Democrats' Filibuster Proposals Likely to Fail, BOP Finally Implementing Earned Time Credits
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.
National Champs: What a game! I’ve been asked how old I was the last time the University of Georgia won a national championship a few times since last Monday. I was a week old. Literally. I went to my first Georgia Bulldogs game in 1994, about a year after my dad died. Not having a father at that age, a handful of guys from church would step in to fill that void, often with tickets to football games. I was 13 years old when I went to my first Georgia game. Someone had offered me tickets to the game against Georgia Tech. This team boasted some Georgia greats like Eric Zeier, Terrell Davis, Hines Ward, Will Muschamp, Randall Godfrey, and this guy who would go on to be an amazing coach, Kirby Smart. Georgia beat Tech by a score of 48 to 10. I was hooked on Georgia football from that point forward. I’ve made a point to go to games as often as I can. I’ve watched more Georgia games than I can count. Usually, if Georgia is playing on a Saturday, I watch the game. If I can’t watch, I try to listen. I really can’t put into words how much winning the national championship means to Georgia football fans. We exorcised some demons when Kelee Ringo picked off that pass near the end of the game and took it to the house. Coming on the heels of the Atlanta Braves winning the World Series only makes it that much sweeter. There’s really not much else to say except this: Go Dawgs!
MLK Day: Today, we celebrate the life of an amazing man, Martin Luther King, Jr., a pioneer and a leader whose quest for civil rights remains a tremendous inspiration for countless activists. With so much tension in our politics today, including racial tension, this quote from Dr. King’s August 1967 speech at the National Conference for New Politics really stuck out to me: “For the good of America, it is necessary to refute the idea that the dominant ideology in our country, even today, is freedom and equality while racism is just an occasional departure from the norm on the part of a few bigoted extremists. Racism can well be that corrosive evil that will bring down the curtain on western civilization.”
Another Republican joins the EQUAL Act: Sen. Cynthia Lummis (R-WY), who is one of the most conservative members of the Senate, has cosponsored the EQUAL Act, S. 79. Some may be surprised to see Lummis get on this bill, but she cosponsors the Smarter Sentencing Act in the 113th Congress and 114th Congress. The Smarter Sentencing Act cuts mandatory minimums for individuals who commit low-level, nonviolent drug offenses. Lummis is the seventh Republican to cosponsor the EQUAL Act.
Some big (and long overdue) First Step Act news: The Department of Justice has announced a rule that implements the earned time credits program established by the First Step Act of 2018. Earned time credits were a key component of the First Step Act. Qualified individuals have the ability to earn between 10 and 15 days of time credit for every 30 days of successfully completed recidivism reduction programming. Individuals who are minimal or low risk of recidivism can cash in these earned time credits for placement in prerelease custody. Before Thanksgiving, the Department of Justice Office of the Inspector General released a report highlighting several concerns at the Bureau of Prisons (BOP), among which was the failure to apply earned time credits to some 60,000 inmates. More good news is that the rule is retroactive back to the enactment of the First Step Act in December 2018, so individuals who will benefit from earned time credits won’t be punished for the BOP’s failures.
No recess for the weary: This was supposed to be a recess week for the Senate, but Senate Majority Leader Chuck Schumer (D-NY) announced a schedule change before the chamber recessed on Thursday. Originally, the debate over voting rights and the filibuster was supposed to happen on or before Monday, but Schumer cited “the circumstances regarding COVID and another potentially hazardous winter storm approaching the DC area” as the reasons for adjournment. The Senate returns today for legislative business at 12:00 pm on Tuesday. The timing for votes is to be determined.
The latest on Democrats’ voting rights and filibuster proposals: On Thursday, the House passed an amendment to the Senate amendment to H.R. 5746. The House amendment is the Freedom to Vote: John R. Lewis Act reflects the text of the Freedom to Vote Act, S. 2747, and the John Lewis Voting Rights Act, S. 4. The bill was transmitted to the Senate with a message, a handy procedural move that allows the Senate to proceed to the legislation without a filibuster of the motion to proceed. The critical test for Democrats, however, is the cloture motion to limit debate before proceeding to a final vote on the legislation. Under current Senate rules, 60 votes are required to limit debate to 30 hours under Rule XXII(2) of the Rules of the Senate. That’s where things look very dicey for Schumer and Democrats. In short, it’s not only that Schumer doesn’t have the votes; rather, Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have gotten more vocal in their opposition. Sinema, for example, went to the floor on Thursday and spoke out against any change to the filibuster. Sinema supports the underlying legislation, but she is concerned about hyperpartisanship and the inevitable change of power in the Senate. “In recent years, nearly every party-line response to the problems we face in this body, every partisan action taken to protect a cherished value has led us to more division, not less,” said Sinema. “The impact is clear for all to see: the steady escalation of tit for tat, in which each new majority weakens the guardrails of the Senate and excludes input from the other party, furthering resentment and anger amongst this body and our constituents at home.” Schumer is undeterred. When announcing the schedule change, he said, [E]very Member will go on record” on voting rights and the filibuster. With the voting rights legislation and filibuster changes seemingly destined to fail, the Senate will most likely turn to nominees.
