Nominees in the Senate, House to Take Up Competitiveness Bill, Sentencing Commission Releases EQUAL Act Assessment
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.
USSC impact assessment of the EQUAL Act: The U.S. Sentencing Commission (USSC) released an impact assessment of the EQUAL Act, S. 79. If you’ve been following along for a while, you know that the EQUAL Act eliminates the current 18:1 sentencing disparity between crack cocaine and powder cocaine and allows for retroactivity on a case-by-case basis. The USSC’s assessment found that 7,787 people who are incarcerated under the 18:1 sentencing regime would be eligible for resentencing. Of those eligible, “up to 7,644 would receive a reduced sentence.” The average sentence would fall to 100 months (more than eight years) from 173 months (more than 14 years). As our good friend Holly Harris of the Justice Action Network said, “This analysis from the Sentencing Commission shows the scale of the devastation of the War on Drugs and the life-changing potential of the EQUAL Act. Instead of spending millions each year on unnecessary incarceration for low-level, non-violent drug offenses, we can invest these savings in reducing violent crime and keeping our communities safer.”
Yo, I wrote things: Check out my post over at Due Process Institute's blog on the history of the crack cocaine sentencing disparity. While you're at it, check out my piece in The Hill on how the next director of the Bureau of Prisons should prioritize criminal justice reform.
There shall be confirmation hearings: Justice Stephen Breyer will retire from the Supreme Court after the current term ends. Breyer's retirement hands President Biden his first nomination to the Court. Nominated by President Clinton to succeed Justice Henry Blackmun retired in 1994, Breyer is part of the Court's left-leaning bloc. Biden has said he will nominate a Black woman, and some names have already been thought to be potential successors for Breyer. Those names include DC Circuit Court Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger, District Court Judge J. Michelle Childs. Breyer's departure won't shift the ideological composition of the Court, so it's unlikely that there will be a big fight over Biden's eventual nominee. That said, as we all know, the margins in the Senate are as tight as they can be, so every member of the Senate Democratic Caucus has to be on board with whomever Biden picks, assuming no Republicans join. Senate Majority Leader Chuck Schumer (D-NY) has promised a quick confirmation process for the nominee. Obviously, that process won't begin until Biden selects and announces the nominee. If the White House waits until the end of the current term, that could happen in June or July. An expedited process could mean a confirmation vote right before the August recess (or even in August if the recess is delayed) or when the Senate returns from recess in September.
Build Back Better 2.0: There is talk in Congress of Democrats making another go at the Build Back Better Act. This time, though, they would focus more on specific provisions that have the support of Sen. Joe Manchin (D-WV). These provisions would include the expansion of the Affordable Care Act and those related to climate change. The state and local tax (SALT) deduction is likely to be scrapped along with many other provisions that were popular with most Democrats. President Biden has talked about trimming the Build Back Better Act down to get something passed. It's important to realize that this isn't as easy as people seem to think it is. There are procedural hurdles, such as passing another new budget resolution.
Well, the Senate is processing a lot of nominees this week: The Senate returns today at 3:00 pm to resume consideration of the nomination of Bridget Meehan Brennan to serve as a judge on the United States District Court for the Northern District of Ohio. A roll call on the cloture motion is expected to begin around 5:30 pm. Before the Senate adjourned for recess, Majority Leader Chuck Schumer (D-NY) filed cloture motions on 19 other nominees (listed below). We expect the Senate to consider these nominees this week.
