• Allon Advocacy

Impeachment: A Bust for Legislation, a Boon for Regulation

U.S. House Speaker Nancy Pelosi (D-CA) announces her intention to begin an "impeachment inquiry" into President Trump's alleged solicitation of foreign government assistance for his political benefit.

Normally, news of a sitting U.S. congressman resigning from office just before he pleads guilty to insider trading charges would consume much of the conversation inside the Beltway. But these, of course, are not normal times. With an impeachment inquiry into the president of the United States brewing, coverage of Rep. Chris Collins’ (R-NY) sudden departure from Congress this Monday was muted.

House Democrats’ investigation into the president is likely to block out widespread coverage of a lot of other news as well, and it probably also will result in even less legislation making it off Capitol Hill and down Pennsylvania Avenue to the president’s desk. (As we noted two weeks ago, this Congress already is one of the least productive in recent history.) To be clear: that is not a comment on whether or not House Democrats should move forward with their investigation – it is a simple statement of fact.

Put simply, impeachment will impact lawmakers’ ability to get things done. Congress is going to grind to a standstill and very little legislation will advance, but that does not mean an absence of policymaking. The president and the regulators will keep humming along under the radar.

Immediately after the House began its inquiry, Roll Call reported the White House threatened to “shut down” the “legislative process” during the impeachment investigation. In a statement, White House Press Secretary Stephanie Grisham said, “House Democrats have destroyed any chances of legislative progress for the people of this country by continuing to focus all their energy on partisan political attacks. Their attacks on the President and his agenda are not only partisan and pathetic, they are in dereliction of their Constitutional duty.” Note, Grisham said “legislative process.” The White House has no intention of stopping progress on executive orders, or regulatory rulemakings.

The White House’s hot rhetoric is in contrast with some of the other words we have heard.

House Speaker Nancy Pelosi (D-Calif.) has vowed her party still wants to work with the Trump administration to advance the United States-Mexico-Canada Agreement. U.S. Trade Representative Robert Lighthizer, who works for the president, has said the same. White House and House staff reportedly met this week to discuss drug pricing legislation, and the president’s aides also reached out to Sen. Chris Murphy (D-Conn.) to try to work together on gun legislation.

But don’t be fooled into thinking this rhetoric will turn into bill signing ceremonies, particularly since the occupant of the Oval Office is unlikely to extend a hand in cooperation. To wit: President Trump tweeted today that Speaker Pelosi is “incapable of working on” trade issues and prescription drug prices during the House impeachment inquiry.

In the next 10 days alone – when Congress actually is out of session – impeachment news will dominate. Kurt Volker, the former U.S. special envoy to Ukraine who resigned last week, will testify before the House and Marie Yovanovitch, former U.S. ambassador to Ukraine, will testify before the House Intelligence, Foreign Affairs and Oversight committees next week. This testimony, and all that will follow shortly thereafter, comes at a critical time in the legislative calendar. Indeed, the first legislative victims from the impeachment inquiry could be the fiscal year 2020 spending bills and the National Flood Insurance Program (NFIP).

Barely covered in the press last week for all the attention paid to the political circus at either end of Pennsylvania Avenue was a rare legislative victory in Washington. Congress last week managed to pass – with a veto-proof majority – a short-term funding bill that will keep the federal government and the NFIP open through Nov. 21. (A legislative victory in Washington is relative.)

Even with the Thanksgiving holiday bearing down, however, after seven weeks of impeachment news and hearings, it seems unlikely that lawmakers will agree to another stopgap with an un-vetoable tally. And President Trump will be less likely to sign a full-year funding bill, or even another stopgap – particularly if it does not include funding for his border wall.

Prepare for another government shutdown.

In fact, U.S. Senate Appropriations Committee Chair Richard Shelby (R-AL), whose committee is responsible for all bills that fund government operations, told Roll Call the impeachment inquiry will “affect everything,” including appropriations bills.

Across the aisle, Sen. Patty Murray (D-WA), who is working on health care legislation with Senate Health, Education, Labor and Pensions (HELP) Committee Chair Lamar Alexander (R-TN.) also sounded skeptical that bipartisan legislation could move forward in their committee with the threat of impeachment hanging over Congress and the White House. As ranking member of the HELP panel, she told Modern Healthcare, “It’s so hard to know right now … I think a lot of us want to keep working on things … But we’ll see what happens.”

If anything happens, that is.

According to The Hill, if lawmakers on Capitol Hill aren’t talking about public policy, candidates on the campaign trail will not either. “Lawmakers and strategists in both parties say impeachment could drown out almost every other issue in next year’s elections, making races for the House and Senate a referendum on President Trump,” Hill reporter Alexander Bolton wrote Wednesday. “All presidential elections end up mostly being driven by the battle for the White House, but the high-stakes impeachment battle is threatening to ratchet things up to a whole new level.”

While we would normally look to history to tell us how impeachment impacts legislative efforts in Congress, this instance is one of the rare ones where we do not think history is necessarily an accurate guide.

House Transportation Committee Chairman Peter DeFazio (D-OR) reminded Bloomberg that “Richard Nixon signed a huge infrastructure package when he was under an impeachment inquiry.” The U.S. House voted to launch a congressional impeachment inquiry against President Bill Clinton on Oct. 5, 1998. Between Oct. 6, 1998 and the end of that year, President Clinton signed 156 pieces of legislation into law.

In the first nine months of this year, President Trump has thus far signed only 61 bills into law. Don’t expect the current commander in chief to engage in the type of post-impeachment bill signing flurry Clinton did.

Instead of signing more legislation into law, it is likely the Trump administration will double down on an already-aggressive regulatory agenda.

According to the Office of Information and Regulatory Affairs at the Office of Management and Budget, there currently are more than 125 regulatory actions pending within the Trump administration, including 19 at the U.S. Department of Health and Human Services and 13 each at the U.S. Environmental Protection Agency and the U.S. Department of Transportation.

Many of these go straight to the heart of the president’s agenda, particularly on immigration. As its lawyers handle the impeachment inquiry – and the press hangs on every incremental development – the White House will more quietly work to implement and finalize regulations dealing with migrant detentions and whether immigrants who have obtained public benefits are eligible for citizenship.

The U.S. Securities and Exchange Commission, despite legal challenges from several states, will proceed with implementation of the Regulation Best Interest rule and, as Bloomberg Law explains, President Trump’s brand new Labor Secretary Eugene Scalia “is tasked with putting the finishing touches on a slew of rulemakings that were established long before Trump in July announced him as the pick to helm the Labor Department.”

Several news outlets this week quipped that the only thing able to kill the endless stream of “infrastructure weeks” has been impeachment. That analysis is likely right, but the events of the last week have killed so much other legislative potential, too. Whether it is transportation legislation, appropriations, or healthcare-related bills, we don’t see much headed to the president’s desk this fall.

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