional sports bet (like a bet against the spread on an NFL game) is about 4.5%. But the modern internet sportsbooks have discovered a new twist on an old gambling reality: bettors love longshots that have a chance to win a lot of money on a small wager.

This is a well-known economic phenomenon in gambling called favorite-longshot bias. I’ve written a full blog post about it in the past, but it boils down to this: gamblers prefer to bet on a longshot with a big potential payout over a favorite with a small potential payout, even if the longshot has a much worse EV. This has been empirically proven again and again in horse-racing, but it also has an obvious application to the sports-betting market: people love single-game parlays, which are linked bets that multiple things will happen in a game. Like “the Giants will win, the total points scored will go over 40, and Jaxson Dart will throw 3 or more touchdowns.”

The rub is that—as with all longshot bets—sportsbooks can get away with charging a higher house edge on single-game parlays. This is actually true across all forms of gambling; there’s a strong correlation between the odds of the bet and the house edge in offering it; even money bets (like blackjack and craps) tend to have small house edges, but ultra longshot bets (like state lotteries and huge jackpot slot machines) tend have huge house edges.

Why is that? A few reasons. First, losing bettors don’t worry about the edge. When you buy a lottery ticket, you just pay your $2 and 99.9999% of the time you don’t hit the jackpot. And so you never see that the prize has a horrible house edge built into it, and the EV is massively negative. Second, when you do hit a longshot, the prize is large relative to the wager, so the house edge is less apparent. People would go crazy if they won a $10 hand of blackjack and were only given $7. But hit a $2 lottery scratch ticket for $1000, and no one even thinks about how the odds were actually 4000-1 or whatever.

And, of course, anytime bettors love something and it has a higher house edge, you are going to get it in spades from the house. And so every DraftKings ad now features single-game parlays, which have a typical house edge of 20-30%, which is like five to seven times larger than a traditional sports bet. And parlay bets are now accounting for a huge fraction of the revenue and profits of the sportsbooks. And the internet makes them easier to build than ever. And there’s no friction left.

And sports betting is looking more and more like a slot machine.

#8. Sports betting is theoretically beatable, but not really. One allure of sports betting has always been that, in principle, it’s a skilled bet. That means it is sometimes grouped with poker as the two forms of gambling at a casino that aren’t inherently negative EV games. And indeed, there are professional sports bettors who make a living doing it. Some of them are fabulously wealthy.

But it’s mostly an illusion. For 99% of people, sports betting is just random betting. To win at casino poker in the long-run, you need to have an aggregate edge on the 8 other people at the table, and that edge has to be big enough to overcome the house rake from the game. That’s a lot harder than beating your home game, but it’s totally doable. Lots of people do it, and with a modest amount of study, it’s within the grasp of many people, at least at the lower stakes games that are populated by recreational players there to have a good time.

To win at sports betting, you need to have an edge on lines that are set by the aggregate knowledge and betting patterns of the best bettors and handicappers in the world, and that edge needs to be big enough to overcome the house rake. The people who can do it are extensively modeling sports outcomes using high quality data and proprietary models, and then racing to get money down before the lines change. And that’s to get a small 2-5% edge. The average person has no chance of coming close to that. Ever.

If you could have the lines set by the 8 other people at your poker table before the actual lines come out, then you might have a chance. Against the NFL lines on Sunday afternoon after the best bettors in the world have already gotten to them? You are drawing dead.

#9. The sportsbook operators aren’t just neutral actors facilitating wagers. Sometimes you will see sportsbooks presented—again, alongside poker rooms—as neutral operators, who don’t care about the outcome of the gambling because they are just there to facilitate it and take their cut. And indeed, that is what’s happening in a poker room. The house provides the dealers and the tables and the security, but they don’t have an interest in who wins or loses. You aren’t betting against them. They just take their fees and you just have to beat the other players.

