THE LOOK AHEAD – NOVEMBER 2023
Balance of Power
Senate: 48 Democrats, 49 Republicans, 3 Independents Caucusing with Democrats
House: 221 Republicans, 212 Democrats, 2 Vacancies
Rep. David Cicilline (D-RI) resigned his seat June 1st, to become CEO of the Rhode Island Foundation. The special election will be on Tuesday, November 7th. This is a safe Democratic seat.
Rep. Chris Stewart (R-UT) resigned his seat on September 15th. The special election will be on November 21st. This is a safe Republican seat.
Top Line Take Aways:
The good news: We have a Speaker! The bad news: Literally none of the issues surrounding spending that contributed to former Speaker McCarthy’s ouster have been resolved. A lot has been made of the task at hand here but there’s a very short runway until government funding runs out on November 17th. We’ve been told by Members that the House Republican Conference’s right flank is going to give the new Speaker a “grace” period, whatever that means, which he will need because there’s simply no way to avoid a shutdown without some sort of continuing resolution (CR).
Speaking of a CR, the Freedom Caucus-type members privately prefer a CR until April 2024 while Appropriators are looking for the January time frame. The reason for this is the automatic cuts under the Fiscal Responsibility Act lock in April 1st, so conservatives see it as a negotiating tool. Reality check: If we’re still dealing with Fiscal Year 2024 spending in April 2024 then we’re obviously not going to be on good footing for FY2025. There’s a reason passing all 12 bills one at a time doesn’t happen - it’s not practical!
Speaker Johnson on a Potential Government Shutdown: We asked a handful of moderate Rs what Speaker Johnson said to them when they asked if he would keep the government funded past November 17th. They all told us some variation of him having a large military presence in his district and needing to make sure the troops are paid. Missing in that of course is what happens with the rest of the government! But that does open a lane for a package of Defense, Mil-Con, and Homeland bills. One of the arguments against that move is those are the most popular Appropriations bills, and Leadership likes to hold those back to use them to drag less popular spending over the finish line.
In addition to spending, the House is also going to try to move bills on energy, a CRA on the Biden Administration’s Joint Employer Rule, NDAA Conference Report, a bill on Right to Repair and potentially a Coast Guard Authorization before the year is up. That’s a lot!
Finally, we may see something that hasn’t happened in over 20 years, the expulsion of a Member of Congress. More on the potential expulsion of George Santos below.
Israel/Ukraine/Border/Taiwan Funding
Speaker Johnson came out and said he supports funding operations in Ukraine as a check on the Russians. A lot is made of some members of the Conference opposing continued funding in Ukraine, and they are loud, but a majority of the Republican Conference supports continued funding provided certain oversight measures are in place.
Right out of the gate the new Speaker is putting on the floor a bill to send money to Israel and offsetting it with cuts to IRS spending that was appropriated as part of the Inflation Reduction Act. It will pass the House (though Armed Services Emerging Threats Subcommittee Chairman Joe Wilson putting his name on a letter opposing this strategy is noteworthy). Democrats are howling about the offsets, but Republicans are betting that a vote against funding for Israel because of cuts to the least popular federal agency in town is a hard vote to explain in battleground districts. It is! Welcome to politics! How many Democrats cross over and vote for the package will be important to watch because the Senate will most definitely drop the IRS offset.
Minority Leader Jefferies, for his part, will try to make the argument to the Democratic Caucus that this won’t be the only vote that Members get on this issue. Which is correct but having heard this argument dozens of times over the years made to our own bosses, it’s not as salient when the issue at hand is dominating the news cycle. When you’re explaining, you’re losing, as they say.
This is an important point here for House observers for the last several years. The idea that one can’t offset supplemental spending because it’s an emergency enrages the right flank of the House Republican Conference. This frustration specifically underpins a lot of the general animosity to supplemental spending bills by these members.
Senate Minority Leader McConnell is closely watching how this plays out, as he prefers a package that would tie all these things together – under the age-old political maxim that only having one tough vote is better than four tough votes. Speaker Johnson’s move has riled the right wing of the Senate GOP conference, who want to try and give the Speaker a win early. If there’s a jailbreak of House Democrats voting for the package (would need to be north of 40) it could complicate Leader Schumer’s effort to put forward one big package in the Senate
If the House GOP can stay disciplined and keep their asks to a minimum – a Grand Canyon sized “if” – they might be able to win some concessions. Their goal is to take Israel off the table so they can leverage Ukraine funding to secure money and policy changes for the Southern Border. Again, this takes discipline, something the House GOP has had in exceedingly short supply lately.
On the Senate side, Senators Shumer and McConnell are both on the same page on trying to address Israel and Ukraine funding together. The Republican conference is divided on continuing to fund Ukraine with Senators Paul and Vance being quite vocal that we cannot do everything at once. Others in the Republican conference agree with that sentiment with McConnell having gotten significant pushback on his strategy internally
McConnell will try and attempt to woo some of these naysayers with some border security policy changes, which is a give the White House and Senate Democrats knew was coming. This is similar to the House view; however, McConnell doesn’t want to move the Israel funding first as it lessens the leverage for Ukraine funding. Look for Republicans to be reasonable but to make the Senate Democrats uncomfortable with their border security asks. They see some leverage here in order to help the Dems pass both Ukraine and Israel funding together. Work is ongoing to find a sweet spot that can pass the Senate. We expect to see a package in the coming days.
