Cozen Currents: Process Trumps Substance

“Republicans generally agree on their substantial legislative priorities as they prepare to take the governing reins in the new year. The challenge of governing in Washington though is that process often trumps substance.” — Howard Schweitzer, CEO, Cozen O’Connor Public Strategies

The Cozen Lens

• With only a few weeks until the GOP assumes unified control of government, Republican lawmakers and Trump administration officials are mired in a debate over the best legislative strategy to advance party-line reforms to tax policy, border security, energy policy, and defense spending come 2025.
• While many industries will likely feel some relief from the change in antitrust enforcement regimes, President-elect Trump’s nominees to lead this regulatory effort may mean Big Tech is not as lucky.
• The battle to be the GOP’s next leader is already swirling but President-elect Trump isn’t the type to step away quietly.

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Reconciling Trump’s and GOP’s Priorities

Competing Strategies. Since the early Spring, members of GOP leadership have been laying the groundwork for the use of the filibuster-proof budget reconciliation process to pass the party’s top legislative priorities in 2025.

• With the 2017 Tax Cuts and Jobs Act’s (TCJA) individual provisions set to expire in December 2025, GOP lawmakers have long eyed next year as a chance to extend or make permanent President-elect Trump’s signature tax policy achievement. As the odds of a GOP governing trifecta grew over the summer, House Majority Leader Steve Scalise (R-LA) and other members of leadership set their sights on a much larger package, with Scalise telling Semafor in May that the party could include changes to immigration, energy, healthcare, and defense policy.
• While members of GOP leadership in both chambers of Congress broadly agree on their legislative priorities for next year, they are divided on how to make those dreams a reality. Faced with memories of the failed 2017 effort to repeal the Affordable Care Act, delaying the finalization of the TCJA for nearly a year, leadership is looking for a path to implement part or all of Trump’s 2025 legislative agenda as quickly as possible.
• Scalise repeatedly suggested this summer that a sweeping reconciliation bill could get done in the first 100 days of Trump’s second term. More recently, incoming Senate Majority Leader John Thune (R-SD) argued the party should divide its priorities into two separate reconciliation bills, advancing a package of reforms to border security, energy policy, and defense spending within the first 30 days of the incoming Trump administration. A tax-focused reconciliation bill would then be addressed later in the year.

A Political Reality Check. The speedy timeline GOP leaders, and Thune in particular, have laid out, is quickly being challenged by the political realities of a slim House majority and competing internal priorities.

• Although Thune’s two pronged reconciliation strategy received a warm welcome from members of the Senate GOP caucus, it’s facing stiff opposition from House Ways and Means Committee Chair Jason Smith (R-MO) and his fellow GOP committee members. Smith believes that separating out border security and energy provisions from tax reform could put the passage of the latter at risk, a sentiment that Politico reports both House Speaker Mike Johnson (R-LA) and Scalise privately agree with.
• Without an agreement on strategy, there’s no reconciliation bill at all. That’s why both Johnson and Scalise are deferring to Trump, who they hope can have the final say on the internal debate. House leadership expects that rank and file members will fall in line once Trump has weighed in on the debate.

A Procedural Reality Check. The debate over whether to divide the party’s priorities into one bill or two is only a precursor to the debate over which policies to include in the legislative package.

• Case in point, the House Freedom Caucus endorsed Thune’s two bill strategy late last week, but laid out a completely different structure to the two bills, suggesting energy reform should be dropped from the first package. House conservatives aren’t sold on the inclusion of an increase in defense spending in the first reconciliation bill either.
• Those debates precede the more fundamental challenges of reconciliation. The party will first need to pass a budget resolution to kick off the process, a move that will require leadership to put into writing the maximum deficit impact, or the amount of deficit reduction, the bill must include over a 10-year window. Party leadership is under pressure from House conservatives to offset much, if not all, of the cost. Only policy changes with a material budget impact can be included in a reconciliation bill, teeing up a later debate over just how sweeping changes to border policy and related non-budgetary measures can be.

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Antitrust Enforcement Under Trump

Populism’s Antitrust Marriage Under Trump. President-elect Trump’s embrace of populism in antitrust enforcement signals his administration may take a more aggressive approach than other Republican administrations have historically.

• The influx of populists in the Republican Party has led to the party traditionally associated with corporate interests having more critics of big business and business interests. This populist perspective is still not universal, which means fights for influence are expected under Trump. However, his early selections, including Vice President-elect JD Vance, signal populists are well-positioned to win some key battles, especially on antitrust.
• In understanding this stricter stance from populists, it is important to remember they are considered aggressive compared with other Republicans, but still more lenient than Democrats. Thus, there will be a shift in enforcement philosophy where the belief under the Biden administration that court challenges were necessary in many cases will go away. Additionally, there are sectoral limits to the hawkish nature of the nominees, with the most scrutiny likely to be aimed at Big Tech.
• The greatest respite concerning antitrust enforcement is likely to be the regulators’ willingness to accept behavioral remedies rather than always aiming to block a deal or pursue a structural remedy. This shift may lead to lower tensions between business interests and the antitrust regulators, as there will be a sense that the two groups can work together to reach a solution rather than clashing at every turn.