Sportsbooks aren’t really like that. Yes, they offer both sides of the same bet (and their edge guarantees a profit if they get equal amounts of money wagered on each side), but they can’t know that their lines are correct and they can’t guarantee that they get equal action. One sharp sports bettor who has a superior model than them could theoretically come in and make a massive +EV wager, costing them a lot of money.

For this reason, the sportsbooks don’t like sharp gamblers. And as soon as they find out you have any proclivity for it—either because you are a consistent winner or simply because you routinely grab best on lines that subsequently settle the other direction (known as CLV in the parlance) or even if you just routinely place bets right as the lines come out—they will attempt to limit your gambling, usually by putting a cap on how much you can bet on any game.

They want the losing bettors to bet as much as possible, but anyone who might be a winner is quickly neutralized.

#10. None of this makes it obvious how to regulate sports betting. Would we be better off without legal sports betting? It’s hard to say. The internet isn’t going anywhere, and illegal sports betting with off-shore sportsbooks will always be an option for gamblers. A ban would obviously increase the friction of betting—you wouldn’t be able to fund an account with Paypal—and it would also cut off the advertising and the league partnerships that are drenching every NFL game with betting-related inducements. But how much gambling would it actually reduce? That’s unknown.

Proponents of legal sports betting also point out that DraftKings and FanDuel are in the best position to identify irregularities in betting patterns that might indicate nefarious gambling-related match-fixing among players. That, of course, creates a chicken-and-egg issue, since such match-fixing almost certainly has become a larger temptation in the age of ubiquitous slot-machine-like legal sports betting.

If I had to guess, I think the trajectory of public opinion is such that some form of increased regulation is coming, perhaps in limitations on types of sports bets or the structures of the single-game parlays or some artificial friction in the internet betting. But I see little chance of a federal ban returning; the industry revenue and state tax revenue is far too high, and the sports leagues too dependent on it.

Today, I’ll be voting for Governor, Lieutenant Governor, state Attorney General, Representative to Virginia’s House of Delegates, Mayor of my town, six Members of my Town Council, and on a local school bond issue that is required to go to the voters.

Five points—old school!—about elections:

#1: Whether or not you personally vote is almost completely inconsequential to the election outcome, but having the right to vote for people like you is crucial to defending your interests. Virtually every identifiable group that is (or has been) denied suffrage in America—teenagers, non-citizens, prisoners, racial minorities, women, and unpropertied men prior to the various effective suffrage movements—gets/got the short end of the stick in public policy.

So go vote today if you are eligible in your community. Or not. It won’t affect the outcome. But thank God or the Founders or Jackson or Lincoln or the suffragettes or LBJ that people like yourself are allowed to vote. It’s improved your life dramatically. You live under the least-worst form of government ever-devised, where the incentives of the rulers line up best with the interests of the population. Don’t take that lightly. Still…

#2: We probably have too many (and to much) elections in America. All we do is vote. Jonathan Bernstein loves to count up all the ballots he casts each four year cycle, and it’s just ridiculous. No one needs to be voting for local water boards or on 30 legislative ballot referendums, and no one has a clue how to choose a candidate for utility commissioner. We have political appointments and elected representatives for a reason. We should trim the ballots and toss the direct democracy.

And from an international point of view, elections are American democracy, because (comparatively) our elections are incredibly numerous, our campaigns are never-ending, and our politicians are far more vulnerable to defeat. This has all sorts of consequences for political culture and public policy, but to me, the main drawback is that it makes people think politics is exclusive electoral politics, when such a huge part of actual politics occurs between and way from the elections. Which brings us to…

#3: Voting is the universal symbol of political participation, but too many people see it as the sum total of political activity. It’s wonderful if people vote, and I encourage everyone to do it. But it’s entry-level politics. It doesn’t even require you to do the one thing that probably most-accurately defines politics—interact with another human. And it makes politics very impersonal and private for people who only vote. Which is really strange when you think about it.

