The coronavirus/omnibus spending bill was dead to begin with. There is no doubt whatever about that. The register of its burial wasn’t signed by the president…old coronavirus/omnibus spending bill was as dead as a doornail.
No. These aren’t the opening lines of "A Christmas Carol" by Charles Dickens, writing about the death of Ebenezer Scrooge’s late business partner, Jacob Marley. But it’s pretty close. And certainly, what unfolded this Christmas on Capitol Hill surrounding a COVID aid package was just as Dickensian.
Lawmakers from both sides thought they had clearance from the president to forge ahead with the COVID/spending plan. The president’s envoy to Capitol Hill, Treasury Secretary Steve Mnuchin, clearly thought they had the green light. It was Senate Majority Leader Mitch McConnell, R-Ky., who weeks ago declared they would link whatever COVID agreement they concocted to a $1.4 trillion plan to fund the entire federal government through next September.
House Minority Leader Kevin McCarthy, R-Calif., was in the final round of negotiations with McConnell, House Speaker Nancy Pelosi, D-Calif., and Senate Minority Leader Chuck Schumer, D-N.Y. House Minority Whip Steve Scalise, R-La., extolled the virtues of the package, urging GOPers to vote yes. White House aides signaled the president was behind the plan.
The House approved the plan 359-53. The Senate, 92-6.
And then, President Trump incinerated the process, ranting about foreign aid and demanding $2,000 direct payment checks.
Trump was truant from any stage of the negotiations, dating back to June. The president only parachuted into the talks via Twitter. And when President Trump did materialize, it was to undercut Mnuchin on multiple occasions, claim he wanted to spend more than Pelosi, or, insist on $1,200 in stimulus checks.
Yes. A few months ago, Trump wanted $1,200.
As is customary, no one in the Trump administration nor on Capitol Hill ever really knew where the president stood on any of this – until he told everyone in a video Tuesday night. That is the greatest miscalculation in this entire, baleful process. Bipartisan lawmakers never would have wasted weeks advancing a plan of this size and scope had there not been an implicit understanding that Trump would sign it.
So, weeks of negotiations, weekend sessions and late-night votes meant nothing. This is the fool’s errand of fool’s errands in the annals of Washington.
Let’s first address why Congress meshed the bills together and why everyone is crowing about "pork" and "foreign aid" in "the bill."
It’s typical for Congress to blend together major bills of this nature. Especially at the end of the year or at the end of a Congress. This is the only bill which can move. The term of art on Capitol Hill is "logrolling." Leaders assemble the bill into a gigantic log and roll it down the hillside. Either you’re "behind" the log, or, if you’re down below, prepare to be run over.
Logrolling is a brutish way to legislate. But often, it’s the only way to get things done. Lawmakers will go along with the bill because there’s more in there which they like compared to what they oppose.
Moreover, the House and Senate probably lacked the votes to pass both the government spending plan and the COVID bill separately. That necessitated latching them together. In fact, the House initially split part of the spending plans into two bills and then combined it with the coronavirus package. That may have meant the House never passed anything.
Congressional leaders do what they need to do to pass big bills like this. Otherwise, no COVID stimulus. And otherwise, a government shutdown. It’s all about engineering the right legislative cocktail to secure the necessary votes to pass the bill.
And that was certainly the case with this plan, marshaling 359 "yeas" in the House and 92 in the Senate. It doesn’t get much more bipartisan than that.
Then came brays of protest about the size of the bill. The bill is the same as four-and-a-half volumes of "War and Peace" by Leo Tolstoy. The total cost of the bill is $2.3 trillion – the second most expensive measure of all time.
And what about all of that money for the Kennedy Center and Sudan and Pakistan?
One of the 12 spending bills in this measure covers the State Department and Foreign Operations. In the late winter or spring, the president sends a "budget request" to Congress. The money allocated in that part of the bill is consistent with what the Trump administration asked for. In other words, Congress assembled the legislation in concert with the president’s spending request. If the president didn’t like it, perhaps he should have said something earlier.
McCarthy helped negotiate the final version of the bill. The California Republican voted for the bill. Now McCarthy is imploring the House to break apart the State and Foreign Operations part from the rest of the plan. Maybe that should have been flagged days ago, too.
But revisiting parts of the bill is the ultimate can of worms.
"If you start opening part of the bill up, it’s hard to defend not opening the whole bill up," said Sen. Roy Blunt, R-Mo., who presided over a brief session of the Senate on Christmas Eve. "It took us a long time to get where we are. I think re-opening that bill would be a mistake."
