Senate Judiciary to Finish Markup of CJR Bills, Nominees and Paycheck Fairness in the Senate
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.
CJR markup continues: In the previous newsletter, I mentioned a markup of three bills in the Senate Judiciary Committee. The committee did meet and marked up one of those bills—the COVID-19 Safer Detention Act, S. 312. With the two-hour rule looming, it was apparent that the markup was going to run long as the committee considered the remaining bills—the Prohibiting Punishment of Acquitted Conduct Act, S. 601, and the First Step Implementation Act, S. 1014. Virtually every amendment filed by Sens. John Cornyn (R-TX), Tom Cotton (R-AR), and Ted Cruz (R-TX) is hostile and designed to gut each bill. Sadly, this sort of behavior is par for the course for these senators, two of whom, Cotton and Cruz, have aspirations for higher office in 2024. The committee will meet on Thursday at 9:00 am to consider three nominations and the Prohibiting Punishment of Acquitted Conduct Act and the First Step Implementation Act. As long as nothing else pops up, I’ll live-tweet the markup over at @pye.
Senate schedule: The Senate returns today at 3:00 pm to resume the consideration of the nomination of Julien Xavier Neals to serve as a judge on the U.S. District Court for the District of New Jersey. Majority Leader Chuck Schumer (D-NY) filed cloture on the Neals nomination and the nomination of Regina M. Rodriguez to serve as a judge on the U.S. District Court for the District of Colorado before the recess. A roll call vote on the cloture motion for the Neals nomination is expected around 5:30 pm.
The seemingly endless work on the Endless Frontiers Act should wrap up: The Senate has been processing amendments on the Endless Frontier Act, S. 1260, for more than two weeks, and it does finally seem that the bill will be done soon. There has been some drama with this bill despite the bipartisan support that it has because of the lack of movement on amendments. Although 611 amendments were filed, only 23 were proposed on the floor. Seventeen of those amendments got roll call votes. Only eight were agreed to, including amendments passed by voice vote. As of now, it’s expected that the Senate will consider another amendment to the bill tomorrow, as well as a motion to waive a budget point of order, before voting on the Schumer substitute amendment and final passage.
Paycheck Fairness Act will get floor time: It’s unlikely that the bill will move, but Schumer is expected to bring the Paycheck Fairness Act, H.R. 7, to the floor this week. A cloture motion on the motion to proceed (MTP) to the Paycheck Fairness Act is expected. This is a 60-vote threshold. The legislation, which is designed to end the gender wage gap, is a big priority for President Biden and congressional Democrats, but it’s unlikely to get the ten Republican votes necessary to invoke cloture on the MTP. Only one Republican voted for it in the House. According to the committee report on the legislation (see “Minority Views”), Republicans oppose the Paycheck Fairness Act on the grounds that it doesn’t take pay disparities into account that they say have nothing to do with gender.
Only one more shot at budget reconciliation: The Senate Parliamentarian, Elizabeth MacDonough, has dashed Senate Democrats’ hopes of using budget reconciliation to fast-track legislation through the chamber. Senate Democrats were hoping to discharge a revised budget resolution out of the Budget Committee that would contain additional reconciliation instructions for certain committees. Considering that the Budget Committee is split evenly between Democrats and Republicans, moving a revised resolution to the floor isn’t possible unless a Republican was willing to break ranks. According to Roll Call, MacDonough says that discharging a revised budget resolution via roll call vote of the full Senate is “not appropriate” because of “[t]he potential for abuse.” Importantly, she also noted that “overuse and over-reliance on a hyper-fast track procedure in the ordinarily deliberative Senate … will change the culture of the institution to the detriment of the committee and amendment processes and the rights of all Senators.” Democrats have already burned one use of budget reconciliation for spending and revenue (two of the allowable uses). Theoretically, they could use the process to increase the debt limit, the deadline for which is fast approaching. Granted, MacDonough’s opinion isn’t binding, per se. As my friend James Wallner says, the parliamentarian has only the power the Senate gives to her. The Senate, very narrowly controlled by Democrats, can override her. Otherwise, Democrats have to wait until next year.
