Politics

The Blame Game over the Shutdown Showdown

By Lindsey McPherson
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Senate Majority Leader Mitch McConnell appears increasingly unlikely to have the votes necessary to pass a short-term patch to fund the government past Friday should the House advance the measure Thursday evening.

At least three GOP senators will vote against a continuing resolution to keep the government funded past Jan. 19, as Republican congressional leaders struggle to find the votes in either chamber to advance it. They will join a large chunk of Democrats who also say they will oppose the CR.

“There are going to be some people on both sides of the aisle who won’t support it. But if Chuck Schumer instructs all Democrats to vote no then the government is shutting down,” Senate Majority Whip John Cornyn of Texas said.

Sens. Mike Rounds of South Dakota, Lindsey Graham of South Carolina and Rand Paul of Kentucky all intend to vote against the CR in its current form. Rounds expressed frustration over the continued reliance on temporary funding measures, while Graham continues to push for a vote on his proposal to address the pending expiration of the Deferred Action for Childhood Arrivals program.

Both members voted for the last CR in December. Other Republican members who routinely vote against short-term funding bills, like Sens. Mike Lee of Utah and Rand Paul of Kentucky, could also vote against the House bill.

A Republican lawmaker speaking on background to discuss internal conversations said the conference’s Wednesday policy lunch grew heated at times as multiple senators voiced frustration over the need for yet another short-term patch.

Watch: Clock’s Ticking on Deal to Dodge a Government Shutdown

“I certainly am going to take up what the House sends us.,” Senate Majority Leader Mitch McConnell told reporters after that lunch. “I believe we have a good chance of passing it.”

A large bloc of Senate Democrats are also expected to vote against the CR over demands that the chamber first address DACA, which covers immigrants who come to the country as children. Even some members who voted for the last short-term extension in December, like Sen. Angus King, an independent from Maine who caucuses with Democrats, have announced they will vote against this CR.

Democratic Sens. Mark Warner and Tim Kaine, both of Virginia, announced Thursday they will also vote against the measure. Their objection is noteworthy given the large amount of federal employees in their state.

Senate Minority Leader Charles E. Schumer, during his opening remarks, suggested the CR is doomed to fail in the chamber.

“The House Republican Majority is moving forward with a continuing resolution that is likely to be unacceptable to the Senate, and may well be unacceptable to House Republicans,” the New York Democrat said.

GOP leaders have said the four-week patch is needed to allow discussions on both immigration and fiscal year 2018 spending levels to continue. Republicans argue a government shutdown would only hinder those talks.

“If the Democrats shut down the government over DACA, it would almost certainly poison the ongoing negotiations,” a Senate GOP aide said.

Republican leaders are said to have a very slim margin for success, so any GOP defections are noteworthy. The measure will need 60 votes in the Senate to pass, and Republicans hold only 51 seats.

A spokesman for Senate Majority Whip John Cornyn of Texas declined to comment on the current vote count.

House Speaker Paul D. Ryan and his leadership team remain short of the votes needed to pass a proposed four-week CR, but hope to muster the support necessary to advance the measure on Thursday.

House Minority Leader Nancy Pelosi urged her members to vote against the measure, which also includes a repeal of several taxes included in the 2010 health law and a six-year extension of a popular children's health insurance program.

McConnell said the inclusion of those measures makes it an “attractive package” for Democrats.

Some Republican senators have voiced support for an even shorter CR to force Congress to stay in Washington D.C. and address lingering issues like a long-term spending bill and immigration.

“I become more pessimistic about that overtime,” Sen. Jerry Moran, R-Kan., told CNBC when asked whether he thinks the government will stay open. “We ought to have a continuing resolution, not shut down government. But we ought to do it for a very short period of a time, a day or two, and stay here and resolve these differences.”

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Freedom Caucus Chairman Mark Meadows told reporters Thursday there are still more than 22 GOP ‘no’ votes on the stopgap funding measure and that Republicans can’t pass it on their own without additional changes.

“We’ve offered a number of different options, so it would take the leadership putting forth a different proposal than they currently have,” Meadows said on how GOP holdouts get to “yes” on the CR. He declined to say how many of the “no” votes were from the Freedom Caucus versus the conference at large.

Meadows confirmed the Freedom Caucus’s Plan A of full-year defense funding has been rejected and said he doesn’t think that their Plan B of defense anomalies is still in play.

“I’m sure we’re at Plan C, but I’m not ready to talk about it,” the North Carolina Republican said.

Meadows, speaking around noon, said he last talked to a member of leadership at 10:40 a.m. but he declined to say who it was. He also declined to say when he last talked to Trump, but noted the president “doesn’t want a shutdown.”

Shortly before Meadows’ remarks, House Speaker Paul D. Ryan expressed confidence the chamber would pass a continuing resolution and the president supported their plan, despite an earlier tweet from Trump suggesting the contrary.

