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Reporter’s Notebook: Will stalled border security talks lead to the next government shutdown?

New rule in Congress requires bills to be available to read for 72 hours before a vote

It didn’t take much to figure out that border security talks were stalled this weekend.

If they were close to nailing down a deal, negotiators and staff would have been at the Capitol. They wouldn’t have been out doing their usual weekend activities. Church. Exercise. Virginia wineries. Trips out of town. Kid activities. Birthday dinners in D.C. bistros.

Things are stalled. And that’s why uncertainty is the word this week in Washington.

Will border security conferees find a path to an accord on border security? Will they avert a government shutdown? Is there enough time? Would any pact earn the signature of President Trump?

Democrats weren’t willing to cut a deal before Trump delivered his State of the Union address Tuesday. A false hope helped permeate the talks when Trump didn’t declare a national emergency in his speech and Democrats seemed willing to bend.

That’s one of the reasons Senate Appropriations Committee Chairman Richard Shelby, R-Ala., was practically ebullient when he returned from the White House Thursday afternoon after huddling with Trump.

“It’s the most positive meeting I’ve had with the president,” said Shelby. “The trajectory is very positive right now.”

Fast forward to Sunday morning.

“Those olive branches became thorn bushes,” confided one knowledgeable source.

House Speaker Nancy Pelosi, D-Calif., expressed certainty that a second shutdown wouldn’t hamstring Washington – suggesting that a second shutdown spelled doom for Republicans. However, some Republicans thought Pelosi was simply trying to tempt the GOP to misplay their hand.

Shelby thought Trump would sign a measure to avoid a shutdown, “if we work this out in the context we were talking today.”

However, the Alabama Republican was far from convinced a shutdown was out of the question.

“Certainty?” asked Shelby rhetorically. “There is a lot of uncertainty.”

White House Chief of Staff Mick Mulvaney said a shutdown remained “on the table” during an appearance on Fox News Sunday. Democrats don’t want a shutdown. But, if there is, Pelosi and company are certainly betting voters again will blame Republicans.

Until Friday, members of the border security conference committee expressed optimism. But, multiple sources warned Fox News that the cheerfulness scared them. By Friday afternoon, another source central to the process suggested they were more pessimistic now than they were before. By Sunday morning, everything was dead.

One constant source of cynicism stems from how negotiators on both sides view the president.

There’s always been angst that if negotiators reach a deal, Trump still might not sign it. Trump can be tempestuous and unpredictable. Everyone on Capitol Hill remembers what happened in December. Senate Majority Leader Mitch McConnell, R-Ky., thought the White House signaled the president would sign a short-term spending measure to avoid a shutdown. McConnell put the measure on the floor and the Senate approved the package via voice vote. By morning, Trump opposed the bill.

Here’s the other problem: the president isn’t going to get anywhere near $5.7 billion for a wall or a physical barrier, regardless of what you want to call it. In fact, he may not even score $2 billion. The number is more likely to clock in at $1.6 billion to $1.7 billion in spending for a border barrier – although Fox News has heard figures well below those numbers.

“It’s not going to be good no matter what they reach and he won’t sign it,” said one source close to the president.

There are limitations as to how much money border security conferees can allocate to the Department of Homeland Security bill. The total cost of the measure would likely hover around $49 billion to $50 billion for Fiscal Year 2019. If conferees were to really explode spending for the wall, they’d have to cut other DHS priorities. That could jeopardize national security.

As one source put it to Fox News, “you don’t get your icebreaker” if you push for more physical barrier spending.

McConnell criticized House Democrats for passing a variety of bills to re-open the government during the shutdown, decrying the measures as “show votes.” However, one could level a similar criticism at House Republicans - still in the majority late last year - when they advanced a bill to fund the government and spend $5 billion for the wall. Nowhere in that plan pushed by former House Speaker Paul Ryan, R-Wis., was any fiscal offset provision to address other Homeland Security needs. In other words, the GOP bill would have spent money for the wall, potentially at the expense of other national security priorities.