Sinema stands firm on opposition to gutting the filibuster: While talking to reporters last week, Sen. Kyrsten Sinema (D-AZ) said that she wouldn’t budge on eliminating the filibuster for legislation. (The filibuster for nominees, except for Supreme Court nominees, was gutted in November 2013 when Democrats had control. Republicans eliminated the filibuster for Supreme Court nominees in April 2017 to move the nomination of Neil Gorsuch.) Of course, Sinema’s comments have led to criticism from progressive groups. It’s worth noting that then-President Trump called for the elimination of the filibuster to move his legislative agenda through the Senate. In April 2017, Sens. Susan Collins (R-ME) and Chris Coons (D-DE) led a letter signed by more than 60 senators urging Democratic and Republican leaders to preserve the procedural tool. Quite a few of the Democrats have since reversed their position.
Manchin opposes “For the People” Act and nixing filibuster: Not to be outdone by Sinema, Sen. Joe Manchin (D-WV) penned an op-ed in a home-state paper in which he said that he would vote against the Democrats’ sweeping election bill, the For the People Act, S. 1. “Democrats in Congress have proposed a sweeping election reform bill called the For the People Act. This more than 800-page bill has garnered zero Republican support. Why? Are the very Republican senators who voted to impeach Trump because of actions that led to an attack on our democracy unwilling to support actions to strengthen our democracy? Are these same senators, whom many in my party applauded for their courage, now threats to the very democracy we seek to protect?” Manchin wrote. “The truth, I would argue, is that voting and election reform that is done in a partisan manner will all but ensure partisan divisions continue to deepen.” He also, once again, reiterated that he opposes changing the filibuster. Manchin wrote, “Do we really want to live in an America where one party can dictate and demand everything and anything it wants, whenever it wants? I have always said, ‘If I can’t go home and explain it, I can’t vote for it.’ And I cannot explain strictly partisan election reform or blowing up the Senate rules to expedite one party’s agenda.”
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The list doesn’t include the several budget hearings scheduled in several committees, except the main Budget Committee hearing this week, or hearings scheduled in Appropriations subcommittees. The full Senate committee schedule for the week is here.
The United States’ strategic competition with China (Armed Services, Tuesday at 9:30 am)
Nominations of Dawn O’Connell to be Assistant Secretary for Preparedness and Response and Miriam Delphin-Rittmon to be Assistant Secretary for Mental Health and Substance Use (Health, Education Labor, and Pensions; Tuesday at 10:00 am)
Threats to Critical Infrastructure: Examining the Colonial Pipeline Cyber Attack (Homeland Security and Governmental Affairs, Tuesday at 10:00 am)
Hearing to Consider Pending Nominations (Energy and Natural Resources, Tuesday at 10:00 am)
The President's Fiscal Year 2022 Budget Proposal (Budget, Tuesday at 11:00 am)
Rural Transit: Opportunities and Challenges for Connecting Communities (Banking, Housing, and Urban Affairs Subcommittee on Housing, Transportation, and Community Development; Tuesday at 2:15 pm)
Business Meeting (Homeland Security and Governmental Affairs, Wednesday at 9:30 am)
NCAA Athlete NIL Rights (Commerce, Science, and Transportation; Wednesday at 10:00 am)
U.S. Policy on Belarus (Foreign Relations, Wednesday at 10:00 am)
Nominations (Judiciary, Wednesday at 10:00 am)
The Gender Wage Gap: Breaking Through Stalled Progress (Joint Economic, Wednesday at 2:30 pm)
Building A Stronger Financial System: Opportunities of a Central Bank Digital Currency (Banking, Housing, and Urban Affairs Subcommittee on Economic Policy; Wednesday at 2:30 pm)
Nominations (Foreign Relations, Wednesday at 2:30 pm)
Hearing on the Nomination of Christine Abizaid to be Director of National Counterterrorism Center of the Director of National Intelligence and the Nomination of Robin Ashton to be Inspector General of the Central Intelligence Agency (Intelligence, Wednesday at 2:30 pm)
A System to Better Serve America's Veterans: Investing in VA's Infrastructure (Veterans’ Affairs, Wednesday at 3:00 pm)
Executive Session: S. 1927, CAPTA Reauthorization Act of 2021 (Health, Education Labor, and Pensions; Thursday at 10:00 am)
Nominations of Robin Carnahan to be Administrator, General Services Administration; Jen Easterly to be Director, Cybersecurity and Infrastructure Security Agency, DHS; and Chris Inglis to be National Cyber Director (Homeland Security and Governmental Affairs, Thursday at 10:15 am)
Atrocities in Xinjiang: Where Do We Go From Here? (Foreign Relations Subcommittees on Western Hemisphere, Transnational Crime, Civilian Security, Democracy, Human Rights, and Global Women's Issues and East Asia, The Pacific, And International Cybersecurity Policy; Thursday at 11:00 am)
Committee work week in the House: The House won’t return for legislative business, excluding pro forma days, until Monday, June 14. Committees are meeting this week. Below are some House committee hearings that may be of interest. There are several hearings on budget requests in various committees and subcommittees of jurisdiction. For the sake of length, I’m excluding almost all of those. The full House committee schedule for the week is here.
