Sentencing Reform Hearing, House to Consider Iraq AUMF Repeal, Senate to Tackle More Nominees
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.
We’ve got a sentencing reform hearing: On Thursday at 10:00 am, the House Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing, “Undoing the Damage of the War on Drugs: A Renewed Call for Sentencing Reform.” The witness list hasn’t been posted yet, but we’re pretty excited about this hearing. Obviously, with the EQUAL Act, H.R. 1693, which would equalize the treatment of crack cocaine and powdered cocaine getting some traction in the House, we’re hopeful that we’ll see some movement on sentencing reform in the 117th Congress. Make sure you stop by @pye on Twitter for all the live tweets.
Recapping the Senate Judiciary markup: Last Thursday, the Senate Judiciary Committee favorably reported the Prohibiting Punishment of Acquitted Conduct Act, S. 601, and the First Step Implementation Act, S. 1014. The First Step Implementation Act makes some of the sentencing reforms under the First Step Act retroactive, clarifies the safety valve exception to mandatory minimum sentences, and makes some modest juvenile justice reforms. Although there were poison pill amendments offered on the First Step Implementation Act, none of them passed. There was at least one technical correction amendment offered by Sen. Mike Lee (R-UT) related to juvenile record expungement to make clearer the definition of violent crime that was adopted to the manager’s amendment offered by Chairman Dick Durbin (D-IL). Unfortunately, the Prohibiting Punishment of Acquitted Conduct Act was amended with some very frustrating language. Under 18 U.S.C. §3661, a judge can consider the conduct of a defendant when determining a sentence. This includes conduct for which the defendant was acquitted. Think of it this way. A federal prosecutor presents a case. The jury finds that the government failed to prove beyond a reasonable doubt that the defendant is guilty and acquits the defendant. If a judge disagrees with the jury, the judge can determine, based on only a preponderance of the evidence (which is essentially 51% sure), that the defendant is actually essentially guilty of the conduct they had just been acquitted for and sentence him or her to a harsher sentence based on that new determination. In Jones v. United States (2014) Justice Antonin Scalia, joined by Justices Ruth Bader Ginsburg and Clarence Thomas, wrote, “We have held that a substantively unreasonable penalty is illegal and must be set aside. It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge,” Scalia wrote. “This has gone on long enough.” Punishing acquitted conduct violates the core tenets of the Fifth and Sixth Amendments. It’s not exactly a secret that Republicans and Democrats pick and choose which parts of the Bill of Rights they choose to ignore. They just usually seem to disagree on which ones. Unfortunately, in this case, some committee Republicans and at least one Democrat are too willing to throw out basic rights of due process that are protected by the Constitution. The version of the bill that passed out of Committee would make a dent in the practice of acquitted conduct sentencing, but as amended, it no longer brings an end to it.
House schedule and suspensions: The House returns today. Legislative businesses will begin at 2:00 pm, with votes expected around 6:30 pm. The chamber will be in session through Thursday, with the last votes of the week expected around 3:00 pm. There are 22 bills (listed below) on the suspension calendar for the week. Suspensions will be considered Monday and Tuesday.