NO BORDER SECURITY DEAL ON THE TABLE AS SHUTDOWN DEADLINE LOOMS

Striking a balance can be found through compromise. That’s exactly what Democrats and Republicans tried to do behind the scenes in this conference committee. Remember, many Democrats don’t want any money at all devoted to a physical barrier. But, if Democrats are going to agree to some wall funding, then they had better secure something for their concession.

“Like in any negotiation, Republican want some form of physical barriers. It’s what do we get in exchange for that?” said Rep. Lucille Roybal-Allard, D-Calif., one of the conferees.

In exchange, Democrats are adding restrictions about how to spend physical barrier money. They are also pushing limitations in “interior enforcement,” such as the number of Immigration and Customs Enforcement (ICE) agents, the parameters of what ICE agents can do and ICE beds. Republicans say Democrats want to cap ICE’s ability to detain people and count felons against the cap.

“The wall is a red herring for the Democrats,” added a Republican source. “We got stuck on an interior enforcement cap.”

“This weekend will tell us a lot about where this is going,” said House Minority Leader Kevin McCarthy, R-Calif., on Friday.

And look where we are.

McCarthy has focused on what Pelosi can deliver to avert a shutdown. However, if Pelosi is to convey success, she and the Democrats are going to have to get something for a yes vote.

There are five things to know about Pelosi in this exercise:

1)     Pelosi is a former member of the Appropriations Committee. Appropriations and deal-making are in her DNA. She would like to see them reach an agreement. But, Pelosi has to score a big win. She’s hearing a lot of noise from liberals in her caucus about the performance of ICE.

2)     Pelosi must also stick to her position of no money for a “wall.” The question is whether Pelosi can abide whatever the final terminology is in the legislation and if it could be interpreted or not interpreted as a “wall.” Fox News has long been told that the word “wall” may not even appear in the legislation, even if it’s something some Republicans may characterize as a “wall.”

3)     Pelosi has fought against the president. That’s good internal politics for the speaker. Still, Pelosi must strike the right balance toward standing firm on her principles, yet open to compromise. She can’t appear to be too strident.

4)     Pelosi knows it’s good for many of her moderate freshman Democrats from swing districts to vote for border security. Many of these Democrats represent battleground districts. Vote yes on this plan and call the barrier whatever works back home.

5)     Pelosi is also under the microscope of House Democratic freshman. They are a different breed. Not all are liberals, either. Many don’t want to see another shutdown. Some are willing to go toe-to-toe with the president. But by the same token, they also want to get things done and seek compromise. There could be pressure from freshman to get to “yes.” They want voters to view them as “problem solvers.”

As is always the case in these negotiations, a final outcome will hinge on getting the math right. Assembling just the right mixture of Democrats and Republicans to support a package. Any final arrangement would likely require votes in the middle. Lawmakers at the margins - hard left and hard right - would probably oppose the legislation. Still, there’s a sweet spot in the middle of lawmakers from both parties who could vote yes.

If there’s no agreement, the sides may have to approve an interim spending bill (known as a CR, short for “Continuing Resolution) to fund the government. Such a plan simply re-ups all spending at current levels. It’s possible appropriators could split the measure - taking the six spending bills where there is agreement and moving them as “new” bills – and simply doing a CR for DHS. But, a CR for all bills is bad for Democrats. They scored a lot of domestic policy wins in those measures. A CR for everything means Democrats leave money for their programs on the table. This could be an incentive for Democrats to deal.

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So we look to next weekend. Government funding expires at 11:59:59 p.m. ET Friday. Will key lawmakers and staff engage in typical weekend activities then because the government is open? Or will they be doing those things because there’s nothing to discuss and the impasse continues?

The only certainty now in Washington is the uncertainty.

Chad Pergram Fox News

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