Budget Reconciliation Drama Grips DC, Debt Limit Deadline Nearing, News on Justice Reform Efforts
By Jason Pye - Director, Rule of Law Initiatives
Point of Order is a (mostly) weekly preview of key congressional activity for those with more than a passing interest in federal policy.
Furnace Fest was amazing: As I mentioned in the September 20 newsletter, I skipped doing a newsletter on September 27 because I went to a music festival at Sloss Furnaces in Birmingham, Alabama. Over the course of three days, I saw 16 bands, including a couple I hadn’t seen in 20 years or more. It was a blast. While I was there, though, I learned a couple of lessons. The first is that I hadn’t seen live music in 18 months. I hadn’t been to a music festival since 2016, when I went to Riot Fest in Chicago. I should’ve eased my way back into music by seeing some other shows before I left. The second is that merch tables are evil because they make me want to spend money.
EQUAL Act passes the House: Last Tuesday, the House passed the EQUAL Act, H.R. 1693, by a vote of 361 to 66. Those who have been reading this newsletter for a while should be familiar with this bill. In case you’re not, the EQUAL Act would eliminate the 18:1 sentencing disparity between crack cocaine and powder cocaine offenses and allow for re-sentencing of current inmates on a case-by-case basis. What happens next? Well, that remains to be seen. We’re working to get more Republican support for the EQUAL Act in the Senate, where the companion bill, S. 79, is awaiting action. Along with the package of bills that has already cleared the Senate Judiciary Committee, the EQUAL Act will continue to be a big focus of Due Process Institute for the foreseeable future.
Addressing a Supreme Court decision: Senate Judiciary Committee Chairman Dick Durbin (D-IL) has joined with Ranking Member Chuck Grassley (R-IA) and Sens. Cory Booker (D-NJ), Mike Lee (R-UT), Amy Klobuchar (D-MN), and Rand Paul (R-KY) to introduce the Terry Technical Correction Act, S. 2914. In 2010, the Fair Sentencing Act reduced the sentencing disparity between crack and powder cocaine offenses from 100-to-1 to 18-to-1 by reducing the penalties for crack cocaine. The First Step Act applied this change retroactively, allowing people who had been sentenced before the Fair Sentencing Act to have their sentence reduced to reflect the changes to the law. In June of this year, the Supreme Court, in Terry v. United States, unanimously held that Tarahick Terry wasn’t eligible for a sentence reduction under those provisions of the First Step Act. Terry, who had two prior drug convictions as a teenager, was sentenced to more than 15 years in prison as a career offender for possessing 3.9 grams of crack cocaine. The court decided that the sentence that Terry received under 21 U.S.C. § 841(b)(1)(C) wasn’t covered under the retroactivity provision of the First Step Act, which left him with no opportunity to have his sentence revisited, even though the law now treats crack cocaine offenses much less harshly. The Terry Technical Correction Act would fix this issue by making all individuals convicted of crack cocaine charges eligible for resentencing under the Fair Sentencing Act.
Well, the federal government is funded: On Thursday, Congress passed the Extending Government Funding and Delivering Emergency Assistance Act, H.R. 5305, to fund the federal government through December 3. President Joe Biden signed the bill into law the same day. The House originally passed H.R. 5305 on September 21. The Senate initially rejected a cloture motion because a suspension of the debt limit was attached to the bill. That got stripped out before the Senate passed the legislation on Thursday. The House quickly followed suit. Again, this is only a short-term continuing resolution, so we’ll do this all again in two months. “Hooray,” he said, sarcastically.
