Shutdown Averted, Nominees in the Senate, Vaccine CRA May Reach the Floor, House to Pass NDAA Again
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.
CR passes: Congress passed a continuing resolution (CR), H.R. 6119, on Thursday to fund the federal government through Friday, February 18, 2022. The length of the CR is longer than anticipated, but as it became obvious that more time would be needed to negotiate an omnibus appropriations bill and that there other legislative matters would consume floor time in the Senate, pushing funding into next year became a necessity. The House passed H.R. 6119 by a vote of 221 to 212. There were some last-minute negotiations in the Senate on an amendment offered by Sens. Roger Marshall (R-KS) and Mike Lee (R-UT) to prohibit funding for the Biden administration’s vaccine and testing mandate for employers. Marshall, Lee, and others planned to slow consideration of the CR, which would’ve meant a government shutdown, unless they were allowed a vote on the amendment at a simple majority threshold. Senate Majority Leader Chuck Schumer (D-NY) eventually allowed a vote on the Marshall-Lee amendment, which failed by a vote of 48 to 50. H.R. 6119 passed the Senate by a vote of 69 to 28. President Biden signed the bill on Friday.
Nominees to begin the week in the Senate: The Senate will return today at 3:00 pm to resume consideration of the nomination of Jessica Rosenworcel to serve as a member of the Federal Communications Commission (FCC). Rosenworcel is already on the FCC. She has been renominated for another five-year term. She has also been nominated to serve as the Chair of the FCC. That nomination requires separate action from the Senate. The Senate will vote around 5:30 pm on the cloture motion for the Rosenworcel nomination. Schumer also filed cloture motions on the nominations of Deirdre Hamilton to serve as a member of the National Mediation Board and Chris Magnus to serve as a commissioner for U.S. Customs and Border Protection.
NDAA still isn’t done: Disagreement on which amendments to the National Defense Authorization Act (NDAA), H.R. 4350, would get votes has stalled consideration of the annual must-pass legislation. Sen. Marco Rubio (R-FL) wanted a vote on an amendment to ban the importation of products manufactured in the Xinjiang region of China where Uyghur are persecuted and subject to forced labor. (The text of the amendment, S.Amdt. 4330, is here.) The amendment reflects the text of the Uyghur Forced Labor Prevention Act, S. 65, which passed the Senate in July by a voice vote. The bill has been stalled in the House ever since. Senate Armed Services Committee Chairman Jack Reed (D-RI) objected to Rubio’s request to include the amendment in the amendments that were going to receive votes. Reed’s concern, as he said when objecting to Rubio’s request, is a constitutional issue. “The key issue here is the blue slip, which originates from the constitutional language mandating that all revenue bills must begin in the House of Representatives,” Reed said. “If it is determined by the House that it is a revenue bill, then anyone—I am informed in the House—-can object, not just to the amendment of the gentleman from Florida but to the entire bill.” The Congressional Budget Office’s cost estimate for the Uyghur Forced Labor Prevention Act noted that the impact on revenues is “insignificant,” but the constitutional issue still remains. It’s not clear if the Senate will try to move forward on NDAA this week.
Vaccine CRA: A joint resolution of disapproval under the Congressional Review Act (CRA) to strike down the Biden administration vaccine and testing mandate on employers could come up this week. Introduced by Sen. Mike Braun (R-IN), S.J.Res. 29 has 50 cosponsors, including Sen. Joe Manchin (D-WV). The CRA has an expedited process that allows a joint resolution of disapproval to come to the floor after 20 days if a certain number of senators file a petition. Schumer and Democrats can’t do anything to stop a vote. (Read more about the CRA here.) The joint resolution of disapproval (usually called a “CRA”) was introduced on November 17, so we’re coming up on when it’s eligible for discharge from committee and a floor vote. Obviously, passage in the Senate is only one step. There is a companion in the House, H.J.Res. 65, but Republicans can’t force a vote in the House without a discharge petition with 218 signers.
Build Back Better Act update: Schumer has said that he wants to begin consideration of the Build Back Better Act, H.R. 5376, during the week of December 13. With Sen. Joe Manchin (D-WV) seemingly not there yet on the legislation, it’s anyone’s guess whether this actually happens.
