The Blather File
Notes from Beyond the Wall …
February 25, 2019
A change on the menus on this front page: The last and final volume of Deschler’s Precedents was published in 2013 and contained the precedents of the House of Representatives on the budget process. These are, naturally, applicable specifically to the House, but are invaluable nevertheless. Volume 18 is entirely dedicated to Chapter 41 and pertains to the laws and rules related to legislative consideration of measures by the House. Here it has been translated, so to speak, into an “online” version, noted as “BCR” (standing for Budget Counsel Reference). It must be emphasized that this is not officially sanctioned by the House Parliamentarian, his office, or anyone associated in an official position in the House. It is a good faith attempt to accurately present the information in the hard copy document in a web format. BCR notes do show up here and there, primarily to indicate changes that have occurred since its publication.
February 15, 2019
The President, and certainly the budget guys at OMB, with presumably at least the Judiciary non-political counsels, input, invoked provisions of the “National Emergencies Act“, codified at 50 U.S.C. 1601-1651 to justify spending money on the border wall. Not surprisingly this has been litigated (in the non-technical sense, though that too) before. The argument over whether the specifics of that Act apply is a much better one to have than over a generalized declaration of authority to reprogram funds (inadvisable at its very best). The context is provided by the President’s “Proclamation Declaring a National Emergency“ and its reference to a “National Security Presidential Memorandum.”
Perhaps one agreement that can be reached is that using this method of funding is not the best way to provide for “border security.” As a generalized concept, everyone is for this last, though the current acrimony over a wall seems particularly political and partisan. This level of harsh rhetoric did not accompany President George W. Bush’s policy of building a southern wall, nor President Barack Obama’s indifference toward the idea. The border wall was even promoted during the NAFTA debate of twenty-five years ago to help ease its passage.
The problem with approaching this issue is that the important budgetary angle, how to dispense budgetary resources of the Federal Government, is overshadowed by the evident interest of the President in a border wall and Nancy Peolosi’s interest in denying him one rather than opposition to the wall itself.
Suffice it to say that “emergency” spending has always been a problem, will always be complicated, and extends beyond the public sphere.
February 15, 2019
A questionable reprogramming budget authority does not sound very revolutionary, though that will likely be the response rhetoric upon the declaration of an “emergency” by the President when it comes. “This is the way democracies die … ” will be trotted out. In a way, we’ve been here before since similarities come to mind about the Iran Contra Affair of thirty year ago. The barest of them, but a few: An irritating Congress putting limitations on the way funds can be used — in that case to support certain foreign policies of the President, which was to implement the Reagan Doctrine of supporting anti-communist forces in Soviet client states. Democrats did not like it though everything pretty much worked out for the best in the end. More than one millennial has uttered the words “The Soviet what?”
Here, depending on how it is done, the idea probably would be to use budget authority already appropriated for the Defense Department and divert it to construction projects along the souther border to build a security wall. The Armed Services Committees will not approve, since they are jealous of every last dime in defense spending, even if it’s squandered on something nonsensical.
The technicalities of reprogramming are simple, the response to a court order is less so. When the inevitable lawsuit is filed, one first has to ask who has standing to get a court to pay attention. The obvious entity would be GAO — they are fully empowered to guard against the Executive Branch spending money not approved by Congress. The Antideficiency Act is just shy of 150 years old, if one dates it to the very first incarnation back in 1870. This puts GAO in an interesting position since it is a Legislative Branch support agency, and beholden to House and Senate leaders and Committees. They do a fine job, though sometimes are a little too oriented toward Executive operations in their budget analysis. That is not surprising since that is most of their workload. Still, GAO does not want to make either the House or the Senate angry and in a split control Congress, that is a tough spot and not inconsequential.
If not GAO, then Member of Congress will be sure to file suit, but their standing is less clear. It is still a fair bet that someone will be able to shop around and get a court to issue some sort of injunction. Then the Administration has a big question to answer, that being whether a district court judge from Hawaii or Minnesota, or wherever, has the power to stop the obligation of budget authority that is a response to a Presidentially-declared emergency? The answer “no” brings a lot of precedent with it.
The future cannot take notes, but a lot of people in the present can and are.
February 6, 2019
Gephardt Rule Redux, what to call it?
In constituting itself, the 116th Congress brought in a bunch of new Democrats, and with it a host of rules changes, all courtesy of H. Res. 6 (116th Congress, which departed from the traditional numbering for such resolutions as H. Res. 5 — but observed the tradition for at least three of the four new majorities since 1995 (the 104th, 110th, and 116th Congresses used that number, while the 110th did not).
That minutiae aside, or perhaps to continue with it, what to make of new House Rule XXVIII? The old rule was called the “Gephardt Rule” after the former Democratic Majority and later Minority Leader under Republican Majorities in Congress. It obtained that name well before he was in such august positions, but the name stuck for the procedure by which the House could avoid a vote on increasing the debt limit. When the House voted on adopting a final budget resolution, it had the effect of generating a joint resolution automatically sent to the Senate without a separate vote, to increase the debt limit by a specified amount.
Since budget resolutions are concurrent resolutions, and hence not enacted into law with a Presidential signature, a joint resolution is necessary — so it still would have to come back to the House if the Senate amended the joint resolution in anyway, but the Gephardt Rule allowed a nice pivot to avoid an unpleasant vote in the initial, and sometimes for the House, final stage — this being so if the Senate wanted to just approve the thing and send it on and not mess around.
The Republicans got rid of it twice. After they repealed it the first time, they realized how valuable it could be, and brought it back when Rep. Dennis Hastert was speaker. When they did this, even though the rule was exactly the same, Democrats dubbed it the “Hastert Rule” in a sort of ham-handed political slap. It did not take, and the rule continued to be referred to as “Gephardt”.
A problem does present itself with the advent of the Pelosi 116th Congress — Republicans could probably be forgiven if they wanted to try and call a return to the Gephardt Rule the “Pelosi Rule”. The House Rules does have it back, but only in a way — it is a different rule in two ways: The original joint resolution was spun off when a final budget resolution was adopted. That means in the form of a conference report or an amendment between the Houses, the latter done in unusual circumstances. In fact deeming resolutions, just to make sure no confusion over the matter could arise, often specifically stated that they did not “contemplate” the ignition of the rule. See § 17.3 Deeming Resolutions of Deschler’s Precedents, Chapter 41. The new rule is triggered when the House approves the budget resolution, and the bar for that is far, far lower than a conference report. The House, until the dark days of the Price Budget Committee gavel where incompetence reached a new pinnacle, generally approves some sort of budget resolution.
The other distinction is that it “suspends” the debt limit rather than changing the actual number. Ever since the increase in the debt limit included in the resolving clause of the Statutory Pay-As-You-Go Act of 2010 — a bill that began as a Gephardt Rule bill — no law has actually changed the amount in section 3101 of title 31 of the U.S. Code. Instead, they have “suspended” the application of the debt limit for a particular time period. They did this in section 30301 of the Bipartisan Budget Act of 2018. The date is fast approaching, as it is March 1, 2019, though that will only trigger the special procedures which is the magic that the Treasury Department conjures up to whip up money until the real doomsday default day arrives. That day is mysterious since it is always imminent, so the boy, his wolf, and the Treasury Department all have something in common.
To call this new rule the “Gephardt Rule” would be misleading, since it’s not the same. These are not minor difference, in particular the relatively low bar of House approval of a budget resolution. To call it the “Pelosi Rule” seems fair in a “turnabout is …” kind of way. Dismissing terming it such as “politics” in other Congressional circumstances would be like complaining about the lack of tea party etiquette at a Manson Family picnic. On this website, politics is bad form, and by which is meant talking point nonsense and rhetorical gibberish that is reserved for Media Press Dojos. Gephardt Redux is a little too obscure and “Gep-Die Hard” seems a stretch, though the rule does seem to spring back to life Jason/Freddie like. Maybe “Pelosi Rule” is as good as any until something better comes up.
January 22, 2019
Saying “it’s the very definition of …” it’s usually meant figuratively. In an odd happenstance, apparently it is now literally the case that the Federal budget is part and parcel of the word “arcana”. Looking that word up brought this definition:
noun: arcanum; plural noun: arcana
secrets or mysteries.
“his knowledge of federal budget arcana is legendary”
either of the two groups of cards in a tarot pack: the twenty-two trump cards (the major arcana ) and the fifty-six suit cards (the minor arcana ).
plural noun: major arcana; plural noun: minor arcana
January 11, 2019
Amidst one of the strangest, silliest really, government shutdowns that has ever occurred, a serious issue has arisen. Government shutdowns, and politics in general, have a predictable dose of egos involved. Its easy to bring that charge against the President, since both he and his predecessor have a rather high opinion of themselves. The sillier part of egoing down the government is on the part of Nancy Pelosi, and to a lesser degree, Chuck Schumer. The newly coronated Speaker Pelosi seems to have read the midterm elections and decided the message is “don’t deal with the President.” She has many years in office, but not that many years in actually making deals, or so it would appear. Why she would want to spend her shiny new Speakership days dealing with the drudgery of a shutdown is mystifying. This should be a time where everything is about vision and changing the House, to “step boldly into the future,” to “make the House look like America,” and to “make the voices of the people heard.” It’s that special time of history where all those type talking points don’t sound so stilted and dumb, a little less so anyway.
