The Second Session of the 117th Congress Begins, Filibuster Showdown, Build Back Better Is on Life Support
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.
Welcome to 2022: We’re back with the first Point of Order of 2022. I hope you had a great Christmas and an excellent beginning to the new year. We’re in the Second Session of the 117th Congress. There are a couple of things to catch up on, and there’s a couple of things looming, especially in the Senate.
A Christmas gift for individuals on home confinement: The Office of Legal Counsel (OLC) has reversed its previous opinion that would have put thousands of people back in prison once the pandemic ended. On December 21, OLC issued a new opinion that is consistent with Sec. 12003(b)(2) of the CARES Act, which provides the Bureau of Prisons with the authority to place certain incarcerated individuals on home confinement, and will prevent one of the single largest mass incarceration events in American history. We, along with our friends at FAMM, who have relentlessly pushed for a change in the interpretation of the statute, were elated at the news. As FAMM President Kevin Ring said, “There is no way the people on CARES Act home confinement should have been sent back to prison, and we are very grateful to the Biden administration for fixing this mistake.”
Another big gift: Bureau of Prisons (BOP) Director Michael Carvajal has announced his retirement. The announcement comes a little more than a month after an Associated Press investigation into the BOP finding that the agency “is a hotbed of abuse, graft and corruption, and has turned a blind eye to employees accused of misconduct.” Senate Judiciary Committee Chairman Dick Durbin (D-IL) also called on Attorney General Merrick Garland to remove Carvajal after the Associated Press investigation. Garland is responsible for Carvajal’s successor since the post is not a Senate confirmable position. A recent report from the Department of Justice Office of the Inspector General mentioned several other major concerns, including the failure of the BOP to apply earned time credits to some 60,000 inmates.
Let’s begin with the Senate: The Senate returns today at 3:00 pm to resume consideration of the nomination of Alan Davidson to serve as the Assistant Secretary of Commerce for Communications and Information. A roll call vote on the cloture motion for the Davidson nomination is expected around 5:30 pm. The nomination of Amitabha Bose to serve as the Administrator of the Federal Railroad Administration will also be considered early this week. We do expect more nominations this week, but there are other things on the Senate’s agenda.
Filibuster showdown: Senate Majority Leader Chuck Schumer (D-NY) presumably plans to bring legislation related to elections and voting to the floor at some very soon for a critical procedural vote, using the anniversary of the assault on the Capitol as the backdrop. Schumer plans to bring the Freedom to Vote Act, S. 2747, and the John Lewis Voting Rights Act, S. 4, to the floor, but it’s highly unlikely that even close to enough Republicans will vote for a cloture motion to begin debate on the legislation, as has previously been the case. In a January 3 letter to the Senate Democratic Caucus, Schumer made clear that if Republicans block the bill, he will force a vote on changing the filibuster “on or before January 17,” which is Martin Luther King Jr. Day. What Democrats plan to do isn’t exactly clear. They’ve talked about creating an exception from the filibuster for elections legislation or reinstituting the talking filibuster. All 50 Democrats will have to be on board with whatever they decided to do; otherwise, the effort—which fundamentally changes the Senate—will fail. Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) have expressed opposition to outright eliminating the legislative filibuster. Manchin has, however, offered some suggested rules changes that he would support, such as eliminating the cloture motion on the motion to proceed and requiring three-fifths of senators present and voting to break a filibuster rather than 60 votes.
But Republicans may want to offer an alternative: In recent days, Republicans have pushed reforms to the Electoral Count Act of 1887. This law sets forth the procedures for members of Congress to challenge electoral votes from a state. My friend Walter Olson has a good thread linking to some of the arguments for reforming this law. For Republicans, Electoral Count Act reform does directly correlate to January 6, 2021, because of the holes in the law that were exploited during the counting of the Electoral College. Those holes could be (read: almost certainly will be) exploited again in the future. Senate Minority Leader Mitch McConnell (R-KY) has opened the door to addressing the issues with this law. But is that enough for Democrats? Unlikely. Is it enough to get Manchin and Sinema to work in a bipartisan fashion and keep the filibuster in place? Possibly.
Build Back Better is on life support: In a letter sent to the Senate Democratic Caucus before Christmas, Schumer indicated that he planned to bring the Build Back Better Act, H.R. 5376, to the floor for a vote “so that every Member of this body has the opportunity to make their position known on the Senate floor.” The letter came after Manchin said that he wouldn’t vote for the Build Back Better Act in a pre-Christmas interview on Fox News. Last week, Manchin said that there hadn’t been any negotiations on the stalled budget reconciliation bill. President Biden, though, will likely reach out to Manchin to restart talks on the bill. The shift to elections and voting takes eyes off Democrats’ failure to get the Build Back Better Act passed before Christmas, but it’s important to realize that this budget reconciliation bill is still active and something could still come to the Senate floor, even if it’s a slimmed-down bill.