What Are Committees Up to This Month?
The House
Agriculture: Speaker Johnson, in his legislative plan, stated that he wants to pass a Farm Bill in December. Privately House Republicans know that has next to no chance of reality, but the Committee will still continue their work while looking for an official extension.
Appropriations: House Appropriators still need to discharge Commerce, Justice, Science and Labor-HHS bills. In addition, there are still major problems with the Agriculture bill that need to get resolved if it has any chance of passing the House. Labor-HHS and Ag are slated for floor consideration the week of November 13th, the same week the government runs out of money.
Energy and Commerce: Energy and Commerce has a markup scheduled for this Thursday, among other things are a reworked version of the Republican Right-to-Repair bill along a slate of consumer product safety legislation that could find its way on to the Suspension calendar before years end.
Transportation and Infrastructure: The current plan is to have a markup the week of the 13th, on a slew of bills related to the Economic Development Agency and potentially other priorities. We’re told digital NEPA is getting pushed in to 2024. Additionally, the Committee will hold a hearing on recent near miss incidents at airports around the country on November 9th. NATCA, ALPA, FAA, and NTSB will testify.
Ways and Means: We hear rumors that staff on both sides of the Capitol have been meeting to set parameters on a potential tax package to ride along with a large Omnibus or Minibus Appropriations bill if it comes to that. The New York Republican delegation made a lot of noise about needing resolution on SALT for their votes for Speaker. No promises were made (publicly or privately) but we don’t see a scenario where there are enough House Republican votes for changing the SALT Deduction and undermining one of former President Trump’s signature legislative victories. We put the odds of an end of the year tax extenders package at less than 1%.
The Senate
Appropriations: The Senate Appropriations Committee held a hearing yesterday on President Biden’s supplemental funding request for Ukraine and Israel. Having completed their work in Committee on all twelve appropriations bills, Chair Patty Murray will continue working to shepherd a series of “minibuses” across the Senate floor.
Agriculture, Nutrition and Forestry: Farm Bill negotiations remain stuck in the mud, with Democrats and Republicans divided over a number of issues including preserving $20 billion in climate-related ag projects that was included in the Inflation Reduction Act. As talks drag on, the 2018 Farm Bill expired on September 30. But thanks to the stopgap CR, the real deadline to get to an almost certain extension is the end of the year. That’s when Title I commodity and dairy programs will run out of funding, which could push consumer prices higher. Chair Stabenow and Ranking Member Boozman have both publicly stated that they believe they will need an extension in order to finalize negotiations, which will likely ride along on the next continuing resolution.
Banking, Housing and Urban Affairs: Chairman Sherrod Brown and Ranking Member Tim Scott are at odds on how to go after Hamas’ financing, with Scott dropping a bill that would permanently block the $6B in Iranian oil revenues sitting at Treasury while Brown is focused on how cryptocurrencies are being used to finance terrorist activities, while exploring potential additional sanctions on non-state actors. This issue will stay top of mind for Banking as the hot war in the Middle East grows hotter.
Commerce, Science, and Transportation We have an FAA Administrator! The Senate’s bipartisan 98-0 confirmation vote gives the FAA a permanent Administrator for the first time in more than a year and a half, though the timing sadly deprived Deputy Administrator Katie Thomson from getting to be Queen of Aviation for a day. With Whitaker in place, Chair Maria Cantwell is hoping the confirmation will jumpstart FAA bill negotiations that have floundered as the pilot training fight remains unresolved. Look for her to work with other members to figure out how to unlock the stalemate. Meanwhile, the committee will continue to work on its portion of Leader Schumer’s AI package, with Schumer holding his third and fourth AI forums today focused on workforce and high impact AI. Others are in the works. And NIL legislation continues to percolate with more members on both sides of the Capitol introducing bills on the subject, and Ranking Member Ted Cruz looks to get Cantwell onboard with his package introduced over the summer.
Energy and Natural Resources: ENR will continue its tradition of holding weekly hearings throughout the month of November, with Chairman Manchin and Ranking Member Barrasso continuing oversight efforts on the deployment of Inflation Reduction Act funds and the deployment of new energy technologies, including carbon capture, utilization, and sequestration.
Get Smart – How Does a House Expulsion Resolution Work, Anyways?
The House as soon as Wednesday will take up a resolution to expel Rep. George Santos (R-NY) from the House of Representatives this week. Members of the NY GOP Delegation, eager to take this particular political anchor off their necks, have filed a privileged resolution that would make Santos the first congressman in more than 20 years to be expelled. Reminder: House Dems attempted to expel Santos already, but the House tabled the resolution, so nothing happened. Don’t get confused by that temporary reprieve though; the NY State Republican Party wants him gone as does the NRCC. The more distance you can put between Santos and the next primary and election in his district the better chance of holding that seat. But it’s worth asking, has this ever happened before, and how does it work?