National Children’s Museum Act, H.R. 1703
Ocean Pollution Reduction Act II, H.R. 587
San Francisco Bay Restoration Act, H.R. 610
PUGET SOS, H.R. 1144
Local Water Protection Act, H.R. 2008
To amend the Federal Water Pollution Control Act to reauthorize the Lake Pontchartrain Basin Restoration Program, and for other purposes, H.R. 1921
Preventing Disaster Revictimization Act, H.R. 539
Expedited Delivery of Airport Infrastructure Act, H.R. 468
Federal Disaster Assistance Coordination Act, H.R. 2016
Notice to Airmen Improvement Act, H.R. 1262
Veterans and Family Information Act, H.R. 2093
Equal Access to Contraception for Veterans Act, H.R. 239
Homeless Veterans CREDIT Act, H.R. 1257
VA Police Improvement and Accountability Act, H.R. 2429
VA FOIA Reform Act, H.R. 2726
To amend title 38, United States Code, to clarify the role of doctors of podiatric medicine in the Department of Veterans Affairs, and for other purposes, H.R. 2545
VA Hospitals Establishing Leadership Performance Act, H.R. 293
To amend title 38, United States Code, to render an individual, who transfers certain educational assistance, to which the individual is entitled because of an agreement by such individual to serve in the Armed Forces, to a dependent of that individual, and who fails to complete such agreement, solely liable for the overpayment of such educational assistance, H.R. 290
To award four congressional gold medals to the United States Capitol Police and those who protected the U.S. Capitol on January 6, 2021, H.R. 3325
To award a Congressional gold medal to the 369th Infantry Regiment, commonly known as the "Harlem Hellfighters", in recognition of their bravery and outstanding service during World War I, H.R. 3642
Debt Bondage Repair Act, H.R. 2332
LGBTQ Business Equal Credit Enforcement and Investment Act, H.R. 1443
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 today at 1:00 pm to consider the rule and any amendments that will be allowed a vote from the floor for the ESG Disclosure Simplification Act, H.R. 1187, and a bill to repeal the 2002 Authorization for the Use of Military Force Against Iraq, H.R. 256. The ESG Disclosure Simplification Act will be renamed in the House Rule Committees as the Corporate Governance Improvement and Investor Protection Act and will include a total of five bills. It’s possible that other legislation could be considered on the floor this week.
Financial transparency messaging bill: Although the Corporate Governance Improvement and Investor Protection Act will include the text of the ESG Disclosure Simplification Act, the other bills that are being dropped in in rules are the Shareholder Political Transparency Act, H.R. 1087; the Greater Accountability in Pay Act, H.R. 1188; the Climate Risk Disclosure Act, H.R. 2570; and the Work, Ownership, Readiness, and Knowledge (WORK) Act, H.R. 3007. Most of the bills relate to disclosure and transparency related to political contributions, environmental impact, or private-sector executive salaries. Although it’s highly like that the Corporate Governance Improvement and Investor Protection Act will pass the House, the legislation doesn’t have a path to passage in the Senate. It’s what we call a “messaging bill.” Regardless of which party is in power, there is far too much focus on legislation that’s not really meant to become law.
Repealing an AUMF for a mistake: The bill to repeal the 2002 Authorization for the Use of Military Force Against Iraq, H.R. 256, is pretty straightforward. It should pass with some measure of bipartisan support considering nine Republicans, including several notable conservatives, have cosponsored the bill. Of course, passage in the Senate will be much harder, but there has been a growing consensus in the upper chamber on war powers. In the 116th Congress, the Senate passed a War Powers Resolution (WPR) to end the United States’ involvement in the hostilities in Yemen. That effort was spearheaded by Sens. Bernie Sanders (I-VT) and Mike Lee (R-UT). The catch is that WPR didn’t require 60 votes for cloture to bypass a filibuster. H.R 256 would require 60 votes in the Senate. Regardless, the Iraq War was a colossal mistake based on, at best, misleading information. The fact that this AUMF is still in effect boggles the mind.
House committee schedule: Below are some House committee hearings that may be of interest. It’s an active week in committees and subcommittees, so we don’t capture everything. The full House committee schedule for the week can be found here.
