FISA May Reach the House Floor This Week, Senate to Finish Processing National Security Supplemental Appropriations Package
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.
Let’s talk about the disaster that was the House floor last week, Part I: It was a pretty bad week for House Republicans. First, moderate Republicans, who are mostly from New York, managed to get a commitment from Speaker Mike Johnson (R-LA) to put a bill on the floor that would increase the cap for the state and local tax (SALT) deduction. The Tax Cuts and Jobs Act capped the SALT deduction at $10,000 per filer. The SALT Marriage Penalty Elimination Act, H.R. 7160, would increase the deduction to $20,000 for joint filers for tax year 2023. Conservatives on the House Rules Committee blocked the bill from consideration. It’s also likely that the rule providing for consideration of the bill would’ve been defeated on the floor, assuming no Democrats crossed the aisle.
Let’s talk about the disaster that was the House floor last week, Part II: Next, the articles of impeachment against Secretary of Homeland Security Alejandro Mayorkas, H.Res. 863, failed on the floor. Three Republicans—Reps. Ken Buck (R-CO), Mike Gallagher (R-WI), and Tom McClintock (R-CA)—voted against the resolution. Buck and McClintock made their positions publicly known in advance of the vote, but Gallagher was coy. Apparently, though, Gallagher, who authored a piece further explaining his vote, said that he whipped against the resolution for a month prior to the vote. Republican leadership took a gamble because Rep. Al Green (D-TX) wasn’t expected to make the vote because of a scheduled surgery. Thing is, though, Green showed up in dramatic fashion and cast the deciding vote to defeat the impeachment effort. At least temporarily. Rep. Blake Moore (R-UT) switched his vote to yea to nay to preserve the right to bring the impeachment resolution up for a vote at a later date. Making this even more of a rough moment was that Speaker Johnson was presiding over the vote when the impeachment resolution was defeated.
Let’s talk about the disaster that was the House floor last week, Part III: Finally, the very next vote was on the passage of the Israel Security Supplemental Appropriations Act, H.R. 7217. This bill provided aid only for Israel and left out funding for Ukraine and Taiwan. Republican leadership put it on the floor and try to pass it on suspension. It failed. Republicans tried to blame Democrats for the failure of the bill, but Democrats want Ukraine and Taiwan funding included and are waiting to see what comes out of the Senate. More on the Senate in a bit. No matter how you look at what happened last week, it’s hard to spin this. Republicans will likely be able to come back and do two of these—the impeachment resolution and Israel funding—at another time, but Republican leadership is learning all the wrong lessons from these failures. Instead of focusing on areas of bipartisan agreement to achieve legislative wins when the margins are this close, they’re only doubling down.
Schedule and suspensions: The House returns on Tuesday at 2:00 pm for legislative business. Votes are postponed until 6:30 pm. Nine (9) bills are expected to be considered under suspension of the rules. The cost estimates for those bills can be found here. The House will also meet on Wednesday, Thursday, and Friday. Votes are expected each day, with the last votes for the week expected no later than 3:00 pm on Friday.
H.R. 533, Promoting a Resolution to the Tibet-China Dispute Act (Foreign Affairs)
H.R. 2766, Uyghur Policy Act (Foreign Affairs)
H.R. 3016, IGO Anti-Boycott Act (Foreign Affairs)
H.R. 3202, Assad Regime Anti-Normalization Act (Foreign Affairs)
H.R. 3205, Project Precursor Act (Foreign Affairs)
H.R. 4039, No Dollars to Uyghur Forced Labor Act (Foreign Affairs)
H.R. 5375, Strengthening the Quad Act (Foreign Affairs)
H.R. 5856, Frederick Douglass Trafficking Victims Prevention and Protection Reauthorization Act (Foreign Affairs)
H. Res. 966, Condemning rape and sexual violence committed by Hamas in its war against Israel (Foreign Affairs)
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.
Rule bills: The House Rules Committee will meet at 4:00 pm on Tuesday to markup the rule providing for the consideration of the Unlocking our Domestic LNG Potential Act, H.R. 7176. Additional legislation is possible, including the impeachment resolution and Israel funding. However, FISA could also be on the floor this week. More on that in the next section.
FISA reauthorization could come to the floor: I can’t think of a better way to get House Republicans back on track and bring the conference together than to bring the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Yes, that was sarcasm. This is a terrible idea. Whoever is advising the Speaker that this is a good idea may want to step down. As a quick reminder, the National Defense Authorization Act (NDAA) for FY 2024 extended Section 702 through April 19. The House Judiciary Committee and the House Permanent Select Committee on Intelligence have competing bills, with the former producing a product, the Protect Liberty and End Warrantless Surveillance Act, H.R. 6570, that would protect Americans’ civil liberties. The reason the extension of Section 702 got thrown into the NDAA is because of the divisions inside the House Republican Conference. With the two committees talking to try to work out their significant difference, Republican leadership wants to move on the issue. What we’ve heard is that there would be an agreed-upon base text and then potentially amendments on closing the backdoor search loophole that allows the FBI to search for Americans in information collected by the intelligence community under Section 702. Amendments, including some bad ones, are expected. Republican leadership may not allow a vote on an amendment to prohibit federal agencies from purchasing Americans’ data from third-party data brokers. In any event, a “secret session” may happen for the first time since 2008.