Populism at the DOJ. Trump’s choice of Gail Slater as assistant attorney general for antitrust signaled an intent to empower populists to oversee his antitrust agenda.

• Slater is known within Washington circles for her views on tech policy, particularly for criticizing Big Tech. She previously served at the Federal Trade Commission (FTC) and was a tech adviser to Trump during his first term. Most recently, she was a senior aide to Vance on tech policy.
• Slater’s history means that while her views on the tech industry are more well known, how she may enforce competition policy in other sectors is more uncertain. GOP antitrust hawks are most unified in their views on Big Tech, but there is less agreement about what other sectors to scrutinize. Slater may hesitate about large deals because of their size alone, but pressure on industries aside from Big Tech will likely dwindle from where it has been under President Biden.

A Makeover at the FTC. Trump’s nominations of FTC Commissioner Andrew Ferguson and Mark Meador as chair and commissioner at the commission, respectively, confirm his commitment to stricter antitrust enforcement for Big Tech.

• While Ferguson has predominantly focused his criticism of Big Tech on platforms’ alleged censorship of conservative viewpoints, more recent comments suggest an openness to addressing some of the structural anticompetitive practices posed by the businesses. Still, a likely willingness to pursue behavioral remedies could mean that settlements are pursued in some of the agency’s cases against the tech giants.
• Given that Ferguson is already a confirmed commissioner at the FTC, he can take over as chair of the agency once Trump is inaugurated. On the other hand, Meador will have to be confirmed by the Senate. While he is unlikely to run into significant opposition, delays in his confirmation could slow any partisan efforts to repeal some of FTC Chair Lina Khan’s guidance and regulations.

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The Race to Succeed Trump Starts Now

Heavy is the Crown. President-elect Trump is in a unique political position no other commander-in-chief has encountered before.

• Famously, Grover Cleveland was the only prior president to serve out two non-consecutive terms. However, he did so prior to the 22nd Amendment, which instituted a two-term limit on the position. As a result, Trump will be the very first president to enter from out of power as a lame duck.
• The extent of his grip on the Republican Party is also noteworthy. Rarely has a single figure so utterly dominated one of the major parties in American politics for so long. A good proportion of politicians and the base are loyal to him personally and he’s bullied the openly critical faction of his party into extinction, massively changing the policy platform along the way. To the GOP, Trump’s word may as well be law.
• While everyone is focused on Trump and his immediate plans for this upcoming term, the unavoidable fact is that this era of politics, like all before it, will come to an end (and perhaps soon). Looking at the uncaring reality of actuary tables, Trump will be 82 if he serves this term to completion. Granted, he may well find some official office once he’s out of the White House and will likely remain influential after he leaves. But in any case, somebody is going to have to be the party’s nominee next cycle in 2028, and the so-called invisible primary starts well before that. Republican hopefuls are already working to set themselves up in prime position when the starting gates open.

The Sword of Damocles. Everyone wants to be on top but Trump wants to stay the king, not just the kingmaker. Anyone who pushes too hard risks getting their head cut off.

• Anyone aiming to replace Trump will undoubtedly require his blessing but must thread a delicate balance. If someone comes across as so ambitious as to present a possible threat, he hasn’t historically taken too kindly to that. For a prior example, just look at Governor Ron DeSantis (R-FL). As a result, the invisible primary must stay even less transparent than usual this time around.
• Many Never-Trumpers ran in the 2024 presidential primaries to keep their spot warm for a possible opening in a post-Trump world. Figures in this camp include former Governors Nikki Haley (R-SC) and Chris Christie (R-NJ) and Vice President Mike Pence. While it’s not inconceivable that Haley could return to the party’s good graces, their strategy and identity of winning as traditional conservatives is as good as dead. Anyone aiming to be the next standardbearer has to satisfy if not actively embody the MAGA populism that’s on the verge of fully replacing the older model.

Vice President-elect JD Vance is in pole position to lead the party next and VPs have a historically good track record of getting the No. 1 spot. Vance has positioned himself as a leader in forging the ideological future of the GOP and a bulldog not afraid to fight. Of course, this proximity to Trump has both pros and cons. The boss is nothing if mercurial and any time in contact with him is also an opportunity for conflict: we all know what happened to Pence.

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