Senate Starts on Short-Term Government Funding While the House Waits, Electoral Count Act Reform Markup
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.
FREE show on Friday: This is the last week I get to use the newsletter to promote my band’s show on Friday, September 30. We’re playing at The Pocket. Doors open at 8:00 pm. Our setlist includes songs from Foo Fighters, Green Day, and NOFX. Singing along is encouraged. There’s no charge to get into the show. You can RSVP on Facebook or Eventbrite.
Government funding: Well, folks, Friday is the end of FY 2022, and there hasn’t been any movement on a continuing resolution (CR) to fund the federal government. The House is waiting on the Senate to pass the CR. The delay on the Senate side ultimately comes down to the deal Senate Majority Leader Chuck Schumer (D-NY) made with Sen. Joe Manchin (D-WV) on permitting reform in exchange for the latter’s vote on the Inflation Reduction Act. Many Republicans have gone on record to oppose Manchin’s permitting reform proposal in favor of one rolled out by Sen. Shelley Moore Capito (R-WV). There’s also Democratic opposition. Since this is very much a live issue, we may do another newsletter later in the week once we have an idea of what the plan is. Absent a CR, the government will "shut down." Now, while that has a very negative connotation, it’s not exactly as bad as it seems, at least on a short-term basis. Employees deemed essential will still report to work. Social Security checks will still go out. Although employees won’t be paid during the course of a shutdown, Congress routinely approves back pay. There has been legislation to end the gamesmanship that comes with government funding—such as the Government Shutdown Prevention Act, S. 105, and the End Government Shutdowns Act, S. 2760—but those bills haven’t moved.
Senate begins to process the vehicle for the CR: The Senate will reconvene at 3:00 pm on Tuesday and resume consideration of the legislative vehicle for H.R. 6833. A roll call vote on the cloture motion to the motion to proceed to H.R. 6833 is expected to begin around 5:30 pm. Schumer filed the motion to proceed before the Senate skipped town this past Thursday. The cloture motion on the motion to proceed requires 60 votes. This procedural vote allows the Senate to get on the bill and begin processing it. The cloture motion to limit debate will presumably come at some point later in the week. It’s possible the Senate continues to process nominees on the Executive Calendar as well.
Messaging bills are such a waste of time: I’m so tired of hearing about the lack of floor time that’s available in the Senate. A cloture motion on the motion to proceed on the DISCLOSE Act, S. 4822, was filed last Monday. That kicked off debate about the bill, which would require 501(c)(4) organizations to disclose their donors. While I’m frustrated by the amount of money in politics—particularly from organizations on the right and left who use their tax status to grift—the DISCLOSE Act almost certainly violates the First Amendment. I would also submit to you that the concerns about money in politics that come from politicians, who significantly benefit from money in politics, are disingenuous. Given the 50/50 split in the Senate, the DISCLOSE Act had no chance of becoming law. Everyone knows that, but it was a messaging opportunity, so that’s all that mattered. The cloture motion on the motion to proceed predictably failed and three legislative days of floor time on the Legislative Calendar were wasted. Both sides do this when they have control of the chamber, and I’m just tired of it.
NDAA in October: Schumer said last week that the Senate will begin consideration of the National Defense Authorization Act (NDAA) for FY 2023 in October. It’s unclear whether the Senate will take up the House-passed version, H.R. 7900, and substitute its own or consider the Senate version, S. 4543, and send that bill to the House. Our understanding is that the amendment deadline is Thursday or Friday. Now, we don’t actually expect the Senate to finish the NDAA in October. As currently scheduled, the Senate is out between October 3 and October 10. However, the chamber is supposed to come back into session on Tuesday, October 11, through Friday, October 21. It’s unlikely that the chamber will stay in session that whole time since it’s so close to the election. It’s more likely that the Senate comes back to consider the cloture motion on the motion to proceed and, then, adjourn until the lame duck.
