The Lame Duck Session Begins, Looking Ahead to 2023, and Timing on NDAA
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.
The blame game: Obviously, there’s a lot of finger-pointing happening about the results of the election. Going into Election Day, the belief was that there would be a red wave in which Republicans would win control of the House and the Senate. As of this morning, it looks like Republicans will have a very narrow majority in the House. Democrats have control of the Senate, but Georgia will decide whether that means a power-sharing agreement or not. Republicans can point fingers all they want, but it’s clear that the election hinged on a few different factors—unelectable candidates in competitive districts and states, Trump fatigue, and abortion. Blaming anyone or anything else is really lazy in the face of everything. If you’re a hard partisan, it’s also an unwillingness to consider what’s in front of your face because you want it to be some other reason that isn’t your team’s fault.
Party divisions of Congress for the 118th Congress: I had planned on providing this information when I began drafting this newsletter. Looking back on it now, I don’t know why I thought we’d know. At worst for Democrats, the status quo in the Senate will be maintained. Democrats have 50 seats. Republicans have 49 seats. Georgia is either the 51st seat for Democrats or the 50th seat for Republicans. If Sen. Raphael Warnock (D-GA) wins, Democrats won’t have to share power with Republicans. As of this morning, Republicans have 212 seats in the House while Democrats have 204 seats. We’re waiting on results in 19 seats. Republicans lead in ten of those. Hopefully, we’ll have a better picture of everything later in the week, if not sooner.
Schedule and suspensions in the House: The House returns Monday 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 Thursday, and the last votes for the week are expected at 3:00 pm that day. There are 31 bills (listed below) on the suspension calendar for the week.
To name the Department of Veterans Affairs community-based outpatient clinic, located at 400 College Drive, Middleburg, Florida, the "A.K. Baker VA Clinic," S. 2159 (Veterans' Affairs Committee)
A bill to name the Department of Veterans Affairs community-based outpatient clinic in Forest City, North Carolina, as the “Master Sergeant Jerry K. Crump VA Clinic,” H.R. 5481 (Veterans' Affairs Committee)
To designate the Department of Veterans Affairs community-based outpatient clinic in French Camp, California, as the “Richard A. Pittman VA Clinic,” H.R. 6722 (Veterans' Affairs Committee)
To designate the medical center of the Department of Veterans Affairs in Memphis, Tennessee, as the “Lt. Col. Luke Weathers, Jr. VA Medical Center,” H.R. 6863(Veterans' Affairs Committee)
A bill to designate the Department of Veterans Affairs community-based outpatient clinic located in Canton, Michigan, as the "Major General Oliver W. Dillard VA Clinic," H.R. 7903 (Veterans' Affairs Committee)
A bill to designate the Department of Veterans Affairs community-based outpatient clinic located in Palm Desert, California, as the “Sy Kaplan VA Clinic,” H.R. 7925 (Veterans' Affairs Committee)
Max Cleland VA Medical Center Act, S. 3369 (Sen. Raphael Warnock / Veterans' Affairs Committee)
Senator Johnny Isakson VA Regional Office Act, S. 4359 (Veterans' Affairs Committee)
VIPER Act, H.R. 5721 (Veterans' Affairs Committee)
SVAC Act, H.R. 7299 (Veterans' Affairs Committee)
Improving Oversight of the Veterans Community Care Providers Act, H.R. 7277 (Veterans' Affairs Committee)
Department of Veterans Affairs Information Technology Reform Act, H.R. 2250 (Veterans' Affairs Committee)
Lymphedema Treatment Act, H.R. 3630 (Energy and Commerce Committee)
Ensuring Phone and Internet Access Through Lifeline and Affordable Connectivity Program Act, H.R. 4275 (Energy and Commerce Committee)
Manufacturing. gov Act, H.R. 6290 (Energy and Commerce Committee)
PAST Act, H.R. 5441 (Energy and Commerce Committee)
To require online marketplaces to verify certain information regarding high-volume third party sellers of consumer products on such online marketplaces and to disclose to consumers certain contact and other information regarding such high-volume third party sellers, H.R. 5502 (Energy and Commerce Committee)
Guidance Clarity Act, S. 533 (Oversight and Reform Committee)
Civil Rights Cold Case Investigations Support Act, S. 3655 (Oversight and Reform Committee)
House Amendment to S. 407 - Air America Act (Oversight and Reform Committee)
Disaster Resiliency Planning Act, S. 3510 (Oversight and Reform Committee)
MAPS Act, S. 1941 (Oversight and Reform Committee)
