The Senate Returns, Nominees on the Agenda, Appropriations Deadline Looms
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.
Come listen to some free music: Some friends of mine and I started a cover band—metroisonfire (yes, really)—and we’re playing a show on September 30 at The Pocket. Our setlist includes songs from Foo Fighters, Green Day, NOFX, and Sum 41. Doors open at 8:00 pm. There’s no charge to get into the show. Space is limited, so if you plan on coming, let me know. Come hang out!
Senate schedule: The Senate returns today at 3:00 pm. A couple of cloture motions on nominations were filed before the August recess officially began, both of which should come up this week. Those nominations are John Z. Lee to serve as a judge on the U.S. Court of Appeals for the Seventh Circuit and Andre B. Mathis to serve as a judge on the U.S. Court of Appeals for the Sixth Circuit. A vote on the cloture motion for the Lee nomination is expected to begin around 5:30 pm. It’s possible, if not likely, that there will be other nominations that come up this week.
Reconciliation recap: As you know, the Senate passed the Inflation Reduction Act, H.R. 5376, in early August. From the motion to proceed to the party-line final passage, the process in the Senate took just over 22 hours. There were 39 roll call votes in the process of considering the reconciliation legislation. Only two amendments offered were actually agreed to, and one of those undid the other. President Biden signed the Inflation Reduction Act into law on August 16. The law isn’t expected to have much of an impact on inflation.
What’s happening on the same-sex marriage bill: In a story about Sen. Ron Johnson (R-WI), Politico notes that discussions are still happening about the Respect for Marriage Act, H.R. 8404. Johnson had suggested that he would vote for the bill, but he has since walked that back. Anyway, the more interesting element is the internal deliberations happening to get past those concerns. Apparently, Sen. Susan Collins (R-ME) is working with Sen. Tammy Baldwin (D-WI), who is openly gay, on an amendment that attempts to mollify any potential opposition on religious liberty grounds. Sen. Mike Lee (R-UT) is also working on his own amendment that has stronger language. Baldwin, however, is optimistic that the Respect for Marriage Act will pass even if it’s unamended. She told Politico, “We feel confident we will have the Republican support we need with or without Johnson.”
Burr is out: Sen. Richard Burr (R-NC) will miss votes this week as he recovers from hip replacement surgery.
Senate committee schedule: Below are some Senate committee hearings that may be of interest. The full Senate committee schedule for the week is here.
Business Meeting (Finance, Wednesday at 10:00 am)
Hearing on Legislative Measures (Environment and Public Works, Wednesday at 10:00 am)
Nominations Hearing (Judiciary, Wednesday at 10:00 am)
Nominations Hearing (Commerce, Science, and Transportation; Wednesday at 10:00 am)
Nominations Hearing (Environment and Public Works Subcommittee on Clean Air, Climate, and Nuclear Safety; Wednesday at 2:30 pm)
Update on the Russian Invasion of Ukraine (Foreign Relations, Wednesday at 10:00 am)
Oversight of the U.S. Copyright Office (Judiciary Subcommittee on Intellectual Property, Wednesday at 2:30 pm)
Executive Business Meeting (Judiciary, Thursday at 9:00 am)
Current Issues in Insurance (Commerce, 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.
Committee work week in the House: The House is scheduled to return Tuesday, September 13. There’s some committee activity this week. Below are some House committee hearings that may be of interest. The full House committee schedule for the week can be found here.
Deposition of Bruce Allen (Oversight and Reform, Tuesday at 11:30 am)
Children at Risk: Examining Workplace Protections for Child Farmworkers (Education and Labor Subcommittee on Workforce Protections, Wednesday at 12:00 pm)
Accounting Standards in the 21st Century (Financial Services Subcommittee on Investor Protection, Entrepreneurship, and Capital Markets; Thursday at 12:00 pm)
An Ounce of Prevention: Investments in Juvenile Justice Programs (Education and Labor Subcommittee on Civil Rights and Human Rights, Thursday at 12:00 pm)
If you’re interested in watching any of these hearings online, you can find committee websites here.
Wake me up when September ends: The Senate is back today, but the House won’t come back until September 19. Obviously, the big deadline coming up is the government funding. FY 2023 begins on October 1. Congress still hasn’t passed a single appropriations bill, which has been pretty much par for the course in these hyperpartisan times. It’s doubtful we’ll see an omnibus until a lame duck session, if we see one at all. Making the government funding deadline even more interesting is the deal that Sen. Joe Machin (D-WV) made to get on board with the Inflation Reduction Act. Reportedly, some House Democrats are asking leadership to separate government funding—via a CR or omnibus—and permitting reform. This means permitting reform would be a standalone bill. Congress must also get the National Defense Authorization Act for FY 2023 across the finish line. This annual bill has been finished during the lame duck the past two years, but it’s possible it could be done before September 30.
