Capitol Hill Update: October 15, 2018

Schedule:

The House and Senate are not in session.

Senate:

is done until after the midterm election. Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Chuck Schumer (D-N.Y.) struck a deal that allowed the Senate to vote on three appellate court and 12 district court nominees. Originally, members were set to remain in Washington until October 26, a little more than a week before the election. The judicial nominees confirmed are as follows:

• David James Porter to serve as a United States Circuit Judge for the Third Circuit
• Ryan Douglas Nelson to serve as a United States Circuit Judge for the Ninth Circuit
• Richard J. Sullivan to serve as a United States Circuit Judge for the Second Circuit
• William M. Ray, II to serve as a United States District Judge for the Northern District of Georgia
• Liles Clifton Burke to serve as a United States District Judge for the Northern District of Alabama
• Michael Joseph Juneau to serve as a United States District Judge for the Western District of Louisiana
• Mark Saalfield Norris, Sr. to serve as a United States District Judge for the Western District of Tennessee
• Eli Jeremy Richardson to serve as a United States District Judge for the Middle District of Tennessee
• Thomas S. Kleeh to serve as a United States District Judge for the Northern District of West Virginia
• Peter J. Phipps to serve as a United States District Judge for the Western District of Pennsylvania
• Susan Brnovich to serve as a United States District Judge for the District of Arizona
• Chad F. Kenney to serve as a United States District Judge for the Eastern District of Pennsylvania
• Jeremy D. Kernodle to serve as a United States District Judge for the Eastern District of Texas
• James Patrick Hanlon to serve as a United States District Judge for the Southern District of Indiana
• Lance E. Walker to serve as a United States District Judge for the District of Maine

The three appellate court nominees confirmed on Wednesday brings the total to 29 confirmed during the 115th Congress. There are 11 vacancies on appellate courts and 108 on district courts.

Early last week, the Senate passed the America’s Water Infrastructure Act (WRDA), S. 3021, by a vote of 99 to 1. The Senate confirmed Jeffrey Bossert Clark and Eric S. Dreiband to serve as an assistant attorneys general by votes of 52 to 45 and 50 to 47. More than 20 nominees for administration posts ranging from FEMA to NASA to the State Department to the Privacy and Civil Liberties Oversight Board (PCLOB) were confirmed by unanimous consent on Wednesday. Another 15 minor pieces of legislation were passed by unanimous consent.

The Senate met in pro forma session on Friday, October 12. Additional pro forma session dates until the election are Tuesday, October 16, at 12:00 pm; Friday, October 19, at 10:00 am.; Tuesday, October 23, at 4:30 pm; Friday, October 26, at 5:00 pm; Tuesday, October 30, at 1:00 pm; Friday, November 2, at 2:45 pm; Tuesday, November 6, at 4:00 pm; and Friday, November 9, at 9:00 am.

The Senate will return on Tuesday, November 13 at 3:00 pm and will begin consideration of S. 140, which will serve as the vehicle for reauthorization of the Coast Guard. The nomination of Michelle Bowman to serve on the Board of Governors of the Federal Reserve System will also be on the calendar. Leader McConnell filed cloture on S. 140 and the Bowman nomination before leaving on Wednesday.

Early last week, the Senate voted on a disapproval resolution under the Congressional Review Act, S.J.Res. 63, to nullify the Trump administration’s expansion of short-term, limited duration (STLD) plans. S.J.Res. 63 was sponsored by Sen. Tammy Baldwin (D-Wis.) and was co-sponsored by 47 Democrats. Only 30 signatures are needed on a discharge petition to bring a CRA to the floor. Democrats labeled STLD plans as “junk insurance” because these plans, although subject to state regulation or even prohibition, are exempt from ObamaCare’s costly Title I regulations.

Leader Schumer and Sen. Baldwin filed the discharge petition on Tuesday, and there was a vote later in the day. The CRA failed by a vote of 50 to 50. Sen. Susan Collins (R-Maine) voted for the CRA and Sen. Lisa Murkowski (R-Alaska) voted against it. For what it’s worth, we’re not the biggest fans of STLD plans even though we opposed the CRA. STLD plans are the centerpiece of the generally bad health insurance reform plan being pushed by former Sen. Rick Santorum (R-Pa.).

There’s another CRA we should be watching. Last month, Sen. Jon Tester (D-Mont.) filed a disapproval resolution, S.J.Res. 64, to nullify guidance issued in the Internal Revenue Service (IRS) that eliminates Schedule B, on which nonprofits list their donors. Schedule B is included with nonprofit’s Form 990. In 2015, the then IRS director of tax exempt organizations, Tamara Ripperda, said that the IRS was considering eliminating Schedule B. S.J.Res. 64 has 34 co-sponsors, all of whom are Democrats.

Prison reform could be moving soon. Leader McConnell (R-Ky.) said last week that there would be a whip check on the FIRST STEP Act, H.R. 5682 and S. 2795, after the midterms, which is what he said at the end of August in a meeting at the White House. This time, he also added that if there are 60 votes for the bill, which would be enough for cloture, he would “find time to address it,” and bring it to the floor for a vote — which is significant for the bill’s prospects. It’s unclear where the four modest sentencing reforms that have been discussed will be added, but we expect to learn more about that soon.

Separately, the president said that he would overrule Attorney General Jeff Sessions if he pushed back on the FIRST STEP Act. “There has to be a reform because it’s very unfair right now,” the president said on Fox and Friends. “It’s very unfair to African-Americans. It’s very unfair to everybody. And it’s also very costly.” Advocates of the FIRST STEP Act believe that the 60-vote threshold will be easily met. Some Democrats, particularly those who may seek the presidency 2020 and want to politicize the issue, may vote against passage. There are vocal Republican opponents, but they’re a small, albeit very vocal, minority of the conference.

House:

The House is in recess until Tuesday, November 13. The chamber met in pro forma session on Tuesday and Friday. Rep. Alex Mooney (R-W.Va.) presided on Tuesday and Rep. Luke Messer (R-Ind.) presided on Friday. The House will meet again in pro forma on Tuesday and Friday this week.

As we understand it, discharge petitions for the 115th Congress have only one day left to be considered, which is Monday, December 10. This, of course, assumes that there isn’t a rule that’s passed to make other days available. According to the Congressional Research Service (CRS), “When the motion to discharge has been on the Calendar for at least seven legislative days, it becomes eligible for consideration on a ‘Discharge Day,’ which, under the rule, is the second or fourth Monday of each month.” This means the discharge petition for H.J.Res. 129, the CRA to restore the Federal Communications Commission’s so-called “net neutrality” rule, is dead. The resolution failed to get the required 218 signers.