Markup of Electoral Count Act reform bill: The Senate Rules and Administration Committee will markup the Electoral Count Reform and Presidential Transition Improvement Act, S. 4573, on Tuesday at 4:00 pm. The markup comes on the heels of the tenth Republican cosponsor, Sen. Pat Toomey (R-PA), giving the bill the support it needs to bypass a filibuster attempt. The markup comes on the heels of House passage of the Presidential Election Reform Act, H.R. 8873. The House-passed legislation is similar to the Senate version, but it attracted only nine Republican votes. The lack of Republican support may have been, at least in part, because of the involvement of Rep. Liz Cheney (R-WY) in the development of the legislation. The Electoral Count Reform and Presidential Transition Improvement Act would identify who can send a slate of electors to Congress–a governor or official prescribed by state law–and prohibits Congress from accepting a slate from any other official, clarify the vice president’s role in the electoral vote counting process as ceremonial, and increase the threshold to challenge a slate of electors from one representative and one senator to one-fifth of both the House and the Senate. The presidential transition aspect of the bill is designed to make clear when the president-elect and vice president-elect may receive resources for the transition between administrations. The full text is here. The one-pager for the ECA reform provisions is here. The one-pager for the transition provisions is here.
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Business Meeting (Rules and Administration, Tuesday at 4:00 pm)
From Nuremberg to Ukraine: Accountability for War Crimes and Crimes Against Humanity (Judiciary, Wednesday at 10:00 am)
Business Meeting and Stakeholder Views on the Brownfields Program Reauthorization (Environment and Public Works, Wednesday at 9:45 am)
Keeping the Pressure on Russia and It’s Enablers: Examining the Reach of and Next Steps for U.S. Sanctions (Foreign Relations, Wednesday at 10:00 am)
Business Meeting (Homeland Security and Governmental Affairs, Wednesday at 11:00 am)
FAA Reauthorization: Integrating New Entrants into the National Airspace System (Commerce, Science, and Transportation Subcommittee on Aviation Safety, Operations, and Innovation; Wednesday at 2:15 pm)
The Economic Inclusion Civil Rights Act (Judiciary Subcommittee on the Constitution, Wednesday at 3:15 pm)
Executive Session (Health, Education, Labor, and Pensions; Wednesday at TBD)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
Legislative Hearing (Environment and Public Works, Thursday at 10:00 am)
Oversight of the Federal Bureau of Prisons (Judiciary, Thursday at 10:00 am)
Securing U.S. Leadership in Emerging Compute Technologies (Commerce, Science, and Transportation; Thursday at 10:00 am)
Examining Outbound Investment (Banking, Housing, and Urban Affairs; 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.
Schedule and suspensions in the House: The House returns Wednesday 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, and the last votes for the week are expected at 3:00 pm that day. There are 32 bills (listed below) on the suspension calendar for the week.
