Busy Work Period Begins for the House, Senate to Consider Nominees, Markup on Expungement Legislation This Week
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.
SJC markup for expungement legislation: Currently, there is only a very limited path, via 18 U.S.C. § 3607, to expunge a federal drug possession conviction. This statute only allows an individual under the age of 2 1 to seek expungement for first-time simple possession of a controlled substance under 21 U.S.C. § 844. The Senate Judiciary Committee will markup the Kenneth P. Thompson Begin Again Act, S. 2502, on Thursday at 9:00 am. Introduced by Sens. Chris Coons (D-DE), John Cornyn (R-TX), Dick Durbin (D-IL), and Thom Tillis (R-NC), the bipartisan Kenneth P. Thompson Begin Again Act, S. 2502, would amend 18 U.S.C. § 3607 to make anyone, regardless of his or her age, eligible for expungement of a simple possession charge under 21 U.S.C. § 844—providing a way for all individuals, regardless of their age, to avoid being defined by one simple possession conviction.
Why second chances matter: A criminal record, particularly a conviction, is a significant barrier to employment, housing, and educational opportunities. Record-sealing or expungement can enable opportunities for those with a criminal record and prevent a mistake from impeding them for the rest of their life. Considering that one in every three Americans has had an interaction with law enforcement that created a criminal record, this is a serious problem. As is often the case in the criminal justice system, there is evidence that people of color are impacted at higher rates. A January 2014 study noted that “about 30% of Black males have experienced at least one arrest by age 18 (vs. about 22% for White males); by age 23 about 49% of Black males have been arrested (vs. about 38% for White males).” Over the past several years, a bipartisan consensus has emerged in state legislatures to do something about the many arbitrary legal barriers created by a criminal record. Today, more than 40 states have some form of expungement or record-sealing law for some felonies and/or misdemeanor convictions.
The House is back this week: The House returns today at 2:00 pm for legislative business. First and last votes today are expected around 6:30 pm. The chamber will be in session through Friday, with the last votes of the week expected before 3:00 pm that day. There are 15 bills (listed below) on the suspension calendar for the week. These include postponed votes from the end of July.
H.R. ____, Department of Veterans Affairs Expiring Authorities Act (Veterans' Affairs Committee)
S. 189, Veterans’ Compensation Cost-of-Living Adjustment (Veterans' Affairs Committee)
H.R. 4172, To name the Department of Veterans Affairs community-based outpatient clinic in Aurora, Colorado, as the ‘‘Lieutenant Colonel John W. Mosley VA Clinic’’ (Veterans' Affairs Committee)
H.R. 1281, To name the Department of Veterans Affairs community based outpatient clinic in Gaylord, Michigan, as the "Navy Corpsman Steve Andrews Department of Veterans Affairs Health Care Clinic" (Veterans' Affairs Committee)
H.R. 3475, To name the Department of Veterans Affairs community-based outpatient clinic in Columbus, Georgia, as the ‘‘Robert S. Poydasheff VA Clinic” (Veterans' Affairs Committee)
S. 848, Consider Teachers Act (Education and Labor Committee)
S. 1828, HAVANA Act (Foreign Affairs Committee)
H.R. 1029, Free Veterans from Fees Act (Natural Resources Committee)
H.R. 1154, Great Dismal Swamp National Heritage Area Act (Natural Resources Committee)
H.R. 3533, To establish occupational series for Federal positions in software development, software engineering, data science, and data management, and for other purposes (Oversight and Reform Committee)
H.R. 3599, Federal Rotational Cyber Workforce Program Act (Oversight and Reform Committee)
H.R. 1204, District of Columbia Chief Financial Officer Home Rule Act (Oversight and Reform Committee)
H.R. 978, Chai Suthammanont Remembrance Act (Oversight and Reform Committee)
H.R. 2617, Performance Enhancement Reform Act, as amended (Oversight and Reform Committee)
S. 2382, To authorize the National Cyber Director to accept details from other elements of the Federal Government on nonreimbursable basis, and for other purposes (Oversight and Reform Committee)
Bills that come to the floor under suspension of the rules require two-thirds of members present and voting for passage. This is the most common way that bills considered by the House come to the floor. Some of these bills may be passed by a voice vote, rather than a roll call vote. Most bills that come to the floor under suspension aren’t widely considered controversial, although leadership may occasionally test a bill under suspension to gauge opposition or sneak a bill through the chamber. Because of the dilatory tactics used by the House Freedom Caucus, some suspension bills may be packaged together to save time and limit the number of roll call votes.
At least three rule bills this week: The House Rules Committee will meet on Monday at 12:00 pm to consider amendments and the rule governing consideration of the Women’s Health Protection Act, H.R. 3755; the National Defense Authorization Act for FY 2022, H.R. 4350; and a yet-to-be-introduced continuing resolution to fund the federal government through some point in December. It’s possible that additional legislation could come to the floor.