Party divisions in the House: As you may have heard, Rep. Brian Higgins (D-NY) resigned on February 2. Apparently, Higgins resigned out of frustration with the dysfunction in Congress. The party divisions are 219 Republicans and 212 Democrats. A simple majority of the House is 216 votes. Speaker Johnson can’t lose more than three Republicans on any messaging bill. Two-thirds is 288 votes. (Two-thirds is important for votes on suspension and other matters.) The vacant seats in the House are CA-20 (McCarthy), NY-03 (Santos), and NY-26 (Higgins), and OH-06 (Johnson). Upcoming special elections are February 13 in NY-03, May 21 in CA-20, and June 11 in OH-06. The special election in NY-26 hasn’t been announced.
House committee schedule: Below are some House committee hearings that may be of interest. The full House committee schedule for the week is here.
Growing Stakes: The Bioeconomy and American National Security (Strategic Competition Between the United States and the Chinese Communist Party, Field Hearing in Boston, Tuesday at 8:30 am)
Disaster Readiness: Examining the Propriety of the Expanded Use of FEMA Resources (Transportation and Infrastructure Subcommittee on Economic Development, Public Buildings, and Emergency Management; Wednesday at 10:00 am)
AUKUS Implementation and Challenges to International Security and Arms Control in the 21st Century (Foreign Affairs, Wednesday at 10:00 am)
ISS and Beyond: The Present and Future of American Low-Earth Orbit Activities (Science, Space, and Technology Subcommittee on Space and Aeronautics; Wednesday at 10:00 am)
The Congressional Budget Office's Budget and Economic Outlook (Budget, Wednesday at 10:00 am)
Burdensome Regulations: Examining the Impact of EPA Regulations on Main Street (Small Business, Wednesday at 10:00 am)
Oversight of the United States Marshals Service (Judiciary Subcommittee on Crime and Federal Government Surveillance, Wednesday at 10:00 am)
For the Purpose of Receiving Testimony from The Honorable Thomas J. Vilsack, Secretary, U.S. Department of Agriculture (Agriculture, Wednesday at 10:00 am)
Oversight of the Financial Crimes Enforcement Network and the Office of Terrorism and Financial Intelligence (Financial Services, Wednesday at 10:00 am)
Examining the Policies and Priorities of the Wage and Hour Division (Education and the Workforce Subcommittee on Workforce Protections, Wednesday at 10:15 am)
VA’s HR Office: Did Leaders Ignore and Perpetrate Sexual Harassment? (Veterans’ Affairs, Wednesday at 10:15 am)
Powered Up: State Utility Regulators on Challenges to Reliable, Affordable Electricity (Energy and Commerce Subcommittee on Energy, Climate, and Grid Security; Wednesday at 10:30 am)
Business Meeting (Veterans’ Affairs, Wednesday at 12:05 pm)
Is VA Illegally Spending Taxpayer Dollars in its Compensation and Pension Programs? (Veterans’ Affairs Subcommittee on Disability Assistance and Memorial Affairs, Wednesday at 1:00 pm)
Iran’s Proxy in Yemen: the Houthi threat to Middle East Stability and U.S. Interests (Foreign Affairs Subcommittee on the Middle East, North Africa, and Central Asia; Wednesday at 2:00 pm)
The Future of Freedom in Nigeria (Foreign Affairs, Wednesday at 2:00 pm)
Electronic Health Record Modernization Deep Dive: Can the Oracle Pharmacy Software Be Made Safe and Effective? (Veterans’ Affairs Subcommittee on Technology Modernization, Thursday at 8:00 am)
Examining Federal Science Agency Actions to Secure the U.S. Science and Technology Enterprise (Science, Space, and Technology; Thursday at 10:00 am)
Lender of Last Resort: Issues with the Fed Discount Window and Emergency Lending (Financial Services Subcommittee on Financial Institutions and Monetary Policy, Thursday at 10:00 am)
Securing Communications Networks from Foreign Adversaries (Energy and Commerce Subcommittee on Communications and Technology, Thursday at 10:00 am)
Assessing America’s Vaccine Safety Systems, Part 1 (Coronavirus Pandemic, Thursday at 10:00 am)
Leveling the Playing Field: Challenges Facing Small Business Contracting (Small Business Subcommittee on Contracting and Infrastructure, Thursday at 10:00 am)
Artificial Intelligence at VA: Exploring its Current State and Future Possibilities (Veterans’ Affairs Subcommittee on Health, Thursday at 10:00 am)
Hearing with Commissioner of the Internal Revenue Service, Daniel Werfel (Ways and Means, Thursday at 10:00 am)
Examining Fire Hazards: Lithium-Ion Batteries and Other Threats to Fire Safety (Homeland Security Subcommittee on Emergency Management and Technology, Thursday at 10:00 am)
Implementation of Buy America Provisions: Stakeholder Perspectives (Transportation and Infrastructure Subcommittee on Highways and Transit, Thursday at 10:00 am)
