Senate Judiciary Hearing on Crack Sentencing Disparity, "For the People Act" on the Senate Floor, CRAs in the House
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.
Hearing on crack and powder cocaine sentencing policy: The Senate Judiciary Committee will meet on Tuesday at 10:00 am for a hearing on sentencing policy for crack and powder cocaine offenses. The hearing will focus on the Eliminating a Quantifiably Unjust Application of the Law (EQUAL) Act, S. 79, which eliminates the sentencing disparity between crack and powder cocaine offenses. Since the passage of the Fair Sentencing Act of 2010, 28 grams of crack cocaine has triggered the same five-year mandatory sentence as 500 grams of powder cocaine, creating an 18-to-1 sentencing disparity. (Prior to the Fair Sentencing Act, 5 grams of crack triggered the five-year mandatory minimum sentence, creating a 100-to-1 disparity.) Although data show that Whites are more likely to use crack than people of color (see Table 1.31A on p. 87 of the PDF), 76.8 percent of individuals prosecuted for crack cocaine in FY 2020 were Black. Advocates are hoping for action on the bipartisan-supported EQUAL Act in this Congress, so the hearing is important from that perspective.
Senate schedule: The Senate returns today at 3:00 to resume consideration of the nomination of Charles Fonzone to serve as the General Counsel of the Office of the Director of National Intelligence. A vote on the cloture motion is expected around 5:30 pm. The nomination of Kiran Ahuja to serve as the Director of the Office of Personnel Management is also expected to come up this week. Ahuja’s nomination was expected to come up last week, but consideration was delayed because of the absence of two Democratic senators who weren’t available to vote because of illnesses in their families. It’s possible that other nominees will come to the floor this week. There are several nominations currently on the Executive Calendar awaiting floor time.
Senate Dems will attempt to move their sweeping election bill on Tuesday: Last Wednesday, Schumer used Rule 14 of the Standing Rules of the Senate to bypass the Rules and Administration Committee and add a new version of the so-called For the People Act to the Senate Calendar. Originally, the For the People Act was introduced as S. 1. The bill was reintroduced last week as S. 2093. Sen. Joe Manchin (D-WV) opposes the original version. He also opposes the new version, but he has offered suggested changes that would win his support for the legislation. Those proposed changes, which largely keeps the For the People Act intact, were endorsed by former Georgia gubernatorial candidate Stacey Abrams. Republicans oppose the For the People Act because they see many of the provisions as unconstitutional, either running over states’ ability to run their own elections or violating the First Amendment. (For what it’s worth, I share Republicans’ First Amendment concerns, but the Constitution does provide a lot of latitude to Congress when it comes to federal elections.) The Senate is expected to vote on the cloture motion for the motion to proceed at some point on Tuesday. The cloture motion for the MTP has a 60-vote threshold. It’s highly unlikely that any Republicans will vote for cloture on the MTP. Although this could lead to some drama on the Senate floor related to the filibuster, Sen. Krysten Sinema (D-AZ) opposes gutting or eliminating the procedural hurdle. Manchin has recently privately suggested that he’s open to changing the filibuster.
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Renewable Energy—Growth and Opportunities for our Rural Economies (Agriculture, Nutrition, and Forestry Subcommittee on Rural Development and Energy; Tuesday at 9:30 am)
Examining D.C. Statehood (Homeland Security and Governmental Affairs, Tuesday at 10:00 am)
Vaccines: America’s Shot at Ending the COVID-19 Pandemic (Health, Education, Labor, and Pensions; Tuesday at 10:00 am)
Nomination Hearing (Banking, Housing, and Urban Affairs; Tuesday at 10:00 am)
Business Meeting (Foreign Relations, Tuesday at 2:15 pm)
Protecting Real Innovations by Improving Patent Quality (Judiciary Subcommittee on Intellectual Property, Tuesday at 2:30 pm)
Building Resilient Networks (Commerce, Science, and Transportation Subcommittee on Communications, Media, and Broadband; Tuesday at 2:30 pm)
The Strategic Benefits of a Multilateral Approach to Trade Policy in the Asia-Pacific Region (Finance Subcommittee on International Trade, Customs, and Global Competitiveness; Tuesday at 2:30 pm)
Nominations (Judiciary, Wednesday at 9:30 am)
Honoring Veterans and Military Families: An Examination of Immigration and Citizenship Policies for US Military Service Members, Veterans, and Their Families (Judiciary Subcommittee on Immigration, Citizenship, and Border Safety; Wednesday at 2:30 pm)
Examining Markets, Transparency, and Prices from Cattle Producer to Consumer (Agriculture, Nutrition, and Forestry; Wednesday at 2:30 pm)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
Examining Bipartisan Bills to Increase Access to Housing (Banking, Housing, and Urban Affairs; Thursday at 10:00 am)
Nominations (Finance, Thursday at 10:30 am)
Business Meeting (Foreign Relations, Thursday at 11:00 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
House schedule: The House will convene in pro forma session today. The House returns tomorrow at 2:00 pm for legislative business. Votes expected around 6:30 pm. The chamber will be in session through Friday, with the last votes of the week expected around 3:00 pm. There are 18 bills (listed below) on the suspension calendar for the week. Suspensions will be considered Tuesday, although consideration of suspensions could spill over into Wednesday.