About the rule bills: The Women’s Health Protection Act is a bill designed to protect a woman’s access to an abortion. Considering the Supreme Court’s taking up the constitutionality of a 15-week abortion ban in its October 2021 term and its recent decision not to issue an injunction in a case challenging the new Texas abortion law while the case works its way through lower courts, the issue has come back into the spotlight. The National Defense Authorization Act (NDAA) is an annual authorization bill for the Department of Defense (DOD), covering FY 2022, which begins on October 1. We’re hopeful to see floor consideration of an amendment related to ending the DOD’s 1033 program, which has rightly been criticized for feeding the militarization of state and local law enforcement. We’re also crossing our fingers to see an amendment preventing law enforcement from querying Americans’ information collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA).
The debt limit is expected to come up: As of now, it’s unclear how the debt limit will come to the floor, but House Democratic leaders have said that the issue will be addressed this week. It does seem as though a suspension of the debt limit through a yet-to-be-determined date is likely. The manner in which the debt limit will be addressed, either through a standalone bill or attached to the continuing resolution that will be considered this week, isn’t clear. Where it gets interesting is that Senate Minority Leader Mitch McConnell (R-KY) has said that Senate Republicans are opposed to suspending the debt limit, in part because they oppose the Democrats’ spending spree. Even Sen. Susan Collins (R-ME) said, “The Democrats have added enormous amounts of debt, including the $1.9 trillion package, now $3.5 trillion on top of that, so they bear the responsibility for increasing the debt limit.” Sixty votes are needed in the Senate to advance the debt limit under regular order. Democrats can use budget reconciliation to increase the debt limit, which bypasses the filibuster, but they have declined to do so. The concerns about what would happen if the debt limit isn’t suspended or increased are usually what drives Congress to act, even when there’s gamesmanship around the issue. If the debt limit isn’t suspended or increased, Treasury won’t be able to borrow to finance deficit spending and interest on the debt. It could also mean that the United States may see its credit rating downgraded, which would mean higher borrowing costs and potential market-wide increases in borrowing, including for consumers.
An update on reconciliation: Let me begin this by noting that no one should ever count Speaker Nancy Pelosi (D-CA) out. That said, she certainly faces a hill to climb to get a $3.5 trillion reconciliation bill out of the House. The House Budget Committee now has all the recommendations from the committees tasked with work, but changes are almost certainly going to have to be made to get moderate Democrats on board. To highlight the scope of the problem, Reps. Scott Peters (D-CA), Kathleen Rice (D-NY), and Kurt Schrader (D-OR) voted against the drug pricing proposal in the House Energy and Commerce Committee, preventing the proposal from going in the committee’s recommendations for the reconciliation bill. Still, the drug pricing proposal made its way into the House Ways and Means Committee’s recommendations. Rep. Stephanie Murphy (D-FL) voted against the Ways and Means recommendations. If those four members vote against the final reconciliation package, the bill will fail. Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) are the hurdles for Democrats in the Senate, and they aren’t budging. The speculation has been that Democratic leadership will knock the price tag down to $1.5 trillion and try to move another reconciliation package in the fall to appease progressives. We haven’t even talked about the bipartisan infrastructure framework, H.R. 3684, which is supposed to be on the House floor next week and is hanging in the balance of all this. If reconciliation is significantly scaled back or fails to move forward, will progressives sink the H.R. 3684? That seems very possible right now.
Immigration overhaul gets knocked down: The Senate parliamentarian, Elizabeth MacDonough, has thrown cold water on Democrats’ plans to include immigration reform in budget reconciliation. “[P]ermitting this provision in reconciliation would set a precedent that could be used to argue that rescinding any immigration status from anyone—not just those who claim [lawful permanent resident] status by virtue of this provision—would be permissible because the policy of stripping status from any immigrant does not vastly outweigh whatever the budgetary impact might be,” wrote MacDonough. “That would be a stunning development but a logical outgrowth of permitting this proposed change in reconciliation and is further evidence that the policy changes of this proposal far outweigh the budgetary impact scored to it and it is not appropriate for inclusion in reconciliation.” Democrats reportedly have other immigration proposals that they will try to sell to the Senate parliamentarian in the coming days.
House committee schedule: Below are some House committee hearings that may be of interest. The full House committee schedule for the week can be found here.