House Minority Leader Nancy Pelosi called the current situation over government funding “amateur hour” in terms of Republican governance.

“This should have been done,” the California Republican said. “We could have come to a place where we had a budget agreement, as well as protecting our Dreamers which is part of that agreement as we go forward.”

“Instead Republicans are dilly daddling,” she said.

Pelosi referred back to Trump’s May tweet saying the country might need a good shutdown.

“Our country does not need any shutdown and there is no good shutdown,” she said.

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Pushing toward the pinnacle of defensive hyperbole by proclaiming himself “a very stable genius” has done more than anything to subject Donald Trump to speculation at the Capitol about how psychologically fit he is for the presidency.

Trump’s first comprehensive medical exam on Friday after a year in office, when his sedentary lifestyle and junk food habits have only been enabled, did not dispel worries by many congressional gym rats about the 71-year-old’s ability to withstand the job’s bodily strain.

More and more of these conversations have veered into the largely unfamiliar territory of the 25th Amendment, which creates a mechanism for removing a president who is mentally or physically incapacitated.

But that system’s complexities, supermajority political thresholds and essential role for the vice president are designed to be a fail-safe against anything that might smack of a hostile Oval Office takeover.

Watch: David Hawkings’ Whiteboard — What’s the 25th Amendment?

As such, there’s next to no chance the amendment will get applied to the point where this Congress would play a part — at least given what’s currently known, or even conjectured, about Trump’s states of mind and body.

To be sure, 61 House members (all Democrats, including two-thirds of the party’s Judiciary Committee members) have signed on to a bill creating the sort of independent commission described in the 25th Amendment as one venue for determining a president’s capacity.

[Trump Defends Mental State, Makes DACA-for-Wall Pitch]

And more than a dozen lawmakers, at least one of them a Republican, have met on the Hill in the past month with a forensic psychiatrist at Yale medical school, Bandy X. Lee, to hear her case that “Trump’s mental state poses a serious danger.”

In Politico last week, she detailed what she told lawmakers behind closed doors: “A few signs of this danger are: verbal aggressiveness, boasting about sexual assaults, inciting violence in others and the continual taunting of a hostile nation with nuclear weapons. Additional traits that are concerning are impulsiveness, recklessness, paranoia and rage reactions; a loose grip on reality with a poor understanding of consequences; a lack of empathy and belligerence toward others; and a constant need to demonstrate power.”

But that summation, which Lee declines to associate with a precise medical diagnosis because she’s never examined Trump, is a long way — medically, politically and constitutionally — from concluding the president is “unable to discharge the powers and duties of his office,” the threshold the 25th Amendment sets for replacing him either temporarily or indefinitely.

The amendment sailed through Congress in just the first six months in 1965 and had been ratified by the necessary 38 states less than two year later — the rapid pace mainly a reaction to President John F. Kennedy’s assassination and the heightened tensions of the Cold War.

The new president, Lyndon B. Johnson, had a history of heart trouble, and the next two people in line, Speaker John W. McCormack of Massachusetts and fellow Democrat Carl Hayden of Arizona, the Senate president pro tem, were both ailing — and a combined 157 years old.

The amendment created a provision for filling a vice presidential opening for the first time, even though the post had been open 16 times when occupants died, resigned or ascended to the presidency. The system — a presidential nominee takes office upon confirmation by the House as well as the Senate — is how House Minority Leader Gerald R. Ford of Michigan got his promotion following Spiro Agnew’s resignation to face corruption charges in 1973, then how Gov. Nelson A. Rockefeller of New York got the job the next year when Richard Nixon resigned and Ford moved up.

The simplicity of that process stands in contrast to the amendment’s other half, addressing presidential incapacity.

It was hardly a theoretical problem back then. James A. Garfield lingered for 80 days after being shot before dying, for example, while Woodrow Wilson was incapacitated by strokes with 17 months left in his term and Dwight D. Eisenhower suffered both a heart attack and a stroke.

In these and other cases, power was never even informally transferred because none of the vice presidents wanted to seem like usurpers.

Now, the Constitution has two procedures for transferring authority.

In the first, a president temporarily transfers power to the vice president. Ronald Reagan and George W. Bush both did so before anesthesia for medical procedures.

In the second, a president is unable to fulfill his constitutional role but cannot make the decision to step aside, probably because of a severe physical disability, or else refuses to yield power, probably because of significant mental health problems.

In that case, the vice president becomes “acting” president when he decides the time is appropriate and also obtains sign-off from either a majority of the Cabinet or some other panel created by Congress to take decision-making away from the department heads.

This is the commission, of physicians and former top administration officials, that would be established under the House bill — which, of course, is going nowhere unless plenty of Trump’s fellow Republicans conclude it’s necessary. (And even then, he could veto the measure.)