The serious issue? That is an intriguing one: Executive power and declaring a national emergency. It is obvious that the President cannot simply spend money on a construction project (such as, say, a border wall) without the authority to obligate budgetary resources. The basic definition of budget authority includes an authority to obligate provided by Congress for an agency to legally commit the Federal Government to transfer to an entity (person, government, corporation, etc.) some sort of consideration (money, services, land, anything of value).
The appropriations are not there in the typical fashion for the construction of a border wall, not in the typical fashion anyway. The term “unobligated balances” is where the President may be looking to get around Congress. This source, though, will have a purpose for which they have been appropriated, and any reappropriation, reprogramming, or transferring, all takes authority. Congress sometimes provides a certain amount of “transfer” authority to help move things along for efficiency purposes, and Administrations love that, and have requested relatively high levels in recent years (particularly under Obama). Still, these conventional methods seem limited and of dubious legality.
The place where budget law becomes less clear is when the President starts talking about his role as Commander in Chief and using money in the Defense Department for purposes Congress may not have envisioned. Military accounts have so much money slogging around in them, undoubtedly enough is available for the relatively small amount causing the shutdown (the difference between $1.6 billion and $5 billion, or thereabout for either).
President Obama was quoted, often, as saying: “We’re not just going to be waiting for legislation in order to make sure that we’re providing Americans the kind of help they need. I’ve got a pen and I’ve got a phone.” If a now President Trump believes the kind of help Americans need is a border wall, and is willing to use the magic words “Commander in Chief” to release construction funds controlled by the Pentagon, the political irony will certainly launch many billable hours for high priced legal firms. The courts have shown themselves willing to get involved in spats between Congress and the President, but this is almost dangerous insofar as the Constitution is less than crystal on whether the Courts can trump Trump on his military role. Even the very notion of judicial review technically in the Constitution (that came from Chief Justice John Marshall’s rich imagination), so whether the President feels a court can order him to stop building a wall when he feels it is a national security responsibility is a set up for what they would call a “Constitutional crisis” in law schools.
January 6, 2019
Oddity for Today: In the House Rules and Manual, the various components of the Rules of the House of Representatives are organized by sections. They run from §621, which relates to the Speaker through §1105b, which relates to the authority of the Chairman of the House Budget Committee to advise the presiding officer as to budgetary levels. The oddity is not that the budget advisory comes dead last in the numbering system for the House Rules (though it has a certain symbolic value that’s fun to point out). No, the oddity is that there is no §666, and it certainly makes one wonder if that is the case because of its satanic implications. The oddity is made even more odd in that this particular omitted section number lies exactly between §665, which relates to the Chaplain of the House, and §667, which relates to its Inspector General. In the House, between the priest and the cop, lies the devil, something probably best omitted.
Sort of a mystery, but it’s still not as mysterious as to why the C-Span clock winds down on votes in 9-second increments. No one seems to know why that is. It just does.
January 6, 2019
Since it was by omission (a virtue in this case) rather than by commission (definitely a budgetary sin when first committed), the fact that the new organizing resolution did not extend one of the most budgetarily obnoxious provisions in the history of such law did not immediately jump out. It should have, but then directed scorekeeping placed in the House Rules does not exactly bring out the passion in people like the House Un-American Activities Committee or even Bella Abzug’s hat. H. Res. 5 from the 115th Congress had the ignominy of including this nugget in the Separate in the Separate Orders of the resolution. The text of it is not that complicated, but enough to put at the bottom — it basically means that any bill that transfers Federal property to a state or local government gets a free pass on budget controls.
To begin with, the context is egregious — those enforcing the budget rules fight “directed scoring”, that is placing a direction in a bill as to how it should be scored, all the time. It is a very, very bad thing to do in the budget-verse. It becomes extremely difficult when the powers have written something into the rules governing the House of Representatives that does exactly that.
The second thing, both big and small, it is abysmally written. The large aspect is that it says that any bill that conveys Federal property will not be viewed as costing anything. It does not say “only those provisions providing for such a conveyance” or that a bill “shall only be for the purpose of such a conveyance”. What it did was say that any unrelated provision could have been ridden that conveyance bill right over all the budget rules without hitting a speed bump. Any new entitlement, any appropriation bill, any tax cut bill, anything, could have just plopped a conveyance of some small parcel of Federal property, and boom, no cost to the entire bill.
This means all the big tax bill (or Obamacare for that matter) needed to do to get a score of zero cost was to give some Federally-owned vacant lot somewhere to Puddle Flats in West Virginia (or any city or any state or any Indian Tribe for that matter). Boom like that.
Oh, it also used “mandatory spending” instead of the proper term “direct spending” which shows an ignorance of proper budget terminology.
This is the resolution text in question — from section 3(q) of H. Res. 5:
(1) In general.—In the One Hundred Fifteenth Congress, for all purposes in the House, a provision in a bill or joint resolution, or in an amendment thereto or a conference report thereon, requiring or authorizing a conveyance of Federal land to a State, local government, or tribal entity shall not be considered as providing new budget authority, decreasing revenues, increasing mandatory spending, or increasing outlays.
(A) The term “conveyance” means any method, including sale, donation, or exchange, by which all or any portion of the right, title, and interest of the United States in and to Federal land is transferred to another entity.
(B) The term “Federal land” means any land owned by the United States, including the surface estate, the subsurface estate, or any improvements thereon.
(C) The term “State” means any of the several States, the District of Columbia, or a territory (including a possession) of the United States.
January 4, 2019
A purely budget law standpoint generally means to be policy neutral, as far as that is possible in an intrinsically political institution such as Congress. Still, the governing metaphor is that making a car’s engine run smoothly is not dependent on what its destination is. From such a view, the organizing resolution (H. Res. 6 (116th Congress)) is all told very budget friendly. It did two things right away that were unexpected: It removed the term limits on membership on the House Budget Committee. From the enactment of section 101 (CBA), other committees feared the Budget Committees would push into their jurisdiction, and one way to keep it weak was to prevent a buildup of budget acumen by its member. The Committee has been eviscerated since the departure of Chairman Paul Ryan, so little chance of that happening. Still, its influence waxes and wanes with the energy and influence of its Chair, but the term limits had become an anachronism only preserved by Republican Leadership really to give it the ability to hand out committee assignments.
The other big one is the removal of the appropriations point of order which was sort of a cutgo for discretionary spending — any amendment causing a “net increase” to spending on an appropriation bill would be ruled out of order. This ran counter to the previous system by which such controls were embedded in the budget resolution through the allocation of budget authority under section 302(a) and suballocations to the various HAC subcommittees through subsection (b) of that section. Getting rid of it is a significant return to the way budgeting had always been done. Its adoption in the first place was a confession by Republican Leadership that it had lost control over budgeting in the House.
January 3, 2019
It’s likely crystal clear in the meeting rooms on the second floor of the U.S. Capitol, in the Speaker’s Offices, but why the new Congress is organizing using H. Res. 5 (116th Congress) only to set up the real organizing resolution, which is H. Res. 6 (116th Congress). H. Res. 5 is the usual number for these things, termed an “organizing resolution”, it reestablishes the rules by extending all the rules of the last Congress, including laws and concurrent resolutions. This last is important since it pulls the budget resolution along with it, so while the Concurrent Resolution setting the budget would normally die at the end of the Congress, along with all other measures (not enacted), a budget resolution does not. What does die is a deeming resolution.
This elicits the question: How will the new majority, the new Speaker observe the rules of the House? Though the best way to look at these things is by getting hold of the House Rules from the 115th Congress and compare it with the amendments contained in H. Res. 6 (116th Congress), but to get the gist of what’s going on, the Majority always places a section-by-section (reformatted for BCR) in the Congressional Record. So it will show up in the issue for January 3, 2019.
Items of interest:
Health Care (ACA/Obamacare): Not directly budget oriented, though a costly item, and it was partially enacted using Reconciliation procedures. It was struck down in Texas v. United States since the Tax Cuts and Jobs Act eliminated the tax component of the law on which the Supreme Court relied, the individual health insurance mandate, to find it Constitutional. Since the Administration, normally responsible for defending the constitutionality of the law, has declined to argue in favor of it, the House has done what it can to try and enter the court case through several provisions.
By the way, this Administration’s approach in declining to defend a law it does not like is not new and was done by the Obama Administration previously. It is not an appropriate action by any Administration.
November 14, 2018
“The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.”
January 3 of 2019 is a Thursday, so the House will convene and likely adopt its organizing resolution the same day. The House is not a continuing body, and since all its rules expire at the end of each Congress, which happens on noon on January 3 odd-numbered years. An interesting aside is how they manage this, since the first action the House takes is to appoint the officers of the House. How a body that no longer exists can vote to do anything is sort of glossed over. Back on January 3, 2017, they adopted H. Res. 1 (115th Congress), which appointed the Clerk, the Sergeant-at-Arms, the Chief Administrative Officer and the Chaplain, technically before anyone formally around to even receive or bring into existence an “H. Res. 1”. No one has ever really complained, and the limbo that is short time before the end of one Congress and the formal beginning of the next has never really been a problem.
They will elect a new Speaker, of course. Since current Speaker Paul Ryan will no longer be a Member of Congress, the ceremonial handing over of the gavel from the Republicans to the Democrats will likely be done by Rep. Kevin McCarthy, who will then be the then former Majority Leader, and then Minority Leader (unless Republicans decide on somebody else). The then newly minted Speaker Nancy Pelosi (unless Democrats decide on somebody else) will be formally in her position.
As important as all that is, the major thing that happens that day is the adoption of “H. Res. 5”, which will be the “organizing resolution” and is where the Rules of the House of Representatives are established, or modified if needed. Since the Democrats have complained for years about the way Republicans have run the chamber, that is what minority powers are supposed to do after all, they will likely want to make a point of the shiny and new stuff they are going to implement.