SBIR and STTR Extension Act, S. 4900 (Small Business Committee)
FedRAMP Authorization Act, H.R. 8956 (Oversight and Reform Committee)
Chai Suthammanont Remembrance Act, H.R. 8466 (Oversight and Reform Committee)
End Human Trafficking in Government Contracts Act, S. 3470 (Oversight and Reform Committee)
AI Training Act, S. 2551 (Oversight and Reform Committee)
Chance to Compete Act, H.R. 6967 (Oversight and Reform Committee)
To designate the facility of the United States Postal Service located at 15 Chestnut Street in Suffern, New York, as the ‘‘Sergeant Gerald T. ‘Jerry’ Donnellan Post Office,’’ H.R. 6267 (Oversight and Reform Committee)
To designate the facility of the United States Postal Service located at 5420 Kavanaugh Boulevard in Little Rock, Arkansas, as the ‘‘Ronald A. Robinson Post Office,’’ H.R. 6080 (Oversight and Reform Committee)
Improving Trauma Systems and Emergency Care Act, H.R. 8163 (Energy and Commerce Committee)
Maximizing Outcomes through Better Investments in Lifesaving Equipment for (MOBILE) Health Care Act, H.R. 5141 (Energy and Commerce Committee)
Informing Consumers about Smart Devices Act, H.R. 4081 (Energy and Commerce Committee)
Visit America Act, H.R. 6965 (Energy and Commerce Committee)
Credit Union Board Modernization Act, H.R. 6889 (Financial Services Committee)
Banking Transparency for Sanctioned Persons Act, H.R. 2710 (Financial Services Committee)
To amend the Delaware Water Gap National Recreation Area Improvement Act to extend the exception to the closure of certain roads within the Recreation Area for local businesses, and for other purposes, H.R. 6364 (Natural Resources Committee)
Global Aircraft Maintenance Safety Improvement Act, H.R. 7321 (Transportation and Infrastructure Committee)
National Center for the Advancement of Aviation Act, H.R. 3482 (Transportation and Infrastructure Committee)
Senate Amendment to H.R. 5641, SPEED Act (Transportation and Infrastructure Committee)
Post-Disaster Mental Health Response Act, H.R. 5703 (Transportation and Infrastructure Committee)
AUTO for Veterans Act, H.R. 3304 (Veterans' Affairs Committee)
Food Security for All Veterans Act, H.R. 8888 (Veterans' Affairs Committee)
Expanding Home Loans for Guard and Reservists Act, H.R. 8875 (Veterans' Affairs Committee)
To amend title 38, United States Code, to ensure that the Secretary of Veterans Affairs repays members of the Armed Forces for certain contributions made by such members towards Post-9/11 Educational Assistance, H.R. 5918 (Veterans' Affairs Committee)
REMOVE Copays Act, H.R. 7589 (Veterans' Affairs Committee)
Solid Start Act, S. 1198 (Veterans' Affairs Committee)
Strengthening Whistleblower Protections at the Department of Veterans' Affairs Act, H.R. 8510 (Veterans' Affairs Committee)
Supporting Families of the Fallen Act, S. 2794 (Veterans' Affairs Committee)
A bill to amend section 301 of title 44, United States Code, to establish a term for the appointment of the Director of the Government Publishing Office, S. 4791 (House Administration Committee)
John Lewis Civil Rights Fellowship Act, H.R. 8681 (Foreign Affairs Committee)
Global Food Security Reauthorization Act, H.R. 8446 (Foreign Affairs Committee)
Millennium Challenge Corporation Eligibility Expansion Act, H.R. 8463 (Foreign Affairs Committee)
Combating the Persecution of Religious Groups in China Act, H.R. 4821 (Foreign Affairs Committee)
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 on Tuesday at 3:00 pm to markup the rule for the Mental Health Matters Act, H.R. 7780; the Merger Filing Fee Modernization Act, H.R. 3843; and the PAVA Program Inclusion Act, S. 3969. Considering Friday is the deadline for government funding, it’s very highly likely that there will be another Rules Committee meeting this week to mark up the rule for that bill. It’s also possible that the House will consider legislation related to the Stop Trading on Congressional Knowledge (STOCK) Act this week. Other legislative items, not limited to the CR and legislation related to the STOCK Act, are possible.
Catching up on policing and mental health bills: You may remember this from back during the summer. Progressive and moderate Democrats had disagreements on policing and mental health legislation. The bills were in Rules and supposed to hit the floor right before the August recess before they were yanked from consideration because passage wasn’t a sure thing. Well, Democrats finally got the votes they needed and, late last week, the Invest to Protect Act, H.R. 6448; the Mental Health Justice Act, H.R. 8542; the Break the Cycle of Violence Act, H.R. 4118; and the VICTIM Act, H.R. 5768 each came to the floor and passed. The Invest to Protect Act actually got a lot of Republican support while the VICTIM Act landed more than two dozen Republican votes. The Mental Health Justice Act and the Break the Cycle of Violence Act got three and one Republican votes. The bills aren’t likely to become law unless the ones with Republican support are tucked away in a lame-duck omnibus, assuming there is an omnibus.
