Congress Set to Kick Off a Chaotic Work Period, Driving for Opportunity Act Markup
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.
Rest in peace: We’ve lost a giant. One of the last true statesmen, Colin Powell, has passed away from complications related to COVID-19. He was 84. Powell was a four-star general who served as national security advisor under President Ronald Reagan, chairman of the Joint Chiefs of Staff under President George H.W. Bush and President Bill Clinton, and secretary of state under President George W. Bush.
Some quick hits on criminal justice issues: The Washington Examiner has a story on the recently reintroduced Count the Crimes to Cut Act. The bill, which aims to find the scope of overcriminalization, is led by Reps. Chip Roy (R-TX) and Hakeem Jeffries (D-NY). Due Process Institute supports this bill. I could spend a lot of time on this because of the history of the bill and the work I did in the last Congress to get this introduced, but I have other things to mention. The Senate Judiciary Committee will markup the Driving for Opportunity Act, S. 998. The practice of suspending driver’s licenses for the inability to pay court-mandated fines and/or fees for conduct that has nothing to do with driving is counterproductive. The outcome of this senseless approach isn’t difficult to grasp. An individual whose driver’s license is suspended because of court-mandated fines and/or fees owed may not have another means available to get to work. Without a means to generate an income, someone already struggling to make ends meet won’t be able to repay their debt in order to restore their driver’s license. The prospect of not being able to get to their jobs is inconceivable for many facing suspension of their driver’s licenses. Instead, they take the risk of driving on a suspended license, increasing the likelihood of interactions with police and with courts so they can continue to pay their bills. Although some states have moved away from this archaic policy, others have been slower to address the problem. The Driving for Opportunity Act encourages states to move in another direction through grants to repeal these counterproductive laws. The bill also repeals 23 U.S.C. § 159, which mandates that states suspend driver’s licenses for non-driving-related drug offenses. Finally, House Judiciary Committee Ranking Member Jim Jordan (R-OH) has cosponsored the Fifth Amendment Integrity Restoration (FAIR) Act, H.R. 2857. The FAIR Act is a civil asset forfeiture reform bill that offers several import policy reforms, including increasing the evidentiary standard and eliminating the equitable sharing program. Jordan’s support for this bill is very notable for the latter point.
The debt limit increase got done: Last Tuesday, the House passed the Senate amendment (debt limit increase) to the House amendment to S. 1301. President Biden signed the increase into law on Thursday. The Senate amendment increased the debt limit by $480 billion, which should be enough to get Congress through early December, perhaps later. Once again, Speaker Nancy Pelosi (D-CA) relied on a self-executing rule. The legislation was adopted upon the passage of H.Res. 716, the rule governing consideration of unrelated bills. Section 9 of H.Res. 716 stated, “The House hereby concurs in the Senate amendment to the House amendment to the bill (S. 1301) to provide for the publication by the Secretary of Health and Human Services of physical activity recommendations for Americans.” We didn’t know this would be the approach before we sent last week’s newsletter. For those who are unfamiliar with procedural votes like a rule, these are almost always party-line votes, with the majority voting for the rule. Very rarely, a member will buck party leadership to vote against a rule or other procedural matter. This was a purely political move to keep vulnerable Democrats from taking a direct vote on increasing the debt limit.
But we’re going through all of this again very soon: Folks, the deadlines that Congress has coming up aren’t insignificant. There are things that have to get done. These include government funding and the debt limit. Funding the federal government will need to get done before the end of December 3. When it comes to funding the federal government, no one really knows what to expect. History says we’re looking at a consolidated appropriations bill (usually called an “omnibus”), but with everything else going on, another short-term continuing resolution (CR), rather than an omnibus, seems possible. As mentioned, it’s possible that the debt limit increase can run longer than expected, but it’s likely that Democrats will try to address it before the early December deadline. And it does seem like budget reconciliation is increasingly being considered as an option after Senate Minority Leader Mitch McConnell (R-KY) said that he wouldn’t help again. However, Pelosi has floated another option in which Congress would vote to approve or disapprove of debt limit increases. Congress created a procedure for disapproval of a debt limit increase in Title III of the Budget Control Act of 2011. The House routinely voted against the debt limit increases, but the Senate didn’t disapprove, so the debt limit increases took effect. There’s also the extension of the National Flood Insurance Program and Temporary Assistance for Needy Families, but those extensions will likely be rolled into a CR or omnibus.