This includes budgetary rulemaking changes (which in budget law is pretty important). The Democrats were last in the majority for the 110th and 111th Congresses, which covers four budget cycles. They managed to get three budget resolution conference reports adopted (but with a Democratic Senate). That’s not a bad average when comparing it with the years immediately before that time, and the half-dozen years after. While she won’t be able to get a budget resolution adopted in the 116th Congress, not unless a budget deal is reached and it extends to a “Bipartisan Budget Act of 2019”, it is a good bet she will manage a House-deemed budget resolution for fiscal year 2020.
In the Rules package, since no budget resolution was adopted for fiscal year 2019, but rather only one deemed in force by section 30103 of the Bipartisan Budget Act of 2018, the Rules Package could be used to make modifications to that text, since it operates for budget enforcement in the House only anyway. The other option is to do nothing, and since the “deemer” is in law, it will carry over into the new Congress (the “resolving clause” of the H. Res. always includes language bringing forth all the old laws and rules into the new Congress).
Here’s what the Rules Package will likely contain:
Holman Rule. It will nix the “Holman Rule” separate order from section 3(a) of H. Res. 5 (115th Congress). This is an exception to the rule against legislating on an appropriation bill for amendments (1) reducing amounts of money in the bill, (2) reducing the number or salaries of Federal employees, or (3) reducing the compensation of any person paid by the Treasury. During debate, Minority Whip (soon to be Majority Leader) Steny Hoyer said: “It undermines civil service protections.”
Amendment Shield for Appropriation Bills. They might keep clause 2(g) in rule XXI. It is a rule to protect appropriation bills from being changed – any amendment proposing to increase budget authority at all is immediately ruled out of order. This rule shredded the House Budget Committee, or rather cemented its irrelevance in the last Congress, since it rendered the section 302(f) point of order of the Budget Act irrelevant. That is the one that enforces the allocation and suballocation levels contained in budget resolutions. No enforcement, no real need for the allocation or suballocation to begin with and really brings up the question as to the need for the budget resolution (and hence and thence the Budget Committee’s relevance).
Cutgo and Paygo. The new majority will almost certainly bring back the “paygo” point of order, since that was its basic claim to fiscal responsibility last time around. It enforces a “deficit control” regimen rather than “direct spending control”. This really means that it prevents tax cuts with equal vigor, perhaps more so, than increases in non-offset direct spending. From a Republican standpoint, this means it allows taxes to increase to offset increases in direct spending (meaning new entitlements). From a Democratic standpoint it is greater fiscal responsibility since one cannot cut taxes without offsetting the loss of revenue, and thus resources, to the Federal Government. Since it is much easier to cut taxes than to cut spending, and much easier to raise taxes (invariably “on the rich”) to cover the cost of new spending, each standpoint has some truth to it, and also fails to quite tell the whole story at the same time.
Macroeconomic Estimates. Clause 8 of rule XIII requires certain estimates from the Congressional Budget Office (with the service of the Joint Tax Committee sometimes employed on revenue effects) to take into account the effect the bill would have on the economy. It is reserved for “major legislation” and was put in place in the 114th Congress. It is a largely innocuous rule, with the obnoxious aside that it includes the authority for the Chairmen of the House Ways and Means, and of the Senate Finance Committee, to require these kinds of estimates for revenue legislation, instead of the Budget Committee Chairman having sole authority over the subject. It seems minor, but it is a Budget Committee prerogative that was trampled on and shows what can happen when the staff director of the Budget Committee is going to move to the Ways and Means Committee (not as a new staff director though) but still can make decisions to the benefit of the new position to the detriment of the old. The problem with the rule is that it appears to allow for tax cuts to generate offsets through higher growth in the economy, what is termed “dynamic scoring” by some. Democrats have used terms quite derisive of the concept so it is likely a goner, its innocuousness notwithstanding.
It is unfortunate but the egregious practice of waiving all points of order for all legislation coming to the House floor for consideration under a rule will likely continue. This practice is not part of the Rules Package, but rather the mode of operation put in place by Speaker John Boehner after taking the gavel in the 112th Congress. Its continuance is a certainty since it built on the only slightly less autocratic procedure it replaced from the the 111th Congress, put in place by the once and future Speaker Nancy Pelosi. That one waived all points of order in the same fashion, with the exception for the “paygo” point of order.
Not too long ago, and certainly in the early part of the twentieth century, such a practice would have been thought a tyrannical abuse of power that even the “Czar” of the House Uncle Joe Cannon (Speaker from 1903 to 1911) would have found egregious.
This will not bother a Speake Pelosi, since the centralization of power in the Speaker’s Offices will likely remain the case. The real problem, though, is that Nancy Pelosi is not one to come to agreement with the other party. It is not in her DNA. Enough agreement will be managed to keep the government running, but very little more. That might be a good thing, sometimes gridlock works to the benefit of the country. The old conservative maxim of “just don’t do something, stand there” has enough truth in it to hope it might work.
 Within memory, there have only been two instances where “H. Res. 5” has not been the number, both when the House majority parties turned: the 104th Congress and the 110th Congress, when it was “H. Res. 6”.
November 9, 2018
To think about … the mindset toward appropriation Acts has changed quite a bit in the past twenty-eight years. While last year there was a non-event shutdown of the Federal Government for a day. In 1990, the Federal Government also shut down, it started on midnight of a Friday (October 5) and lasted to midnight Monday (October 8), with government wheels beginning to turn again on Tuesday. It being a Columbus Day weekend, it did not shake the earth, though a bit of tutting did occur.
The comparison to last year’s shutdown is not the point here though, it’s how they resolved the appropriations lapses is: Five short term spending laws were enacted (on of them with the ominous sounding number of H.J. Res. 666, ironically reopening the government). No, the difference here is not the shutdown, but the way Congress and the President chose to resolve the situation. To be fair, it was an unusual year in that it was ending after a bipartisan budget agreement, and it all became wrapped up with the debate over the issue of tax increases. A relatively little known Republican Newt Gingrich did not particularly like the inclusion of that policy and made quite a lot of noise during the back and forth in autumn of 1990.
Still, when all was done, the government reopened, but that was on October 9. Congress continued to work on separate appropriation bills, and the authorizing committees continued to work on their pieces of a full measure reconciliation bill (including the Budget Committees contribution of title X, the Budget Enforcement Act of 1990).
Instead of one massive omnibus bill, or several small bills, the President was sent fifteen bills to sign. They became Public Laws 101-506 through 101-520. That includes thirteen appropriation bills, one reconciliation bill (the Omnibus Budget Reconciliation Act of 1990) and the Defense Authorization, and annual event of pretty big deal sort proportions.
The idea of a return to such a mindset, that the appropriation bills should be done separately, and that a deal could be reached of the size of OBRA 1990, and it could include a major restructuring of the budget laws, is so far fetched as to boggle. Still, it is worth mentioning since at the time it was greeted with a rather dismissive attitude: “anyone can raise taxes” and “they’re giving up on real deficit reduction”. Looking back, except for one’s views of taxes, which is such a partisan issue it will be exempt from comment here, the mindset and work effort that went into the entire thing is very impressive, and it would be nice if it could come back in some fashion.
That being unlikely, the other thing that might be nice to return is to bring back the Rules of the House and the role of the House Parliamentarian. Since the Pelosi first time around in 2007 (110th and 111th Congresses), and since then under the GOP, the House Rules have been pretty much all the time. That is a loss, and reflects badly on a great legislative institution.
November 8, 2018
The mid-term elections certainly proved the old adage “Expect the expected.” Well, maybe it’s not that old, and it’s mostly just used around here. Similar to that is the verity that budget law is home to the opposite principle of Occam’s Razor: Among all available approaches to a situation, the most complicated is usually the right one.
The Democrats were expected to take the House and they did. At least here they were, but this is a website that is besides politics. It cannot really be non-politics, since budget law is too dependent on that subject to be pure on the matter. It just attempts to be mind over that matter. Once the euphoria dies down (and it will), once the reality realization kicks in (and it will), both soon, except for those Democrats with a memory, things will look different. Many Democrats will remember they were frustrated by a President Bush and his somewhat indifferent view toward their majority, the reality of the limits of a one-House majority in Congress will settle in. President Trump’s staff is even now working on their computer shortcuts to place the words “executive privilege” in every document imaginable (maybe “Control + W” will work.
For a Democratic majority, this could be a great opportunity to really change things. Maybe for the good, maybe not. Among the possibilities, at least two come to mind, one is likely and depressing: Endless attempts at investigations and subpoenas, and gnashing and thrashing, like a mosh pit with papers and lawyers. Budgeting has been concentrated in the Speaker’s Office under Boehner, and Ryan was very much stuck with it, and you can bet Pelosi will not only stay that course, but may up it a notch.
On some other hand, a budget process deal is the another way to go: It costs very little, the President likely has no real interest and might just like to have something to sign. The Democrats might be able to assemble some “good on budget technicals” people (Richard Kogan and Gail Millar come to mind), and do something worthwhile.
This last would have to come in the wake of the wrap up of the Joint Select Committee on Budget and Appropriations Process Reform bill that will eventually be marked up, though it will disappear very quickly once it sees the light of day. That’s unfortunate, since a great deal of work went into the product, and it was a wonderful opportunity, the cards were just not really on the right table.
Quote for now: If you always say you observe a “post-now” philosophy, you’ll always be in style (or out of it), whichever is better (or worse).
