The Rogers Readout: May 29 - June 2, 2023

Overview

For most of 2023 so far, the oxygen in DC has been consumed by the question of raising the debt limit and avoiding default. On Wednesday night, the House adopted a deal crafted by Speaker McCarthy (R-CA) with his top lieutenants Representatives McHenry (R-NC) and Graves (R-LA) and President Biden with his top negotiators OMB Director Young and Presidential Counsellor Ricchetti, among others in the Administration.

Depending on whether one is for or against the legislation, there are different summaries available. The nonpartisan Congressional Budget Office (CBO) submitted its Estimate of the Budgetary Effects of H.R. 3746, the Fiscal Responsibility Act of 2023, with the following summary:

H.R. 3746 would impose caps on discretionary funding, make other changes affecting spending and revenues, and raise the debt ceiling. Specifically, the bill would:

• Establish statutory caps on discretionary funding for fiscal years 2024 and 2025 that would be enforced by sequestration;

• Set limits on most discretionary funding for each year from 2026 through 2029 that would be enforced using the Congress’s procedures for considering budgetary legislation;

• Rescind certain funds provided to the Internal Revenue Service (IRS) and related agencies under Public Law 117-169;

• Modify work requirements for the Supplemental Nutrition Assistance Program (SNAP) and Temporary Assistance for Needy Families (TANF);

• Rescind unobligated balances from specific accounts provided by six laws enacted between 2020 and 2022;

• Appropriate $22 billion for the Nonrecurring Expenses Fund of the Department of Commerce;

• Appropriate $45 billion to the Toxic Exposures Fund for veterans’ health care and associated expenses;

• Amend provisions of current law that regulate permitting of certain proposed energy-related projects;

• Terminate the current suspension of payments, interest accrual, and collections on defaulted loans in the student loan program 60 days after June 30, 2023;

• Require the executive branch to follow administrative pay-as-you-go procedures before finalizing certain administrative actions; and

• Temporarily suspend the debt limit through January 1, 2025.

In addition, CBO noted the effect of these provisions would be:

• If H.R. 3746 was enacted and appropriations that are subject to caps on discretionary funding for 2024 and 2025 were constrained by the limits specified . . . in the bill . . . budget deficits would be reduced by about $1.5 trillion over the 2023–2033 period; and

• Reductions in projected discretionary outlays [i.e., spending approved by the Congressional Appropriations process] would amount to $1.3 trillion over the 2024–2033 period.

The House passed H.R. 3746, the Fiscal Responsibility Act, by a vote of 314-117, with four not voting. The wings of each party (e.g., House Freedom Caucus and House Progressives) did not support the legislation, but the center did: 149 out of 220 Republicans (67.7%) and 165 out of 211 Democrats (78.1%) voted Aye.

Over in the Senate, when the deal was first announced early in the week, several conservative/libertarian Senators had harshly negative reactions, paralleling those of the conservatives in the House. A couple of Senators vowed to drag the Senate down into a morass of procedural tactics to slow consideration and (in their view) get changes made to the bill. Nonetheless, in the end, many Senators of both parties (like many House Members), said they would support the bill but wished for more of their priorities or for a different outcome. Thus, the deadline of default helped force action from a body that often moves the goalposts rather than doing its work on time.

Regardless of stated misgivings, soon after the House passage of the legislation, “Senate Magic” settled in. This is the ability of the Senate – which normally moves glacially – to move exceptionally fast. Generally, “Senate Magic” involves the ad hoc adoption by unanimous consent of specific parliamentary procedures governing future floor consideration of particular legislation. It also can require the Senate Majority Leader and others to make commitments for future actions sought by Senators.

So by Thursday it became clear the debt limit deal legislation would pass as long as two things occurred:

1. Senate Leadership promised to consider supplemental appropriations* for military and Ukraine funding and for disaster and other emergency domestic funding; and

2. Certain Senators received the opportunity to offer amendments to the Fiscal Responsibility Act. None of these amendments had sufficient support for adoption; thus, they provided messaging opportunities and perhaps contrast votes.

Ultimately, the Senate passed the Fiscal Responsibility Act by a vote of 63-36 late on Thursday night. The legislation goes on to the President, who will sign it.

* Note: “supplemental appropriations” are outside of the budget caps established by the underlying Fiscal Responsibility Act. In the view of some Washington insiders, this is a deal cut to find a way around – at least in the Senate –the fiscal savings of the caps legislation. The effect of the deal is that, if the Senate passes these supplemental appropriations bills, even more money can be spent on certain Senators’ priorities. It is worth noting that any commitment made in the Senate cannot bind the House to action.

This week in Congress

In addition to the debt limit deal discussed above, the House and Senate considered legislation and nominations. Beyond the merits of each matter, the additional items on the floor gave leadership staff and Members time to discuss and whip votes H.R. 3746, the Fiscal Responsibility Act. In the House, several bills were considered by the expeditated motion to suspend the rules and pass. For example:

• H.R. 2797, the Equal Opportunity for All Investors Act of 2023 (383-18, with 34 not voting);

• H. Res. 382, Condemning the rise of antisemitism and calling on elected officials to identify and educate others on the contributions of the Jewish American community (429-0, with 6 not voting);

• H.R. 2796, the Promoting Opportunities for Non-Traditional Capital Formation Act (309-67, with 58 not voting);

• H.R. 2795, the Enhancing Multi-Class Share Disclosures Act (347-30, with 58 not voting); and

• H.R. 2792, the Small Entity Update Act (passed 367-8 with 60 not voting).

The Senate passed H.J. Res. 45, a Congressional Review Act disapproval of the rule allowing for student loan forgiveness, by a vote of 52-46. The joint resolution previously passed the House, but the President has promised to veto the bill. (Note: the student loan forgiveness issue is separately before US Supreme Court in the cases of Biden v. Nebraska and Department of Education v. Brown, which may be decided before the end of June.) The Senate also confirmed Darrel James Papillion, of Louisiana, to be U.S. District Judge for the Eastern District of Louisiana by a vote of 59-31.

Discussion

So much has been written and discussed about the debt limit deal – before, during, and after – that the author will respectfully forgo adding to the mix at this time.

Coming up in Congress

At time of writing, the House Committee on Rules, which sets the terms for consideration of all major legislation in the House, has announced a meeting for Monday, June 5, 2023, at 3:00pm. The Rules Committee will consider (and thus set up future floor consideration of) the following bills:

• H.R. 277 – Regulations from the Executive in Need of Scrutiny (REINS) Act of 2023*;

• H.R. 288 – Separation of Powers Restoration Act of 2023;

• H.R. 1615 – Gas Stove Protection and Freedom Act; and

• H.R. 1640 – Save Our Gas Stoves Act.

* Note: The author of this memo wishes to note the REINS Act is legislation originally conceptualized more than a decade ago by former Representative Geoff Davis (R-KY) and his key staff, with minor assistance by the author when he worked for Leadership.

The Senate will return to session on Tuesday, June 6th at 3:00pm to resume consideration of Executive Calendar #179, David Crane, of New Jersey, to be Under Secretary of Energy. At 5:30pm, the Senate will proceed to a roll call vote on the motion to invoke cloture on the Crane nomination.

In addition, please note that Senate Majority Leader Schumer (D-NY) has filed cloture motions (cuts off debate if adopted) for the nominations of : (1) Executive Calendar #179, David Crane, of New Jersey, to be Under Secretary of Energy; (2) Executive Calendar #26, Dale E. Ho, of New York, to be United States District Judge for the Southern District of New York; and (3) Executive Calendar #81, Dilawar Syed, of California, to be Deputy Administrator of the Small Business Administration.