¯\_(ツ)_/¯: Democrats may have bit off more than they can chew by trying to push President Biden’s agenda through budget reconciliation while also trying to run a bipartisan infrastructure bill. The House has left town without taking a vote on either the bipartisan infrastructure bill or the budget reconciliation bill. The delay of a vote on the bipartisan infrastructure bill has angered moderates, who secured a promise for a September 27 vote on the bill in exchange for voting for the rule that deemed the passage of the budget to begin the reconciliation process. Progressives have insisted on a $3.5 trillion topline for Biden’s “Build Back Better” agenda. Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) won’t go that high. Manchin apparently secured a signed agreement with Senate Majority Leader Chuck Schumer (D-NY) for a topline of $1.5 trillion. That agreement wasn’t known until last week, and it caught nearly every Democrat off guard. Progressives aren’t having it, though. Congressional Progressive Caucus co-chair Pramila Jayapal (D-WA) said on Sunday that $1.5 trillion isn't enough. The low-end figure now is $1.9 trillion, but Manchin won’t go higher than $1.5 trillion. Speaker Nancy Pelosi (D-CA) wants both bills to be done at the end of the month. Schumer has said the same. Biden suggested that it doesn’t matter how long it takes to pass the bills. While the gulf between progressives and moderates like Manchin and Sinema is still very wide, big legislative initiatives live and die a thousand times before a final result. Still, it doesn’t look good for Democrats right now.
House committee schedule: The House isn’t scheduled to be in session until Tuesday, October 19. That seems very likely to change considering the debt limit will have to be done before then. There could also be a breakthrough on reconciliation that causes the House to come back. Below are some House committee hearings this week that may be of interest. The full House committee schedule for the week can be found here.
Joint Hearing: Balancing Open Science and Security in the U.S. Research Enterprise (Science, Space, and Technology Subcommittees on Investigations and Oversight and Research and Technology; Tuesday at 10:00 am)
Hurricane Ida and Beyond: Readiness, Recovery, and Resilience (Oversight and Reform, Tuesday at 11:00 am)
Oversight of the Securities and Exchange Commission: Putting Investors and Market Integrity First (Financial Services, Tuesday at 12:00 pm)
Afghanistan 2001-2021: Evaluating the Withdrawal and U.S. Policies - Part II (Foreign Affairs, Tuesday at 1:00 pm)
SBA’s Entrepreneurial Development Programs (Small Business, Wednesday at 10:00 am)
Emerging Contaminants, Forever Chemicals, and More: Challenges to Water Quality, Public Health, and Communities (Transportation and Infrastructure Subcommittee on Water Resources and Environment, Wednesday at 11:00 am)
Strengthening Our Communications Networks to Meet the Needs of Consumers (Energy and Commerce Subcommittee on Communications and Technology, Wednesday at 12:00 pm)
Homecoming: The Historical Roots and Continued Contributions of HBCUs (Education and Labor Subcommittee on Higher Education and Workforce Investment, Wednesday at 12:00 pm)
Legislative Hearing on the VA Electronic Health Record Transparency Act of 2021 and IT Reform and Data Collection Bills (Veterans’ Affairs, Thursday at 10:00 am)
Assessing the Election ‘Audit’ in Arizona and Threats to American Democracy (Oversight and Reform, Thursday at 10:00 am)
A Hearing to Review the State of the Livestock Industry (Agriculture, Thursday at 12:00 pm)
20 Years After 9/11: Examining Emergency Communications (Homeland Security Subcommittee on Emergency Preparedness, Response, and Recovery; Thursday at 12:00 pm)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Senate starts the week with a nominee: The Senate will reconvene today at 3:00 pm to consider the nomination of Jonathan Eugene Meyer to serve as the General Counsel of the Department of Homeland Security. A roll call vote on the cloture motion on Meyer’s nomination will take place around 5:30 pm.
The debt limit lingers: Now that the government is funded (for now), the debt limit is the next big pressing issue. On Thursday, the Senate agreed to the motion to proceed to the House message for the legislative vehicle for a clean debt limit suspension, S. 1301. (As a procedural matter, a motion to proceed to a message from the House accompanying a bill requires only a simple majority; this was not a cloture vote.) A cloture motion is expected on S. 1301 at some point soon, but cloture is not expected to be invoked.