Charles Esque Fleming to serve as a judge on the United States District Court for the Northern District of Ohio
David Augustin Ruiz to serve as a judge on the United States District Court for the Northern District of Ohio
Rupa Ranga Puttagunta to serve as an Associate Judge of the Superior Court of the District of Columbia for the term of fifteen years
Kenia Seoane Lopez to serve as an Associate Judge of the Superior Court of the District of Columbia for the term of fifteen years
Sean C. Staples to serve as an Associate Judge of the Superior Court of the District of Columbia for the term of fifteen years
Ebony M. Scott to serve as an Associate Judge of the Superior Court of the District of Columbia for the term of fifteen years
Donald Walker Tunnage to serve as an Associate Judge of the Superior Court of the District of Columbia for a term of fifteen years
John P. Howard III to serve as an Associate Judge of the District of Columbia Court of Appeals for the term of fifteen years
Loren L. AliKhan to serve as an Associate Judge of the District of Columbia Court of Appeals for a term of fifteen years
Amy Gutmann to serve as Ambassador Extraordinary and Plenipotentiary of the United States of America to the Federal Republic of Germany
Lisa A. Carty to serve as the Representative of the United States of America on the Economic and Social Council of the United Nations
Scott A. Nathan to serve as Chief Executive Officer of the United States International Development Finance Corporation
Chantale Yokmin Wong to serve as the United States Director of the Asian Development Bank, with the rank of Ambassador
Gabriel Camarillo to serve as Under Secretary of the Army
Andrew Philip Hunter to serve as Assistant Secretary of the Air Force
John Patrick Coffey to serve as General Counsel of the Department of the Navy
Alexandra Baker to serve as a Deputy Under Secretary of Defense
Reta Jo Lewis to serve as President of the Export-Import Bank of the United States for a term expiring January 20, 2025
Leonard Philip Stark to serve as a judge on the United States Circuit Court for the Federal Circuit
The proposed filibuster change failed: Before the recess, the Senate took up the cloture motion on the motion to proceed to the Freedom to Vote: John R. Lewis Act, H.R. 5746. I ended up watching or listening to most of the debate. I find congressional procedure truly fascinating. This particular debate about the filibuster was definitely tense and pointed at times, but there were several exchanges that were interesting to watch, particularly the one between Sens. Susan Collins (R-ME) and Jon Ossoff (D-GA). Republicans pointed out the hypocrisy of Democrats who have previously defended the filibuster. Democrats harshly criticized new election laws in Georgia and other states and rightly slammed Republicans on election conspiracy theories related to the 2020 presidential election. A cloture motion on the motion to proceed is a procedural vote requiring 60 votes. Considering the even split in the Senate, the cloture motion was blocked. After the vote, Schumer made a point of order to change the Senate rules for only this legislation. That point of order was not sustained by the chair. Schumer appealed that ruling, and the ruling of the chair was upheld by the Senate, with Manchin and Sen. Kyrsten Sinema (D-AZ) voting against their party, as expected. The issue isn’t one that’s going away. Before the Senate moved on, Schumer said, “[W]hile tonight's vote was disappointing, it will not deter Senate Democrats from continuing our fight against voter suppression, dark money, and partisan gerrymandering.” With the filibuster likely to remain in place for at least the remainder of this Congress, bipartisan legislation and the courts are the only paths for Democrats.
And speaking of bipartisan election work: Although Democrats were unable to advance the Freedom to Vote: John R. Lewis Act, there does at least appear to be some movement on reform of the Electoral Count Act (ECA) of 1887, which sets forth the procedures for members of Congress to challenge electoral votes from a state during the count of the Electoral College. Collins and Manchin are leading these discussions with more than a half dozen other senators from both parties. Ultimately, reform of the Electoral Count Act, to which both Senate Majority Leader Mitch McConnell (R-KY) and House Minority Leader Kevin McCarthy (R-CA) have expressed openness, cuts to the heart of at least some of the issues on January 6, 2021. Schumer also appears interested in the negotiations that are happening. However, former President Trump weighed in on this effort in a kooky statement on Sunday in an attempt to put his finger on the scale of the ECA reform.