Sleeping Danger: The Rock ‘n Play and Failures in Infant Product Safety (Oversight and Reform, Monday at 11:00 am)
Legislative Hearing on four public land recreation bills (Natural Resources Subcommittee on National Parks, Forests, and Public Lands; Tuesday at 12:00 pm)
Examining Climate Change: A Threat to the Homeland (Homeland Security Subcommittee on Emergency Preparedness, Response, and Recovery; Tuesday at 2:00 pm)
A Humane Response: Prioritizing the Well-Being of Unaccompanied Children (Energy and Commerce Subcommittee on Oversight and Investigations; Wednesday at 11:30 am)
Cyber Threats in the Pipeline: Using Lessons from the Colonial Ransomware Attack to Defend Critical Infrastructure (Homeland Security, Wednesday at 12:00 pm)
Examining the Policies and Priorities of the U.S. Department of Labor (Education and Labor, Wednesday at 12:00 pm)
The SACKLER Act and Other Policies to Promote Accountability for the Sackler Family’s Role in the Opioid Epidemic (Oversight and Reform; Tuesday at 12:00 pm)
The President’s Fiscal Year 2022 Budget (Budget, Wednesday at 11:00 am)
United States Leadership in the International Response to the COVID-19 Pandemic (Foreign Affairs Subcommittee on International Development, International Organizations and Global Corporate Social Impact; Wednesday at 3:00 pm)
Unaccompanied Children at the Border: Federal Response and the Way Forward (Homeland Security Subcommittee on Border Security, Facilitation, and Operations; Thursday at 2:00 pm)
Another procedural tool quashed by the House: In the previous newsletter, I mentioned that the House was operating under “martial law,” which means the House may consider legislation the same day it’s introduced. A friend mentioned to me that there’s another important rule that has been waived. Rule XIII, Clause 7 of the Rules of the House (see p. 28 of the document at the link) allows a member to introduce a resolution of inquiry to seek information from the Executive Branch and are usually directed to the President or cabinet members. Under the rule, committee(s) of jurisdiction are required to report a resolution of inquiry to the House within 14 legislative days, although it may be extended by a unanimous consent request. Well, the rule has been rendered moot since the beginning of the 117th Congress. This rule was originally waived via H.Res. 8 through January 21 and has subsequently been waived in H.Res. 188 through April 22, H.Res. 330 through May 20, and, most recently, via H.Res. 403. The rule was also waived in the previous Congress and has been waived under Republican control as well. The problem is that suspending the rule prohibits a Member, regardless of party, from getting information from an administration. That’s not exactly a good thing if one believes in an open and transparent government.
Some thoughts on Republican opposition to the January 6 Commission: Count me in the group who doesn’t understand why Republicans oppose the creation of a commission to investigate the insurrection at the Capitol on January 6. Yeah, they’re making Trump happy by opposing it, I guess, but the commission, as proposed in H.R. 3233, was bipartisan. Membership would’ve been equally appointed by congressional leadership. Any subpoenas issued would have to be bipartisan. I understand the very valid concerns raised by Sen. Collins, but it’s not clear if there would be enough Republicans to vote for cloture on the bill even if Collins’ amendment was adopted. Never mind the fact that Senate Republicans blocked the bill before the recess. Some Republicans say that a commission isn’t needed. Others say that congressional committees can handle the investigation. After all, there won’t be any theater there at all if committees handled this investigation. (That’s sarcasm.) What Republicans have done now to appease Trump is given congressional Democrats an excuse to create a select committee or keep it in an existing committee to investigate the insurrection and its causes, which won’t be bipartisan and won’t go anywhere. It will create more partisanship in the Capitol at a time in which bringing down the temperature is an absolute necessity. Neither side is making much of an effort to do that, though, and that’s not limited to this issue. Count me among those who find their failure to get on with the work of the people very frustrating.
Due Process Institute is a bipartisan nonprofit that works to honor, preserve, and restore principles of fairness in the criminal legal system.