To designate the facility of the United States Postal Service located at 75 Commerce Drive in Grayslake, Illinois, as the ‘‘Army Specialist Joseph ‘Joey’ W. Dimock II Post Office Building,’’ H.R. 7899 (Oversight and Reform Committee)
To designate the facility of the United States Postal Service located at 301 East Congress Parkway in Crystal Lake, Illinois, as the ‘‘Ryan J. Cummings Post Office Building,’’ H.R. 6917 (Oversight and Reform Committee)
To designate the facility of the United States Postal Service located at 275 Penn Avenue in Salem, Ohio, as the ‘‘Howard Arthur Tibbs Post Office,’’ H.R. 2473 (Oversight and Reform Committee)
To designate the facility of the United States Postal Service located at 23200 John R Road in Hazel Park, Michigan, as the ‘‘Roy E. Dickens Post Office,’’ H.R. 7518 (Oversight and Reform Committee)
To designate the facility of the United States Postal Service located at 1304 4th Avenue in Canyon, Texas, as the ‘‘Gary James Fletcher Post Office Building,’’ S. 3826 (Oversight and Reform Committee)
To designate the facility of the United States Postal Service located at 3903 Melear Drive in Arlington, Texas, as the ‘‘Ron Wright Post Office Building,’’ S. 3825 (Oversight and Reform Committee)
To designate the facility of the United States Postal Service located at 404 U.S. Highway 41 North in Baraga, Michigan, as the ‘‘Cora Reynolds Anderson Post Office,’’ S. 3884 (Oversight and Reform Committee)
House Amendment to S. 3092 (Transportation and Infrastructure Committee)
Disaster Survivors Fairness Act, H.R. 8416 (Transportation and Infrastructure 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 today at 2:00 pm to the Speak Out Act, S. 4524. The committee will also consider a report that has been drafted to the House, Ending Hunger in America: Challenges, Opportunities, and the Political Will to Succeed. Additional legislative items are possible.
Cherokees want their promised representation in the House: I’ve mentioned this before, but the Treaty of New Echota of 1835 states that the Cherokee Nation “shall be entitled to a delegate in the House of Representatives of the United States whenever Congress shall make a provision for the same.” Nearly 190 years later, Congress hasn’t honored that. (Of course, the federal government hasn’t honored many of its commitments to Native Americans.) This treaty led to the Trail of Tears, one of the most appalling events in American history. Over the past few years, the Cherokee Nation has been pressing for movement, and they’ve ramped up their efforts. Those efforts are paying off. On Wednesday at 10:00 am, the House Rules Committee will explore the legal and procedural factors for seating a delegate of the Cherokee Nation in the House.
House leadership elections: The House Republican Conference is expected to hold its leadership candidate forum today and leadership elections tomorrow. However, there’s a push from conservatives in the conference to delay the election. The current House Minority Leader, Rep. Kevin McCarthy (R-CA) is running for Speaker while the current House Minority Whip, Steve Scalise (R-LA), has announced his bid for Majority Leader. There will be a vote for Republicans’ nominee for Speaker. That vote isn’t as important as the vote on January 3. As far as I know, they’re the only candidates who have announced for these spots. Now, considering the tight majority Republicans have, there’s little wiggle room for McCarthy, who has already established “transition teams,” to get the 218 votes he needs on January 3 to become Speaker, and the far-right House Freedom Caucus and a handful of others are making it really interesting. Remember, the House Freedom Caucus has a list of conference and House rule changes they want. Some of those ideas are good ones. Others, not so much. Honestly, I don’t know if McCarthy can get the votes, but I also don’t know who in the conference could right now without making concessions to the House Freedom Caucus. Reportedly, Rep. Andy Biggs (R-AZ) may challenge McCarthy to prove that he doesn’t have the votes to win a floor vote. Apart from McCarthy having to thread the needle to become Speaker, the race to watch is the Majority Whip race between the current National Republican Congressional Committee Chairman Tom Emmer (R-NM), current Republican Study Committee Chairman Jim Banks (R-IN), and Rep. Drew Ferguson (R-GA). Ferguson is the current deputy whip. The current House Republican Conference chair, Rep. Elise Stefanik (R-NY), will get a challenge from Rep. Byron Donalds (R-FL). House Democrats won’t hold their leadership elections until November 30, and all eyes are on what Speaker Nancy Pelosi (D-CA) does between now and then.
