Thanksgiving Recess, Build Back Better Act Advances, Congress's Crazy Workload
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.
It’s a recess week: Except for pro forma sessions, the House and the Senate are in recess this week. There aren’t any committee hearings. The Senate will return on Monday, November 29. The House will gavel back on Tuesday, November 30. Ordinarily, we’d skip the newsletter during a recess week, but there’s a lot to catch up on and preview before Congress returns for what will be a very busy December. Currently, both chambers are scheduled to begin recess for the rest of the year on December 13, but that could change.
Happy Thanksgiving from DPI: Before I get to what’s ahead in Congress, on behalf of everyone at Due Process Institute, I wanted to take a moment to wish you a happy Thanksgiving. I’m thankful for those of you who take even a few minutes out of your day to read this newsletter and take action by contacting your representative and senators on bills that we alert you about.
Prohibiting Punishment of Acquitted Conduct Act marked up: The House Judiciary Committee marked up the Prohibiting Punishment of Acquitted Conduct Act, H.R. 1621, without amendment on Wednesday. The bill was approved by a voice vote. As noted before, the Prohibiting Punishment of Acquitted Conduct Act would prohibit judges from using conduct for which an individual has been acquitted to increase a sentence. You can read more about the issue here. We hope the Prohibiting Punishment of Acquitted Conduct Act will hit the House floor as a suspension the next time it’s the Judiciary Committee’s turn.
The BOP’s really bad week: An investigation of the Bureau of Prisons (BOP) conducted by the Associated Press has prompted a demand for accountability from Senate Judiciary Committee Chairman Dick Durbin (D-IL). The Associated Press reported that the BOP “is a hotbed of abuse, graft and corruption, and has turned a blind eye to employees accused of misconduct.” (That line doesn’t really even sum up the report. Read the whole thing, folks.) Durbin called on Attorney General Merrick Garland to remove BOP Director Michael Carvajal, who has been on the job since February 2020. (The Director of the Bureau of Prisons is not a role subject to Senate confirmation.) That was before the Department of Justice Office of the Inspector General released a report highlighting several other concerns, including the fact that the BOP hasn’t applied earned time credits to some 60,000 inmates. Earned time credits were a centerpiece of the prison reforms in the First Step Act. The whole point was to incentivize individuals who are incarcerated and eligible to earn time credits to lower their risk of recidivism. Congress has to do more to force changes at the BOP because this is beyond unacceptable.
There’s a government funding deadline this week: The current continuing resolution (CR) runs through Friday, December 3. Congress will have to pass something this week to keep the federal government open. Another CR before the end of the week is highly likely, but the length of that CR is a question going into this week. Some have speculated that a stop-gap measure is possible to give Senate Appropriations Committee Chairman Patrick Leahy (D-VT) and Ranking Member Richard Shelby (R-AL) time to work through issues preventing an agreement. The problem is, those issues—which include topline spending levels for defense discretionary and nondefense discretionary spending and policy riders—are significant. Even if there is a stop-gap CR for a week or two (a two-week CR means Congress will add a week to the calendar), an agreement on topline numbers and policy riders won’t be easy to come by, and we’d likely be looking at a CR into February or March after a stop-gap expires. A year-long CR, which is preferred by some Republicans as a way to keep discretionary spending at its current levels, is unlikely.
And a debt limit deadline: In October, Congress passed a short-term increase in the public debt limit of $480 billion. The speculation at the time was this increase would get Congress to December 3, although some believed it might even stretch a little longer. Well, Treasury Secretary Janet Yellen has penned a letter to Speaker Nancy Pelosi (D-CA) in which she estimated that the debt limit will be reached on December 15. Senate Minority Leader Mitch McConnell (R-KY) said he wouldn’t help Democrats with another bipartisan deal on the debt limit after the last one. Should McConnell stick to that, Democrats’ options are limited. Senate Majority Leader Chuck Schumer (D-NY) and Senate Budget Committee Chairman Bernie Sanders (I-VT) could try to start a separate budget reconciliation process to increase the debt limit. Democrats aren’t fond of an increase in the statutory debt limit, though. They would prefer to suspend the statutory debt limit, but that can’t be done through budget reconciliation. If they decide against budget reconciliation, even an expedited process that Republicans have floated, they may try to get Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) on board with an exception to the filibuster for the debt limit. Between the Build Back Better Act, appropriations, and the debt limit, December is going to be lit. (Do the kids still say that?)