So this year, if your main form of participation is just voting, challenge yourself to take on a bigger political role in your community. My suggestion: go (politely) yell at a local official. In person. About an issue you care about. Believe it or not, they listen! There’s a reason those six grandmas show up at the local planning board hearings. It actually works. And they also know that…

#4: Local elections (and local politics) are important. Local elections aren’t sexy, they doesn’t feature larger-than-life characters playing out a soap-opera drama on your TV, and there aren’t morons on the internet making 5,000 word guides about how to consume the returns. But contrary to the indications derived from media coverage, your town and school board elections routinely have a bigger effect on you and your family than anything going on in Washington. There are no federal elections today, but check out Daniel Nichanian’s awesome election guide. There’s just a ton going on.

And if you want to get involved—running for office, donating money, or just trying to shift public policy—local politics features a impact-to-bullshit ratio that is orders of magnitude better than anything you can do to influence national politics. In fact, my most basic advice for electoral politics is never donate your money or time to a presidential candidate. Instead, pile it into a local race. The marginal good it can do is just so much bigger.

#5. Elections Matter. But perhaps not quite how you think. Reprinted below is an old blog post from 2020. The point is very simple: most people view elections as important because they can alter which people hold decision-making authority in government. But that’s only one way elections affect politics, and it might not be the most important. Equally importantly, elections send a signal to all existing players in the political system, about future possibilities across policy, politics, and elections. How political actors come to understand the meaning of the election shapes their choices about what politics to pursue, what coalitions to form, and what future offices to run for. And that has a profound impact on all of public life.

Today is an excellent example of this. We have state elections in two of our fifty states, plus some various local elections across the country. The actual change in the compositions of the governments of Virginia and New Jersey will of course have an impact on public policy in those states, but the signal received from these two elections—and they way they are understood throughout the rest of the country—is going to shape how national actors behave over the next few cycles.

It’s no exaggeration to say that the results tonight in Virginia will affect choices among some actors about whether to run for president, and how to run for president. In turn, there will be a massive battle this week to shape the understanding of this election, because the actual truth of what happened has much less impact on future politics than the received understand, and the ability to bend that understand has a huge impact on future policy and politics.

But do read the whole thing.

On Tuesday, the United States will hold its 117th biennial federal election to fill seats in the House of Representatives and Senate, as well as its 59th quadrennial election to fill the office of President of the United States. Representatives elected will serve in the 117th Congress, from January 3, 2021 until January 3, 2023; Senators elected will serve in the 117th, 118th, and 119th Congresses, from January 3, 2021 until January 3, 2027. The elected president will serve from January 20, 2021 until January 20, 2025.

How does this familiar structure of elections affect public policy and politics in Congress?

The most basic answer is the one most people intuitively understand: the election will change the composition of the federal government. New members of the House and Senate will have different views on public policy than the departing members they replace, and different priorities for the policy agenda in the 117th Congress. Retirements in both chambers will change the leaders of various committees. New partisan leaders may be elected by the caucuses and/or the chambers. If either chamber sees a change in partisan control, chamber rules will empower entirely different actors to set the agenda, in both committees and on the floor.

Similarly, the composition of the administration will change as well. If former Vice President Biden wins office, virtually the entire political staff in the White House will turnover, as well as some 4,000 executive branch posts that are filled by political appointees, ranging from foreign ambassadors to cabinet secretaries and deputies to lower level agency appointments in the Senior Executive Service. If President Trump wins reelection, there will be less administration turnover, but still more than in a typical three month period. The post-reelection period is a natural breakpoint in an administration, and a common spot for appointees to resign and new nominees to take their place, in addition to hinted administration changes.

Less obvious are several other ways the election will change public policy and politics in the coming months. First, the election resets the time horizon for political actors. With an election looming in the short-term, political actors will often prioritize strategies that reflect the imminent judgement of the voters. With the next election now as far away as possible, those same actors will have fewer concerns about short-term public opinion, giving them more flexibility in making policy compromises or in taking up agenda items that are either less popular or perhaps politically risky.

