Why Trump’s move to rescind spending might find favor in the House, but not the Senate

U.S. Capitol is seen after the House approved a bill to repeal major parts of Obamacare and replace it with a Republican healthcare plan in Washington, U.S., May 4, 2017. REUTERS/Yuri Gripas - RTS157JN

An arcane budgetary tool has re-emerged this week as yet another source of intra-party division among Republicans. Today, the White House sent Congress a proposal to roll back roughly $15 billion in previously allocated spending. The package is significantly smaller than both the White House’s original $60 billion proposal and the $25 billion that some congressional Republicans had floated. What’s more, this week’s request does not touch the $1.3 trillion omnibus spending bill passed in March, turning instead to older, unspent funds. (Reports indicate, however, that the White House is considering a subsequent proposal that would undo parts of the omnibus package.)

To observers of the rescissions debate thus far, the paring back of the Trump administration’s request is hardly a surprise. While House Majority Leader Kevin McCarthy (R-Calif.) has been a major champion of a rescissions package, Senate Majority Leader Mitch McConnell has been generally lukewarm towards the idea.

Under the Congressional Budget Act (CBA) of 1974, the president can propose to cancel, or rescind, certain budget authority previously approved by Congress. Now that the White House has submitted the proposal, agencies may withhold the funds  for up to 45 days of continuous legislative session. If Congress does not approve the president’s request within that time frame, the executive branch must release the funds for the designated purpose; the law provides special procedures—described below—for doing so.

This method—a presidential request followed by expedited congressional consideration—is not the only way either Congress or the president can try to walk back previously enacted spending. Congress routinely rescinds funds—often unspent amounts from previous years—as part of other legislation. The March 2018 omnibus, for example, rescinded roughly $800 million in unobligated balances from the Women, Infants, and Children program.

The president can also ask Congress to cancel funds through the regular legislative process. In 2005, for example, President George W. Bush asked Congress to cancel approximately $2.3 billion in spending; Congress approved roughly $400 million of that request. The tool being used this week also differs from the maneuver used by President Richard Nixon in the early 1970s. Nixon unilaterally impounded, or withheld, funds that Congress had already cleared, sparking legal challenges and contributing to Congress’s decision to pass the CBA with its new, carefully specified rescissions provisions.

While these other avenues may be available, the rescissions process provided for in the CBA is particularly attractive because of its procedural elements—components that help explain why Republicans are turning to this particular approach. Once a “special message” containing the president’s rescission proposal arrives on Capitol Hill, any member of Congress can introduce a measure carrying out all or part of the president’s request. Importantly, the president’s request represents the most Congress can do under the special procedures, but it can do less, choosing instead to rescind only some of what the president has submitted. In addition, Congress cannot add in its own proposals and still have the legislation be protected procedurally.

What are these procedural protections? First, the CBA provides for a mechanism to discharge the rescission proposal from committee in both chambers. This prevents the relevant panels (the Appropriations Committee in the House and the Appropriations and Budget Committees in the Senate) from keeping the measure bottled up in committee. Once a rescissions bill is on the House or Senate calendar, the CBA also eases the path of actually bringing it up for debate. In the House, rescissions legislation is privileged for consideration; this allows any House member to call up the measure, rather than requiring the Speaker of the House to schedule it. Because rescissions bills are also privileged in the Senate, the motion to proceed to their consideration is non-debatable and cannot be filibustered. Similarly, because debate on the rescissions bill itself is limited to 10 hours, it, too, is protected from a filibuster.  As a result, the tool is potentially powerful: it may take 60 votes to overcome the threat of a filibuster to enact spending bills, but a rescissions bill undoing some or all of that spending is protected from that kind of obstruction.

Just because something is procedurally possible, however, does not mean it is politically optimal. As others have noted, one major motivation for Republicans to avoid undoing parts of the carefully negotiated omnibus is that it would reduce dramatically the incentive of Democrats to negotiate with them over future packages. In order to keep discretionary federal programs running—and thus avoid the political consequences of a shutdown—majority party Republicans need votes from their minority party colleagues.

This dynamic is partially driven by the Republicans’ small majority in the Senate, where they lack the votes to overcome the threat of a filibuster. But it’s also the result of the reluctance of some Republicans to support large, omnibus spending bills; in March, for example, 90 House Republicans voted against the final omnibus. When Republicans aren’t unified on the provisions within a bill, spending or otherwise, it increases Democrats’ leverage.

For Republicans, pulling the rescissions trigger on the omnibus would not only risk alienating Democrats. Building bargains also requires the ability to make credible commitments across intra-party blocs. Even many conservative Republicans have particularistic priorities they’d like to see included in appropriations packages. In Robert Draper’s account of the 112th Congress (2011-2012), for example, he describes an aggressive effort by four conservative freshmen members from South Carolina—Jeff Duncan, Trey Gowdy, Mick Mulvaney, and Tim Scott—to procure funding to deepen Charleston’s port. Getting Republican votes for omnibus bills requires these kinds of horse trades. If members fear that their hard-won victories will be stripped out later in a rescissions package, they may be less likely to support the omnibus in the first place.

Given these dynamics, Republicans appear to have judged rolling back large portions of the omnibus too politically problematic—at least for now. But in avoiding that particular headache, they’ve created other ones by choosing to include language that would rescind mandatory spending (that is, spending that is handled outside the annual appropriations process). According to the Government Accountability Office, only proposals to roll back the discretionary spending allocated through the appropriations process are eligible for the procedural protections outlined above. If congressional Republicans choose to act on that part of the president’s special message, then, they could stand to lose the principal procedural benefit of using the CBA’s rescission authority. Would a proposal make it to the Senate floor, the parliamentarian would likely have to weigh in on this question.

The inclusion of certain spending also has the potential to undercut some of the political value of the rescissions package. One possible aim of the rescissions push is to force Democratic senators running for re-election in red states to take a tough vote. But by including a rescission of roughly $7 billion from the Children’s Health Insurance Program, for example, Republicans are giving their Democratic colleagues more political cover to oppose the package. Rather than be tagged as opposing cuts to wasteful federal spending, Democrats can claim they are standing up for a popular program that provides health care to kids. (Initial reports indicate that most of the CHIP funding that’s on the rescissions chopping block can no longer be spent regardless of whether it’s rescinded, but that’s unlikely to make a difference for the underlying politics.) If Republicans aren’t undoing large parts of the omnibus or creating a tough vote for Democrats, then, what are they doing? The push by the White House and some congressional Republicans to use the rescissions process is likely meant to provide Republicans with the chance to claim credit for trying to cut spending in an election year. It may also be part of an effort to smooth over tensions within the House Republican conference in advance of the selection of a new leader after Speaker Paul Ryan’s (R-Wisc.) retirement. The reluctance thus far of the Senate to go along with the House’s enthusiasm, however, suggests that the rescissions push may end in disappointment for its supporters. Special congressional procedures can help facilitate legislating, but they can’t always overcome underlying disagreement among legislators.