Speaking of appropriations: The House Freedom Caucus, a group of roughly 40 ultraconservatives who could be a thorn in the side of Republican leadership in a majority, opposes an omnibus in the lame-duck and wants a continuing resolution that would maintain current government funding levels. The group also wants Republicans to defund the recently-passed Inflation Reduction Act and reinstate the Holman Rule. Whether one agrees with the House Freedom Caucus or not, all of this would be hard (read: virtually impossible) to do even if Republicans were in the majority in one or both chambers.
A race for the top Dem on Oversight: Rep. Jamie Raskin (D-MD) has launched a bid to become the lead Democrat—either chair or ranking member, depending on the outcome of the midterms—on the House Oversight and Reform Committee. The current chair, Rep. Carolyn Maloney (D-NY), lost the primary in NY-12 to House Judiciary Committee Chair Jerrold Nadler (D-NY), so she won’t return in the 118th Congress. Raskin is a high-profile Democrat. He was the lead impeachment manager in the second impeachment of President Trump. In addition to Oversight and Reform, Raskin serves on Judiciary, House Administration, and Rules. He also serves on the House Select Committee to Investigate the January 6th Attack on the United States Capitol. Reps. Stephen Lynch (D-MA) and Gerry Connolly (D-VA) are also running for the top spot. Given his notoriety, Raskin seems like the most likely choice. Rep. James Comer (R-KY) is likely to keep the top Republican spot on the committee. Also, the committee is likely to be renamed, should Republicans win control of the chamber, back to the Oversight and Government Reform Committee.
Impeachment resolutions are now messaging bills: At least some House Republicans—generally, those on the fringe of the conference—are seriously talking about articles of impeachment against President Biden. This is a mistake. Impeachment is, of course, a political exercise, but we’ve now moved into a place where impeachment is an exercise based on political retribution. I tend to agree that the first impeachment of President Trump was a bad idea, even though his actions were clearly corrupt. I strongly supported the second impeachment. The first impeachment of Trump lessened the importance and seriousness of the second. Impeachment isn’t an appropriate means to address anger over the results of an election or policy disagreements. Rather, as the Constitution notes, impeachement is meant to target two specific activities and other activities that aren’t explicitly defined in the document but are elsewhere. The Framers of the Constitution explicitly rejected “maladministration” (otherwise known as mismanagement or incompetence) and chose the grounds for impeachment as “treason, bribery, or other high crimes and misdemeanors.” Writing in Federalist No. 65, Alexander Hamilton explained of impeachment, “The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust.” A policy disagreement isn’t corruption, nor is it a violation of public trust. If that were the case, literally every president in our history could have been impeached...multiple times. Back to the point. What the House Republicans pushing this aren’t taking into consideration are expected narrow party divisions in both the House and the Senate in the 118th Congress. Passage in the House, for example, may be up in the air if enough Republicans decide an impeachment effort is a waste of time and energy. I don’t expect that the stop them. “Owning the libs” and political messaging for the base seem to be all they care about.
Impeachment continued: For those keeping score at home, Republicans have telegraphed what’s to come. Eight resolutions have been introduced to impeach President Biden—H.Res. 57, H.Res. 596, H.Res. 597, H.Res. 598, H.Res. 635, H.Res. 671, H.Res. 680, and H.Res. 1031. Virtually every single one of these are related to policy disagreements, not corruption or, you know, actual crimes. One of those was introduced the day after he took office, and it was based on conduct that happened before President Biden took office. Impeachment should be reserved only for conduct that occurred while a president or official is in office. President Biden isn’t alone. Two resolutions have been filed to impeach Attorney General Merrick Garland—H.Res. 743 and H.Res. 1318. One resolution each has been filed to impeachment Secretary of Homeland Security Alejandro Mayorkas and Secretary of State Anthony Blinken—H.Res. 582 and H.Res. 608.
The intersection of interest rates and government debt: In response to House Ways and Means Committee Ranking Member Jason Smith (R-MO), the Congressional Budget Office (CBO) explains how interest rates can impact government spending. “Between February 2021 and July 2021, CBO raised its projections of interest rates and inflation, boosting projected net interest outlays from 2022 to 2031 by $835 billion. Between July 2021 and May 2022, CBO raised its projections of interest rates and inflation further, boosting net interest outlays from 2022 to 2031 by an additional $1.7 trillion,” writes CBO Director Phillip Swagel. “All told, projected net interest outlays over the 2022—2031 period rose by $2.5 trillion because of changes in projected interest rates and inflation.” I have a breakdown of the recent CBO long-term budget outlook on my personal Substack. I need to do a follow-up with some other data that the CBO included.