The politics around the debt limit: Treasury Secretary Janet Yellen has told Congress that “extraordinary measures” will be exhausted on Monday, October 18. Senate Republicans are unified against suspending or, presumably, increasing the statutory debt limit in 31 U.S.C. § 3101. Senate Minority Leader Mitch McConnell (R-KY) has said Democrats will have to do this alone because Republicans view suspending the debt limit as tacit approval of the Democrats’ spending agenda. By this, McConnell means that Democrats will have to use budget reconciliation to increase the debt limit, one of the three allowable uses of the special process.
House Majority Leader Steny Hoyer (D-MD) is open to using budget reconciliation to increase the debt limit, but Schumer refuses to do so and has criticized Republicans for contributing to the national debt under Trump and not being willing to help with those obligations. Schumer claims the budget reconciliation process takes too long. Increasing the debt limit would require both chambers to amend the FY 2022 budget resolution and require two additional vote-a-ramas in the Senate. (For perspective, the first of the two budget resolutions passed this year, S.Con.Res. 5 was passed in the Senate in about four days. The second of the two, S.Con.Res. 14, was passed in three. You have to factor in committee work in the House, consideration on the House floor, and consideration in the Senate. It’s likely they would get it done and to President Biden’s desk before October 18, if they started soon.) Democrats want to suspend (not merely increase) the debt limit, which essentially provides a blank check to the Treasury to borrow money; however, budget reconciliation can’t be used to suspend the debt limit.
Another issue coming up in this debate is the filibuster. It’s not beyond the realm of possibility that Democrats try to exclude the debt limit from the filibuster or force a broader debate over changes to the filibuster.
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Nominations Hearing (Armed Services, Tuesday at 9:30 am)
Afghanistan’s Future: Assessing the National Security, Humanitarian and Economic Implications of the Taliban Takeover (Banking, Housing, and Urban Affairs; Tuesday at 9:45 am)
Renewing and Strengthening the Violence Against Women Act (Judiciary, Tuesday at 10:00 am)
Protecting Kids Online: Testimony from a Facebook Whistleblower (Commerce, Science, and Transportation; Tuesday at 10:00 am)
Nominations Hearing (Foreign Relations, Tuesday at 10:15 am)
Nominations Hearing (Foreign Relations, Tuesday at 2:30 pm)
Enhancing Data Security (Commerce, Science, and Transportation; Wednesday at 10:00 am)
Nominations Hearing (Judiciary, Wednesday at 10:00 am)
The U.S. Army Corps of Engineers Emergency Response to Hurricane Ida (Environment and Public Works, Wednesday at 10:00 am)
Pending Legislation (Energy and Natural Resources Subcommittee on National Parks, Wednesday at 10:00 am)
Business Meeting (Homeland Security and Governmental Affairs, Wednesday at 10:15 am)
Protecting a Precious, Almost Sacred Right: The John R. Lewis Voting Rights Advancement Act (Judiciary, Wednesday at 2:00 pm)
Oversight of Library of Congress Modernization Efforts (Rules and Administration, Wednesday at 3:00 pm)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
Nominations Hearing (Armed Services, Thursday at 9:30 am)
Nominations Hearing (Banking, Housing, and Urban Affairs; Thursday at 10:00 am)
Nominations Hearing (Health, Education, Labor, and Pensions; Thursday at 10:00 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Braves are NL East champions: There are some people who aren’t going to be happy with me for including this in the newsletter, but the Atlanta Braves won their fourth consecutive NL East title when they beat the Philadelphia Phillies on Thursday. It’s pretty impressive that the Braves pulled this off. They were a losing team until early August. They were decimated by injuries, losing Ronald Acuña and Mike Soroka, the latter of whom has been out since August 2020. We also lost one player, Marcell Ozuna, because of his own poor judgment. But smart trades were made, and the Braves managed to pull off a championship in another wild season. All that said, if you’re a sports fan from Georgia, you’re used to disappointment, so you learn not to get too excited about these things.
Due Process Institute is a bipartisan nonprofit that works to honor, preserve, and restore principles of fairness in the criminal legal system.