Nominees are moving at a slow pace: The Senate confirmed 889 nominees between January 20 and November 30. Of these nominees, 86.1 percent were confirmed by voice vote. At this same point in the previous administration, the Senate confirmed 873 nominees, 87.8 percent were confirmed by voice vote. Excluding Armed Services nominees (who tend to be confirmed by voice vote), the Senate has confirmed 261 nominees between January 20 and November 30. That’s only one ahead of the 260 confirmed by the Senate at the same point in the previous administration. Now, I’m sure you’re thinking, “Pye, more Biden nominees have been confirmed.” While that’s true, it doesn’t tell the whole story. It’s a lot easier to move nominees through the Senate now than prior to April 2019. The reason is because then-Senate Majority Leader Mitch McConnell (R-KY) and Republicans changed the amount of post-cloture debate time allowed under Rule XXII. Prior to the rule change, 30 hours of post-cloture debate time, divided equally between the two sides, were allowed for all nominees. In April 2019, McConnell and Republicans changed the rule to provide for two hours of post-cloture debate on nominees. (The points of order raised by McConnell in April 2019 are here and here. The points of order weren’t sustained, but both rulings were overturned on appeal by McConnell by a vote of the Senate. Those roll calls are here and here. Nominees on Level I of the Executive Schedule in 5 U.S.C. § 5312, Supreme Court nominees, and circuit court nominees were exempted from the rule change and still require 30 hours of post-cloture debate.) This rule change made the process of confirming nominees much, much faster. It’s perplexing that Schumer hasn’t been able to far outpace the number of nominees confirmed in 2017.
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Promoting Competition, Growth, and Privacy Protection in the Technology Sector (Finance, Tuesday at 9:30 am)
Nominations Hearing (Banking, Housing, and Urban Affairs; Tuesday at 10:00 am)
Closing Guantanamo: Ending 20 Years of Injustice (Judiciary, Tuesday at 10:00 am)
Uncharted Waters: Challenges Posed by Ocean Shipping Supply Chains (Commerce, Science, and Transportation Subcommittee on Surface Transportation, Maritime, Freight, and Ports; Tuesday at 10:00 am)
Oversight: Oversight of the U.S. Capitol Police following the January 6th Attack on the Capitol, Part II (Rules and Administration, Tuesday at 10:00 am)
Update on U.S.-Russia Policy (Foreign Relations, Tuesday at 2:30 pm)
A Legislative Hearing to Examine S. 2372, The Recovering America’s Wildlife Act (Environment and Public Works, Wednesday at 10:00 am)
Protecting Kids Online: Instagram and Reforms for Young Users (Commerce, Science, and Transportation Subcommittee on Consumer Protection, Product Safety, and Data Security; Wednesday at 2:30 pm)
The Future of U.S. Policy on Taiwan (Foreign Relations, Wednesday at 2:30 pm)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
Financial Literacy: Addressing the Unique Just-in-Time Decisions Older Americans and People with Disabilities Face (Aging, Thursday at 9:30 am)
Disrupting Dangerous Algorithms: Addressing the Harms of Persuasive Technology (Commerce, Science, and Transportation Subcommittee on Communications, Media, and Broadband; Thursday at 10:00 am)
Disaster Recovery Assistance - Authorization of the Community Development Block Grant – Disaster Recovery Program (Banking, Housing, and Urban Affairs; Thursday at 10:00 am)
Examining Federal Efforts to Address PFAS Contamination (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 change in the House: Originally, the House was supposed to be in session on Friday and today, but the schedule changed after the Senate passed the CR. The House will now return on Tuesday 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, with the last votes of the week expected before 3:00 pm that day.
Suspensions: There are 16 bills (listed below) on the suspension calendar for the week. These bills will likely be on the floor between Tuesday and Wednesday, although some may spill over into Thursday.