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Sudan's Imperiled Transition: U.S. Policy in the Wake of the October 25th Coup (Foreign Relations, Tuesday at 10:00 am)
Nominations Hearing (Judiciary, Tuesday at 10:00 am)
Mental Health and Substance Use Disorders: Responding to the Growing Crisis (Health, Education, Labor, and Pensions; Tuesday at 10:00 am)
Nominations Hearing (Homeland Security and Governmental Affairs, Tuesday at 10:15 am)
Nominations Hearing (Budget, Tuesday at 2:30 pm)
Stopping COVID-19 Fraud and Price Gouging (Commerce, Science, and Transportation; Tuesday at 2:30 pm)
Executive Session (Commerce, Science, and Transportation; Wednesday at 10:00 am)
Business Meeting (Homeland Security and Governmental Affairs, Wednesday at 11:00 am)
Nominations Hearing (Banking, Housing, and Urban Affairs; Thursday at 10:00 am)
Breaking the News – Journalism, Competition, and the Effects of Market Power on a Free Press (Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights; Wednesday at 2:30 pm)
The Hospital Insurance Trust Fund and the Future of Medicare Financing (Finance, Wednesday at 2:30 pm)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
Nominations Hearing (Energy and Natural Resources, Thursday at 10:00 am)
Nominations Hearing (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.
And 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 11 bills (listed below) on the suspension calendar for the week. These bills will likely be on the floor between Tuesday and Wednesday.
PRICE Act, S. 583 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 3900 Crown Road Southwest in Atlanta, Georgia, as the "John R. Lewis Post Office Building," H.R. 5577 (Oversight and Reform)
A bill to designate the facility of the United States Postal Service located at 42 Main Street in Slatersville, Rhode Island, as the "Specialist Matthew R. Turcotte Post Office," S. 566 ( Oversight and Reform)
To designate the facility of the United States Postal Service located at 2800 South Adams Street in Tallahassee, Florida, as the "D. Edwina Stephens Post Office," H.R. 2324 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 502 East Cotati Avenue in Cotati, California, as the "Arthur Luis Ibleto Post Office Building," H.R. 735 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 223 West Chalan Santo Papa in Hagatna, Guam, as the "Atanasio Taitano Perez Post Office," H.R. 3539 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 120 4th Street in Petaluma, California, as the "Lynn C. Woolsey Post Office Building," H.R. 2842 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 200 East Main Street in Maroa, Illinois, as the "Jeremy L. Ridlen Post Office," H.R. 3579 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 202 Trumbull Street in Saint Clair, Michigan, as the "Corporal Jeffrey Robert Standfest Post Office Building," H.R. 3613 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 6223 Maple Street, in Omaha, Nebraska, as the "Petty Officer 1st Class Charles Jackson French Post Office," H.R. 4168 (Oversight and Reform)
To designate the facility of the United States Postal Service located at 1233 North Cedar Street in Owasso, Oklahoma, as the "Staff Sergeant Marshal Roberts Post Office Building," H.R. 1298 (Oversight and Reform)
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.
We've got some rule bills: The House Rules Committee will meet on Tuesday at 1:00 pm to consider the amendments and rule for the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, H.R. 4445; Global Respect Act, H.R. 3485; and the America COMPETES Act, H.R. 4521. Only the America COMPETES Act is expected to be on the floor this week, but additional legislative items are possible.
International competitiveness: Back in June, the Senate passed the bipartisan United States Innovation and Competition Act, S. 1260. The bill is designed to make the United States more competitive with China. This week, the House will consider its own version of similarly minded legislation, the America Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength (America COMPETES) Act, H.R. 4521. More than 500 amendments have been filed to the nearly 3,000-page legislation. A section-by-section summary of the bill is available here. A fact sheet is here.
Pelosi strikes a bipartisan tone: In a letter to the House Democratic Caucus, Speaker Nancy Pelosi (D-CA) outlined the agenda for the House for the next several weeks. The list of items was noticeably bipartisan, including finishing FY 2022 appropriations, international competitiveness, Ukraine, and veterans issues. She did, however, reserve some words for the Build Back Better Act. Pelosi wrote, "As we continue to advance the provisions of the Build Back Better Act, including those related to child care and family care, health care, and climate, we also want to emphasize the community violence prevention initiatives that it contains. Build Back Better makes the largest-ever federal investment in community violence intervention initiatives that have been proven to save lives, which will help us protect our children, families and the safety of our communities." She also acknowledged the issue of voting rights. "While the vote was not successful in the Senate," she noted, "the visibility given to the debate under the leadership of Leader Chuck Schumer and the patriotic presentations by the Senate Democrats strengthens our hand as we go forward."