If the president pronounces himself ready to get back to work, the vice president and his fellow deciders (the Cabinet or the commission) would have four days to disagree and stop him.

At that point, Congress would have the final word. It would have three weeks to settle the dispute but could countermand the president’s judgment only with two-thirds majorities in both the House and Senate.

For all those elaborate and precise mechanics, though, the amendment’s text is silent on how “unable,” “inability” or “disability” should be defined.

The congressional authors decided to leave the language deliberately vague. Some were concerned a precise definition might be made obsolete by changes in the world of medicine. Others wanted to make sure that the elected officials given the decision-making powers had wide latitude to make what is ultimately a political decision.

Still, the debate made clear Congress didn’t want the 25th Amendment to be a tool for combating a president’s incompetence, laziness, unpopularity or even impeachable conduct.

They talked about invoking the involuntarily removal mechanisms only when a president was clearly and unequivocally incapacitated — in a coma, near death or in severe psychological distress.

The vice president, the Cabinet or the special panel should get involved when the president does “not possess the mental capacity to make a decision and perform the powers and duties of his office,” Democrat Birch Bayh of Indiana, the principal author of the amendment, said during the Senate debate in June 1965.

“We are not getting into a position, through the pending measure, in which when a president makes an unpopular decision, he would immediately be rendered unable to perform the duties of his office,” he said.

In other words, no one should expect these powers to get used, especially for the first time, in a way that could be portrayed by history as a constitutional crisis culminating in a coup.

A presumably politically loyal vice president would be the essential actor in any initial invoking of this extraordinary provision. And, in the end, it would take bipartisan supermajorities in Congress to move the president aside. It’s hard to imagine any of that happening under Vice President Mike Pence and the current GOP control on the Hill.

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The House Judiciary Committee plans to take up a bill on Wednesday that would overhaul the 1938 law governing foreign lobbying disclosures, but the measure’s fate in the Senate remains unclear.

The bipartisan bill could have broad implications not only for lobbyists and other U.S. representatives of foreign governments and political parties but also for those working on behalf of foreign corporations and nonprofit organizations.

Republican Rep. Mike Johnson of Louisiana and Senate Judiciary Chairman Charles E. Grassley of Iowa introduced companion bills last fall after the indictments of former lobbyists Paul Manafort and Rick Gates, who were charged with violating the Foreign Agents Registration Act, or FARA, by not registering as foreign agents for a Ukrainian client.

“Our bill ensures that those working with foreign nations appropriately disclose their relationships — ensuring transparency and protecting the democratic process,” Johnson said.

The House and Senate measures would give the Justice Department’s FARA unit additional authority, including subpoena-like powers. But some lobbyists and lawyers who specialize in compliance with the foreign-lobbying law say they have concerns about the bills as currently written.

A spokeswoman for the House Judiciary panel, Kathryn Rexrode, said amendments did not need to be filed in advance of the markup, so it wasn’t certain what changes might be in store for the measure. A Grassley spokesman did not respond to an inquiry about any Senate developments.

Watch: Clock’s Ticking on Deal to Dodge a Government Shutdown

Lobbyist Paul Miller, who runs the National Institute for Lobbying and Ethics, said his group supports the concept of better enforcement and compliance with the law.

But, he said, the way the measure is written could have unintended consequences for trade associations and lobbyists for groups and companies that do international work.

The bill would scrap a longstanding exception allowing lobbyists for foreign corporations and nonprofits to register under the less burdensome congressional lobbying regime.

“Sen. Grassley’s office been very accommodating and seems open to different approaches. We have some folks working on that,” Miller said. “But I’m not sure the House will make any changes that we want.”

Lawyer Joshua Rosenstein, who specializes in lobbying disclosure compliance matters, said the changes, especially those that relate to undoing the exemption for those registered to lobby with Congress, were causing concern on K Street.

“It’s not because industry is opposed to increased disclosure but because of the logistical burden it will place on industry,” he said.

The reports filed to the Justice Department under FARA must detail a lobbyist’s contacts to government officials, among other things that aren’t required for congressional lobbying disclosures.

Still, Rosenstein said, the bill appears to have momentum — especially on the House side.

“For it to move to markup, given everything else the House needs to deal with, including funding the government, it’s pretty unusual,” he said. “You haven’t really heard much opposition, at least publicly. You hear folks who are discussing what the language should be and what provisions need tweaking. You haven’t heard members coming out and saying, ‘This is a bad idea.’”

Claudia Hrvatin, a lawyer at King & Spalding who advises clients on FARA, said she was surprised the bill had been seemingly “fast-tracked” on the House side. “Certainly there is heightened awareness and a desire on the part of Congress to do something, and also a recognition that time has come to review this statute,” she said.

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Cohen’s Car Stands Out

By Bian Elkhatib
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