REMOTE Act, H.R. 5545 (Veterans' Affairs)
NASA Enhanced Use Leasing Extension Act, H.R. 5746 (Science, Space, and Technology)
Ocean Shipping Reform Act, H.R. 4996 (Transportation and Infrastructure)
Adjustable Interest Rate (LIBOR) Act, H.R. 4616 (Financial Services)
To extend authorization for livestock mandatory reporting, H.R. 5290 (Agriculture)
Chronic Wasting Disease Research and Management Act, H.R. 5608 (Agriculture)
National Forestation Restoration and Remediation Act, H.R. 4489 (Agriculture)
Cattle Contract Library Act, H.R. 5609 (Agriculture)
Accelerating Access to Critical Therapies for ALS Act, H.R. 3537 (Energy and Commerce)
SHINE for Autumn Act, H.R. 5487 (Energy and Commerce)
Early Hearing Detection and Intervention Act, H.R. 5561 (Energy and Commerce)
Improving the Health of Children Act, H.R. 5551 (Energy and Commerce)
Cardiovascular Advances in Research and Opportunities Legacy Act, H.R. 1193 (Energy and Commerce)
Dr. Lorna Breen Health Care Provider Protection Act, H.R. 1667 (Energy and Commerce)
Allied Health Workforce Diversity Act, H.R. 3320 (Energy and Commerce)
Oral Health Literacy and Awareness Act, H.R. 4555 (Energy and Commerce)
The House may also consider votes on 14 postponed suspensions that were held over from last week.
Opioid Prescription Verification Act, H.R. 2355 (Energy and Commerce)
Synthetic Opioid Danger Awareness Act, H.R. 2364 (Energy and Commerce)
Supporting the Foundation for the National Institutes of Health and the Reagan-Udall Foundation for the Food and Drug Administration Act, H.R. 3743 (Energy and Commerce)
CARING for Social Determinants Act, H.R. 3894 (Energy and Commerce)
Agua Caliente Land Exchange Fee to Trust Confirmation Act, H.R. 897 (Natural Resources)
Indian Buffalo Management Act, H.R. 2074 (Natural Resources)
Women Who Worked on the Home Front World War II Memorial Act, H.R. 3531 (Natural Resources)
Blackwell School National Historic Site Act, H.R. 4706 (Natural Resources)
To make technical amendments to update statutory references to certain provisions classified to title 2, United States Code, title 50, United States Code, and title 52, United States Code, H.R. 5677 (Judiciary)
To make technical amendments to update statutory references to certain provisions classified to title 7, title 20, and title 43, United States Code, H.R. 5679 (Judiciary)
To make technical amendments to update statutory references to certain provisions which were formerly classified to chapters 14 and 19 of title 25, United States Code, H.R. 5695 (Judiciary)
To make technical amendments to update statutory references to provisions reclassified to title 34, United States Code, H.R. 5705 (Judiciary)
To make revisions in title 5, United States Code, as necessary to keep the title current, and to make technical amendments to improve the United States Code, H.R. 5961 (Judiciary)
To make revisions in title 51, United States Code, as necessary to keep the title current, and to make technical amendments to improve the United States Code, H.R. 5982 (Judiciary)
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. Because of 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 1:00 pm to consider the rule for the Protecting Our Democracy Act, H.R. 5314. This might not be the only time Rules meets this week. Legislation related to the debt limit, delaying Medicare cuts (possibly H.R. 6020), and other legislation could come up. The Protecting Our Democracy Act is aimed at the excesses of presidential power that we experienced during the Trump administration.
The House will re-pass NDAA: House Majority Leader Steny Hoyer (D-MD) said on Thursday that the House will consider the National Defense Authorization Act, H.R. 4350. Hoyer said, “As I understand it, it will be the conference-agreed version of the defense bill. This has been a discussion between the House and the Senate.” This sounds like a way of trying to get through the stalemate in the Senate, but he didn’t specifically say that. It’s also possible that the debt limit is addressed in NDAA.
2022 House schedule released: Last week, House Democrats released the legislative calendar for 2022. You can view the version released by Majority Whip James Clyburn (D-SC) here. The version released by House Minority Leader Kevin McCarthy (R-CA) is here. As of now, there are 100 legislative days scheduled in 2022, including 17 days after the 2022 midterm election. We’ll provide the Senate schedule once it’s available.
Second session start date: Tucked away in the rule governing consideration of the CR, H.Res. 829, is a section that allows the second session of the 117th Congress to begin on Monday, January 10.
Hearing on civil asset forfeiture: The House Oversight and Reform Subcommittee on Civil Rights and Civil Liberties will hold a hearing on Wednesday at 10:00 am, titled, “Forfeiting our Rights: The Urgent Need for Civil Asset Forfeiture Reform.” Rep. Jamie Raskin (D-MD) chairs this subcommittee. He has been a real leader on this issue in Congress. Raskin is one of several members of the committee who are cosponsors of the Fifth Amendment Integrity Restoration (FAIR) Act, H.R. 2857. Rep. Jim Jordan (R-OH), who is a member of the subcommittee, is also a cosponsor of the bill.