Oh, yeah, there’s a FISA reauth deadline next year: Section 702 of the Foreign Surveillance Intelligence Act (FISA) expires at the end of 2023. This controversial law is primarily used to surveil foreign suspects, but the data collected by intelligence agencies often include Americans. There were efforts in the 115th Congress to fundamentally reform Section 702. Unfortunately, in January 2018, Congress passed the FISA Amendments Reauthorization Act, which reauthorized the law for six years and actually represents more potential harm to Americans’ civil liberties. The debate over 702 is different from the debate over, say, reauthorizing the sunsetted sections of the USA Freedom Act, which expired in May 2020 when Congress thankfully failed to reauthorize the law. Leadership from both parties, members of the committees of jurisdiction, and the intelligence community will try to scare members into reauthorizing the law with few, if any, meaningful changes. This gambit has always worked. However, the recent FBI raid at Mar-a-Lago could make the legislative push to reauthorize Section 702 much harder than in years past. Keep in mind that then-President Trump tweeted in opposition to reauthorizing Section 702 before his advisors and Republican leadership pushed him to issue a subsequent tweet offering support. Trump tweeted in opposition to the reauthorization of the USA Freedom Act, which played a role in killing the bill—and, thus, causing the authorities to lapse. Time will tell, but if there was ever a moment for bipartisan reforms, it’s now.
Gingrich deserves some blame for where we are: Since January 6, 2021, I’ve spent a lot of time—more than I’d like to admit—thinking about how our political discourse got to the point where people would quite literally storm the Capitol to intimidate members of Congress to overturn the election for a liar. How did things get so bad? Is there an inflection point one can point to? Politics has always been cutthroat. There are plenty of violent instances in the past that we can point to in our history. Everything, though, has a beginning. During conversations last year with some friends, I’d pointed to the impeachment of Bill Clinton as an inflection point. One of my friends who works on the Hill said the 1993 healthcare debate was where it began. It’s a fair point, but there were five years between the healthcare debate and the beginning of the Clinton impeachment. After impeachment, there was a string of successive events—the contentious 2000 presidential election, the Iraq War, a failed immigration reform bill, a financial crisis and bailouts, a healthcare reform again, the rise of the Tea Party and Occupy Wall Street, a slow economic recovery from the Great Recession, Benghazi, the 2012 presidential election, the literal entire Obama presidency, the 2016 presidential election, the literal entire Trump presidency, and the 2020 presidential election—that both parties tried to leverage something...anything against each other. Words like “evil,” “traitor,” “treason,” “fascist,” and “communist” are increasingly common in mainstream political discourse. There’s a lot of projecting happening, particularly from the right. Still, tracing the beginning seems elusive. Jeffrey Crouch and Matthew Green, both authors, wrote a great opinion piece for The Hill in which they discuss Newt Gingrich’s “lasting influence over the norms of partisan behavior within Congress,” although they also note that he doesn’t bear singular responsibility.
Sentencing Commission has a quorum: For the first time since January 2019, the U.S. Sentencing Commission has a quorum! Carlton W. Reeves (also nominated to serve as chair), John Gleeson, Claria Horn Boom, Luis Felipe Restrepo, Claire McCusker Murray, Laura E. Mate, and Candice C. Wong were each confirmed by voice vote before the August recess began. There’s a bunch of outstanding business that the Sentencing Commission needs to accomplish, including implementing the First Step Act. “That bill was passed in December 2018, Jason. The Commission hasn’t implemented it yet?” I’m so glad you asked. As I mentioned, the Sentencing Commission hasn’t had a quorum since January 2019, although the Sentencing Commission has continued to put out reports and publish data. The last public meeting held by the Sentencing Commission took place on December 13, 2018, more than a week before Congress passed the First Step Act.
Fair Sentencing Act retroactivity update: The Sentencing Commission released an updated report on the beneficiaries of Sec. 404 of the First Step Act of 2018. This provision made the Fair Sentencing Act of 2010 retroactive. Prior to the passage of the Fair Sentencing Act, 5 grams of crack cocaine were subject to the same five-year mandatory minimum prison sentence as 500 grams of powder cocaine—a ratio of 100-to-1. The Fair Sentencing Act increased the quantities for the five-year mandatory minimum to 28 grams while leaving powder cocaine quantities untouched. (I’m leaving the ten-year quantities out for sake of space.) This lowered the sentencing disparity to 18-to-1. According to the new report, 4,226 motions for retroactive relief have been granted. Once again highlighting the racial disparity in the treatment of crack cocaine, 92 percent of the individuals granted retroactive relief were Black.
This makes my blood boil: I don’t want to get into a long, drawn-out rant (I wrote the piece at the link) about this, but the taking of private property for a purely private use is wrong. Unfortunately, the Supreme Court signed off on this government-sanctioned theft in Kelo v. New London (2005). The North Carolina Department of Transportation is taking property, where people literally live, as part of a redevelopment for a car manufacturer. I mean, I know we’re all not super fond of the Supreme Court right now, but Kelo is a case it should revisit and overturn.
Fauci is set to retire: Anthony Fauci, who has served as the director of the National Institute of Allergy and Infectious Diseases since November 1984, will retire from his position at the end of the year. Notably, Fauci said that he plans to “pursue the next chapter in [his] career.”
Be kind: It turns out that kindness is contagious, according to a new study.
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