Cozen Currents: How Things Will Get Done in a Divided Congress

“The first week of the 118th Congress starkly demonstrated that Democrats do not have a monopoly on disarray. But just like in nature, politics abhors a vacuum, and the key as always to navigating Congress is appealing to enough interests among the differing factions.”

— Howard Schweitzer, CEO, Cozen O’Connor Public Strategies

The Cozen Lens

Conservative Republicans hold more power this year in Congress, but different factions among conservatives are dividing the GOP on not just what they stand for but how they will operate in the year ahead.

Last week was a testament to the power of House conservatives, but moderates shouldn’t be counted out in 2023.

While progressives were forced into legislative compromises last Congress, their influence on President Biden’s executive agenda and nominees will likely continue even as they navigate a divided Congress and new House Democratic leadership.

The Conservative Battle Over Tactics

Who Are Conservatives? You’d be hard-pressed to find a Republican lawmaker who doesn’t identify as a “conservative.” But a Republican Party of conservatives doesn’t agree on what it means to act like a conservative.

• Most Republicans are “conservatives.” In America, 37 percent identify themselves as “moderate,” 36 percent as “conservative,” and 25 percent as “liberal.” Among Republicans, 74 percent identify themselves as “conservative,” 22 percent as “moderate,” and four percent as “liberal.” That conservative number is certainly higher among GOP lawmakers.
• What it means to be a conservative lawmaker is as much about tactics as it is about ideology. Over 70 percent of the House GOP conference belongs to the conservative Republican Study Committee, a long-time group serving as the “conservative caucus.” But nearly all of the 20 GOP holdouts last week are members of the House Freedom Caucus that seeks a more obstructionist path to conservatism. Meanwhile, conservatives who are a part of groups like the bipartisan Problem Solvers Committee, the Republican Governance Group, and the Republican Main Street Partnership, seek out commonalities to get legislation passed.
• The tactical divide among conservatives in the Senate GOP caucus played out in their own leadership contest. As Senate Minority Leader Mitch McConnell (R-KY) received 37 votes in a secret ballot to become the longest party leader ever, there were 10 Republicans who voted for someone else. Those 10 mostly represent the obstructionist wing of conservatives.

What Do Obstructionist Conservatives Want? Last week showed what it means to be an “obstructionist” more than what it means to be a “conservative Republican.” These obstructionists have their own ambitions that don’t necessarily help the broader GOP.

• Obstructionists want weakened leadership. Congress is a top-down institution where fewer bills get to the floor and those that do are often voluminous packages crafted behind closed doors. These anti-institutionalists are seeking to empower themselves at the expense of leadership.
• Obstructionists want to bash government. This is not just fiscal conservatism, but also MAGA elements of the party seeking to investigate federal government employees and pushing a smaller defense and foreign policy apparatus.
• Obstructionists want a bigger perch for their own ambitions. Senator Rick Scott (R-FL) challenged McConnell. He also wants to run for president. Reps. Matt Rosendale (R-MT) and Byron Donalds (R-FL) opposed House Speaker Kevin McCarthy (R-CA). They also want to run for senator and governor, respectively. Reps. Matt Gaetz (R-FL) and Lauren Boebert (R-CO) just want more notoriety. All these aims are helped by taking a public stand against leadership of an institution that has a 22 percent approval rating.

Can Conservatives Get Along? Party leadership wants to remain unified and develop a winning message and platform against President Biden and Democrats ahead of 2024. But in a small House majority, multiple conservative factions are ready to be seen and wield power.

• Obstructionists hold more visibility and power. Beyond committee investigations and messaging votes, they have won concessions from leadership, including better representation on powerful committees controlling the House floor, requiring an open amendment process to must-pass legislation like appropriations, and holding the sword of Damocles over leadership with a one-vote threshold for a motion to vacate the speaker.
• Obstructionists are also giving governing conservatives more power. You’re only as powerful as the votes behind you. There are a handful of governing and defense-minded Republicans who are more willing to cut a deal with Democrats or defer to Senate Republican leadership than toe the obstructionist line on items like the debt limit and defense spending.
• Obstructionist vs. governing conservatism will play out at the presidential level as well. Former President Trump is more interested in fighting than governing, but he has not cleared the field, with several governing conservatives looking to enter the race later this year. There will be a symbiotic relationship between Republican presidential candidates trying to appeal to different conservative elements of the party in Congress while those same elements will look for direction from national conservative leaders.

Don’t Count Out the Moderates

Moderates in 2023. Though the House Freedom Caucus occupied the headlines last week, moderates have their own position of influence within the House GOP conference.