The Build Back Better Act is out of the House: On Friday, the House passed the Build Back Better Act, H.R. 5376, by a vote of 220 to 213. The legislation, which contains the budget reconciliation recommendations pursuant to S.Con.Res. 14, was supposed to be considered on Thursday, but a more than eight-hour floor speech by House Minority Leader Kevin McCarthy (R-CA) forced a delay. (The House doesn’t have a filibuster like the Senate. McCarthy used time reserved for him because he is the leader of the House Republican Conference.) The vote was almost entirely along party lines. Rep. Jared Golden (D-ME), who voted against the legislation, was the only member to break ranks from his party. The version of the Build Back Better Act that passed the House on Friday isn’t what will become law, and the path forward in the Senate still seems uncertain. Negotiations will continue between Senate Democrats, who are trying to get Manchin on board. Manchin has consistently raised concerns about the cost and timing of the Build Back Better Act at a time when inflation has become a huge issue.
The cost estimate for the Build Back Better Act: As you probably know, the Congressional Budget Office (CBO) released on Thursday the long-awaited and much-anticipated cost estimate for the Build Back Better Act. The legislation would add $748.5 billion to the budget deficit over the next five years (FY 2022 through FY 2026) and $160 billion over ten years (FY 2022 through FY 2031). The reason the deficit increase isn’t larger in the ten-year window is because a number of provisions expire within the first five years. The Committee for a Responsible Federal Budget estimates that the Build Back Better Act could cost nearly $5 trillion if these provisions are extended. This includes a projected $207 billion in increased revenue from enhanced enforcement of tax laws. The projected revenues from increased enforcement have been a particular area of disagreement between the White House and the CBO. The White House insists that this particular provision will bring in $400 billion in revenue over ten years.
There are so many amendments to NDAA: The Senate invoked cloture on the motion to proceed to the National Defense Authorization Act (NDAA) for FY 2022, H.R. 4350, on Wednesday and will continue to process NDAA when it returns next week. This is the House-passed NDAA that will serve as the vehicle for the Senate. (I had referenced S. 2792 in last week’s newsletter, which is the Senate version of NDAA.) Senate Armed Services Committee Chairman Jack Reed (D-RI) offered the manager’s amendment for consideration. More than 800 amendments have been filed to the manager’s amendment. Although you can see descriptions of each amendment at the link, you’ll have to visit Congress.gov to track down text, but you can use the amendment numbers at the link as a guide. (The Senate isn’t nearly as transparent as the House, and it’s a constant point of frustration.) Now, not all of these amendments will be presented on the floor or get a vote for various reasons, including not getting sign-off from chairs and ranking members whose committee has jurisdiction over an amendment. There is a dispute over amendments that could slow the process down.
House Republicans looking to punish their colleagues may regret it: There has been a push by some conservative House members to punish the 13 Republicans who voted for the bipartisan infrastructure agreement, H.R. 3684. The former president, Donald Trump, has consistently lashed out at Republicans who voted for the bill, which handed President Biden a bipartisan victory on an issue that the previous administration wasn’t able to get off the ground, often comically so. Regardless of how one feels about this bill, it strikes me as an incredibly shortsighted move to actively seek to punish members for doing so. Back in July 2015, then-Rep. Mark Meadows (R-NC) introduced a resolution to remove then-Speaker John Boehner (R-OH). The resolution was supported by the nascent House Freedom Caucus. One of the legitimate grievances against Boehner was that he had “use[d] the power of the office to punish Members who vote according to their conscience instead of the will of the Speaker.” If memory serves, this is a reference to the removal of four House conservatives from certain committee assignments for the infraction of voting against leadership too often. Similar punishment was doled out by House Minority Leader Kevin McCarthy (R-CA) following the vote for Speaker of the House in January 2019. House conservatives taking this approach are setting going to make it easier for Republican leadership to keep them in line by hanging their committee assignments over their head when they need their votes.
Retirement watch: With the recent retirement announcements, I thought it would be a good time to get a sense of who’s leaving Congress at the end of their term. The complete list of looming departures from both chambers is available here.