House Republicans roll out the “Commitment to America”: On Friday, in Monongahela, Pennsylvania, House Republicans rolled out their "Commitment to America." It's sort of like the "Contract with America" in 1994 or the "Pledge to America" in 2010, only a lot less specific. The plan focuses on various issues, including the economy, public safety, national security, education, healthcare, and government accountability. There really isn’t anything in terms of Republican talking points that aren’t already known, though. Inflation and gas prices play a big role. Of course immigration is mentioned. China gets some attention, as does “Big Tech.” Surprisingly, spending gets a mention, but only the “wasteful” kind. I truly do wonder how Republicans plan to cut spending when they focus only on nondefense discretionary spending (about 15 percent of all federal spending) while not touching defense discretionary spending (also about 15 percent of all federal spending) while not doing anything to entitlements (60+ percent). On healthcare, gone are Republican promises to “repeal and replace” the Affordable Care Act. The lines now are: “Personalize care to provide affordable options and better quality, delivered by trusted doctors and hospitals” and “Lower prices through transparency, choice, and competition.”
What the "Commitment to America" says about crime: It doesn’t say much, but for those wondering, on the criminal justice front, the “Commitment to America” states that Republicans will “[c]rack down on prosecutors and district attorneys who refuse to prosecute crime, while permanently criminalizing all forms of illicit fentanyl” and “[o]ppose all efforts to defund the police.” The latter point is a big Republican talking point, and it has hurt Democrats to some degree, although it does seem like Republicans are at the point of diminishing returns on this. That said, police budgets have been growing, not declining. Finally, the plan states, “Support 200,000 more police officers through recruiting and retention bonuses.” We have a clearance rate problem more than a lack of police problem. The police-to-population ratio is 2.4 per 1,000 people. That’s pretty consistent with where it has been since 2010 (2016 and 2018 saw the ratio decline to 2.3 per 1,000. Going back to 1985, we see that the highest ratio was 2.5 per 1,000 people between 1998 and 2002 and again between 2008 and 2009.
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.
Hearing (January 6th Select Committee, Wednesday at 1:00 pm)
A 2022 Review of the Farm Bill: Title XII – Department Operations and Outreach (Agriculture Subcommittee on Nutrition, Oversight, and Department Operations; Thursday at 9:30 am)
Examining the Harm to Patients from Abortion Restrictions and the Threat of a National Abortion Ban (Oversight and Reform, Thursday at 10:00 am)
Investing in our Nation’s Transportation Infrastructure and Workers: Why It Matters (Transportation and Infrastructure, Thursday at 10:00 am)
Veteran Suicide Prevention: Capitalizing on What Works and Increasing Innovative Approaches (Veterans’ Affairs, Thursday at 10:00 am)
Trustworthy AI: Managing the Risks of Artificial Intelligence (Science, Space, and Technology Subcommittee on Research and Technology; Thursday at 10:30 am)
Oversight of the Bankruptcy Code, Part 2: Ensuring a Fresh Start for Consumers (Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law; Thursday at 1:00 pm)
A Big Climate Deal: Lowering Costs, Creating Jobs, and Reducing Pollution with the Inflation Reduction Act (Climate Crisis, Thursday at 1:30 pm)
Oversight Hearing on "Puerto Rico's Post-Disaster Reconstruction & Power Grid Development" (Natural Resources, Friday at 9:30 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
American legislative history making its way online: Congress.gov is slowly getting very old bills online: I’m a bit of a nerd for this stuff, but I got an email notification this morning from Congress.gov telling me that bills from the 6th through 10th Congress (1799-1809) are now available on the website and searchable. I think it’s neat.
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