-- Posted by Neil H. Buchanan
This is just a quick (by my standards) Saturday post, to make two points:
(1) I share both halves of Professor Dorf's reaction to yesterday's announcement by House Republicans that they will create three months of additional room under the debt ceiling. Because the federal government formally hit the debt ceiling on December 31, 2012, this should take us through the end of the current continuing resolution under which the government is operating (March 27, 2013). In negotiations for another continuing resolution to take us (at least part of the way) through the remainder of the fiscal year, presumably they will threaten default again.
I will just add that Mike and I have been thinking longer-term for some time now, working through the logic regarding how our framework might apply to various strategies during budget negotiations going forward. I think everyone in Washington is now presuming that something like "the Gephardt Rule" (where budgetary legislation is automatically coupled with the necessary increase in the debt ceiling) will -- either formally or de facto -- be part of all deals going forward. I'm skeptical. Just because it would be crazy not to have a Gephardt Rule is no guarantee that it will be adopted. (See, e.g., recent history.)
In any case, I do think that there is plenty to say about this, and Professor Dorf and I are planning to say a lot of it, in blog posts and Verdict columns, as well as at least one more law review piece. The Republicans' announcement yesterday might initially have seemed to make us once again irrelevant academic scribblers, but it appears that we will remain barely-relevant academic scribblers for some time to come.
(2) One of my students this semester is a former staffer for a just-retired House Democrat. He recently pointed out to me that I have been using the term "budget" in a loose fashion, and that this error has the unfortunate effect of reinforcing a bogus Republican talking point. (Are there any other kinds?) This talking point, in fact, became a big part of Speaker Boehner's announcement yesterday regarding the temporary resolution of the debt ceiling standoff.
Specifically, I have been using the term "budget" as a shorthand for the combination of spending and tax laws that are in force at any moment in time. Therefore, I have made arguments to the effect that Congress passes a budget, and if the spending and taxing in that budget do not align with the debt ceiling, then we are in the Buchanan/Dorf trilemma. It turns out that, as a formal matter, "the budget" is merely the nonbinding framework legislation that guides authorization committees in setting spending levels. We do not have the possibility of a trilemma until spending has actually been appropriated, which is what creates binding legal requirements to spend at specific levels. (Among other things, this is when impoundment becomes unconstitutional).
I might have defended myself by saying that my use of the term "budget" was merely useful shorthand, punchier and more intuitive than "appropriated spending and taxing laws." My student pointed out to me, however, that the Republicans' attacks on the Senate for "not passing a budget" are nonsense precisely because they are merely making the technical point that the Senate has not passed the thing that is actually meaningless after the whole process is over. Thus, Speaker Boehner yesterday complained that "[t]he Democratic-controlled Senate has failed to pass a budget for four years. That is a shameful run that needs to end, this year." (Side note: I did not hear the audio at that press conference, but if Boehner really did say "Democratic-controlled" and not "Democrat-controlled," I think his Speakership might soon be under renewed attack from Tea Partiers.)
The Senate has, in fact, passed appropriations laws throughout the last four years -- a fact that is demonstrated by the observation that money has actually been appropriated and spent throughout that time. (That is, there have been no government shutdowns, notwithstanding there being "no budget.") Calling the Senate out for this supposed lapse is standard playground partisan taunting from the Speaker. (Apparently, the relevant laws governing budgeting do specify that the two houses must agree on a budget, but Republicans passing the Ryan budgets in the House is not proof that they have done their job. The law -- for no particular reason -- requires a joint budget resolution. Blaming the Senate for not responding to the House's joke budgets is classic Boehner.)
In any case, extremely careful readers of this blog might have noticed that I stopped using the word "budget" loosely about ten days ago. Boehner's trash talk yesterday explains why that actually matters, at least in our current degraded political conversation. My thanks to my student for bringing this to my attention.
Mike and I are having fun with all this. The Republicans just cannot stop gift-wrapping presents for us. Thanks again, Republicans!