The Rogers Readout: June 5 - 9, 2023

Overview

After finally finding a successful path to avoid default, it appeared at the outset of the week that the Congress would move into Appropriations season and get back to a non-crisis footing. However, a subset of the House Freedom Caucus (HFC) Republicans (which are the most anti-establishment and generally the most conservative representatives in the House) voted with the Democratic minority to “take down” the majority’s rule governing the consideration of several Republican messaging bills that otherwise have broad support among conservatives. Votes against these bills may have been useful against some Democrats in more swing state districts, but these votes are on hold while the House Republican Leadership tries to put the train back on the tracks. The HFC Members are angry with Speaker McCarthy (R-CA) for how he negotiated a deal with the President to avoid default, saying that the Speaker broke promises they say he made to them during his 15-ballot election to be Speaker. Additionally, they are angry because they think Democrats got too many concessions in the debt limit deal. By mid-week, the impasse had reached a point where the Speaker sent Members of the House home until Monday. Also occurring this week is the first federal prosecution of a former US President, with President Trump’s reported indictment over keeping highly classified national security documents after leaving office. In addition, the US Supreme Court made news when a 5-4 majority of the Court decided an Alabama voting rights case in a manner seemingly unexpected by Democrats and the DC press. There had been predictions of the conservative court limiting the Voting Rights Act in its decision. Instead, the high court upheld the Thornburg v. Gingles (478 U.S. 30) factors that the Court said have “governed our Voting Rights Act jurisprudence since it was decided 37 years ago.” (Allen v. Milligan, https://www.supremecourt.gov/opinions/22pdf/21-1086_1co6.pdf, at page 11). Oversight continues to be a key focus of House Committees, as is the case every time there is a President of the opposite party at 1600 Pennsylvania Avenue. Chairmen McCaul (R-TX) at Foreign Affairs and Comer (R-KY) at the Oversight Committee each have used the threat of Contempt of Congress to get concessions from the Biden Administration. Each have been able to get access to documents previously withheld by the Administration. Meanwhile, some House Republicans are trying to amp up the effort to impeach Secretary of Homeland Security Mayorkas over not securing the Southern Border.

This Week in Congress

As discussed above and below, the House failed on a vote of 206-220 (with 8 not voting) to agree to H. Res. 463, the rule providing for consideration of H.R. 277, REINS Act; H.R. 288, Separation of Powers Restoration Act; H.R. 1615, Gas Stove Protection and Freedom Act; and H.R. 1640, Save Our Stoves Act. Prior to standoff on the rule, the House on Monday adopted the Middle Market IPO Cost Act (390-10) and the Encouraging Public Offerings Act (384-13). The Senate moved nominations and legislation by unanimous consent and also considered several nominations by recorded votes. These include the confirmations of Molly R. Silfen, of the District of Columbia, to be a Judge of the United States Court of Federal Claims (confirmed 55-39); Dilawar Syed, of California, to be Deputy Administrator of the Small Business Administration (54-44); and David Crane, of New Jersey, to be Under Secretary of Energy (56-43)