SCOTUS declines to weigh in on proxy voting: The Supreme Court declined to hear a legal challenge to the House's proxy voting rule led by House Minority Leader Kevin McCarthy (R-CA). The lawsuit had been unsuccessful in lower courts. McCarthy has pledged to get rid of proxy voting if Republicans take control of the House. However, she also mentioned
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.
Securing High-Demand Jobs for Veterans (Veterans' Affairs Subcommittee on Economic Opportunity, Wednesday at 10:00 am)
A 2022 Review of Farm Bill Conservation Programs (Agriculture Subcommittee on Conservation and Forestry, Wednesday at 10:00 am)
The Dynamic Terrorism Landscape and What it Means for America (Homeland Security, Wednesday at 10:00 am)
Respecting Artists with the American Music Fairness Act (Judiciary, Wednesday at 10:00 am)
Pandemic Profiteers: Legislation to Stop Corporate Price Gouging (Energy and Commerce Subcommittee on Consumer Protection and Commerce, Wednesday at 10:30 am)
The Road Ahead for Automated Vehicles (Transportation and Infrastructure Subcommittee on Highways and Transit, Wednesday at 11:00 am)
Manufacturing a Clean Energy Future: Climate Solutions Made in America (Climate Crisis, Wednesday at 1:30 pm)
The Biden Administration's Policy Objectives in the Middle East and North Africa (Foreign Affairs Subcommittee on Middle East, North Africa, and Global Counterterrorism; Wednesday at 2:00 pm)
Close to Home: Supporting Vet Centers in Meeting the Needs of Veterans and Military Personnel (Veterans' Affairs Subcommittee on Health, Thursday at 10:00 am)
Oversight of the Federal Bureau of Prisons (Judiciary Subcommittee on Crime, Terrorism, and Homeland Security; Thursday at 10:00 am)
Sustainability in the Livestock Sector: Environmental Gain and Economic Viability (Agriculture Subcommittee on Livestock and Foreign Agriculture, Thursday at 10:00 am)
FDA User Fee Reauthorization: Ensuring Safe and Effective Drugs and Biologics (Energy and Commerce Subcommittee on Health, Thursday at 10:30 am)
Finding the Right Frequency: 5G Deployment & Aviation Safety (Transportation and Infrastructure Subcommittee on Aviation, Thursday at 11:00 am)
Examining the History and Importance of “Lift Every Voice and Sing” (Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties; Friday at 9:00 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Add this book to your reading list: Political scientist and Snapcase drummer Timothy Redmond has a new book coming out in May. The book is Political Tribalism in America: How Hyper-Partisanship Dumbs Down Democracy and How to Fix It. Obviously, this is a particular topic that appeals to me since I’ve grown increasingly annoyed with tribalism. While I have my classically liberal (or libertarian, if you prefer) convictions, the battles between the blue team and the red team for political power are exhausting. Political Tribalism in America: How Hyper-Partisanship Dumbs Down Democracy and How to Fix It is now available for preorder. While you’re at it, if you’re into hardcore, check out Snapcase. They’re a really great band.
A newsletter you should read: One of my closest friends in this crazy world, Irene Kenyon (I know her as Nicki), has a Substack on threat finance and financial intelligence issues. Her recent post on Russia and Ukraine is particularly enlightening. Please check it out and subscribe!
Housekeeping update: We may or may not have a Point of Order next week. I'm going to try to get it done, but I've got a lot going on this week and over the weekend.
Due Process Institute is a bipartisan nonprofit that works to honor, preserve, and restore principles of fairness in the criminal legal system. Follow us on Twitter and Facebook.