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The Senate’s doomsday scenario

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Senators mostly agree the process for confirming a president’s nominees is broken. They also know it could easily get worse.

This week’s “nuclear” rules change by Senate Republicans — allowing most of President Donald Trump’s nominees to be confirmed in groups — is only the latest hammer lawmakers have taken to the once collegial nominations process.

The rancor could be turned up even higher, however, in a scenario the Senate hasn’t faced since it first changed the confirmation rules along party lines more than a decade ago: a newly elected president facing a majority of a different party.

Split government colliding with the first year of a president’s tenure has been rare in recent history. It hasn’t happened since 2001, when George W. Bush faced an ultra-tight Senate margin that flipped the majority back and forth between parties. And in the two decades since, the nominations process in the Senate has grown consistently more partisan, with more hurdles and longer wait times for confirmations.

The Senate saw a hint of how the chamber’s recent nominations warfare could play out in such a scenario in 2015 and 2016, when Republicans held the majority during the final two years of former President Barack Obama’s term. His second attorney general nominee, Loretta Lynch, waited five months to be confirmed. And that standoff was only a precursor for a cataclysmic battle that still hangs over the chamber today: then-Majority Leader Mitch McConnell’s decision to hold a Supreme Court seat open for more than a year.

But the stakes would be exponentially higher after a presidential election where every Cabinet position, not to mention hundreds of lower and mid-level executive branch nominees, plus any judicial vacancies, would need to be filled.

Sen. Kevin Cramer (R-N.D.) put McConnell’s move after Justice Antonin Scalia’s 2016 death in a category of its own, arguing that it was the pinnacle of the Senate’s recent confirmation fights. But he acknowledged a new president would need to “work with” an opposing majority if he or she wanted nominees confirmed.

Presidents, he said, would need to be “thoughtful” about nominees who are “confirmable.”

Yet bipartisan support for nominees has waned over the years, which has been reflected in the rising number of nominees who have had to overcome once rare procedural hurdles.

During the first 200 days of his second administration, Trump’s nominees faced the longest delay in recent administrations between nomination and confirmation, according to data from the Partnership for Public Service. And Democrats have forced nearly twice as many nominees to overcome procedural hurdles before a final vote compared to what Joe Biden faced from Senate Republicans by this same point.

Max Stier — president and CEO of the partnership, which runs an initiative focused on presidential transitions — said that Senate majorities have always had the ability to block nominations. But with the current rules change, he added, “the system that envisioned separation of powers is now seeing separation by party.”

“This is a significant ramping-up of that phenomenon,” he said. “The question is, are we watching our government being fully eaten up by the competition between teams?”

Gridlock from the minority party is what then-Majority Leader Harry Reid cited when Democrats first deployed the “nuclear option” in 2013 to lower the confirmation threshold for executive branch nominees and most judicial picks from 60 to 51. Republicans under McConnell took the same step in 2017 for Supreme Court picks and then sped up the debate time for most other nominees two years later.

“I don’t think the Democrats have ever voted for a Trump judicial [nominee] and I don’t want our side to become like that,” said Sen. John Kennedy (R-La.), predicting that “some Republicans, maybe not a majority,” would vote for a Democratic president’s nominees in the split scenario.

Some senators have recognized the pitfalls of the current partisan gridlock. Last week, a handful of lawmakers launched a last-minute effort to avert a party-line rules change, and those involved in the deal believed they were close to an agreement that would have allowed for the simultaneous confirmation of up to 15 nominees — an idea they believed could get supermajority support.

But they couldn’t get consent from all 100 senators to move forward, and Republicans — not convinced that Democrats would actually cut a deal — pulled the plug and moved forward with the party-line approach which allows for unlimited simultaneous confirmations. That brief glimmer of bipartisanship quickly gave way to recriminations about the calcifying fault lines in the chamber’s nominations fights.

“The nominations process is broken and in desperate need of an overhauling,” said Sen. Jeff Merkley (D-Ore.), who accused Republicans of watering down the Senate’s “advise and consent” role.

Sen. Tim Kaine (D-Va.) added that he worried “to some degree” about the possibility that a Republican Senate would stall Democratic nominees. But he also offered a warning: “I think they ought to be worried about a Dem president and a Dem Senate just putting people together in blocks.”

Democrats openly warned Republicans they were setting a precedent that could be used against them when they are out of power. Senate Minority Leader Chuck Schumer said it “won’t take very long for Republicans to wish they had not pushed the chamber further down this awful road.”

While Republican senators defended their decision to go nuclear — claiming some Democrats privately agreed the Senate was spending too much time processing nominations — they also acknowledged the threat of a larger war looms.

Sen. John Cornyn (R-Texas) said the possibility of interbranch gridlock amounted to “another problem” the Senate would eventually have to deal with.

“Nothing’s easy,” he added.

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Congress

DHS stopgap set for quick House action after Rules Committee vote

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The House Rules Committee advanced a measure Friday evening that would fund the entirety of the Homeland Security Department through May 22 — without setting up debate or a separate vote on the funding bill itself.

The panel, after a raucous meeting that devolved into shouting at multiple points, voted 8-4 on party lines to advance the measure to the floor.

The rule includes a “deem and pass” provision, a tactic that allows legislation to be passed by the House automatically once the rule itself is adopted. While there will be one hour of floor debate and a vote on the rule, there will not be a standalone House vote on the DHS spending bill.