October 26, 2018
The 2018 mid-terms, the election year that should have been certainly beneficial for Democrats, if history is any guide. The election of a new President is followed by something of a retrenchment two years later, which was certainly the case in 1982, 1994, and 2010. This last one is the most interesting from a budget law perspective. When the Republicans retook the House, after four years of a Speaker Pelosi, they did a number of things in reorganizing the institution that raises the question as to whether they will be undone by a return to Democratic control. If that happens, of course.
Beyond getting rid of the ostensibly eco-friendly cafeteria policies, where straws were made out of some weird paper that fell apart and spoons that would melt in any hot liquid (like hot chocolate). The GOP overturned the prohibition on plastic and styrofoam too — the prices didn’t come down though (evidently eco-friendly is expensive business — something a poverty stricken young Congressional staffer is ill-prepared to afford).
More to the point, the GOP also got rid of the last shred of a rules-based system for consideration of legislation on the House floor. Speaker Pelosi brought in the idea of waiving all the rules for all legislation except the “paygo point of order” that said no bill could increase the deficit. The GOP got rid of both: The paygo point of order became a “cutgo point of order”, which retained the cumbersomely poor drafting of the rule, but altered it to apply to only prohibiting increasing direct spending. They replaced the rules policy of “waive all with one exception” to just plain “waive all.” Hence, with the exception of the perennially dysfunctional appropriations process, no bill comes the floor with any of the House rules really applying it to it (motions to recommit are still allowed, but that’s another story).
A bit more minor was the GOP repealing one of its own trademarks — the clause giving special treatment to a point of order raised against Federal Mandates. CRS described how it “repealed clause 11 of Rule XVIII, which allowed amendments striking unfunded intergovernmental mandates on the House floor, unless a special rule adopted by the House specifically prohibited such action.” (See p. 10 of the CRS Report (PDF) for a full explanation).
A Democratic House and a Republican Senate, which seems to be the expected outcome (this is the wrong place for political prognostications though), would end any hope for a return to some semblance of a normal budget process. The hopes were not high to begin with. What would have to happen though, is a “Bipartisan Budget Act of 2019”. With three of them already having been enacted, a fourth would be relatively easy to draft (the first being brilliantly written, of course). The actual numbers they plug in, much gnashing, much frothing, much yelling, but it will all come down to being underwhelming, in all likelihood.
The budget process bill that the bipartisan Joint Select Committee on Budget and Appropriations Process Reform, that’s an interesting question: Nancy Pelosi has no bipartisanship in her DNA, so it would be something of a surprise if she decided to try, right out of the block, a bipartisan budget reform effort. The only reason it might happen is to give Democrats something to talk about other than how much they hate the President. Since that will be the perceived mandate, they may not need anything else. Still, maybe the lesson, one would thing obvious by now, that you need something positive to say to alleviate an overwhelmingly negative political message, would be learned.
September 28, 2018
Here’s a “did you know that …” piece of information, the value of which depends entirely on whether you find this website even the remote bit interesting. The House Budget Committee originally was considered an important enough assignment that it had a ratio similar to the House Rules Committee. The latter committee has 9 members from the majority and 4 from the minority, which is the same regardless of which party is in control. That’s double plus one (sounds like Orwell newspeak). In the early years, House Budget had a 17-8 ratio (Democrats to Republicans) in 1975. This excerpt from an excellent CRS report from 1975 (by none other than Allen Schick) has a rundown:
In the 94th Congress, the rules of the House were changed to expand the Committee to 25 Members. Although the two Budget Committees were established by statute, it is possible for either House to change the section relating to its Committee merely by amending its own rules. Section 904 of the Act provides that Title I (as well as certain other provisions) are enacted as an exercise of the rulemaking power of each House and can be changed in the same manner as other rules of such House.
Addition of two at large Members to the Committee was designed to change the party ratio to 17 Democrats and 8 Republicans in. line with a Democratic Caucus decision that certain major committees shall have a 2-1 Democratic majority. Because of turnovers within Congress and departures from the Budget Committee, 8 Democrats and 2 Republicans received their first appointment to the Committee in 1975
September 13, 2018
A good sign that one is a heartless budget tech is hearing there’s a “monster” storm about to hit the Carolinas and the first thing that comes to mind is “grief, how much is this one going to cost us?” It’s pretty lacking in humanity and sympathy for the human cost, both in property and life. Though in writing this, right now, sitting in South Carolina, with the “barreling down” and “roaring” hurricane named “Florence” of names, it at least puts the whole prospect of property loss and health condition in close view. Florence? Reminiscent of Florence Henderson, and Mrs. Brady wouldn’t hurt anyone. Then again there was that unpleasant maid on “The Jeffersons” who probably would.
Whatever the case, it will cost a lot, politicians will appear sympathetic and worried (and most of them will really be so too — cynicism is an easy knee jerk for observers of Congress and very often wrong in cases such as this). The event brings to mind the old idea of an “Emergency Reserve Fund” to be tapped in cases such as this. While there is already disaster money put aside for such things, it’s really just an annual expense. The big ticket items come with emergency supplementals and spending on “disasters” outside the normal budgeting process.
It’s fair to ask, with some repetition, when is an “emergency” not a “disaster” or vice versa? Both have definitions, but it’s largely in the eye of the beholder, and no one wants to be asked the question “Why did you let people die when all you had to do was spend a little bit of money?”
These events will loose the spending, it will come “barreling” and “roaring” and most of it will be fairly spent. The notion that the Congressional budget process for emergency spending is rational, though, is laughable. Just opening up the check book is okay for certain situations: 9/11 certainly comes to mind. As does Katrina, and some others when many, many, billions of dollars were unleashed with minimal to no questions being asked as to how or what it was to be spent on. That’s actually okay in those situations.
On the other hand, emergencies happen every year, and a supplemental is enacted every year, and the method in non-exceptional circumstances could use an overhaul. Most proposals use the Budget Committees as a kind of emergency oversight watchdog, but until they come back into being real committees, with a purpose, those likely are not viable. Unless the reform is broader and manages to recreate the committees into a semblance of what they once were.
September 9, 2018
While Congress is back from the August recess (“district work period” — does anyone really call it that anymore?), it will not remain for long. Being an election year, a tiresomely consistent event occurring every other year, and while for most Members of Congress it entails spending a good deal of time and money to retain a seat that is pretty safely Democratic or Republican. This year has the interesting “buyers regret” factor, so it likely will be taken very seriously. The reference here is to the mid-term Congressional elections following the election of a new President. These often end up bringing heavy losses to the political party having one the Presidency. It happened to Reagan in 1982, Clinton in 1994, and Obama in 2010. In the latter two cases it also ended with a turnover of control of the House majority.
Since this website is studiously non-political, the question immediately arises, what does this have to do with budget law? Politics is complicated business, but one element that is always relevant, in particular when it comes to budget law, is legislative will. Not simply doing what is right, what is good for the Nation, and on and so forth, but what are Members of Congress able to bring themselves to do? Budget law rarely brings votes with it, and since it is enormously complex, beyond “how much money do I get?”, not many people care. This only one reason among many as to why the process bill to be written by the Joint Select Committee on Budget and Appropriations Process Reform (JCBA) is likely to be a failure, or if a success in any fashion, it will be hard to discern exactly what it is, or whether it really is one.
The Budget Committees have largely disappeared, or have been of limited relevance since the beginning of the 114th Congress (that’s as kind as one can phrase the situation). The JCBA has held a number of meetings, its fifth was in July, and it certainly showed great judgement in inviting Bill Dauster, former Chief Counsel to the Senate Budget Committee, among other accomplishments, the architect of the Budget Process Law Annotated in its three incarnations. Otherwise, it’s hard to know what has been happening there since these things happen behind closed doors, though it does have a seal, which is sort of cool.
The Budget Counsel Reference, in anthropomorphic stylization, will display a number of ideas that should be pursued, along with the two already mentioned. Those two were to restructure the definitions of the budget laws and to bring back “Budget Week”, a document related to enforcing the budget resolution on a weekly basis. These ideas will be set forth, perhaps in the next few weeks, but will include some small sounding things, like “Establish a budget common law through the publication of Budget Law Precedents“. Others are bigger, like using a Joint Budget Resolution, and others which should be common sense but will sound odd, like getting rid of the jurisdiction of the House Rules Committee over budget process matters, and yes that means losing a certain chunk of the way the House operates through points of order and procedures. The other, which Ways and Means will find offensive, is combining Joint Tax with CBO, something so obvious only something as foolish as jurisdictional turf objections could stand in its way.
Those need to be fleshed out, and fun reading it will be, BCR promises.
JULY 27, 2018
In giving suggestions, recommendations (basic kibitzing) to the Joint Select Committee on Budget and Appropriations Process Reform, likely those offering them are big picture kind of folks – like the advocates of biennial budgeting (bad idea) or joint budget resolutions (probably a good idea). This is not that.
How about redoing the definitions? They really are a little messy in the world of budget law: For the Budget Act, they show up in section 3 (CBA). The definitions themselves need updates and plain reconfiguring, such as revisiting new entitlement authority. Why is that still around? It’s a form of direct spending and the distinction was lost long ago, in particular since section 401 (CBA) is rarely, if ever, invoked anymore. Nevertheless, that’s a big task, and it is doubtful this committee (which is called “JCBA” here, just to avoid the length of the real acronym) has the time, inclination, or, frankly, the expertise, to tackle.
