October 7, 2019
Getting Down to Business: Legislating under Impeachment
On September 24, 2019, House Speaker Nancy Pelosi initiated an impeachment inquiry into President Trump related to his alleged request for foreign assistance against a rival candidate for president. She has authorized six House committees to investigate actions taken by President Trump that will likely serve as the basis for an impeachment proceeding. The rules of the House of Representatives do not spell out requirements for impeachment inquiries; the process proceeds as the House leadership in power at the time decides.
The House Permanent Select Committee on Intelligence is taking the lead in proceedings with the five other committees* continuing investigations within their jurisdictions. Each committee will submit their findings to the House Judiciary Committee; should the Judiciary Committee determine sufficient grounds exist for impeachment, the committee will report articles of impeachment for consideration and a vote by the full House. The Constitution grants the House of Representatives the sole power to impeach. The Senate’s role is to adjudicate the articles of impeachment if they come over from the House.
In terms of Congress’ legislative agenda, there are many big-ticket items that hang in the balance: USMCA; drug pricing; extensions and modifications to provisions in the tax code; government funding bills; surface transportation reauthorization; and water resources development reauthorization, among others. In this environment, it may be helpful to glean some lessons from the most recent impeachment – that of President Bill Clinton – some twenty years ago when Congress succeeded in moving substantive legislation despite the partisan rancor.
Those of us who were working in the House of Representatives in 1998 remember a cascade of events that dominated the attention of Congress and the news media for much of the year. Independent Counsel Kenneth Starr delivered his report to Congress on September 9, presenting evidence of possible impeachable offenses by President Clinton. The report convinced House Republican leaders to launch impeachment proceedings, moving to a full vote of the House on October 8. Proceedings were led by the House Judiciary Committee and culminated in December with the House approving two of four articles of impeachment.
The Starr report, however, served merely to add gasoline to the fire as Republicans had been preparing for this eventuality since the beginning of the year. In fact, in March 1998, House Judiciary Committee Chairman Henry Hyde (R-IL) hired a Democratic prosecutor from Chicago to lead the committee’s eventual investigation. The House voted to impeach President Clinton on December 19, 1998. The Senate trial began in January of 1999 and acquitted him of the charges on February 12, 1999, failing to convict with a two-thirds majority vote. The length of time from delivery of the Starr Report to Senate acquittal took 6 months.
Throughout 1998 and despite the attention given to the Clinton proceedings, Congress was successful in moving legislation and conducting its normal business. 1998 saw the enactment of a multiyear surface transportation authorization, a major rewrite of copyright laws, and a measure enabling state governments to fund charter schools, among others. The appropriations process was completed in its entirety by October 21st – something we have rarely seen in the two decades since. In the lame duck session, when the House impeachment vote occurred, Congress passed a reauthorization of the Economic Development Administration, an omnibus National Parks bill, a Patent and Trademark Office reauthorization, reauthorization of the Perkins Vocational and Applied Technology Education Act, and many other meaningful bills.
We do not suggest the Congress of 2019 will be as prolific, but history indicates compromises can be won and legislative activity can continue in the throes of impeachment.
For the remainder of 2019, we expect the House to proceed on a dual track of impeachment and legislation. In order to show Democrats can lead and to protect Democratic members in marginal districts, Speaker Pelosi is incentivized to achieve enactment of priority legislative issues. Thus, we expect the House to remain active in the legislative arena and for the Speaker to pursue meaningful compromises with Republicans on policies both parties have championed as priorities.
* The six House committees involved in the impeachment inquiry are: Foreign Affairs; Financial Services; Intelligence; Judiciary; Oversight and Government Reform; and Ways and Means.