Potential Remedies for Unlawful Evictions in Federal Emergency Areas (Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties; Monday at 3:00 pm)
Environmental Justice for Coal Country: Supporting Communities Through the Energy Transition (Natural Resources Subcommittee on Energy and Mineral Resources, Tuesday at 10:00 am)
Digitizing the Dollar: Investigating the Technological Infrastructure, Privacy, and Financial Inclusion Implications of Central Bank Digital Currencies (Financial Services, Tuesday at 10:00 am)
Reversing the Decline in Women Entrepreneurship: Opportunities for Rebuilding the Economy (Small Business Subcommittee on Economic Growth, Tax, and Capital Access; Tuesday at 10:00 am)
Workforce Innovation and Opportunity Act Reauthorization: Examining Successful Models of Employment for Justice-Involved Individuals (Education and Labor Subcommittee Higher Education and Workforce Investment, Tuesday at 10:15 am)
Booster Shot: Enhancing Public Health through Vaccine Legislation (Energy and Commerce Subcommittee on Health, Tuesday at 10:30 am)
The Capitol Insurrection: Unexplained Delays and Unanswered Questions Part II (Oversight and Reform, Tuesday at 2:00 pm)
Oversight of the January 6th Attack: United States Capitol Police Containment Emergency Response Team and First Responders Unit (House Administration, Tuesday at 2:00 pm)
Equity in Social Security: In Their Own Words (Ways and Means, Tuesday at 2:00 pm)
Cyber Threats in the Pipeline: Lessons from the Federal Response to the Colonial Pipeline Ransomware Attack (Homeland Security Subcommittees on Cybersecurity, Infrastructure Protection, and Innovation and Transportation and Maritime Security; Tuesday at 2:30 pm)
1890 Land Grant Institutions: Investing for Agricultural Resiliency, Equity, and Global Impact (Agriculture, Wednesday at 10:00 am)
Veteran Homelessness in the Wake of COVID-19 (Veterans’ Affairs Subcommittee on Economic Opportunity, Wednesday at 10:00 am)
Supporting Small Entities through Investments in the National Infrastructure: Broadband (Small Businesses Subcommittee on Underserved, Agricultural, and Rural Business Development; Wednesday at 10:00 am)
Jumpstarting Main Street: Bringing Jobs and Wealth Back to Forgotten America (Oversight and Reform Subcommittee on Environment, Wednesday at 1:00 pm)
Building a More Civil and Collaborative Culture in Congress (Modernization of Congress, Thursday at 9:00 am)
Since a reader asked, if you would like to watch a committee hearing, usually all you need to do is visit the committee’s website, links to which are available here.
Over in the Senate: The Senate returns today at 3:00 to resume consideration of Ketanji Brown Jackson to serve as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. The Senate invoked cloture on the nomination on Thursday before leaving town. Around 5:30 pm, the Senate will have a two-vote series. The first vote will be on Jackson’s confirmation. The second and final vote of the series will be on the cloture motion for the nomination of Lina M. Khan to serve as a commissioner on the Federal Trade Commission. The cloture motion on Khan’s nomination was filed on Thursday. The nomination of Kiran Arjandas Ahuja to serve as the Director of the Office of Personnel Management is also expected to come up this week. Republicans have delayed Ahuja’s nomination over critical race theory and abortion, forcing Majority Leader Chuck Schumer (D-NY) to spend floor time on confirmation. Obviously, abortion has long been a wedge issue in American politics, but conservatives have recently focused on critical race theory as a new wedge issue. (Don’t shoot the messenger!)
Senate committee schedule: Below are some Senate committee hearings that may be of interest. Like House, Senate committees and subcommittees will be very busy this week. The full Senate committee schedule for the week is here.
Business Meeting (Homeland Security and Governmental Affairs, Wednesday at 9:30 am)
Executive Session (Commerce, Science, and Transportation; Wednesday at 10:00 am)
Improving Security, Trade, and Travel at Land Ports of Entry at the Southwest Border (Homeland Security and Governmental Affairs Subcommittee on Government Operations and Border Management, Wednesday at 2:30 pm)
21st Century Communities: Local Leaders on the Infrastructure Needs Facing America’s States, Cities, and Towns (Banking, Housing, and Urban Affairs; Tuesday at 10:00 am)
Nominations (Foreign Relations, Tuesday at 10:00 am)
Mental Health Care in America: Addressing Root Causes and Identifying Policy Solutions (Finance, Tuesday at 10:00 am)
H.R.6, American Dream and Promise Act of 2021 (Judiciary, Tuesday at 10:00 am)
Protecting Competition and Innovation in Home Technologies (Judiciary Subcommittee on Competition Policy and Innovation in Home Technologies, Tuesday at 2:30 pm)
Hearing on EPA and Commerce Nominees (Environment and Public Works, Wednesday at 10:00 am)
Nominations (Armed Services, Wednesday at 10:00 am)
Oversight of the U.S. Capitol Police Following the January 6 Attack on the Capitol (Rules and Administration, Wednesday at 2:15 pm)