What Does the Constitution Say? Under the U.S. Constitution, the House has the authority over its own makeup, provided it abides by other parts of the Constitution (age, citizenship, direct election, etc.). Specifically:
“[e]ach House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.”
The House may also refuse to seat a Member (by simple majority), a process known as exclusion, but the House cannot discipline a Member unless they are seated so exclusion is not considered a disciplinary action. Exclusion is an implied power of Congress that comes from the Qualifications Clause (25 years of age, 7 years a citizen, resident of State of election). We mention this because many people wanted the House to refuse to seat Rep. Santos at the outset. The Supreme Court has weighed in here, in Powell v. McCormack (1969), stating the efforts to exclude a Member-elect must be related to the Qualifications Clause.
BUT, astute readers may remember the case of Mark Harris from North Carolina who unseated then Rep. Robert Pittenger in the 2018 Republican Primary. He went on to “beat” Dan McCready by 905 votes, but allegations of voter fraud quickly surfaced. Then Majority Leader Steny Hoyer (D-MD) publicly stated that the House would refuse to seat Harris. Ultimately that position was never put to the test because the North Carolina Board of Elections found against Harris and vacated the results before the next Congress was sworn in. Dan McCready ended losing the special election to now Rep. Dan Bishop (R-NC). Anyways…
Has This Ever Happened Before? Twenty times! Five of those expulsions were in the House and 15 in the Senate. The vast majority of these expulsions – 18 – were exercised based on disloyalty to the United States, 17 of which were directly related to the run up to the Civil War. After the Civil War nothing happened on the expulsion front until 1980. The two most recent expulsions are more relevant to today’s proceedings.
In 1980, Democrat Congressman Michael Myers of Pennsylvania was expelled after being convicted of bribery as part of the ABSCAM scandal.
In 2002, Democrat Congressman Jim Traficant of Ohio was expelled after being convicted of bribery, racketeering, and tax evasion.
Observers will note that those two expulsions differ from the effort to oust Rep. Santos because both Myers and Traficant had been convicted in a court of law prior to expulsion.
What are the Logistics of the Vote? The makeup and conduct of Members of Congress are considered related to the Privileges of the House and therefore an expulsion resolution is considered “privileged.” This means that once called to question there are only two options, a motion to table the resolution, or a direct vote. House Democrats sought to expel Rep. Santos earlier this Congress and that motion was tabled, with Republicans arguing at the time that Rep. Santos deserves his day in court. That day won’t come until late 2024, right in the middle of election season!
Rep. D’Esposito is carrying the expulsion resolution and it’s cosponsored by Reps. Brandon Williams, Mike Lawler, Nick LaLota, and Marc Molinaro, all of New York. They’ve also sent a Dear Colleague to Members outlining their case. That’s five, enough to defeat a motion to table if they all voted with the Democrats against a table motion.
If Leadership is unable to convince the New York members to hold off, the safe assumption is there will be a direct vote.
What Does It Need to Pass? Two thirds of Members present and voting. The Constitution isn’t specific here, but courts have traditionally interpreted as 2/3rds present and voting as opposed to an absolute 2/3rds of the total House membership.
Could Rep. Santos Challenge an Expulsion in Court if He Loses? Sure, he could, likely under Article One which states Members shall be chosen “by the people” and that the alleged offenses occurred before he was an elected Member. Congress for its part will make the case that the offenses were related to his conduct in getting elected to the House. No expelled Member has ever challenged their expulsion directly. Jim Traficant challenged his conviction on double jeopardy grounds but that was tossed. Courts are likely to give the House leeway in that this is ultimately a political question and due to the separation of powers. The House could bolster their case by finding against Rep. Santos as part of the ongoing ethics investigation. Indeed, we hear that’s what House Leadership ultimately wants, is for the ethics committee to issue its recommendations and thus satisfy the “due process” argument before moving to expel. The House Ethics Committee yesterday said it would release its finding on Santon on or before November 17...a convenient deadline, if you wanted to keep House Republicans focused on government funding for the next couple of weeks.
Ok, Rep. Santos Is Expelled, No More Velvet Jackets, No More Babies in the Hall, Then What? Constitutionally, Members of the House must be directly elected by the people, and as such, no state is allowed to appoint a Member in the event of a vacancy. Under New York state law, Governor Hochul has 10 days from the date of the vacancy to schedule the special election. Unlike regular elections though where you have primary, special election candidates in New York are chosen by party leaders. Former Rep. Tom Suozzi vacated this seat to run for Governor. He’s officially announced his candidacy to take back the seat in 2024 but it’ll be interesting to watch if Governor Hochul and the State Democratic Party hold any ill will there and pass him over for someone else. Rep. Suozzi for his part was well liked by Member of both parties during his time in the Capitol.