At the extreme, defeated members and those retiring at the end of the 116th Congress will have no electoral horizon. Freed from ever having to face the voters again, such members can often be recruited to cast votes during the lame duck congressional session in November and December for public policies they would not have backed before the election. Likewise, lame-duck presidents routinely issue lame duck pardons and urge the promulgation of agency rules that reflect a freedom from voter punishment.

The new time horizon alters the outlook for returning members of Congress as well. For example, in the Senate, members who have just won reelection now know they will not face the voters for six years, a political lifetime away, and a full Congress after the next presidential election. They will have maximum freedom from electoral concerns. Conversely, a new class of Senators will instantly be “in cycle,” and may adopt strategies that more closely resemble those of House members, actively focusing on campaign fundraising and increased state attentiveness.

Representatives will be contending with an additional hurdle as they look forward: theredistricting of congressional seats in 2022 subject to the 2020 census. Some members will find themselves suddenly running for districts that are much more liberal or conservative than the one they were elected from, in some cases increasing their probability of a primary challenge, in other cases making the general election much more ominous.

The most underrated impact of the election, however, is the effect it has on the outlook of all players in the political system. The election is a cataclysmic shock to the political system, one that provides a strong signal to everyone involved about what public policy choices will likely succeed or fail in the public sphere going forward. As everyone struggles to understand the meaning of the blunt vote results, elected officials will consider their public policy opportunities. Will new ideas likely be accepted now? Is it the right time for a bold initiative? Are the conditions now right for me to run for Senate, or President?

This becomes even more important for the non-elected actors, who greatly outnumber the elected officials. Executive branch political appointees, interest group leaders, lobbyists, financiers for the parties and candidates, party leaders, staffers, and even individual citizens will all be looking at the signal the election sends, altering their influence strategies. What policies will they push for (or not)? What candidates will they support? Who will they fund? Where will they expend their resources? How will they adjust their operational strategies?

Of course, none of these actors will sit idly by, waiting to receive the signal about what the election “meant.” Instead, most of them will actively try to shape the public meaning of the election, hoping to create optimal conditions for the policies they would like to pursue, the officials they would like to empower, and the future candidates they would like to see succeed. All of this sums to a massive policy fight in the public sphere, where actors who existed before and after the election must reassess their strengths, weaknesses, possibilities, and resources as they plan new strategies in the world created by the election.

As it does every two years, the disruptive nature of the election will rearrange the composition, time horizon, and political outlook of American politics. And while the voters will have their say at the ballot box, the consequences of those votes will be shaped by the continuous public sphere fight among all actors in the political system, as they struggle to understand, shape, and respond to the meaning of the election.

We took Anna (3.5 years old, Minnie Mouse) and Abby (1.5, Bumble Bee) trick-or-treating last night with a rather large group of their neighborhood friends. After we arrived home, we let them each have one piece of self-selected candy (Tootsie Roll Pop for each), and then we put them to bed and got down to the fun stuff: statistical analysis of the haul!

The loot analysis is limited to Anna's trick-or-treating, since Abigail's haul has a selection bias due to skipping some houses that had steep steps and/or scary decorations.

Logistical Efficiency

Total homes approached: 51

Total time trick or treating: 70 minutes

Approaches/Hour: 51/70*60 = 43.7

Comments: We live in a townhouse neighborhood, so even with a dozen pre-schoolers and toddlers in our posse, we are able to cover a lot of ground quickly. In addition, our neighborhood uses a pretty standard system of porch lights and glowing pumpkins to indicate whether the door will be answered, so some strategic skipping (after cursory checks for stoop jars of candy) was employed by the older children, with the younger ones following along. We lost some time due to mildly-enforced rules that all children say "thank you."

Binary Success Rate

Subtotal, doors answered: 29

Subtotal, candy jars on steps: 6

Total, homes delivering candy: 35

Success rate: 35/51 = 68.6%

Comments: Given the housing stock, demographically our neighborhood has a disproportionate number of young families and couples-soon-to-be-families. This depresses the success rate because (a) many of the young families do not leave someone home to hand out candy; and (b) many of the young couples without kids are out attending adult Halloween parties. The jars-on-steps are probably higher than other neighborhoods, because we get virtually no unaccompanied older children who are likely candidates to completely clean you out in one approach.