Legislative Hearing on Several Bills (Veterans’ Affairs Subcommittee on Economic Opportunity, Tuesday at 9:30 am)
Task Force on Financial Technology: Preserving the Right of Consumers to Access Personal Financial Data (Financial Services, Tuesday at 10:00 am)
An International Response to Ortega’s Destruction of Democracy in Nicaragua (Foreign Affairs Subcommittee on Western Hemisphere, Civilian Security, Migration, and International Economic Policy; Tuesday at 10:00 am)
NASA’s Future in Low Earth Orbit: Considerations for International Space Station Extension and Transition (Science, Space, and Technology Subcommittee on Space and Aeronautics; Tuesday at 11:00 am)
Worldwide Threats to the Homeland: 20 Years After 9/11 (Homeland Security, Wednesday at 9:00 am)
Veteran Suicide Prevention: Innovative Research and Expanded Public Health Efforts (Veterans’ Affairs, Wednesday at 10:00 am)
Putting Kids First: Addressing COVID-19's Impacts on Children (Energy and Commerce Subcommittee on Oversight and Investigations, Wednesday at 10:30 am)
Legislative Hearing on Several Bills (Veterans’ Affairs Subcommittee on Oversight and Investigations, Wednesday at 2:00 pm)
Recognizing and Building on the Success of Pandemic Relief Programs (Coronavirus Crisis, Wednesday at 2:00 pm)
Pathways to Success: How Practicing Civility, Collaboration, and Leadership Can Empower Members (Modernization of Congress, Thursday at 9:00 am)
Disruption in the Skies: The Surge in Air Rage and its Effects on Workers, Airlines, and Airports (Transportation and Infrastructure Subcommittee on Aviation, Thursday at 10:00 am)
Voluntary Carbon Markets in Agriculture and Forestry (Agriculture, Thursday at 10:00 am)
Reviving Competition, Part 4: 21st Century Antitrust Reforms and the American Worker (Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law; Thursday at 10:00 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Over in the Senate: The Senate returns today at 3:00 pm to resume consideration of the nomination of Margaret Irene Strickland to serve as a judge on the U.S. District Court for the District of New Mexico. Senate Majority Leader Chuck Schumer (D-NY) filed the cloture motion on Strickland’s nomination last week, but the motion doesn’t ripen until 11:30 am tomorrow. The Senate will vote on the confirmation of Veronica S. Rossman to serve as a judge on the U.S. Court of Appeals for the Tenth Circuit around 5:30 pm today.
An update on election bills: Last week, I mentioned that Schumer filed a cloture motion on the motion to proceed to the For the People Act, S. 2093, before the August recess. Well, Sen. Alex Padilla (D-CA) withdrew that cloture motion. Interestingly, the very same day, Sen. Amy Klobuchar (D-MN) gave a floor speech on the Freedom to Vote Act, S. 2747, and added that bill to the Legislative Calendar. A cloture motion on the Freedom to Vote Act seems incredibly probable in the near future. Unlike the For the People Act, Sen. Joe Manchin (D-WV) is a cosponsor of the Freedom to Vote Act. Like the For the People Act, the Freedom to Vote Act includes provisions aimed at forcing 501(c)(4) organizations to disclose donors. A full summary of the Freedom to Vote Act is available here.
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Threats to the Homeland: Evaluating the Landscape 20 Years After 9/11 (Homeland Security and Governmental Affairs, Tuesday at 9:30 am)
Full Committee Hearing to Consider Pending Nominations (Energy and Natural Resources, Tuesday at 10:00 am)
Nomination Hearing (Banking, Housing, and Urban Affairs; Tuesday at 10:00 am)
Business Meeting (Small Business and Entrepreneurship, Tuesday at 10:00 am)
Big Data, Big Questions: Implications for Competition and Consumers (Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights; Tuesday at 2:30 pm)
Policy Options for Improving SSI (Finance Subcommittee on Social Security, Pensions, and Family Policy; Tuesday at 2:45 pm)
Restoring the Voting Rights Act: Combating Discriminatory Abuses (Judiciary Subcommittee on the Constitution, Wednesday at 10:00 am)
Hearing to Consider the Nominations of Christi A. Grimm, of Colorado, to be Inspector General, Department of Health and Human Services and Neil Harvey MacBride, of Virginia, to be General Counsel for the Department of the Treasury (Finance, Wednesday at 10:00 am)
Executive Session and Nominations Hearing (Commerce, Science, and Transportation; Wednesday at 10:00 am)
Getting America Ready to Work (Health, Education, Labor, and Pensions Subcommittee on Employment and Workplace Safety; Wednesday at 10:00 am)
Nominations of Cathy A. Harris to be a Member and Chair, and Tristan L. Leavitt and Raymond A. Limon to be Members, Merit Systems Protection Board (Homeland Security and Governmental Affairs, Wednesday at 10:30 am)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
Frauds, Scams, and COVID-19: How Con Artists Have Targeted Older Americans During the Pandemic (Aging, Thursday at 9:30 am)
National Cybersecurity Strategy: Protection of Federal and Critical Infrastructure Systems (Homeland Security and Governmental Affairs, Thursday at 10:15 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
No Point of Order next week: I’m heading to Furnace Fest in Birmingham on Friday for a three-day music festival. Most who’ve met me know that I’m a pretty big music fan, and I haven’t seen a show since February 2020, so I kind of need this.
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