In other words, the bill functions as one – or it doesn’t. Messing around with the bill now could depress the vote tally. Everyone will demand they insert their pet provision into the bill or take something out. Then, it may lack the votes to pass.
Energy for direct payment checks only started to develop over the past couple of weeks. Sens. Bernie Sanders, I-Vt., and Josh Hawley, R-Mo., led the charge for $1,200 checks. The ultimate figure was $600.
At the president’s behest, Pelosi will have the House vote on $2,000 checks on December 28. Watch to see how many Republicans vote with the president – or oppose him. Leaders were told for days that direct payments of that size were a poison pill. Most Republicans didn’t like such payments. And even if the bill passes the House Monday, it’s doubtful the proposal could hit 60 "yeas" in the Senate. That’s the number of votes required to overcome a filibuster.
"I would be surprised if we dealt with it," said Blunt.
Don’t forget that the reason Congress raced to finish the bill was that extra unemployment assistance would expire just after Christmas. Now, help to Americans is all but dashed.
What President Trump is asking for may not have the votes on Capitol Hill. What passed was a compromise – and had overwhelming support.
Plus, we’re staring at the potential of a government shutdown Monday night.
This is grim.
Congress has approved four temporary spending bills since the end of the government’s fiscal year in September to prevent a shutdown. The most recent stopgap measure was a seven-day plan this week. Lawmakers knew that the COVID/coronavirus bill was so large, it would take several days to send to the White House. Yes, that bill funds the government until next fall. But it isn’t law until the president signs it. So, the most recent Band-Aid measure was the equivalent of fiscal grout.
The House will approve another emergency measure on Monday. But Roy Blunt doubted the Senate could tackle such a project before then. And it’s unclear if President Trump would sign anything.
A shutdown is always dangerous. It could be more dangerous during a pandemic. And it’s unclear if a shutdown could have devastating impacts on distributing the vaccine.
It takes a two-thirds vote of both the House and Senate to override a presidential veto. With 359 House yeas and 92 Senate yeas, both bodies have way more than a supermajority to override a presidential veto.
But note that President Trump didn’t directly threaten to veto the coronavirus/omnibus bill. He didn’t have to. The president could prevent the package from becoming law, via a "pocket veto."
Pocket vetoes are very rare. And you won’t find the term in the Constitution. Congress must find itself in the proper parliamentary posture for this possibility to be in play. But we could very well be in those circumstances now.
Article I, Section 7 of the Constitution says the president has 10 days (Sundays excluded) to either sign or veto a bill. Otherwise, the bill magically becomes law, sans signature. The COVID/omnibus bill is still not at the White House.
Here’s where the pocket veto comes into play:
The latest the current congressional session can end is 11:59:59 am on Jan. 3. That is the drop-dead time for the 116th Congress. A president may in effect "veto" a bill by keeping it in his "pocket" and not signing it if Congress passes it too close to a congressional adjournment.
Under the Constitution, the new Congress must begin at noon on Jan. 3.
In other words, Congress needed to get the president the bill by Dec. 23 to avoid a pocket veto. That’s the "10-day/Sundays excluded" window. That would force the president to either sign or veto the bill. And, if he vetoed it, Congress could try to override.
But Congress adjourning within that "10 day/Sundays excluded" window effectively neuters the possibility of an override attempt. The president gets the bill and holds onto it. He can run out the clock on the congressional session, blocking any potential override attempt. The bill just goes poof. It does not carry over into the 117th Congress. If President Trump neither signs nor vetoes the coronavirus/spending bill at this stage, it’s like it never happened.
It’s unclear if the president’s proposed changes to the bill could pass. And don’t forget that Congress has some responsibility in all of this, too. Congress thought it had a deal with President Trump in 2018 to avoid a shutdown. It didn’t. Perhaps wiser heads should have anticipated the pocket veto scenario. Congress dithered well into December, trying to secure a final COVID package. An earlier resolution would have given Congress recourse via a veto override. Now, there’s none.
So, this may be the worst Christmas yet on Capitol Hill.
We’ve had votes on ObamaCare on Christmas Eve morning in 2009. The House impeached President Clinton just days before Christmas in 1998. The House reprised that performance with Trump days before Christmas in 2019. We’ve had Congress return to session between Christmas and New Year’s. December is always a torrent of action. It’s nothing but late-night negotiations, weekend sessions and chaos.
Those were the ghosts of Christmas past.
And the ghost of Christmas present will cast an eerie shadow over the ghosts of Christmas future.