What are Republicans planning: There are going to be a lot of investigations, including the withdrawal from Afghanistan, the origins of COVID-19 and the handling of the response to the pandemic, several aspects of the Department of Justice, and the U.S.-Mexico border and immigration. Some of these investigations and more have already been teased by the incoming chair of the House Judiciary Committee, Rep. Jim Jordan (R-OH), who has already fired off letters to the Department of Justice and the Federal Bureau of Investigation. It’s also possible that Hunter Biden could be investigated. All this being said, I’m not so sure that Republican leadership is going to want to at least some of these investigations to get a lot of attention. The next cycle, which is a presidential election, will begin any day, and leadership may decide to tread carefully with such a narrow majority coming off a midterm when they should’ve performed a lot better than they did. On the legislative front, yes, we’ll see some messaging bills, but a slim majority makes those messaging bills at least somewhat more difficult to get through. The factions inside the House Republican Conference are just as pronounced, perhaps even more so, than those inside the House Democratic Caucus. This is all before what does get passed goes to the Senate, and the Senate has been a graveyard for legislation, even when the House is controlled by the same party. Republicans really need to focus on bipartisan priorities, especially ahead of 2024. They’ve got to show some results. Running out the clock on the next cycle isn’t going to work.
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.
Worldwide Threats to the Homeland (Homeland Security, Tuesday at 9:30 am)
Examining U.S. Foreign Assistance to Address the Root Causes of Instability and Conflict in Africa (Foreign Affairs Subcommittee on Africa, Global Health, and Global Human Rights; Tuesday at 10:00 am)
Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level (Oversight and Reform Subcommittee on Civil Rights and Civil Liberties, Tuesday at 10:00 am)
Investing in our Rivals: Examining U.S. Capital Flows to Foreign Rivals and Adversaries Around the World (Financial Services Subcommittee on Investor Protection, Entrepreneurship, and Capital Markets; Tuesday at 2:00 pm)
Russia's Waning Global Influence (Foreign Affairs Subcommittee on Europe, Energy, the Environment, and Cyber; Wednesday at 10:00 am)
Legal and Procedural Factors Related to Seating a Cherokee Nation Delegate in the U.S. House of Representatives (Rules, Wednesday at 10:00 am)
JROTC: Protecting Cadets from Sexual Abuse and Instructor Misconduct (Oversight and Reform Subcommittee on National Security, Wednesday at 10:00 am)
Oversight of Prudential Regulators: Ensuring the Safety, Soundness, Diversity, and Accountability of Depository Institutions (Financial Services, Wednesday at 10:00 am)
Unfolding the Universe: Initial Science Results from the James Webb Space Telescope (Science, Space, and Technology Subcommittee on Space and Aeronautics; Wednesday at 10:30 am)
The Holiday Rush: Is the Postal Service Ready? (Oversight and Reform Subcommittee on Government Operations, Wednesday at 2:00 pm)
Puerto Rico's Post-Disaster Reconstruction and Power Grid Development (Natural Resources, Thursday at 10:00 am)
Accessible Air Travel: Addressing Challenges for Passengers with Disabilities (Transportation and Infrastructure Subcommittee on Aviation, Thursday at 10:00 am)
Unsafe and Untenable: Examining Workplace Protections for Warehouse Workers (Education and Labor Subcommittee on Workforce Protections, Thursday at 10:15 am)
Business Meeting to Approve New Subcommittee Assignments (Education and Labor, Thursday at 10:15 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Senate kicks off its return with a nominee: The Senate returns today at 3:00 pm to resume consideration of the nomination of Maria del R. Antongiorgi-Jordan to serve as a judge on the U.S. District Court for the District of Puerto Rico. As far as the rest of the week goes, I have no idea. There are outstanding legislative priorities, including the Respect for Marriage Act, H.R. 8404, which was kicked into the lame duck. That doesn’t mean that the bill will come up this week, but I suppose it could. The Electoral Count Reform and Presidential Transition Improvement Act, S. 4573, could also come up. The latter has 14 Republican cosponsors, so it seems ripe for consideration.
