Mid-week Point of Order: Yeah, we’re trying this on to see how it does. We may try to make it a regular thing. We’ll see. There’s a lot that happens in any given week, especially this week, and we want to continue to provide value to those who read this newsletter. Sometimes, things we expect to happen don’t happen or things are shifted around. This gives us a chance to catch you up on all the legislative things.
Let there be drama: As if the drama waiting until literally the last minute to pass all the appropriations bills to avoid a shut down of the federal government isn’t enough, Democratic leadership hit some snags on the omnibus after some House Democrats threatened to vote against the rule, H.Res. 972 (here’s a summary of the rule), governing consideration of the bill. The reason these Democrats were making the threat is because of the pay-fors that were included for the additional COVID-19 funds. The pay-fors were negotiated by House Republicans and include previous funding to states. In a letter to her caucus, Speaker Nancy Pelosi (D-CA) wrote, “To continue our battle against COVID, the Administration has requested additional funding so that we can protect against potential new variants, avoid costly shutdowns and help vaccinate the world. Republicans resisted this deeply needed funding—demanding that every cent requested by the Administration be offset by state and local funds scheduled to be released this spring.” (It’s worth noting that states are doing pretty well on the budget front. As the National Association of State Budget Officers points out, “Rainy day fund balances reached a new record level of nearly $113 billion in fiscal 2021 due mainly to stronger than anticipated revenue growth, with 35 states reporting increases.”) House Democratic leadership had to send the Consolidated Appropriations Act for FY 2022 back to the House Rules Committee to remove the COVID-19 funding from the bill. The COVID-19 piece will now be considered as a standalone bill.
This, folks, is why governing by crisis is such a bad idea: For years, we’ve heard complaints about a return to regular order and ending manufactured crises that have become routine in Congress. Yet, nothing ever changes. It’s one thing when it’s a messaging bill that’s dead-on-arrival in the Senate, but it’s another thing when it’s discretionary funding to keep the federal government open. You may say, “Jason, this was just over the omnibus. The House is gonna consider a short-term continuing resolution to keep the federal government open through March 15.” Yeah, but the rule that some House Democrats were going to vote against governed consideration of that short-term CR, too. The House Rules Committee met this morning at 1:30 am to mark up the rule for the omnibus, the CR, and the Russian energy exports bill. The omnibus is more than 2,700 pages. No one who votes on this bill will have had time to read and process the legislation in its totality before casting that vote. When legislation is negotiated behind closed doors, away from the committee mark-up process and without input from rank-and-file members, problems like this are bound to happen. As a close friend’s kid says, “Wop, wop.”
Oh, and we’re still going to see a continuing resolution: As mentioned above, the House will consider a CR to fund the federal government through Tuesday, March 15. The short-term CR is intended to give the Senate enough time to process the omnibus without an interruption in the federal government.
Votes expected tonight, House Dem retreat delayed: The House Rules Committee began its meeting to mark up a new rule at 5:30 pm. House will vote later today on the House amendment to the Senate amendment for H.R. 2471 (Consolidated Appropriations Act for FY 2022); the Extension of Continuing Appropriations Act, H.J.Res. 75; the Suspending Energy Imports from Russia Act, H.R. 6968; and the COVID Supplemental Appropriation Act, H.R. 7007. House Democrats have delayed their departure to Philadelphia for their caucus issues conference until today’s vote series has concluded.
There will be two votes for the omnibus: Let me see if I can explain this. House Democrats were concerned about defense spending increases, so leadership decided to break the omnibus into two votes. Here’s the breakdown of the two tranches, as of very early this morning. (Obviously, Division M will be stripped from the bill and the remaining divisions will be re-lettered).
Tranche #1
Division A: Agriculture
Division D: Energy and Water
Division E: Financial Services and General Government
Division G: Interior
Division H: Labor, Health and Human Services, and Education
Division I: Legislative Branch
Division J: Military Construction and Veterans Affairs
Division K: State and Foreign Operations
Division L: THUD
Division M: COVID
Division N (Ukraine funding) Title I (Agriculture), Title IV (Energy and Water), Title V (Financial Services and General Government), Title 6 (State and Foreign Operations)
Divisions O, P, Q, R, S, T, U, V, W, Y, AA, BB, CC, DD, EE, FF GG, HH
Tranche #2
Division B: Commerce, Justice, and Science
Division C: Defense
Division F: Homeland Security
Division N (Ukraine funding): Title II (Commerce, Justice, and Science) and Title III (Defense)
Division X: Intelligence Authorization Act for FY 2022
Division Z: Israel Normalization Act
Base level funding in the omnibus and Ukraine assistance: Look, I’ve barely had a chance to look at the omnibus, but here are the basics of the defense and nondefense discretionary spending for FY 2022 that the legislation approves. Defense discretionary spending is $782 billion (a 6 percent increase over FY 2021). Presumably, the total defense figure includes funding for overseas contingency operations or some other funding since the Republican support document says the Department of Defense will receive $728.32 billion. Either that, or there’s a typo in the Republican support document. (The Democratic support document is here.) Nondefense discretionary spending is $730 billion (a 6.7 percent increase). Additionally, the omnibus includes almost $14 billion in military and humanitarian assistance for Ukraine and Ukrainian refugees who have fled to Poland and other European countries.
Earmarks are officially back: Here’s a list of all the earmarks in the omnibus.
Fentanyl analogues scheduling extension: The omnibus includes an extension of the temporary scheduling of fentanyl analogues (18 C.F.R. 1308.11(h)(30)). This is a temporary, classwide scheduling that was published by the Drug Enforcement Agency (DEA) back in 2018 that was supposed to expire on May 6, 2021. However, Congress has subsequently extended this, most recently in the Extending Government Funding and Delivering Emergency Assistance Act, H.R. 5305. It may be hard to accept considering the opioid crisis, but classwide scheduling isn’t the right approach. Sadly, there are too many who want to use the issue as a political bludgeon. Sen. Cory Booker (D-NJ) said it best: “[R]esearch by the FDA has confirmed that what is being proposed—classwide scheduling—has improperly scheduled substances with therapeutic promise and low abuse potential. We need to submit all fentanyl-related substances to the same scientific evaluation that we have done for other controlled substances. We need to test for their dangerousness. We must identify those that might be lifesaving overdoses.” Assuming the omnibus passes, the temporary scheduling of fentanyl analogues will be extended through December 31, 2022.
What wasn’t included in the omnibus: The EQUAL Act, S. 79, wasn’t included in the omnibus. Apparently, there were objections to its inclusion. Those objections, frankly, don’t much any sense at all, and it’s incredibly frustrating. Let me associate myself with the words of my friend Kevin Ring of FAMM: “There are no criminal justice reform bills currently pending in Congress that have the breadth and depth of support from law enforcement organizations, civil rights groups, and justice reform advocates that the EQUAL Act enjoys. Considering this support, it would be foolish not to move the bill. Considering the consequences, it would be immoral not to.”
The Senate clears Postal Service reform: The Senate isn’t in session today, but, on Tuesday, the Senate passed the Postal Service Reform Act, H.R. 3076, by a vote of 79 to 19. The Postal Service Reform Act now heads to President Biden’s desk for his signature. The bill is expected to become law. The chamber also approved the nomination of Maria L. Pagan to serve as a Deputy U.S. Trade Representative in Geneva. The Senate will return tomorrow at 10:00 am. The omnibus is expected to be taken up.
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