Loot Gathering Efficiency

Total pieces of candy: 80

Yield/Approach: 80/51 = 1.6 pieces/approach

Yield/Delivery: 80/35 = 2.3 pieces/delivery

Pieces/Hour: 80/70*60 = 68.6

Comments: Yield and rate figures are sub-optimal because we reminded Anna to only take one piece from jars on steps, and attempted to limit multi-piece grabs from bowls, even when offered by distributors. There was some visible shirking of these rules. Counts were made post-bedtime, and reflect one authorized consumption and no observed illegal consumptions.

Descriptive Loot Analysis

Complete list of all pieces of candy (all "fun" size where applicable, unless otherwise noted): seven Kit-Kat, four Skittles, six Laffy Taffy, two pixie stix, one Hot Tamales, four full-size single Reese's Peanut Butter Cups, one miniature Reese's Peanut Butter Cup, one Three Musketeers, one Dots, two sour patch kids bags, one apple head, seven Bottle Caps, one sour punch twist, one Scooby Doo fruit snacks pouch, two sweet tarts, four boxes of Nerds, two Smarties, three Tootsie Roll Pops, one Dum Dum Pop, one bag of Gobstoppers, one bag of pretzels, two bags of Peanut M&Ms, three Twix, three Krackel, two Almond Joy, eight Starburst, one Butterfinger, two Hershey bars, two Cowtails, Two Snickers, and two Crunch bars.

Standard metric of candy value:

10: Reese's Peanut Butter Cup

9: miniature Reese' Peanut Butter Cup

8: Excellent chocolate bars (Twix, Kit Kat, Crunch Bar, Krackel, Butterfinger, etc.)

7: Good chocolate bars plus M&Ms (Snickers, 3 Musketeers, Hershey bar, M&Ms, Almond Joy, etc.)

6: Pops and chocolate sweets (Tootsie Rolls, Tootsie Roll Pops, Dum Dum Pop)

5: taffy-life creations plus Skittles (Laffy Taffy, Starburst, Skittles, etc.)

4: All other Wonka-style candy (Nerds, Bottlecaps, Gobstoppers, sweet tarts, smarties, Pixie Stix etc.)

3: psuedo-candy and sour candy (fruit snacks, sour patch kids, etc.)

2: non-candy (pretzels, apples, etc.)

1: trade-value-to-suckers only (Dots, Cowtails, Hot Tamales, apple heads, etc.)

0: non-food items; items that must be chucked for unsafe packaging.

Bonuses: +25 for each full-size candy bar.

Comments: The standard metric is not debateble, except for whether a Hershey's Kiss comes in unsafe packaging. If not, it's a 6.

Statistical Loot Analysis

Total Haul Value: 445

Mean Piece Value: 5.56

Standard Deviation: 2.24

Median Piece Value: 5

Number of non-food or unsafe items: 0

Number of full-size candy bars: 0

Comments: I thought this was a pretty mediocre haul. Way, way too much Wonka crap, and it's not like we're talking about Wacky Wafers or Runts here, just your pedestrian sweet tarts and Nerds. The high-end was also very unrepresented. Four regular peanut-butter cups? Yikes. No full-size bars? That's unlucky. I'm still in search of a repeat of the holy grail of successful deliveries: October 31, 1989, last house on Primrose Drive, Loudonville NY, which featured full-size Crunch Bars and two-pack Reese's Peanut Butter Cups in a candy jar on the steps!

Outlook for Anna and Abby

Pieces allowed per day: 1

Theoretical last day of Halloween candy: January 17th, 2012.

Estimated adult pilferage rate: 1 piece/day/adult

Estimated "forgot" rate/week: 3

Estimated illegal consumption by children: 0

Realistic last day: December 2nd, 2011.

Comments: My strong working assumption is that 3 year-olds will neither notice missing candy, nor treat themselves to illegal candy. But we'll find out.