Enhancing State Energy Security Planning and Emergency Preparedness Act, H.R. 1374
Newborn Screening Saves Lives Reauthorization Act, H.R. 482
Pandemic Effects on Home Safety and Tourism Act, H.R. 3752
Consumer Safety Technology Act, H.R. 3723
Safe Sleep for Babies Act, H.R. 3182
STURDY Act, H.R. 1314
Tribal Health Data Improvement Act, H.R. 3841
Preventing Crimes Against Veterans Act, H.R. 983
Criminal Judicial Administration Act, H.R. 2694
Elder Abuse Protection Act, H.R. 2922
Justice for Juveniles Act, H.R. 961
To make improvements in the enactment of title 41, United States Code, into a positive law title and to improve the Code, H.R. 3239
To make improvements in the enactment of title 54, United States Code, into a positive law title and to improve the Code, H.R. 3241
ARTS Act, H.R. 704
AMIGOS Act, H.R. 2571
A bill to amend title 28, United States Code, to redefine the eastern and middle judicial districts of North Carolina, S. 1340
Foundation of the Federal Bar Association Charter Amendments Act, H.R. 2679
A bill to provide for the availability of amounts for customer education initiatives and non-awards expenses of the Commodity Futures Trading Commission Whistleblower Program, and for other purposes, S. 409
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. Given 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: The House Rules Committee will meet on Tuesday at 3:00 pm to consider the rule for the Protecting Older Workers Against Discrimination Act, H.R. 2062; the LGBTQ Business Equal Credit Enforcement and Investment Act, H.R. 1443; the Equal Access to Contraception for Veterans Act, H.R. 239; the Equal Employment Opportunity Commission CRA, S.J. Res. 13; the Methane CRA, S.J. Res. 14; and the True Lender CRA, S.J. Res. 15. It looks like the only bills for which Rules announced an amendment process are the INVEST in America Act and the Protecting Older Workers Against Discrimination Act.
A look at the rule bills: The Protecting Older Workers Against Discrimination Act tries to get around a 2009 Supreme Court decision (Gross v. FBL Financial Services, Inc.) to protect older workers from discrimination. The LGBTQ Business Equal Credit Enforcement and Investment Act would require financial institutions to report data to the Consumer Financial Protection Bureau on lending to LGBTQ-owned businesses. The Equal Access to Contraception for Veterans Act would prohibit the Department of Veterans’ Affairs from making veterans pay for contraceptives covered by health insurance.
And about the CRAs: I gather that most readers aren’t familiar with the Congressional Review Act. If you’d like to read some background on the Congressional Review Act, I authored an issue brief in October while I was still at FreedomWorks that provides a lot of detail about the law and the process behind it. In short, the Congressional Review Act allows Congress to consider a joint resolution (what we call a “CRA” in legislative jargon) to nullify a regulation published by a federal agency in the Federal Register. CRAs are privileged in the Senate and aren’t subject to the 60-vote threshold for cloture. A CRA would lose privilege if it deviates from the process outlined in the law. Enactment of a CRA means a federal agency cannot promulgate a regulation that is substantially the same. Prior to 2017, the Congressional Review Act was basically a dead letter, having been successfully used only once since its inception in 1996. Since 2017, the CRA has been used to nullify more than a dozen regulations. The Equal Employment Opportunity Commission (EEOC) CRA would nullify an EEOC rule that Democrats argue give deference to employers in discrimination claims. The Methane CRA would nullify an Environmental Protection Agency rule that relax regulation of methane. The True Lender CRA would nullify an Office of the Comptroller of the Currency rule that clarifies when a national bank is a true lender in a loan process. These CRAs have already passed the Senate (see roll call votes 175, 183, and 195), so the House is the final stop before heading to President Biden’s desk.