Manchin’s reaction to inflation: The Build Back Better Act, H.R. 5376, was already in trouble, but the report that the Consumer Price Index for All Urban Consumers (CPI-U) rose by 7 percent in December might be what ultimately shelves the legislation for now. Manchin reportedly called the news “[v]ery, very troubling.” It also appears that Manchin and the White House aren’t talking about a path forward. Added to this is another report that the White House plans to seek additional money for COVID-19. How much the White House wants isn’t clear, but that request is likely coming soon, and the report is that the request would be “substantial.”
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
What’s happening in the House: 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 four bills (listed below) on the suspension calendar for the week. These bills will likely be on the floor between Tuesday and Wednesday. It’s possible that additional legislation could be considered.
Supplemental Impact Aid Flexibility Act, S. 2959 (Education and Labor)
Senate Amendment to H.R. 1192 (Judiciary)
S. 1404 - Ghost Army Congressional Gold Medal Act (Financial Services)
S. 452 - Willie O'Ree Congressional Gold Medal Act (Financial Services)
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 bill: Although the House could consider additional legislation under a rule this week, there is currently only one rule bill that will be on the floor. That bill is the EVEST Act, H.R. 4673, and the rule for the bill, H.Res. 860, has already been approved by the House. The EVEST Act would automatically enroll veterans for VA health benefits.
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.
Reviving Competition, Part 5: Addressing the Effects of Economic Concentration on America’s Food Supply (Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law; Wednesday at 10:00 am)
Using Budget Principles to Prepare for Future Pandemics and Other Disasters (Rules, Wednesday at 10:00 am)
Price Gouging in Military Contracts: New Inspector General Report Exposes Excess Profit Obtained by TransDigm Group (Oversight and Reform, Wednesday at 10:00 am)
The Power, Peril, and Promise of the Creative Economy (Small Business, Wednesday at 10:00 am)
Markup of Various Legislative Measures (Science, Space, and Technology; Wednesday at 10:00 am)
Securing our Energy Infrastructure: Legislation to Enhance Pipeline Reliability (Energy and Commerce Subcommittee on Energy, Wednesday at 10:30 am)
Making Congress Work Better for the American People: A Recommendation Status Report (Modernization of Congress, Thursday at 9:00 am)
To Review the State of the Rural Economy with Agriculture Secretary Tom Vilsack (Agriculture, Thursday at 10:00 am)
Voter Suppression and Continuing Threats to Democracy (Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties; Thursday at 10:00 am)
Cleaning Up Cryptocurrency: The Energy Impacts of Blockchains (Energy and Commerce Subcommittee on Oversight and Investigations, Thursday at 10:30 am)
Race, Ethnicity and the Economy: How Improving Economic Opportunity Benefits All (Economic Disparity and Fairness in Growth, Thursday at 11:00 am)
Costa Rica, the Dominican Republic, and Panama: A New Alliance for Promoting Democracy and Prosperity in the Americas (Foreign Affairs Subcommittee on Western Hemisphere, Civilian Security, Migration and International Economic Policy; Thursday at 11:00 am)
For the Rule of Law, An Independent Immigration Court (Judiciary Subcommittee on Immigration and Citizenship, Thursday at 2:00 pm)
Securing Democracy: Protecting Against Threats to Election Infrastructure and Voter Confidence (Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection, and Innovation; Thursday at 2:00 pm)
The First Step Act, The Pandemic, and Compassionate Release: What Are the Next Steps for the Federal Bureau of Prisons? (Judiciary Subcommittee on Crime, Terrorism, and Homeland Security; Friday at 10:00 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Biden’s budget is delayed: The Budget Act of 1974 (2 U.S.C. § 631) lays out the timetable for the process for the federal budget and appropriations. This process begins with the submission of the President’s budget on the first Monday in February (for our purposes, that’s February 7). However, this deadline is routinely missed by presidents from both parties. It’s not like Congress takes the proposal seriously, but it is a formality stipulated in law. Well, President Biden will submit his budget late, likely not until some time in March.
Deficit watch: The federal budget deficit for the first three months of FY 2022 was $377 billion, which is $196 billion lower than the $573 billion budget deficit for the same period in FY 2021. Revenues were up by 31 percent while outlays were up by 4 percent. The budget deficit for FY 2021 was $2.772 trillion, or 12.4 percent of gross domestic product.