• In 2018, Democrats owed their House majority to moderates who won seats in districts that had been won by former President Trump two years earlier, especially in the suburbs. In 2022, it’s essentially the reverse.
• The Republican majority-makers are moderates who claimed victory in Biden-won districts, particularly in New York and California. A total of 18 House Republicans were elected in Biden districts. These lawmakers have to be careful not to go too far to the right, or else they risk losing re-election – and the Republican majority as a whole.
• Weak House leadership could empower Senate Republicans and moderates of both parties to work across the aisle. Without a strong speaker, there will be less pressure to go along with the party on House votes, and this could create greater openness for GOP moderates to strike bipartisan deals. They won’t want the Freedom Caucus to run the show. On the Democratic side, however, the two most high-profile moderates – Senators Kyrsten Sinema (I-AZ) and Joe Manchin (D-WV) – are in a more difficult position than last year. Now that there is divided government in Washington, the two senators lack the leverage they had in the last Congress. Sinema has become an independent, seemingly to avoid a Democratic primary in 2024, while it’s unclear if Manchin will run for re-election.

Will Bipartisan Gangs Make a Comeback? Moderates could be key to governing in a divided Congress.

• It’s possible that bipartisan and bicameral “gangs” on key topics could return in 2023. Moderates in the House and Senate will still want to get things done under divided government, so we could witness lawmakers teaming up to craft bipartisan deals on matters such as raising the debt limit. For example, a Senate gang could resolve this issue and then moderate Republicans and Democrats potentially can get it through the House.
• Because the margin of the Republican House majority is so narrow, GOP moderates are in a position to check some of the impulses of the far right. Though the Democratic House majority had its own more ideologically extreme members, in the end the “Squad” largely played ball with party leadership. If push comes to shove, there is a path for moderate Republicans to work with Democrats on a discharge petition to bring legislation, such as a debt limit increase, directly to the floor.

Bipartisan Legislation on the Horizon. Though legislating is harder in a divided Congress, there’s still must-pass legislation that requires bipartisan support.

• Though perhaps the most crucial, the debt limit isn’t the only issue that will be on Congress’ to-do list this year. As in every year, the National Defense Authorization Act will need to be passed, and the Farm Bill, which goes before Congress every five years, will be up for consideration again this year. Moderates are likely to be at the heart of negotiations on these bills. Senate Agriculture Committee Chair Debbie Stabenow’s (D-MI) retirement could facilitate bipartisan compromise on the Farm Bill, as she would aim to end her career on a high note.
• Appropriations, usually a bipartisan process in which moderates often play important roles, could be more acrimonious this year. House Speaker Kevin McCarthy (R-CA) in his negotiations with the conservatives opposing his bid for the gavel agreed to hold separate votes on all 12 appropriations bills rather than bundling them in an omnibus and to limit defense and nondefense discretionary spending to levels from the start of Biden’s presidency. This could increase the risk of prolonged stopgap funding measures.

Progressives Aim to Continue Momentum

Driving the Executive Agenda. Progressives have felt that they have been able to have a real influence on President Biden’s executive actions and are hoping that they will continue into 2023, as it becomes a bigger focus for him. His principal agenda, however, will be his reelection in 2024, so he only will go so far to the left on policy.

• The last two years were far from perfect for progressives, who often got stymied on their legislative ambitions and had to settle for something rather than nothing. The upside was that the White House was willing to pursue executive actions as a work around.
• The relationship though is far from perfect between them and Biden and there have been moments of frustration when the president has opted for a more centrist approach, such as with immigration. For the most part though, these instances have been the exception more than the norm, allowing progressives to attain tangible, albeit partial, policy successes.
• Progressives are hoping this collaboration will sustain itself as Biden puts a renewed emphasis on his regulatory agenda in the face of a divided government. Areas in which they are looking for continued movement include labor, antitrust, and consumer protection.

Personnel is Policy. A major reason for Biden’s progressive executive agenda has been the regulators that he has nominated and the Senate has confirmed, an effort that should be easier now that Democrats have an effective 51-seat majority.

• The benefit for progressives of securing sympathetic agency heads is that as independent actors, they have fewer constraints to advance a progressive agenda than members of Congress do. This is not to say that there are no roadblocks, particularly as the courts became more conservative under President Trump, but it provides a backstop for progressives to rely on when forced to compromise in legislative negotiations.
• Entering this new Congress, key Biden nominees still remain unconfirmed, but a 51-49 Senate will reduce the procedural hurdles needed to confirm some of these more divisive nominees. Notable pending nominations include Gigi Sohn to be the third Democratic member of the Federal Communications Commission and Danny Werfel to be the head of the Internal Revenue Service.

Navigating the New-Look House. While House Democrats will garner less attention than if they had retained a majority in the House, there are still key dynamics to watch as the new members of Democratic leadership in the lower chamber find their sea legs.

• The most interesting person to watch will be House Minority Leader Hakeem Jeffries (D-NY) as he seeks to corral his caucus. His predecessor, Rep. Nancy Pelosi (D-CA), developed a good working relationship with progressives even if they butted heads at times and was considered a progressive herself for many years, but Jeffries is more of an unknown.
• As much as progressives have relished the chaos of the House speaker election and pointed to it as a sign of their good behavior, they are also the most likely to cause an unforced error for their conference. This would most likely come as what seems like a simple statement to one of them, but sparks a big Republican backlash and gives the GOP something to rally around, temporarily papering over their own divisions.

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