Protecting Roe: Why We Need the Women’s Health Protection Act (Judiciary Subcommittee on the Constitution, Wednesday at 2:30 pm)
Legislative Hearing (Energy and Natural Resources Subcommittee on Public Lands, Forests, and Mining; Wednesday at 3:00 pm)
Nominations (Health, Education, Labor, and Pensions; Wednesday at TBD)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
21st Century Caregiving: Supporting Workers, Family Caregivers, Seniors and People with Disabilities (Aging, Thursday at 9:30 am)
COVID-19 Response and Recovery: Supporting the Needs of Students in Higher Education and Lessons on Safely Returning to Campus (Health, Education, Labor, and Pensions; Thursday at 10:00 am)
Reauthorization of the National Flood Insurance Program Part II (Banking, Housing, and Urban Affairs; Thursday at 10:00 am)
NCAA Student Athletes and NIL Rights (Commerce, Science, and Transportation; Thursday at 10:00 am)
Strength Through Partnership: Building the U.S.-Taiwan Relationship (Foreign Relations Subcommittee on East Asia, the Pacific, and International Cybersecurity Policy; Thursday at 10:00 am)
Addressing Emerging Cybersecurity Threats to State and Local Government (Homeland Security Subcommittee on Emerging Threats and Spending Oversight, Thursday at 10:15 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Trump outdid Nixon: We had already heard that the Department of Justice (DOJ) sought records of journalists’ phone records during the Trump administration. Last week, we found out that DOJ also sought the phone records of House Permanent Select Committee on Intelligence (HPSCI) Chairman Adam Schiff (D-CA), Democratic HPSCI committee members, and at least some of their staff and family members. On Sunday, CNN reported that DOJ went after the phone records of the then-White House counsel, Don McGahn. Yes, Trump’s DOJ sought the records of his own White House counsel. Schiff and other Democrats, including Speaker Nancy Pelosi (D-CA), have called for an investigation. Of course, there’s a lot of irony here consider Schiff’s support of unconstitutional surveillance practices, but that’s beside the point. DOJ is opening an investigation into this. Hopefully, we’ll see bipartisan outrage about this, but we probably shouldn’t hold our breath.
There’s an infrastructure deal: Infrastructure week might actually happen. During the Trump administration, every time the White House tried to do an “infrastructure week,” it seemed to always coincide with bad news for 45. President Biden hasn’t had much luck getting a deal on his own, but a bipartisan group that includes Sens. Joe Manchin (D-WV), Kyrsten Sinema (D-AZ), Mitt Romney (R-UT), and Susan Collins (R-ME) has reached a deal on an infrastructure bill. A joint statement issued by the ten senators involved stated, “Our group – comprised of 10 Senators, 5 from each party – has worked in good faith and reached a bipartisan agreement on a realistic, compromise framework to modernize our nation’s infrastructure and energy technologies. This investment would be fully paid for and not include tax increases. We are discussing our approach with our respective colleagues, and the White House, and remain optimistic that this can lay the groundwork to garner broad support from both parties and meet America’s infrastructure needs.” According to the Washington Post, the deal is worth approximately $975 billion over five years, $579 billion of which would be new spending. And while the senators say that there aren’t tax increases, the deal does, as the Post notes, index the gas tax to inflation, which would be—drum roll, please—a tax increase. Indexing the gas tax to inflation is something that should’ve been done a long time ago, though, but it’s still a tax increase.
HSGAC-Rules report on January 6: Last week, two Senate committees Homeland Security and Governmental Affairs and Rules and Administration, released a bipartisan report on the security lapses that occurred during the insurrection at the U.S. Capitol on January 6. Read the report and recommendations here.
Cups is reopening and House relaxes mask mandate: Any staffer or lobbyist who has spent any time in the Russell Senate Office Building knows Cups, a quaint little coffee shop tucked away in the basement. Cups also serves Chinese cuisine at lunchtime, although I’ve never had it. I’m told it’s actually pretty decent. In the before time, in the long, long ago, I would occasionally have meetings with Senate staffers there. Well, with COVID-19 very slowly becoming a painful memory, Cups reopened this morning. Separately, the House of Representatives will no longer require masks for those who are fully vaccinated.
Once…twice…Thrice: The post-hardcore band Thrice appears to be gearing up for a tour, and I couldn’t be more excited. The last live music I saw was Thrice, who came to the ATL in February 2020 for the 15th anniversary of their record, Vheissu, right before the pandemic pretty much stopped live music. They’ve been working on a new record, so I expect that they’re prepping for release of the new music.
Due Process Institute is a bipartisan nonprofit that works to honor, preserve, and restore principles of fairness in the criminal legal system.