Resubmitting nominees: Whenever a session of Congress ends, unless there’s a consent agreement, the Senate returns nominees to the President under Rule XXXI, paragraph 6. According to Congress.gov, more than 120 nominations were returned to President Biden. Many, if not most, of these nominees will be resubmitted by the White House in the coming days.
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Nomination Hearing (Banking, Housing, and Urban Affairs; Tuesday at 10:00 am)
Hearing on Hydropower (Energy and Natural Resources; Tuesday at 10:00 am)
Addressing New Variants: A Federal Perspective on the COVID-19 Response (Health, Education, Labor, and Pensions; Tuesday at 10:00 am)
The Domestic Terrorism Threat One Year After January 6 (Judiciary, Tuesday at 10:00 am)
Nominations Hearing (Judiciary, Wednesday at 9:00 am)
Business Meeting (Foreign Relations, Wednesday at 9:00 am)
Nominations Hearing (Foreign Relations, Wednesday at TBD)
USACE Implementation of Water Infrastructure Projects, Programs and Priorities (Environment and Public Works, Wednesday at 2:45 pm)
Nominations Hearing (Health, Education, Labor, and Pensions; Wednesday at 10:00 am)
Nomination Hearing (Intelligence, Wednesday at 2:00 pm)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
Nominations Hearing (Armed Services, Thursday at 9:30 am)
Financial Literacy: Addressing the Unique Just-in-Time Decisions Older Americans and People with Disabilities Face (Aging, Thursday at 9:30 am)
Nominations Hearing (Banking, Housing, and Urban Affairs; Thursday at 10:00 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
It looks like a light week in the House: The House returns today at 6:30 pm for legislative business. The first and only vote today is expected at the same time. The only vote today is a quorum call for the Second Session of the 117th Congress. The chamber will be in session through Thursday, with the last votes of the week expected before 3:00 pm that day.
No suspensions, but there are three rule bills: As of now, there aren’t any suspensions expected to come to the House floor, but that could change. There are, however, three rule bills. The House Rules Committee will meet at 2:00 pm today to consider the rule(s) for the Guard and Reserve GI Bill Parity Act, H.R. 1836; the EVEST Act, H.R. 4673; and Senate Amendment (NASA leasing authority extension) to H.R. 5746.
House party divisions: With the resignation of Rep. Devin Nunes (R-CA) on Monday, the party divisions in the House are 221 Democrats and 212 Republicans.
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.
Security of the Capitol Campus since the Attack of January 6, 2021 (Appropriations Subcommittee on Legislative Branch, Tuesday at 10:00 am)
Cybersecurity for the New Frontier: Reforming the Federal Information Security Modernization Act (Oversight and Reform, Tuesday at 10:00 am)
Proposals for a Water Resources Development Act of 2022: Administration Priorities (Transportation and Infrastructure Subcommittee on Water Resources and Environment, Wednesday at 10:00 am)
Impact of Continuing Resolutions on the Department of Defense and Services (Appropriations Subcommittee on Defense, Wednesday at 10:00 am)
Review of SBA’s Top Management and Performance Challenges in Fiscal Year 2022 and SBA OIG’s Semiannual Report to Congress (Small Business, Wednesday at 10:00 am)
Implications of Electric Vehicle Investments for Agriculture and Rural America (Agriculture, Wednesday at 10:00 am)
If you’re interested in watching any of these hearings online, you can find committee websites here.
We’ve got a real problem on our hands with population growth: The Census Bureau’s numbers for annual population growth are alarming, and few people appear to realize it. According to the Census Bureau, the United States’ population grew by only 0.1 percent in 2021—the lowest rate since its founding. Obviously, the pandemic contributed to this, but this has been a trend because of declining birth rates and an aging population. Lower levels of immigration have also contributed to slower population growth. We talk about economic growth, but if a nation doesn’t have the workers it needs to fill jobs and produce, growth will slow. More people should be paying attention to this because this is one of the long-term threats facing the United States.
Some worthwhile reading: We’ve got some reading material for you! The Orrin G. Hatch Foundation has released a new policy paper, A Family Centered Approach to Criminal Justice Reform, that is worth a read. It focuses on family relationships, recidivism, and other topics in the criminal justice reform space. The preface of the paper was written by Alice Marie Johnson, whose life sentence for a nonviolent drug offense was commuted in June 2018. She was pardoned in August 2020. Separately, the Heritage Foundation and the Mercatus Center at George Mason University have released a report, Count the Code: Quantifying Federalization of Criminal Statutes, which offers an estimate of federal criminal statutes. Both are worth a read.
I’m ready to get hurt again: Tonight, the Georgia Bulldogs will face the Alabama Crimson Tide in the CFP National Championship. I still don’t want to talk about the last time these two teams played. I’ll be wearing my UGA jersey tonight while I watch the game, hoping for the best but not expecting anything. It’s the life of a UGA football fan.
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.