Rep. Jim McGovern (D-Mass.) described himself as needing “a neck brace” from the whiplash of hearing Republicans argue for hours that the Senate’s early-morning voice vote on a different DHS funding measure was “shameful” for lack of transparency and accountability.

House Appropriations Chair Tom Cole (R-Okla.) accused the Senate of moving their bill “in the middle of the night, with the smell of jet fumes in the air,” lamenting that the House was left “to take it or leave it.”

House leaders, McGovern suggested, have chosen a similar path by fast-tracking the eight-week DHS stopgap.

“You’re in charge,” he told Rules Chair Virginia Foxx (R-N.C.). “You can do whatever the hell you want to do.”

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Congress

Rand Paul weighs a 2028 presidential bid

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Sen. Rand Paul (R-Ky.) is considering a bid for president in 2028, as Republicans jockey for the future of the GOP post-Trump.

In a “CBS Sunday Morning” interview airing Sunday, a reporter asked Paul about an article that implied he would be running for president.

“We’re thinking about it,” Paul said. “I would say fifty-fifty,” adding that he would make a final decision after the midterm elections.

Paul ran for the Republican nomination for president in 2016 with a libertarianism-focused campaign but ultimately dropped out after a poor performance in the Iowa caucuses and a shortage of cash. He instead ran for reelection to the Senate.

Paul has had a complex relationship with his own party and with President Donald Trump, often finding himself the lone Republican on certain issues. More recently, he was the only Republican to support a joint resolution that would limit Trump’s war powers in Iran.

His father, former Rep. Ron Paul, also ran for president three times: first as a Libertarian in 1988, and twice as a Republican in 2008 and 2012.

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Congress

‘Meltdown’: DHS shutdown set to drag on after House GOP rejects Senate deal

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House Republicans moved Friday to further extend the six-week shutdown of the Department of Homeland Security by rejecting a Senate bill that would fund the vast majority of DHS agencies through September.

Instead, Speaker Mike Johnson proposed a temporary extension of DHS funding through May 22 — a plan that has uncertain prospects in the House and certainly won’t pass the Senate before the shutdown becomes the longest funding lapse in U.S. history Saturday.

But Johnson said House Republicans simply could not swallow the Senate bill, which omits funding for Immigration and Customs Enforcement as well as Border Patrol and some other parts of Customs and Border Protection.

“The Republicans are not going to be any part of any effort to reopen our borders or to stop immigration enforcement,” he said. “We are going to deport dangerous criminal illegal aliens because it is a basic function of the government. The Democrats fundamentally disagree.”

The move toward an eight-week stopgap creates a tactical gulf between Johnson and Senate Majority Leader John Thune, who called an end to weeks of abortive bipartisan talks Thursday and pushed through the funding bill in hopes of tacking on funding later for ICE and CBP in a party-line budget reconciliation bill.

President Donald Trump has largely stayed out of the GOP infighting on Capitol Hill, keeping his criticism trained on Democrats. He ordered DHS to pay TSA officers Thursday as long security lines snarls more U.S. airports.

Johnson played down the split with his Senate counterpart, saying the Democratic leader there bore more blame for the impasse.

“I wouldn’t call John Thune the engineer of this,” he said. “Chuck Schumer and the Democrats in the Senate have forced this upon the Senate. I have to protect the House. … Our colleagues on this side understand this is not a game. We are not playing their games.”

Thune said early Friday morning he did not speak directly to Johnson in the final hours leading up to the Senate’s voice vote, but he said they had texted. He acknowledged he did not know in advance how the House would handle the Senate bill.

“Hopefully they’ll be around, and we can get at least a lot of the government opened up again, and then we’ll go from there,” he said.

Johnson made his game plan clear with House Republicans on a private call just minutes before addressing reporters in the Capitol, according to four people granted anonymity to describe the call. He warned that a failure to advance the short-term DHS stopgap would upend GOP plans for a reconciliation bill, the people said.

He suggested the Senate could quickly clear the stopgap measure once it passes the House. Most senators have left Washington for a recess running through April 13, but Johnson said the chamber could approve the House measure by unanimous consent at a planned pro forma session Monday.

But some House Republicans on the private call, including Rep. Carlos Gimenez of Florida, aired doubts it could pass the Senate — or even the House. Some fellow GOP centrists argued that the House should just swallow the Senate bill and end the standoff.

The House plan for a 60-day stopgap won a cold reception in the Senate, with even Republicans warning it will only prolong the partial government shutdown.

The plan is instead fueling frustration among both Republicans and Democrats who view House Republicans as essentially throwing temper tantrum. Three people granted anonymity to speak candidly each described the House as having a “meltdown.”

Schumer publicly slammed the House GOP plan Friday, saying it was “dead on arrival” across the Capitol, “and Republicans know it.”

A Senate GOP aide granted anonymity to speak candidly added that the quickest way to end the shutdown is for the House to pass the Senate bill.

Five people granted anonymity to comment on Senate dynamics said there was no possibility that Democrats would let the House GOP plan pass during the Senate’s brief pro forma sessions over the next two weeks. It would only take one Democratic senator to show up and object to any attempt to pass it.

The bill, according to the five people, also can’t get 60 votes in the Senate once the chamber returns. Democrats have previously rejected even shorter stopgaps, leaving some to privately question why House Republicans would ever think their plan would work.

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