Protecting American Savers and Retirees from DOL's Regulatory Overreach (Education and the Workforce Subcommittee on Health, Employment, Labor, and Pensions; Thursday at 10:15 am)
Safeguarding American Prosperity and People’s Livelihoods: Legislation to Modernize Air Quality Standards (Energy and Commerce Subcommittee on Environment, Manufacturing, and Critical Materials; Thursday at 10:30 am)
The Agents of Antisemitism in Latin America (Foreign Affairs Subcommittee on the Western Hemisphere, Thursday at 2:00 pm)
The Consequences of Catch and Release at the Border (Oversight and Accountability Subcommittee on National Security, the Border, and Foreign Affairs; Thursday at 2:00 pm)
Crypto Crime in Context Part II: Examining Approaches to Combat Illicit Activity (Financial Services Subcommittee on Digital Assets, Financial Technology, and Inclusion; Thursday at 2:00 pm)
Going Nuclear on Rosatom: Ending Global Dependence on Putin's Nuclear Energy Sector (Foreign Affairs Subcommittee on Europe, Thursday at 2:00 pm)
If you’re interested in watching any of these hearings online, you can find committee websites here.
The Senate is processing the national security supplemental: The Senate was in session all weekend working to pass the supplemental appropriations bill that includes funding for Ukraine, Israel, and Taiwan. The legislative vehicle for the supplemental is H.R. 815. Movement on the supplement comes after the Senate rejected the bipartisan border security provisions. The Senate invoked cloture on the motion to proceed on H.R. 815 on Thursday and approved the motion to proceed on Friday. On Sunday, the Senate approved the cloture motion for the text of the supplemental, S.Amdt. 1388 (National Security Act). The only real sweetener for Republicans in the supplemental is the inclusion of the Fentanyl Eradication and Narcotics Deterrence (FEND) Off Fentanyl Act, which relates to sanctions and anti-money laundering efforts. Once the 30 hours of post-cloture time has elapsed, the Senate will vote on final passage, which could happen as soon as today. The supplement still has to go through the House, though, and there aren’t any guarantees of movement across the Capitol.
Senate recess: Presumably, the Senate will begin its delayed recess upon completion of the national security supplemental.
Deficit watch: Through January, the budget deficit for FY 2024 is $531 billion. That’s an increase of $71 billion over the same four-month period in FY 2023. Revenues are up by 8 percent while outlays are up by 12 percent. The two largest mandatory spending programs—Social Security and Medicare—saw outlays increase by 11 percent and 14 percent, respectively.
Speaking of the deficit: Last week, the Congressional Budget Office (CBO) released The Budget and Economic Outlook: 2024 to 2034. The report provides us with a look at budget projections for the next decade. The budget deficit for FY 2024 is projected to be $1.5 trillion, or 5.3 percent of gross domestic product (GDP), which is lower than last year. However, the report bases its projection on current law, so the deficit may be much higher once Congress moves on some expected legislation, such as the national security supplemental. By the end of the ten-year budget window, the deficit is projected to be $2.5 trillion, or 6.2 percent of GDP. The deficit is largely being driven by increased outlays for Medicare, Social Security, and net interest. Discretionary spending as a percentage of GDP is projected to be lower in FY 2024 (6.2 percent of GDP) than it was in FY 2023 (6.4 percent). The CBO attributes this to the passage of the Fiscal Responsibility Act. Discretionary spending is projected to decline as a share of GDP to 5.1 percent by FY 2034.
The casualty list is growing: As of today, 44 members of the House—23 Democrats and 19 Republicans—have announced that they won’t seek reelection. Twelve Democrats are seeking another office. Only five Republicans are seeking another office. On the Senate side, five Democrats—Sens. Laphonza Butler (D-CA), Ben Cardin (D-MD), Tom Carper (D-DE), Joe Manchin (D-WV), Debbie Stabenow (D-MI)—and two Republicans—Sens. Mike Braun (R-IN) and Mitt Romney (R-UT)—have announced their retirements.
Editor’s note: We will not publish Point of Order next week and probably won’t for the week of February 26. The House and the Senate are scheduled to be in recess the week of February 19. Both chambers are scheduled to be in session the week of February 26. I, however, will be at Disney World with Emily and the kid. This was their Christmas gift from me. So, unless my colleague, Tray, wants to write Point of Order, we shan’t publish. Tray is, of course, more than welcome to give it a go.
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