The Senate’s Back—and It’s ‘A Pretty Big Mess’
Plus: How to understand the 14th Amendment buzz.
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The Senate is back in session after taking off all of August, as they do every year, while the House isn’t returning until next week. (How European of them.) But government funding doesn’t care who’s in session or not. There are still deadlines to meet if lawmakers want to avert a shutdown, but here’s the rub: not everyone wants to. Also, you may recently have started seeing articles claiming Trump could be “disqualified” from appearing on the ballot next year. This requires important context and clarification. How seriously should you take the argument? And who is supporting it? All that and more below. Get Press Pass every Tuesday and Thursday.
Get Press Pass every Tuesday and Thursday.
Funding for the federal government will run out on September 30. That’s a very short timeframe for Congress to get a bill moving that will be palatable to both chambers and President Joe Biden.
The likeliest outcome is a one-month continuing resolution (CR) to buy some extra time to get a more concrete deal in place. If you’ve been reading this newsletter, or if you’ve read any newspaper over the last decade, you’re not surprised to hear about a continuing resolution. The increasing familiarity most news consumers have with the arcane processes through which the government maintains its funding is a sign of how routine this situation has become. Lawmakers are having the same fight every year, and when Republicans are in charge of the House, the fraught power dynamics of the GOP caucus make the process all the more dramatic, unpredictable, and chaotic. Consider the last time they were in charge, in the early years of the Donald Trump administration. Washington witnessed multiple shutdowns, including the longest one in U.S. history. (Although that one, it should be said, was primarily caused by the actions of the president himself.)
This time around, the Freedom Caucus and its allies are politically stronger than ever while the speaker of the House is weaker than ever. For a preview of the weeks to come, take a look at what Rep. Chip Roy (R-Texas) told his local paper, the New Braunfels Herald-Zeitung, last week:
Roy accused the Biden administration of “running however it wants to go, using executive power and their own executive power and decisions.”
“That’s not how it’s supposed to work,” he said. “The House is supposed to have a voice, the Senate is supposed to have a voice, so we’re going to have to force that. So we’re going to end up having a big, messy fight at the end of September. That’s okay — we’ll work with that.”
Roy is one of the chief instigators in these types of fights, and his comments about “a big, messy fight” being on the horizon were echoed by Senate Minority Leader Mitch McConnell in a press conference on Wednesday. McConnell said, “Honestly, it’s a pretty big mess,” but added a dash of optimism:
I think we’ll end up with a short-term congressional [sic] resolution, probably into December as we struggle to figure out exactly what the government’s spending level is going to be.
“Pretty big mess” is probably an understatement. House conservatives have been transparent about their willingness to use shutting down the government as a negotiating tool.
If you’ll recall last week’s Press Pass, House Speaker Kevin McCarthy has warned Republicans that shutting down the government will throw a wrench into their various Biden investigations and growing impeachment campaign. But even the most ardent impeachment supporters don’t seem to care.
If you think all of this makes securing additional funding seem like a major challenge even for our very capable legislators, please understand the larger situation is even worse: September 30 is also the deadline for reauthorizing the Federal Aviation Administration and passing the Farm Bill, both of which come up to Congress every five years.
Important context on Fourteenth Amendment chatter
Recently, you may have started seeing excited social media posts from online acquaintances, measured legal arguments from respected scholars, or televised comments from Rep. Adam Schiff (D-Calif.)1 all touching different parts of the same elephant: the idea that Trump could be disqualified from running for president in 2024. Not “disqualified” in the sense of declaring Trump to be morally unfit for the office—quite a lot of Americans already believe that, and some of us have for quite a long time. The new angle is instead that the Fourteenth Amendment to the Constitution already disqualifies Trump from appearing on the ballot next year because he “engaged in insurrection or rebellion” against the United States.
While much of this resembles Resistance fan fiction—doesn’t it sound like something a White House aide would quietly suggest in a revelatory moment during an episode of The West Wing?—it is worth thinking carefully about the law and the logic of the argument, and so we’ve discussed it in some of our Bulwark newsletters and on an episode of our “Beg to Differ” podcast (read a transcript of the relevant bit here). We’ll also have an article about it by Kim Wehle on the Bulwark homepage tomorrow, and we’ll keep an eye on the proposal as long as it remains worth analyzing.
But its also worth thinking about the larger political context of the Fourteenth Amendment idea, including the way it's playing among different states and interested parties. The Washington Post’s Greg Sargent has a helpful piece out this morning about how the process would work, the likelihood of success or failure, and which groups are already pursuing it as a genuine legal strategy.
Some argue that citizen challenges risk undermining Trump voters’ faith in our institutions. But consider the point of view of non-Trump voters. Their states’ own laws have created processes to try to force this issue — and given what top legal scholars, conservatives included, are saying, it’s plainly a legitimately contested one.
True, such efforts could have unpredictable consequences. And they seem unlikely to succeed. But nonetheless, those voters might reasonably decide our institutions might benefit if they wrestle with whether trying to destroy our system at its foundations should disqualify subsequent efforts to seek such awesome power within it. Who is to tell them otherwise?
“The sky won’t fall if states follow their procedures and make a determination,” Magliocca told me. “This has become serious enough that it must be addressed.”
And like it or not, it will be.
Take Schiff’s comments with a grain of salt: He is not a legal scholar, and he’s also running in a tight primary for Senate in California, which puts pressure on him to overstate claims.