Onward. The definitions for common budget law terms also shows up in section 250(c) (BBEDCA), and as with the Budge Act definitions, are ostensibly only for use internally to that law. Common sense, not always in evidence with budget law, does allow these to be used for all kinds of purposes, and together section 3 (CBA) and section 251(c) are used as a kind of glossary for budget law.
These two sections, plus any definitions from the various definition sections of other laws (like section 502 (CBA) for Credit Reform or section 3 of the Statutory Pay-As-You-Go Act of 2010), should be combined into a new section and placed prominently in a new law, into which all the revamped Budget processes should be dropped. Alternatively, organizationally, the Budget Act could be entirely rewritten for this purpose, but a new Act seems a better idea to avoid confusion about a new “section 302” versus an old one.
As with any technical field, such as genetics and their haplogroups and organelles, budget law is rife with jargon (though CSI style uses for mitochondrial DNA don’t show up very often). The definition section is a vital importance in any budget law, almost as important as the table of contents (which is subject to the Byrd Rule by the way).
A small addendum, though perhaps more important than the rest, is that the formatting of most existing definition sections is not as well structured as it could be. The best organized definition section, one easy to navigate and nicely laid out, was ironically struck down by the Supreme Court. It’s section 1026 of the Line Item Veto Act of 1996. That should be the template for all future definition sections.
To the detriment of legislative readers everywhere, this recommendation will likely never be considered.
JULY 7, 2018
Since the summer has been a snooze as far as the budget law is concerned.
Very little seeming to be happening with the Joint Select Committee on Budget and Appropriations Process Reform, not much has come to mind. The select committee will be referred to on this site as the “JCBA” since the name is a bit unwieldy and the letters involved also manage to be somewhat long. These four letters indicate the crux: It’s Joint, it’s a Committee, and it involves Budget and Appropriations Law. Perhaps later, this site will see a document posted by its author on ideas for reforming the budget process not having been heard a hundred times before. Maybe only a few dozen times, but even that would be something.
As an example, is this: Bring Back “Budget Week”. What exactly is Budget Week? This was a weekly (of course) advisory published by the House Budget Committee during the Chairmanship of Rep. Jim Nussle (R-IA). It was put out either on the last day of the week or on Monday and summarized the budgetary aspects of the upcoming legislative week. It gave a short summary of each bill, much shorter for bills going on the Suspension Calendar, but more importantly provided information about the compliance with budget enforcement.
As a short hand, three flags could be given to a bill going under a rule — a green, yellow or red. The green can likely be guessed as to meaning, no violations at all. The yellow meant that perhaps less egregious violations might have shown up, either very small or ones they intended to fix. The dreaded red flag meant a serious violation that the Committee and Republican Leadership either could not or would not fix. It was surprising how much anger getting a red flag would elicit from those in power — chiefly among the staff, but Members did not like it either.
The unfortunate result was that being straightforward and totally honest with the distribution of flags became more important than the text that described the actual violations. The pressure on the House Budget Counsels to avoid giving a red flag was immense and very often a “no flag” option was the only way to maintain a shred of respectability. The Budget Week of 10 June 2002 is a random example, but indicates a minor red flag and a “no flag” example.
This publication ended when Chairman Nussle retired and the Majority of the House turned from Republican to Democrat after the 2006 elections. It was not brought back by the House Budget Committee when Republicans returned to the Majority in 2010.
A budget process reform that would be enormously helpful would be to formalize this process, and require the publication of this document. An easily drafted addition to section 308 of the Congressional Budget Act of 1974, which could use some polishing anyway, but includes the requirement that the Budget Committees publish a “current level” showing where committees are in comparison to their allocations. A point of order would be helpful to give the requirement for publication teeth, such as requiring bills to have such an analysis done before being eligible for consideration on the House Floor.
As is a common phrase: No process reform in budget is serious unless it makes somebody angry. Here the anger would likely come from the Speaker’s Office, the Majority Leader’s Office, and the Rules Committee (but this last is redundant with the prior two anyway). Hence, it would be doubtful the JCBA would every go along with it.
The JCBA has not been entirely silent, since it did committee forward with one hearing worthy of note, not for what was said but rather for who participated, and that means William G. Dauster. His expertise on the technical aspects of the budgetary nature of Congressional Budgeting is unequaled, and while he caused constant consternation to the Republicans (he being employed by the Democratic Budget Committee, Finance Committee and in the Senate Leadership), he commands bipartisan respect as someone who does not let the lower aspects of the political process intrude on perspective. He made some excellent suggestions and his testimony is recommended reading:
May 23, 2018
While a bit tardy, both the House and the Senate Budget Committees managed the ministerial function of placing levels into the Congressional Record to fulfill the terms of the “deeming resolution” that was placed in the Bipartisan Budget Act of 2018 in lieu of an actual budget resolution for fiscal year 2019. The House deemer is a funny creature, not because it is badly written, but instead because it doesn’t work. Deemers are easy to write, but just as easy to screw up — and this language, unfortunately, fails to activate section 302(f)(CBA). Since this is a point of order that enforces the levels in the thing, it is sort of important. Then again, since the 302(f) is used to be of most use for the control of Appropriation bills, and was made irrelevant at the beginning of the 115th Congress, it really doesn’t matter that much. Small digression: H. Res. 5 (115th Congress) established in the standing rules a point of order against net increases in discretionary budget authority. That would be the crude form of a 302(f) (a very crude form). So they no longer need bother with an actual 302(f) — or 302(b) suballocationsfor that matter.
Whatever the case, the levels are there in the form of a communication from the Chairman of the House Budget Committee put in the Congressional Record. The same is done under the deemer for the Senate, and so it too can enforce a replacement budget (and it actually works, which is nice).
The rather pitiful times the Budget Committees, and the budget resolutions as a respected document, have seen brings to mind debt limit debate of five years ago. In 2013 quite the spat was had over raising it. A solution was found by tying such an increase to suspending Members’ salaries in the event the House did not agree to a budget resolution. The No Budget, No Pay Act of2013 (113th Congress) was enacted on February 4, 2013. The House (H. Con. Res. 25 (113th Congress)) and Senate (S. Con. Res. 8 (113th Congress)) adopted (individually) on March 15, 2013, and they led, after a government shutdown in October of that year, to the Bipartisan Budget Act of 2013 (113th Congress).
While those times were quite messy, and hardly the way the budget process is designed to work, it was in a sense functioning. Perhaps the succession of Bipartisan Budget Acts (three so far) is a process in a way: A joint resolution and biennial budgeting by inadvertence.
April 28, 2018
Not too long ago, the notion of eliminating the Congressional Budget Committees seemed not only farfetched, but a terrible idea on its face. With the disintegration of the House Budget Committee in terms of relevance and reputation, and with the Senate Budget Committee’s chairman openly pondering, even proposing, the elimination of the Committees, the notion can’t be dismissed easily. The question is certainly fair: What do the Budget Committees actually do these days? They used to write budget resolutions, enforce them, and attempt to improve the forever “broken” budget process. None of those things seem to happen much anymore.
Now with the creation of a new committee, the Joint Select Committee on Budget and Appropriations Process Reform (JCBA), in theory that could be one of the options is explores. After all, the JCBA is devised to do what the Budget Committees’ are already charged with doing — reforming the budget process. One reform it chooses may very well be to reform the Budget Committees right out of existence. Who better after all to do so than the very Chairman of the House Committee being abolished doing so in his role as the chairman of the Select Committee established what his committee was incapable of doing? That is to say reforming the budget process.
The fact that it would be an ill-advised idea at best is not really of much consequence. Bad ideas very often are more appealing than good ones on Capitol Hill, usually because they are easier to explain and accomplish. Very often good ideas are complicated and hard. Hence expedience very often triumphs, and that is the currency in Washington D.C. now, and has been for many years.
April 21, 2018
The loss of Paul Ryan as Speaker of the House, though unsurprising, is another bad sign for the Congress in general and the budget process in particular. The author of this website has known him for twenty-five years and the negativity that has greeted his choice to retire is also not surprising, depressing, but not unexpected given the nature of politics in the U.S. Still, for those who know him at all, the choice to spend more time with his family is unquestionably true. The tax reform Act, that was his more than anyone else’s, is likely not the bill he would have written, nor the one for which he had hoped. A real reform of the tax code, a comprehensive rewrite cannot be done through the reconciliation process.
Reconciliation is a limiting factor they knew very well going in would be hamper their efforts. On the House side, it did not help that no one on staff was really at all familiar with how the process works, and in particular able to ask the right questions of the Senate Parliamentarian. Her determinations are made from a Parliamentarian’s viewpoint, naturally, not a budgetary one. The problem is that the Byrd Rule is a budget limitation, and the two realms do not always speak well to each other. Sometimes a translator is needed, and that is generally where counsel work comes in.
One might think that each decision on each provision that went into the reconciliation bill was carefully vetted and considered, and observed the rules with a full understanding of what was happening. From the looks of the bill, and from those on hand during the process, that was not the case.
Ryan did a better job as Speaker than anyone else could have done, given the circumstances, though it’s hard to compare over generations: What would Henry Clay have done?
April 16, 2018
Another April 15 has come, and the idea that a budget resolution would be completed by this date is so foreign as to barely be worth mentioning. This year is somewhat different, it’s hard to tell what constitutes unusual anymore since it has been so long as the “usual” process has been followed, to do things the way they are supposed to work would itself be unusual.