And then there’s the optional stuff: Congressional Democrats also have to figure out what they’re going to do about the bipartisan infrastructure framework, H.R. 3684, and the budget reconciliation package pursuant to S.Con.Res. 14. These are optional items that don’t necessarily have to get done and aren’t essential to government operations to nearly the same degree as government funding and the debt limit. Moderate Democrats still want a vote on H.R. 3684. That vote was supposed to happen during the week of September 27. Pelosi didn’t have the votes for passage, so she punted. Further complicating matters, Sen. Kyrsten Sinema (D-AZ) said last week that she wants a vote on the bipartisan infrastructure bill before a vote on the reconciliation package. Both Pelosi and Senate Majority Leader Chuck Schumer (D-NY) set an end-of-the-month deadline to conclude the negotiations on the budget reconciliation package, but those negotiations don’t appear to be going well. Actually, one can reasonably make the argument that the negotiations are going worse than we even realize. Senate Budget Committee Chairman Bernie Sanders’ (I-VT) op-ed in a West Virginia newspaper appears to have backfired. Sen. Joe Manchin (D-WV) fired back with a strong statement in which he said, “Millions of jobs are open, supply chains are strained and unavoidable inflation taxes are draining workers’ hard-earned wages as the price of gasoline and groceries continues to climb. Senator Sanders’ answer is to throw more money on an already overheated economy while 52 other Senators have grave concerns about this approach.” All of this said, it’s important to emphasize once again that negotiations on big legislative packages are always fluid, but the distrust and frustration in the Democratic Party is very strong. Still, it seems probable that Democrats will get something done through budget reconciliation, but the price tag will have to come down and some of the policies that are part of the progressive wishlist, especially the bigger ones, will get axed.
The House is back: The House returns on Tuesday 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 16 bills (listed below) on the suspension calendar for the week. These bills will likely be on the floor Tuesday and probably Wednesday.
National Centers of Excellence in Advanced and Continuous Pharmaceutical Manufacturing Act, H.R. 4369 (Energy and Commerce)
State Opioid Response Grant Authorization Act, H.R. 2379 (Energy and Commerce)
Strengthening America’s Strategic National Stockpile Act, H.R. 3635 (Energy and Commerce)
Drug-Free Communities Pandemic Relief Act, H.R. 654 (Energy and Commerce)
Open RAN Outreach Act, H.R. 4032 (Energy and Commerce)
Secure Equipment Act, H.R. 3919 (Energy and Commerce)
Communications Security, Reliability, and Interoperability Act, H.R. 4067 (Energy and Commerce)
Information and Communication Technology Strategy Act, H.R. 4028 (Energy and Commerce)
AI in Counterterrorism Oversight Enhancement Act, H.R. 4469 (Oversight and Reform)
Guidance Clarity Act, H.R. 1508 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 1 League in Irvine, California, as the "Tuskegee Airman Lieutenant Colonel Robert J. Friend Memorial Post Office Building, H.R. 1170 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 1905 15th Street in Boulder, Colorado, as the "Officer Eric H. Talley Post Office Building,” H.R. 3210 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 40 Fulton Street in Middletown, New York, as the "Benjamin A. Gilman Post Office Building," H.R. 767 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 66 Meserole Ave, Brooklyn, NY 11222, as the “Joseph R. Lentol Post Office,” H.R. 3419 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 132 North Loudoun Street, Suite 1 in Winchester, Virginia, as the "Patsy Cline Post Office," H.R. 1444 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 135 Main Street in Biloxi, Mississippi, as the "Robert S. McKeithen Post Office Building,” H.R. 3175 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 17 East Main Street in Herington, Kansas, as the "Captain Emil J. Kapaun Post Office Building," H.R. 2044 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 3493 Burnet Avenue in Cincinnati, Ohio, as the “John H. Leahr and Herbert M. Heilbrun Post Office," H.R. 960 (Oversight and Reform)
The House may also consider votes on three postponed suspensions that have been held over dating as far back as before the August recess.