House Paralysis

Late last week, the House passed the legislative deal cut by the President and the Speaker to avoid default, suspend the debt limit, provide caps on appropriations spending, claw back Covid funding, clear a pipeline in West Virginia and Virginia long sought by Senator Manchin (D-WV), and impose some work requirements. The bill, H.R. 3746, the Fiscal Responsibility Act, passed with the support of the bipartisan center of the House on 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. Soon after, the Senate quickly passed the bill, and the President signed it into law. After the enactment of the debt limit deal, the Speaker and the President each took something of a victory lap for what each said they had won in the deal, while the most conservative Members of the House grumbled. Some in the HFC said the Speaker did the best he could with the hand he was dealt (i.e., with two-thirds of elective government in the hands of Democrats). But others were apoplectic. They believe the Speaker could have held out for more spending reforms and concessions against the President and the Democratic Senate. However, rather than talking up a vote of no confidence (aka motion to vacate the Speaker’s office), House Freedom Caucus members first huddled with conservative activists on the outside and then promised there would be consequences to what they allege is the Speaker reneging on deals he made in order to become Speaker. Initially, the DC press treated this as a divided opposition and began discussing what the House majority would tackle next. Yet by the middle of the week, the House was paralyzed when a number of House Freedom Caucus Members voted against the special order of business (“rule”) that would have governed debate on several bills that these conservatives actually want to pass. Majority Members – regardless of who is in the majority – are strongly encouraged to vote for the rule brought to the floor from the Committee on Rules. This is because the Rules Committee is the Speaker’s Committee. It has a supermajority of 9-4 members, and each person serving on the committee does so at the pleasure of the Speaker (for the 9 majority members) and the Minority Leader (for the 4 minority members). The Rules Committee is how the Speaker wields legislative power in the House, as the rules for consideration of bills contain points of order provisions, set the length of debate, decide what (if any) amendments are in order, and provide for other parliamentary provisions. To vote against the rule of your party is a rare event, with some saying it has been since 2002 since Republicans “took down” their own rule on the floor; that is, enough members of the majority voted with the minority to defeat the rule Thus, some HFC members enacted a form of revenge on the Speaker by voting with the Democratic minority against the procedural rule that would have made in order bills desired by most of the majority. These bills include measures such as protecting the use of gas stoves (vs. the Administration’s push for all electric stoves) and the REINS Act, which is legislation whose proponents believe will bring more accountability to the unelected bureaucracy at regulatory agencies. At first, House Leadership tried to negotiate with the HFC, but as the week continued in became clear the varied demands of the HFC members could not be resolved easily. Additionally, a round of finger-pointing broke out within the top levels of House leadership, with the Speaker’s people saying the conservative revolt was actually precipitated by Majority Leader Scalise (R-LA) not allowing a firearms bill to be taken up this week. This was quickly countered by the Majority Leader’s people to point out the conservative revolt centered on their angst over the Speaker’s debt limit negotiations and deal.

SCOTUS VRA Case

According to many Washington insiders, the result of this case will be to give the Republicans issues in the upcoming 2024 elections. Democrats are now in the position to gain one House seat in Alabama and potentially have an opportunity to pick up seats in Louisiana, Florida, and Texas. Until this case, Congressional Democrats have been sounding alarm over the conservative shift of the Supreme Court. However, House Minority Leader Jeffries (D-NY) said with this case, “[W]e can at least draw some comfort from the fact that the 1965 Voting Rights Act remains alive.” Senate Majority Leader Schumer (D-NY) said, “Today, our democracy held firm against voter discrimination; the Supreme Court has ruled that Alabama’s Republican-drawn congressional districts discriminate against Black voters, violating the Voting Rights Act, and must be redrawn.”

Coming Up in Congress

At time of writing with the HFC revolt, the House floor schedule remains fluid. The House Rules Committee has announced a meeting to grant a rule (or rules) on Monday, June 12th, for the following bills:

• H.J. Res. 44 - Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives relating to "Factoring Criteria for Firearms With Attached 'Stabilizing Braces'"

• H.R. 277 – REINS Act of 2023 [Rule Markup Only]

• H.R. 288 – Separation of Powers Restoration Act of 2023 [Rule Markup Only]

• H.R. 1615 – Gas Stove Protection and Freedom Act [Rule Markup Only]

• H.R. 1640 – Save Our Stoves Act [Rule Markup Only]

Additionally, the House Appropriations subcommittees will be marking up several bills that could come to the floor in the coming weeks. The Senate will convene on Monday, June 12th at 3:00pm to resume consideration of Executive Calendar #157, Elizabeth Allen, of New York, to be Under Secretary of State for Public Diplomacy. At 5:30pm, the Senate will proceed to a roll call vote on the motion to invoke cloture on the Allen nomination. In addition, Majority Leader Schumer filed cloture (cuts off debate if adopted) on the following nominations in the following order:

• Executive Calendar #25, Hernan D. Vera, of California, to be United States District Judge for the Central District of California.

• Executive Calendar #171, Jared Bernstein, of Virginia, to be Chairman of the Council of Economic Advisers.

• Executive Calendar #41, P. Casey Pitts, of California, to be United States District Judge for the Northern District of California.