The difference here is that the deeming resolution putting in place a budget for fiscal year 2019 was done in the Bipartisan Budget Act of 2018 (Pub. L. 115-123), and that was enacted on February 9, 2018. The Congressional budget resolution was deemed in force even before the budget season began, which happens when the President submits his budget for the year. Granted that the President was late in his submission (due no later than first Monday in February), it does not diminish the fact that the party was over before the decorations were even taken out of the boxes.
The cynics, and they are everywhere (de rigueur among the cognoscenti), likely are convinced this was the fear of voting for a budget resolution that would not only not be in balance at the end of the now expected ten-year time frame, but also show a return to $1 trillion annual deficits. No one wants to vote for that.
Since this website is devoted to things a bit more important than who can yell the loudest on cable news channels, the question of doing a deeming resolution so early is its implications for prospects of a revivified, or maybe even revived, budget process.
The first question will be whether anyone notices that the deeming resolution that was included in BBA 2018 for the House does not work. This is doubtful, since the only ones currently working for Congress who would know are the Parliamentarians, and they won’t say anything unless forced to. The basic problem is that the entire deeming resolution hinges around the aggregates and allocations placed in the Congressional Record by the Budget Chairman and that they “shall apply in the House of Representatives after April 15, 2018, in the same manner as for a concurrent resolution on the budget for fiscal year 2019 with appropriate budgetary levels for fiscal year 2019 and for fiscal years 2020 through 2028.” This is fine, but it does not fix the problem related to section 302(f), which requires the point of order to enforce those levels occur after the end of legislative action on the budget resolution. This is what the deeming resolution lacks.
April 9, 2018
Here is something that popped up in wandering through the Congressional Budget Act of 1974 (Pub. L. 93-344) that you not only don’t see every day, it has not happened since. The below excerpt is a directive to adjust the caps downward included in a rescission bill, meaning Congressionally-passed, Presidentially-signed legislation that reduced discretionary spending by $16 billion.
Downward Adjustments in Discretionary Spending Limits
Upon the enactment of this Act [July 27, 1995], the Director of the Office of Management and Budget shall make downward adjustments in the discretionary spending limits (new budget authority and outlays) specified in section 601(a)(2) of the Congressional Budget Act of 1974 [2 U.S.C. 665(a)(2)] for each of the fiscal years 1995 through 1998 by the aggregate amount of estimated reductions in new budget authority and outlays for discretionary programs resulting from the provisions of this Act (other than emergency appropriations) for such fiscal year, as calculated by the Director.
It happened in 1995, when Republicans had just taken majorities in Congress, in the 1994 midterm election, first after President Clinton’s win in 1992. The mood in Congress was to reduce spending, though the government shutdowns that badly burned Republicans were yet to happen. Note the reference “section 601” of the Budget Act. This is where the “caps” (formally the discretionary spending limits) from the budget summit deal where Congressional enforcement procedures were written into title VI (since repealed) into law.
The interesting thing is that Bill Clinton not only signed it, but negotiated a fair deal, after vetoing the first rescission bill Republicans sent to him. It shows how bipartisan deals are possible, even when they entail making difficult real cuts in spending. Though the budget wars of the 1990s came later, and separated this moment from the deal reached almost exactly two years later in the Balanced Budget Act of 1997 (Pub. L. 105-33), the two are somewhat modest accomplishments. After the BBA 1997, budgeting was overshadowed by the impeachment issues.
April 4, 2018
Why would anyone put a sale of oil from the Strategic Petroleum Reserve into a budget process reform law related to the way putting out forest fires is funded? Then, why would that bill be put into an appropriation Act? Hard to say, but it likely made perfect sense at the time. It likely went, “this bill is going through, so let’s stick it on there.” It’s not wrong practically speaking, but it’s a messy way of doing business and Congress as an institution deserves better.
Title V of the “Wildfire Suppression Funding and Forest Management Act” [pdf].
April 1, 2018
The past two budget bills have, together, included a hodgepodge, quite varied really, of things that help give those who claim the budget process is “a disaster,” or “broken,” or “a miasmatic mishmash of complexities best thought of as a goulash of legislative malapropisms.” Well, maybe the last one isn’t said that often.
Still, the budget world became more complicated with the enactment of the Bipartisan Budget Act of 2018 (Pub. L. 115-123) and the Consolidated Appropriations Act, Fiscal Year 2018. Among everything are two additions that have received very little attention, and are actually two variations on a single thing — that is two new adjustments to the discretionary spending limits. Each new law contained one: the section 30206 BBA 2018 gave us one for reemployment services and eligibility reviews.
The CAA 2018 created a program adjustment for Wildfire Suppression, thereby increasing spending by a set amount each year if an appropriation Act provides that amount of spending. The spending adjustments extend through fiscal year 2017 even though the spending limits themselves expire in section 2021. Also, unlike the additional adjustment added by the BBA 2018, no corresponding adjustment is specifically written into section 314 of the Congressional Budget Act of 1974.
The discretionary spending were first established in the Budget Enforcement Act of 1990 (Pub. L. 101-508), and though Congress has the responsibility to determine the purpose of “discretionary spending“, and the amount to the purpose, specific purposes have been written into the law to attempt to assure, or mandate, guarantee, a certain level of funding for a particular program or policy area. Two method have been used to implement this: Separate categories within the spending limits, and “adjustments” to the limits.
Adjustments took the form of allowing spending to be provided, but then requiring OMB to adjust the spending limits upward by that amount. These grew to include such things as adoption incentive payments and the earned income tax credit compliance initiative.
Separate “categories” are not spending within the general spending limit, but rather alongside it, so that with a separate cap, the spending to that purpose did not count against the overall discretionary spending limits but rather were viewed independently. Different categories were established for policy areas like defense, non-defense, international, transportation, and conservation.
The proliferation of separate caps (like for transportation and conservation) and adjustments (like for international arrearages) were largely swept away by the Budget Control Act of 2011. That Act had it’s own problems, but that was a positive aspect. Looking over the changes to the current law shows some improvement in section 251 (BBEDCA), where adjustments live.
March 22, 2018
With the last appropriations bill completed for fiscal year 2018, the budget season for that year has come rattling to an ignominious close. If ever a poetic illustration were needed to reform the budget and appropriations process, the ethereal budgetary powers have kindly provided one in the Consolidated Appropriations Act, Fiscal Year 2018, H.R. 1625 (115th Congress). It’s likely as well done as it could possibly be under the circumstances, but that is what the “budget process” is all about — the procedures used to make decisions and carry them out in responding to the needs of the country.
The fact that the fiscal year began in October 1, 2017, enacting all the appropriation Acts in final form when the fiscal year to which they apply is about half over is just the beginning of a long travail. It’s been this way for some time, things have been deteriorating in this regard for nearly thirty years. It’s easy to complain about this sort of disfunction, and sometimes the answer is just that democracy is messy business, and allowances must be made.
From a budgetary perspective, though, other complaints arise, as usual more technical. Certain Members (led probably by Sen. Udall and Rep. Mike Simpson for a solid bipartisan approach) succeeded in putting a new adjustment to the discretionary spending limits for wildfire suppression. This is egregious. Perhaps the same people who decry the complexity of the budget laws will welcome this addition to it, and it’s almost certain they won’t see the inconsistency. The idea of “annual review” of spending decisions is that one trusts the political process and if merited, your program will get the money it needs. Others see this as a mosh pit approach to budgeting, and they like the peace of mind of assured funding — hence a discretionary spending adjustment.
This is the new text as it compares with existing law: Wildfire Suppression Adjustment.
March 14, 2018
As a less well known, but important side effect of the failure to move budget-related legislation through the formal process is the lack of official background material explaining what and why a law was considered by Congress and enacted into law.
Formally, the Bipartisan Budget Act of 2013 has an official committee print drafted for the express purpose of explaining the nature of the law, but that is at best an exception. The Bipartisan Budget Act of 2015 does not have anything, though aCounsel Report on the Bipartisan Budget Act of 2015was drafted by a House Budget Committee Counsel, and never officially approved. The Statutory Pay-As-You Go Act of 2010, the Budget Control Act of 2011, and the BBA 2018 have nothing a formal report or joint explanatory statement of managers for a conference report. The Congressional Research Service has done on a report on the Joint Select Committee on Budget and Appropriation Process Reform, which is a welcome translation of the legislative text of title IV of Division C of the BBA 2018.
Not the same though.
march 7, 2018
As the Joint Select Committee on Budget and Appropriations Process Reform takes shape, the difficulties it faces are likely sinking in to those who have read the law. While it was immediately clear the task would be immense, the dismal prognosis for ultimate success is becoming clear. The world is filled with people who are all too eager to declare failure immediately.
That the Bipartisan Budget Act of 2018 even included a Joint Select Committee on Budget and Appropriations Process Reform is grounds for optimism, its existence is a positive. A few others: It is both bicameral and bipartisan in structure. Though the process tilts decidedly toward the Senate, any successful bill will have to work in the different contexts of House and Senate. The equal number of Democrats and Republicans on the panel is positive. The difficulty with differences on direct spending and taxes will be a problem that will need compromise. Republicans will never allow sequestration to be changed from automatic spending cuts to a mix that includes tax increases. Democrats will never allow any “pay-as-you-go” procedure to be converted to a “cut-as-you-go” procedure, whether in law or rules. A little imagination and a bit of compromise is necessary.
Oddly, someone was thinking and included the word “appropriations” in the title of the Committee. The appropriations process is not shattered as the budget process is, but it is bad shape. Only a handful of people currently on Capitol Hill have first hand knowledge of the last time all the appropriation bills were enacted as separate bills and on time.