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.
Examining the Worldwide Threat of al Qaeda, ISIS, and Other Foreign Terrorist Organizations (Oversight and Reform Subcommittee on National Security, Tuesday at 9:30 am)
Forever Chemicals: Research and Development for Addressing the PFAS Problem (Science, Space, and Technology Subcommittees on Environment and Research and Technology; Tuesday at 10:00 am)
Securing our Energy Infrastructure: Legislation to Enhance Pipeline Reliability (Energy and Commerce Subcommittee on Energy, Tuesday at 10:30 am)
Removing Barriers to Veteran Home Ownership (Veterans’ Affairs Subcommittee on Economic Opportunity, Wednesday at 10:00 am)
Promoting Economic and Community Redevelopment and Environmental Justice in the Revitalization and Reuse of Contaminated Properties (Transportation and Infrastructure Subcommittee on Water Resources and Environment, Wednesday at 10:00 am)
Digital Assets and the Future of Finance: Understanding the Challenges and Benefits of Financial Innovation in the United States (Financial Services, Wednesday at 10:00 am)
Markup of Various Legislative Measures (Judiciary, Wednesday at 10:00 am)
Review of USDA Nutrition Distribution Programs (Agriculture Subcommittee on Nutrition, Oversight, and Department Operations; Wednesday at 10:00 am)
The Future of Biomedicine: Translating Biomedical Research into Personalized Health Care (Energy and Commerce Subcommittee on Health, Wednesday at 10:30 am)
Growing our Economy by Investing in Families: How Supporting Family Caregiving Expands Economic Opportunity and Benefits All Americans (Economic Disparity and Fairness in Growth, Wednesday at 11:00 am)
Leveraging IIJA: Plans for Expanding Intercity Passenger Rail (Transportation and Infrastructure Subcommittee on Railroads, Pipelines, and Hazardous Materials; Thursday at 10:00 am)
Markup of Various Legislative Measures (Science, Space, and Technology; Thursday at 10:00 am)
Holding Big Tech Accountable: Legislation to Build a Safer Internet (Energy and Commerce Subcommittee on Consumer Protection and Commerce, Thursday at 10:30 am)
Unsustainable Drug Prices: Findings from the Committee’s Drug Pricing Investigation and the Need for Structural Reforms (Oversight and Reform, Thursday at 10:30 am)
Markup of Various Legislative Measures (Foreign Affairs, Thursday at 1:00 pm)
Cleaner, Cheaper Energy: Climate Investments to Help Families and Businesses (Climate Crisis, Thursday at 1:30 pm)
If you’re interested in watching any of these hearings online, you can find committee websites here.
ACLU sues the Biden administration: The American Civil Liberties Union is suing the Department of Justice and the Bureau of Prisons for information on how many of the more than 7,700 people who were allowed to serve their sentence in home confinement might have to return to prison once the pandemic ends. The lawsuit keeps up the pressure on the administration to rescind the legal opinion issued under the previous administration or begin granting clemency to the individuals who are facing a return to prison. Absent action, this would be one of the single largest mass incarceration events in American history. Our friends at FAMM have tirelessly worked to keep these people at home. Please learn more about this issue here.
Find out how free your state really is: Our friends at the Cato Institute have released an update to their annual report, Freedom in the 50 States. The report looks at various aspects of personal and economic freedom and ranks each state, including fiscal freedom, economic freedom, personal freedom, and marriage freedom. Each state is ranked overall as well. My home state of Georgia ranks #8 overall in freedom. The top-ranked state is New Hampshire. New York is the least free state in the country.
Learn to talk like a budget nerd: The Congressional Budget Office has released an explainer on common budgetary terms and what they mean. Check it out here.
MLB lockout: Well, the collective bargaining agreement between the Major League Baseball Players Association and owners expired last week. Owners have locked players out of team facilities until a new agreement is reached. No one seems to expect this to run into the season, but it could impact Spring Training. There could be some significant changes that come as a result of a new agreement, such as the universal designated hitter, which enrages baseball traditionalists like me.
About the SEC Championship Game: Frankly, I don’t want to talk about it. (With apologies to Lewis Grizzard.)