Free Veterans from Fees Act, H.R. 1029 (Natural Resources Committee)
DHS Software Supply Chain Risk Management Act, H.R. 4611 (Homeland Security Committee)
Darren Drake Act, H.R. 4089 (Homeland Security 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.
Rule bills: Pursuant to H.Res. 716, which was approved by the House last week, the House will consider the Family Violence Prevention and Services Improvement Act, H.R. 2119, and the PUMP for Nursing Act, H.R. 3110. We expect the rule bills will be on the floor between Thursday and Friday. Although the Protect Older Job Applicants, H.R. 3992, is subject to the rule, it doesn’t appear to be on the calendar this week, but this bill or others could still come to the floor. The Family Violence Prevention and Services Improvement Act makes changes to and reauthorizes the Family Violence and Prevention Services program. The PUMP for Nursing Mothers Act would require employers to make accommodations for mothers who need to express breast milk for up to two years and provides a process for liability if the accommodation is not provided.
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.
Oversight of the Americans with Disabilities Act of 1990: The Current State of Integration of People with Disabilities (Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties; Wednesday at 10:00 am)
Global Supply Chains and Small Business Trade Challenges (Small Business Subcommittee on Oversight, Investigations, and Regulations; Wednesday at 10:00 am)
Legislative Hearing on Various Measures (Veterans’ Affairs Subcommittee on Disability Assistance and Memorial Affairs, Wednesday at 10:00 am)
Achieving Mission Balance: Positioning the Coast Guard for the Future (Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation, Wednesday at 10:00 am)
Accelerating Deep Space Travel with Space Nuclear Propulsion (Science, Space, and Technology Subcommittee on Space and Aeronautics; Wednesday at 10:00 am)
Global Supply Chains and Small Business Trade Challenges (Small Business Subcommittee on Oversight, Investigations, and Regulations; Wednesday at 10:00 am)
Enhancing Public Health: Legislation to Protect Children and Families (Energy and Commerce Subcommittee on Health, Wednesday at 10:30 am)
Good For Business: Private Sector Perspectives on Climate Action (Climate Crisis, Wednesday at 2:00 pm)
Modernizing the Congressional Support Agencies to Meet the Needs of an Evolving Congress (Modernization of Congress, Thursday at 9:00 am)
The Equal Rights Amendment: Achieving Constitutional Equality for All (Oversight and Reform, Thursday at 10:00 am)
Preparing for COP26: United States Strategy to Combat Climate Change through International Development (Foreign Affairs Subcommittee on International Development, International Organizations, and Global Corporate Security; Thursday at 10:00 am)
Oversight of the United States Department of Justice (Judiciary, Thursday at 10:00 am)
Markup of Various Measures (Foreign Affairs, Thursday at 1:00 pm)
Operation Allies Welcome: Examining DHS’s Efforts to Resettle Vulnerable Afghans (Homeland Security Subcommittees on Oversight, Management, and Accountability and Border Security, Facilitation, and Operations; Thursday at 2:00 pm)
Member Day (Judiciary, Friday at 9:00 am)
Member Day (Homeland Security, Friday at 9:00 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Senate kicks off the week with nominations: The Senate returns today at 3:00 pm to resume consideration of the nomination of Christine P. O’Hearn to serve as a judge on the U.S. District Court for the District of New Jersey. Schumer filed cloture on O’Hearn’s nomination before the Senate went into recess. However, before the Senate finishes processing the cloture motion on the O’Hearn nomination, a roll call vote will take place around 5:30 pm on the confirmation of Gustavo A. Gelpi to serve as a judge on the U.S. Circuit Court of Appeals for the First Circuit. Cloture was invoked on Gelpi’s nomination before last week’s recess.