Unfortunately the list of negatives is much longer. The schedule is daunting.
The two Co-Chairs likely are currently mapping out a schedule with their members for the upcoming year. If work begins immediately, a bill to “significantly reform the budget and appropriations process,” will need to amend title 2 of the U.S. Code (the Congressional Budget Act of 1974 and the Balanced Budget and Emergency Deficit Control Act of 1985) and title 31 (Appropriations and the President’s Budget) changes, make changes to the Rules of the House and Standing Rules of the Senate, and to be complete, alter the parliamentary procedures of Congress.
The Select Committee must hold five public meetings (three must be hearings), write a report and a bill, then vote by November 30. This must be done in an election year, at a time when fiscal year 2018 appropriations bills are not yet done. With November 6, 2018 as election day, it is almost certain a continuing resolution will be funding the government on a short-term basis for fiscal year 2019 when the polls close that day.
This means the co-chairs should get as much done as possible as early as possible. The first meeting must be held by March 11 (30 days after BBA 2018’s enactment). The necessary 3 hearings should be dispatched in the following week or two. They can always have more if required, but all their time is precious and should be devoted deciding on the parameters of the bill. Those things don’t happen at hearings.
Optimally, these will all be done in private discussions, though another option is to have a succession of mark-ups to work through ideas and vote on major aspects (joint budget resolution, biennial budgeting, rules changes, timetable of budgeting, and so forth).
Ideally, all those decisions would be made before the beginning of the sacrosanct August recess. If not, then a great deal will need to be done in September since Congress will adjourn for virtually the entire month of October so all Members of the House, and a third of the Senate may campaign for re-election. Even Senators not up for re-election and Representatives with safe seats are likely not to doing anything of great effect on a budget process reform bill during that time.
If the Members of the committee make the decisions , though, October could be taken up by staff furiously writing out the details of legislation and preparing the accompanying report explaining it all. That would be a substantial amount of work, if the bill is comprehensive.
When Members return in November for the lame duck session, primary on their minds will be finishing the fiscal year 2019 Omnibus appropriation bill and getting out of town as soon as possible. If the majority in either chamber flips, the chances of making changes in budget procedures, particularly about rules, is nil. The Committee must vote on the bill and the report by November 30, after which it is introduced and referred to the Senate Budget Committee. This committee must then also report it with favorable, unfavorable, or no opinion, but would be discharged after seven days if it does nothing. From there it is scheduled for debate and voting in the Senate. Even with the expedited consideration provisions, all this takes time. It must be voted on in the Senate by the last day of the session of Congress, which means that it could be voted on and approved, and then promptly die when the 115th Congress ends. Through all this the House will never even see the bill.
A kinder BBA 2018 would have given an entire 116th Congress to write a bill, garner support, navigate the shoals and riptides, and provided greater resources. It did not. If the Committee does manage to write a comprehensive bill that is made public, even if it never makes it out of Committee, it could always be introduced on the very first day of the 116th Congress.
So there’s that.
February 19, 2018
As the most significant budgetary bill in the past couple years, the Bipartisan Budget Act of 2018 is not very extensive, but has enough in it to be interesting (to some anyway). Really it’s something of a grab bag, which is always a bad idea — one reason the words “ominous” and “omnibus” are so similar.
Perhaps the most intriguing component is from The Act also included a “Joint Select Committee on Budget and Appropriations Process Reform”. Select Committees have been employed by Congress since it was first established, and similar narrowly purposed committees have been used in the budget process for a good many years. After World War II, an early attempt at the creation of a Budget Committee was attempted by establishing the Joint Committee on the Legislative Budget. It did not do much and was discontinued in 1949. Perhaps a more apt comparison, and more successful, was the Joint Committee on Budget Control established in 1972, and which made a number of recommendations which contributed to the adoption of the Congressional Budget and Impoundment Control Act of 1974.
The pressures and hurdles facing this new committee, whose new Chairman, Rep. Womack (who currently serves as Chairman of the House Budget Committee), are daunting. The very first consideration is the schedule — an election year after a Presidential election is historically difficult for the Party who holds the Presidency. Very often losses are suffered, sometimes significantly. In 1994 and 2010, Democrats saw the loss of their majorities in the House of Representatives. What’s more, the initial bill would have to be voted on, by the terms of the law, in the Senate, likely a lame duck session. If the Senate can’t pass the bill, or more specifically muster the sixty votes to bring it to a votes, the House will never see it (it can always be introduced by Rep. Womack or some other House member, and probably will be).
The bill itself will be the great question for this select committee — what will it look like? Experience explains a great deal, and can give some possibilities, for a link yet to be written …
February 9, 2018
Congress passed the Bipartisan Budget Act of 2018 to keep the government open for a few more weeks, but also included a number of items worth mentioning: It included a budget “deeming resolution” for fiscal year 2019, though it doesn’t work for creating a reconciliation bill, so an important part is missing. The Act also included a“Joint Select Committee on Budget and Appropriations Process Reform”. That Committee is charged with writing a bill to “reform the budget and appropriations process.” It is bipartisan, and even more than that, a majority of both Republicans and Democrats must support the final bill. It has some expedited consideration in the Senate, but it still takes 60 votes for it to pass. One essential feature is that it must start in the Senate, and is referred to the Senate Budget Committee, with no mention of the House Budget Committee at all.
A major aspect of the BBA 2018 is it acts as an extension of the BBA 2015, which itself extended the BBA 2013. While they each reflect two-year deals between the President and Congress and the amounts of the spending limits for those fiscal years change, the structure of the law is entirely the same.
January 25, 2018
As government shutdowns go, this was pretty much of a snooze. They even had to bring out images ofclosed signs from 2013 that hung in front of parks when the Obama Administration did everything in its power to make the shutdown more inconvenient than it had to be in order to ramp up the pressure on the other side. One work day, and they had time to put the fix into continuing resolution,H.R. 195(115th Congress) enacted as Pub. L. 115-120, to make sure everyone furloughed would be held harmless, as is the norm for these things.
January 21, 2018
So what is a government shutdown like? For those working for Congress, it’s not that much. The interns don’t come in to work. The cafeterias are closed. So it’s not without its harsher side, but overall it’s not like being chained to an oar on a galley. Well, working for Congress is actually sort of like that anyway, at times.
During the budget battles between a new Republican Majority in Congress and President Bill Clinton, who’s party got wiped out in the 1994 elections, the two shutdowns in November 1995 and January 1996, the mania surrounding “closed” signs on the Washington Monument might have made one think the end of the world had come. The only memory most people have was “Government shut down, Republicans Lost” and that’s it. It didn’t really make much difference what really happened, Clinton used the shutdown strategy of “give me this or I’ll shut down the government and blame it on you” cowed Republicans consistently for the rest of his Presidency.
The one in 2013 was a more mild affair, and the blame was far more of a mixed matter. Republicans wanted to skip funding for the Affordable Care Act (Obamacare, which apparently is not a pejorative anymore), and President Obama didn’t. Then, it ended with an agreement, which ultimately led to a deal culminating in the Bipartisan Budget Act of 2013 (back when the Budget Committees were still relevant).
This time around? The Democrats may really believe they have a winning issue in giving legal status to illegal aliens, but it seems a dubious proposition, even when factoring in the “children who know no other country and served in the military” talking point. How children are serving in the military is part of the problem that entails — it becomes a civics lesson in explaining how Democrats, who are not in the majority can shutdown the government, but one that Republicans seem willing to make. If made angry enough, Senate patience may just run out and the filibuster could very well be in trouble. It remains in force due to the majority in the Senate, whether Republican or Democrat, fearing going into the minority and losing any relevance. Hence a filibuster, for as much as is said about “unlimited debate” and such, it’s about 60 votes out of a 100 needed to pass a bill rather than just 51.
If requiring a supermajority to even keep the government open, the current majority (Republican as it happens, but not relevant really) may decide the filibuster is no longer worth it and scrap it. Or perhaps just scrap it for Appropriation Acts.
December 20, 2017
It is often harder to learn lessons from success than failure. When failing, the repercussions may bring reflection accompanied by a motivation to prevent a recurrence. Since the Tax Cuts and Jobs Act, the tax reform bill (though its short title was removed due to a trivial technicality) was successfully signed into law, the fact that it reflects a failure for the Congressional budget process is easy to forget, perhaps even easier to not see in the first place.
In order to allow expedited procedures for a “reconciliation bill”, the desire to enact the tax law served as the impetus for agreeing to a budget resolution. The original intent of the Congressional Budget Act of 1974, and reconciliation process it sets forth, was exactly the reverse: A reconciliation bill was meant serve the purpose of aligning spending and revenue with the policies of budget resolution. Here the interest in a tax reform measure drove the adoption of the budget resolution. It is simply the latest example of the need for comprehensive budget process law reform.
December 16, 2017
From all indications,H.R. 1, the Tax Cuts and Jobs Act, will probably be signed into law by Christmas. The conference report (H. Rept. 115-466) was filed on December 15, 2017, and a vote will follow rapidly, unless some unexpected, and unlikely, meltdown occurs. The legislation is broader than could reasonably be expected, but it still falls short of a “comprehensive” rewrite of the tax code. If nothing else, it still has sunsets, a considerable number of them, all undoubtedly the result of its status as a reconciliation bill. The pesky Byrd Rule at work. For the technically minded,subparagraph (E) of section 313(b)(1)is the culprit. Some have called it the “year eleven problem” which means that any given provision is extraneous if it increases the deficit in a year following the budget resolution window. Those are now typically ten years, so year eleven, if a provision loses revenue, like tax cuts, it’s needs sixty votes in the U.S. Senate to overcome a point of order if one is raised.