We’re watching NDAA: Since the EQUAL Act was included as an amendment in the House version of the National Defense Authorization Act (NDAA) for FY 2023, H.R. 7900, we’ve been keeping an eye on what’s happening there. What we’ve heard most recently is that the staff directors for Democrats and Republicans on the House and Senate Armed Services committee were supposed to meet last week to finalize the items for the final bill. The four corners of leadership in Congress are supposed to finalize non-NDAA items for inclusion in the base text of the bill by November 28. NDAA should come to the floor first in the House the week of December 2 and pass both chambers by December 9. Yes, this means the Senate won’t vote on its own separate version of NDAA. We’re going to continue to keep an eye on this.
Senate leadership elections: A handful of Republican senators—including Ron Johnson (R-WI), Mike Lee (R-UT), and Marco Rubio (R-FL)—are seeking to delay the leadership elections that are currently scheduled for Wednesday. Of course, former President Trump wants Senate Minority Leader Mitch McConnell (R-KY) gone. Despite all the rhetoric, it’s really hard to see anyone mounting a credible challenge to McConnell, nor should anyone blame him for the results of the midterm. Sen. Rick Scott (R-FL), who chairs the Senate Republican Senatorial Committee and probably deserves the most blame apart from Trump, had been playing around with the idea of mounting a challenge to McConnell, but Republicans’ poor showing during the midterms pretty much ensured that he won’t. As of now, the Senate Republican leadership elections will move forward as scheduled.
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Nominations Hearing (Judiciary, Tuesday at 10:00 am)
Oversight of Financial Regulators: A Strong Banking and Credit Union System for Main Street (Banking, Housing, and Urban Affairs; Tuesday at 10:00 am)
Farm Bill 2023: Rural Development and Energy Programs (Agriculture, Nutrition, and Forestry; Tuesday at 10:00 am)
Medical Mistreatment of Women in ICE Detention (Homeland Security and Governmental Affairs Permanent Subcommittee on Investigations, Tuesday at 2:30 pm)
Implementing IIJA: Opportunities for Local Jurisdictions to Address Transportation Challenges (Environment and Public Works, Tuesday at 2:30 pm)
Oversight of the Department of Homeland Security (Judiciary, Wednesday at 10:00 am)
Assessing U.S. Policy in the Caucasus (Foreign Relations Committee, Wednesday at 10:00 am)
Setting the Table: Promoting Healthy and Affordable Food for Older Americans (Aging, Wednesday at 10:30 am)
Business Meeting (Homeland Security and Governmental Affairs, Wednesday at 4:15 pm)
Nominations Hearing (Health, Education, Labor, and Pensions; Wednesday at TBD)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
Nominations Hearing (Environment and Public Works, Thursday at 10:00 am)
Threats to the Homeland (Homeland Security and Governmental Affairs, Thursday at 10:15 am)
Nominations Hearing (Energy and Natural Resources, Thursday at 11:00 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Concerns about crime seem to have fallen flat: From about mid-October to 10:00 pm on election night, I’d bought into the notion of a red wave. I was wrong. Republicans focused predominately on two issues, inflation and crime. While I agree that inflation is a real concern, I hadn’t bought into crime being a truly serious issue because of what the data say. If you listened to some Republicans, they would’ve had us believe that crime was at record highs. It wasn’t. The reality is that violent crime is at the same rate it was in 2012 and about half, give or take, of what it was at its peak in 1991. Voters always tend to think crime is going up even when it’s not. Republicans blamed bail reform, fentanyl, and reform-minded district attorneys to try to scare voters across the United States. (There’s scant evidence to back that up. The facts don’t care about your feelings.) The rhetoric had limited effect. As Radley Balko writes, “It’s…at least possible that Republican messaging on crime kept some races closer than they should have been. But that’s a difficult thing to prove, and the apparently low priority voters gave the issue in exit polls would seem to cut against the point.” According to the Associated Press, crime ended up tracking even with climate change for fourth in the most important issues facing the country, with 8 percent of voters choosing these two issues. The economy and jobs, abortion, and immigration were the top three issues, in that order. Sen. Raphael Warnock (D-GA) and Sen.-elect John Fetterman (D-PA) actually won a majority of voters who were concerned about crime. In Arizona, crime ranked below inflation, abortion, immigration, and gun policy. I’m not saying that crime doesn’t need to be addressed, but we need to do it with an eye on reducing recidivism and smarter sentencing policies because the tough-on-crime rhetoric that once dominated the issue doesn’t really work as well as it once did.
Due Process Institute is a bipartisan nonprofit that works to honor, preserve, and restore principles of fairness in the criminal legal system. Follow us on Twitter and Facebook.