Election legislation looms...again: Schumer plans to queue up a procedural vote today on the Freedom to Vote Act, S. 2747, which is co-led by Manchin. The procedural vote, which is expected on Wednesday, is a cloture motion on the motion to proceed. This is a 60-vote threshold, and it’s highly unlikely that there will be any Republican votes for the motion, so we expect this vote to fail. The Freedom to Vote Act, a summary of which is available here, is similar to other Democratic-led legislation like the For the People Act.
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 (Finance, Tuesday at 9:30 am)
International Policy Update: The Treasury Department’s Sanctions Policy Review and Other Issues (Banking, Housing, and Urban Affairs; Tuesday at 10:00 am)
Pride in Patent Ownership: The Value of Knowing Who Owns a Patent (Judiciary Subcommittee on Intellectual Property, Tuesday at 2:30 pm)
Nominations Hearing (Judiciary, Wednesday at 10:00 am)
Health Insurance Coverage in America: Current and Future Role of Federal Programs (Finance, Wednesday at 10:00 am)
Executive Session and Nominations Hearing (Commerce, Science, and Transportation; Wednesday at 10:00 am)
Nominations Hearing (Homeland Security and Governmental Affairs, Wednesday at 10:00 am)
Evaluating the Federal Response to the Persistence and Impacts of PFAS Chemicals on our Environment (Environment and Public Works, Wednesday at 10:00 am)
Protecting Companies and Communities from Private Equity Abuse (Banking, Housing, and Urban Affairs; Wednesday at 2:00 pm)
Restoring the Voting Rights Act: Protecting the Native American and Alaska Native Vote (Judiciary Subcommittee on the Constitution, Wednesday at 2:30 pm)
Oversight of the Library of the Congress Modernization Effort (Rules and Administration, Wednesday at 3:00 pm)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
Oversight of the Department of Homeland Security (Judiciary, Thursday at 10:00 am)
International Collaboration and Competition in Space: Oversight of NASA’s Role and Programs (Commerce, Science, and Transportation; Thursday at 10:00 am)
Legislative Hearing (Energy and Natural Resources, Thursday at 10:00 am)
Safeguarding Inspector General Independence and Integrity (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.
Trump’s pal might be hit with criminal contempt: Steve Bannon refused to comply with a subpoena from the Select Committee to Investigate the January 6th Attack on the United States Capitol. The select committee is considering a criminal contempt charge against Bannon. If the select committee moves forward, the entire House would have to vote on the matter. The issue isn’t cut and dry because of questions surrounding the contours of executive privilege, but Bannon has the weakest claim of those subpoenaed because he didn’t work in the White House at the time of the January 6 attack. Bannon left the White House in August 2017. The Department of Justice would have to decide whether to prosecute Bannon if the House approves the referral, but the case will be complicated because federal courts have yet to determine the extent of the executive privilege retained by former presidents.
White House commission on the Supreme Court: I don’t think the report on potential changes to the Supreme Court has been released yet, but we have a general idea of what it will say. According to Reuters, the report will suggest that Congress has the power to expand the Supreme Court (it does because that’s a statutory issue), but “the risks of court expansion are considerable, including that it could undermine the very goal of some of its proponents of restoring the court's legitimacy.” Other changes, like term limits, Reuters notes, would likely require amendments to the Constitution.
Due Process Institute is a bipartisan nonprofit that works to honor, preserve, and restore principles of fairness in the criminal legal system.