In today’s Senate, one would be, and no sixty votes. Hence sunsets. This is how the Bush tax cuts from fifteen years ago came to expire after nine years (they sunset them early to get a bigger tax cut).
If tax reform can be accomplished, even if it’s not entirely what some purport it to be, nor what many would like it to be, then perhaps a reforming the budget laws and rules could be next. One problem with that is that budget laws almost, ironically, never have direct budget consequences and are not only tortuous to do in reconciliation (like health care and tax reform) but impossible.
It doesn’t help that no one in Congress, certainly none in the House, at a staff level, are capable of writing a comprehensive budget process reform bill. For the sake of the Congress as an institution, it is necessary and will be done, perhaps later rather than sooner, but eventually.
November 30, 2017
Whatever one’s view on the tax bill wending its way through Congress, its status as a reconciliation bill is central to its composition. The conventional wisdom has been that fundamental, comprehensive tax reform could not be done using the reconciliation process (section 310(CBA). This view was held both by those in both the budget and tax world (they overlap to some degree). This was the case because reconciliation is a limited process by design and not intended to set up fundamental policy changes, like setting up new programs, or repealing them for that matter.
Comprehensive tax reform was also always believed to require some bipartisanship in its legislation consideration. This was certainly the case the last time this was done in 1986. It is not with the bill, and with the devolution of reconciliation as a way to circumvent bipartisanship rather than as a tool for budgetary decision making.
It turns out that conventional wisdom was correct — this tax bill is hardly comprehensive and does not really replicate the kind of reform accomplished in 1986. It is far closer to what was done in 2001 and 2003 with EGTRRA and JGTRRA, the two tax reduction bills that also went through the reconciliation process, and were by necessity circumscribed as a result (both had to observe budget rules requiring they expire within ten years.
The most evident lesson to be learned so far (from a budget law standpoint) is that a comprehensive reform of the budget process is needed even more than of the tax code.
October 21, 2017
Now that the Senate has passed the the budget resolution the House sent them, what the House does with H. Con. Res. 71 (115th Congress) will be a great question. The apparent intention is for the House to simply pass what the Senate sends over and forego a conference to work out any differences. This is a surrender of convenience for the House, and saves perhaps two legislative weeks then available for the all important tax reform legislation to which this is all a prelude.
As a technical aside, this will be a first in that the House has only one committee given reconciliation directives while the Senate has two. This means in the Senate, there will likely be no bill, and the entire action will be based on what Ways and Means produces.
October 18, 2017
Against expectations, the Senate has taken up the House-passed budget resolution (H. Con. Res. 71 (115th Congress)), and has not immediately replaced the entire text with a shell budget which simply serves as a reconciliation procedural trigger. It’s an actual resolution, with numbers and words and everything, unlike the currently in force budget resolution (S. Con Res. 3 (115th Congress)), which is baseline shell pieced together with the bare minimum.
To save time, the Powers have skipped the Senate Budget Committee mark-up process and simply taken H. Con. Res. 71 and used that as the vehicle. Senator Enzi, Senate Budget Committee Chairman, has offered up a full substitute (Senate Amendment 1116) .
This presents the question to the House – does the Leadership convene a Conference to work out the differences between the two, or does it just take what the Senate gives them? The Senate, unlike the House-passed resolution, includes reconciliation instructions for both chambers. In reviewing the text, the language, could, in conjunction with the House Rules changes made at the beginning of the 115th Congress, suit the basic needs of the House for budget enforcement.
One interesting feature is that the reconciliation instructions include a directive to the Senate Energy and Natural Resources Committee and the House Natural Resources Committee. It’s almost certain it is designed for a specific bill or policy. The surprising thing is that this will then mean a tax reform bill will have to go through the Budget Committees, which adds time and complexity to the process. This is contrast to the 2001 and 2003 Bush tax reduction reconciliation laws, which went straight from Committee to the respective chamber floors.
October 11, 2017
Random Thoughts, Perhaps
The Fall of 2017 has brought a couple of noteworthy events in budget land: The House finally passes an FY2018 budget resolution in the form of H. Con. Res. 71. Of course it is meaningless until both the Senate and House pass the same budget, or at least the House adopted concurrent resolution is “deemed” in force by a vote of the House.
At the beginning of the 115th Congress, the Senate brought up S. Con. Res. 3 and the House passed it with virtually no debate and completely no amendment. It was a barebones budget designed only to do one thing: set the “reconciliation” procedure in motion. With H. Con. Res. 71, the Senate will never pass it “as is” since it’s not only poorly written (except for the material recycled from previous resolutions), but the Senate Parliamentarian likely would have problems with it.
If this is the case, the Senate may strip all of the House language and send back another barebones budget resolution, which the House likely will dutifully pass, and again set in motion reconciliation. Which is of course a depressing thought — that the budget resolution has now become simply a box to be checked in order to find a vehicle that can pass the Senate with a simple majority vote (the reconciliation procedure’s most notable feature).
The other notable event was the resignation in disgrace, or more accurately the firing, of Tom Price, former Chairman of the House Budget Committee and crusader against government waste. That he was removed from his post as Secretary of Health and Human Services for abusing taxpayer dollars, essentially indulging in the kind of wasteful spending he railed against as a Member of Congress is grist for any comic with a dark sense of humor. It does bring to mind the theological philosophy of Rasputin, the Mad Monk: The best way to overcome sin is to give in to it.
October 7, 2017
The Notes from the Past Little While …
While the past several years has seen the collapse of the Congressional Budget process, with the Budget Committees doing little and accomplishing less, money still needs to be spent to keep the pencils scribbling in all those buildings of the Federal Government. Very little has gone on in conventional budgeting, but with a major exception — the attempt to repeal the health care law enacted during the Obama Administration.
From a larger standpoint, the budget process is not simply a rhetorical exercise, nor can it be understood by reviewing the disastrous past few years. It is instead fundamental to the way the national American government works. This is not hyperbole. Working out the powers of the Congress, the President, and the Executive Branch as a whole, has been going on since the ink was damp on the Constitution – in fact prior to the adoption of the Articles of Confederation. The present budget collapse in Congress is merely the latest manifestation of this long-term process.
This repeal effort, embodied by the American Health Care Act of 2017 [Obamacare Repeal] is a “reconciliation” bill so reviewing the background of such legislation is worthwhile. While still largely undercooked (the entire reconciliation process has become half-baked so call it irony), the page for Reconciliation has some material that might be helpful.
Counsel Tip from Beyond the Wall
The budget process is notoriously complicated, and so a budget as a legislative document often resembles the Frankenstein monster, which is to say that it is very often pieced together from the juris corpus of resolutions past. For a good counsel, a certain elegance can be achieved. If the attorney (or in a unique circumstance, a non-attorney) doesn’t know what he’s doing, they end up being quite ugly indeed.
February has arrived, so maybe it’s time to digest all that’s gone on with the budget. With one twelfth of the year gone, one would think “not much”. In most places, January is not a hopping month for much of anything not Super Bowl. Who was in that this year? I actually don’t know who won, who was playing, or really anything else about it … not really my thing anymore. I played football for twelve years until I hit 21 and my senior year, I figured I’d had enough of it.
The interesting thing about the budget is that the House Budget Committee is busy abolishing itself — not surprising after two long years under a Price Chairmanship. To be fair, he had help by bringing in what seemed like old hands at the task. Unlike the old French aristocracy, they had learned nothing but forgotten everything.
February 11, 2017
Kingsley Aimis once said about The Waste Land that it was written in a form that was beyond him because somehow T.S. Eliot was speaking in a language for only those in a club, of which he was not a Member. Mostly this was because of the references, obscure, oblique, strange in ways, that make it a dense read. The Budget process should not be viewed that way — though sometimes it seems so. The language like “negative budget authority” seem arcane at best and sometimes on the silly side.
Then again, complexity is part of the deal when you open up the Budget Compendium, or Compilation, or whatever budget book one tries to decipher. Perhaps they should come with a translation — and that’s part of what his site is for, in a way. Problem is maybe the translation needs a translation, or at least a ball of thread to get you back out if you go to far in (beyond just switching over to the Gilligan’s Island website).
January 2, 2017
The movie “Groundhog Day” has entered common American parlance such that virtually everyone knows what you mean when you say: “It happened again, it’s like Groundhog Day around here.” It of course, means an irrational if not endless repetition of events.
What it does not mean is what the essential matter of the movie (“film” for those who believe there is a difference): It is has a rather complex philosophical structure — and the implications of the basic premise is original enough to warrant thoughts of existential nature. No not the Sartre/Camus/Heidegger/Kierkegaard form of the term, the rather mundane sort — “pertaining to existence”.
When the world around you stays the same, and you stay the same, physically, but the only thing that changes in the entire universe (presumably, certainly for all he knows) is him. When there is no repercussion for anything you do, either good or bad, the utter pointless of life, of existence, as he knows it, comes relatively quickly crashing.
One might ask, what has this got to do with budget policy? Not much really, except he finds an escape. What it is, why it happens, if it really makes any sense, not really the point — he does find one. Therein lies the budget law angle. The pointlessness of attempting to fix the budget problems facing the Congress (not the President, not the Judiciary, — the Congress) seem as if the efforts made, endlessly, come to very little. To the extent a law is passed, it is either circumvented, ignored, or just makes things more complicated, which makes the first two even more likely to happen.