Let the appropriations markups begin: Buried in H.Res. 473, which governed consideration of a couple of bills, was language that deemed the passage of H.Res. 467. H.Res. 467 has the effect of a budget, although it’s not an actual budget and it applies only to the House. The resolution sets topline discretionary spending (around a third of all federal spending in a normal year) at $1.5 trillion. Republicans hammered Democrats on the process during the debate on the rule. On the heels of the deemed passage of H.Res. 467, the House Appropriations Committee announced a series of subcommittee and committee markups scheduled to happen between June 24 and July 16. Now, these appropriations bills may pass the House, but it’s unlikely that the Senate will take those bills up considering that the 60-vote threshold for cloture applies to appropriations bills. More likely than not, we’re looking at a continuing resolution (CR) ahead of the beginning of the new fiscal year on October 1 that may lead to a consolidated appropriations bill (known as a “omnibus”) in December.
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.
Lessons Learned: The Federal Reserve’s Response to the Coronavirus Pandemic (Coronavirus Crisis, Tuesday at 2:00 pm)
Ocean-Based Climate Action (Natural Resources, Tuesday at 3:00 pm)
Markup of Various Measures (Financial Services, Wednesday at 10:00 am)
Markup of Various Measures (Judiciary, Wednesday at 10:00 am)
An Epidemic Continues: Youth Vaping in America (Oversight and Reform Subcommittee on Economic and Consumer Policy, Wednesday at 10:00 am)
Examining Pathways to Build a Stronger, More Inclusive Retirement System (Education and Labor Subcommittee Health, Employment, Labor, and Pensions; Wednesday at 10:15 am)
A Hearing to Review the Efficacy of the Farm Safety Net (Agriculture Subcommittee on General Farm Commodities and Risk Management, Wednesday at 1:00 pm)
Leading by Example: The Need for Comprehensive Paid Leave for the Federal Workforce and Beyond (Oversight and Reform, Thursday at 10:00 am)
Voting in America: A National Perspective on the Right to Vote, Methods of Election, Jurisdictional Boundaries, and Redistricting (House Administration Subcommittee on Elections, Thursday at 10:00 am)
Empowered by Data: Legislation to Advance Equity and Public Health (Energy and Commerce Subcommittee on Health, Thursday at 10:30 am)
Oh, Canada! How Outdated U.S. Immigration Policies Push Top Talent to Other Countries (Judiciary Subcommittee on Immigration and Citizenship, Thursday at 2:00 pm)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Juneteenth: Last week, the Senate passed the Juneteenth National Independence Day Act, S. 475, by unanimous consent. The legislation, which makes Juneteenth a federal holiday, had 60 cosponsors, including 18 Republicans, and wasn’t considered controversial. (Because it’s not controversial.) The House followed suit, passing the legislation in a 415 to 14 vote. President Biden quickly signed the Juneteenth National Independence Day Act into law. Although Juneteenth is on June 19, it was observed on Friday because it fell on Saturday this year.
More thoughts on Juneteenth: I feel compelled to say this. I worked at a conservative group for more than six years before joining Due Process Institute. I believe very much in limited government and free markets. I’m glad that Juneteenth is now a federal holiday. Federal recognition of Juneteenth is long overdue. This shouldn’t be a point of contention, but in today’s politics, in which people seek to divide us to raise more money or get on TV, everything is controversial. One House Republican, Rep. Matt Rosendale (R-MT), said, “This is an effort by the Left to create a day out of whole cloth to celebrate identity politics as a part of its larger efforts to make Critical Race Theory the reigning ideology of our country.” Look, those comments are obviously ridiculous and disgusting. Admittedly, I wasn’t familiar with Juneteenth until maybe five years ago. I heard the term years before, but I didn’t know what it was. It wasn’t taught in schools in Metro Atlanta. Neither was the 1921 Tulsa Race Massacre. I didn’t know about that until very recently either. We shouldn’t be afraid to teach kids about the terrible parts of our nation’s history. It shouldn’t be hard to recognize that slavery and Jim Crow laws are stains in our past. It shouldn’t be hard to recognize that racial injustice that has occurred, and still occurs, in the United States. That’s not a partisan issue. At least it shouldn’t be. Those who complain that it somehow conflicts with Independence (from British Rule) Day seem to not realize that America either outright denied Independence to slaves or, through Jim Crow laws, treated people of color as second-class citizens. Even today, with de jure racial discrimination eliminated, it’s tough for many people of color to be treated fairly or to prosper. Even as someone who comes from the conservative movement, I recognize all of this as fact. And I am open-minded enough to keep learning more about what I don’t know about others’ lives and histories. There’s a serious lack of empathy in America today, and it’s going to be our demise because that lack of empathy will only lead to more divisiveness and hatred.
Due Process Institute is a bipartisan nonprofit that works to honor, preserve, and restore principles of fairness in the criminal legal system.