Today a three-week work period begins for Members of Congress arriving back in Washington, where President Trump has remained active (including via his Twitter account). The President has announced initiatives to address a host of topics, from immigration reform to international trade, as well as personnel changes within his Cabinet and White House staff. With the midterm elections now firmly in its sights, Congress is more likely to react to the President’s actions through its confirmation and oversight responsibilities, than through legislation requiring compromise and bipartisanship.
After negotiating a two-year, bipartisan budget deal in early March and passing a massive $1.3 trillion omnibus spending bill that funds the government through the remainder of Fiscal Year (FY) 2018, in a dramatic, eleventh hour tweet, President Trump toyed with the idea of vetoing the massive spending package after House and Senate passage last month, which would have caused the government to shut down. He eventually signed the bill into law, after announcing his reservations with the legislation, stating he would “never sign another bill like this again.” In particular, the President said he had wanted more funds for his proposed border wall with Mexico. The chaos this surprise veto threat caused for congressional leadership demonstrates how volatile the political process has become even as Republicans control both the Executive and Legislative branches. Congressional Republicans may have learned that they can cut deals on Capitol Hill, but they cannot leave out the White House without risking a veto threat.
The President’s disappointment with the omnibus appropriations bill has reportedly resulted in discussions with GOP leadership about a potential rescission request, which would roll back portions of the spending bill even though it has already become law. While it is unlikely that a majority of members would support a rescission request from the Administration, the fact that GOP leaders are even engaging in the conversation with the President shows that he can impose his own frame on Congress’s agenda. A rescission request could jeopardize the FY 2019 appropriations process that is underway, set to the topline numbers established by the March budget agreement.
The President’s rhetoric has continued to focus on immigration and border security issues after passage of the omnibus appropriations bill, which did not fund much of his proposed border wall with Mexico, did not address the Deferred Action for Childhood Arrivals (DACA) program, and did not revoke federal funding for “sanctuary cities.” The White House and congressional leaders had discussed including $25 billion in border funding in exchange for an extension of legal protections for DACA recipients, but failed to reach an agreement before the final legislation was drafted. Through Twitter, President Trump has since blamed Democrats for the impasse and has called on Congress to pass standalone legislation to enhance border protection, going so far as to suggest the Senate should invoke the so-called nuclear option, or an end to the legislative filibuster, so the 51 Senate Republicans could pass the legislation without needing Democratic support.
Some reform-minded Senate Republicans continue to discuss the possibility of an immigration deal that includes relief for DACA recipients, but a viable Senate compromise would probably still need the support of the White House, House Republicans and Democratic leadership. Multiple immigration reform proposals were rejected in the Senate earlier this year, all failing to achieve the necessary 60 vote threshold. One such proposal championed by President Trump failed to even achieve 50 GOP votes. Senate Majority Leader Mitch McConnell (R-KY) has moved on for the time being, and he has not indicated that he is seriously considering bringing an end to the legislative filibuster. With the fate of the DACA program stalled in federal court, it appears that a Senate solution also will remain stalled for the foreseeable future. For its part, the House of Representatives has not taken up a DACA bill on the House floor and appears unlikely to do so in the months ahead.
International trade is also high on members’ minds as tensions escalate between the United States and China, with both countries ratcheting up the rhetoric and threatening to engage in a full-blown trade war. This past week, Beijing announced it is raising tariff duties on 128 products imported from the United States into China in retaliation for the Trump Administration’s Section 232 tariff announcement on steel and aluminum imports into the United States. The new Chinese tariffs went into effect on April 2. In response, President Trump said he is considering whether to impose an additional $100 billion in tariffs, which would triple the amount of Chinese products subject to a tariff when entering the United States. The Chinese government responded to this development by stating that China is “not afraid to fight a trade war.” Press reports indicate the two governments are engaged in high-level negotiations to discuss issues of concern, but it is unclear whether both sides will be able to come to a mutually acceptable compromise. Members of Congress on both sides of the aisle have expressed varying levels of disagreement with the Administration’s trade policy, as the tariffs imposed by China will affect the U.S. economy and many of the American businesses in their home districts, particularly agriculture products and manufacturers. An actual trade war between the world’s two biggest economies could do significant damage to domestic and international markets. However, the Legislative Branch has limited options at its disposal to counter the President’s actions. Members have floated the idea of legislation to nullify the tariffs put in place by the Administration, but such a bill would have to pass with a veto-proof majority in both chambers. Some have also proposed slowing down the process of approving Administration nominees in the Senate, or holding hostage the Administration’s request to renew Trade Promotion Authority (TPA), which is scheduled to expire in July. In an election year in particular, Congress is unlikely to impede presidential authority in this area. But oversight by congressional committees with jurisdiction over trade is likely to be energetic and provide a forum for members to assert themselves and the needs of their respective local economies.
A members grapple with these high-level policy matters, there are a number of other items on the legislative agenda for this work period.
The House will focus on fiscal matters, teeing up a vote on a balanced budget amendment to the Constitution this week. The action will largely be a symbolic vote for the majority, another attempt to reinforce their fiscal credentials ahead of the midterm elections, as the measure has effectively no chance of becoming law. A balanced budget amendment to the Constitution would require Democratic support for Senate passage, among other hurdles. The scheduled vote stems from an agreement brokered between House Speaker Paul Ryan (R-WI) and Republican Study Committee (RSC) Chairman Mark Walker (R-NC) last fall. Speaker Ryan agreed to schedule a vote on a balanced budget amendment in exchange for conservative support needed for a procedural motion in order to move tax reform legislation.
House members are also expected to consider financial reform legislation this week. H.R. 4790, the Volcker Rule Regulatory Harmonization Act passed the House Financial Services Committee by a bipartisan vote of 50-10. The Volcker Rule, finalized in 2013 following passage of the Dodd-Frank Financial Reform Act, restricts financial institutions insured by the Federal Deposit Insurance Corporation from engaging in certain proprietary trading of securities, derivatives, commodity futures, and options on those instruments. With some exceptions, the rule also prohibits those institutions from owning, sponsoring, or having certain relationships with hedge funds and private equity funds. Rulemaking responsibilities under the Volcker Rule are currently shared among a group of financial regulatory institutions, including the Board of Governors of the Federal Reserve System. H.R. 4790 would amend current law to grant the Federal Reserve’s Board of Governors sole authority for that rulemaking. The bill also would exclude community banks (those with less than $10 billion in assets and that meet certain other criteria) from the Volcker Rule’s requirements.
If H.R. 4790 passes the House, lawmakers may attempt to include the measure in a broader legislative package aimed at easing banking rules that passed the Senate in March and is now pending in the House (S. 2155, the Economic Growth, Regulatory Relief, and Consumer Protection Act.) However, Financial Services Committee Chairman Jeb Hensarling (R-TX) told reporters that the Senate bill will remain stalled in the House until the Senate agrees to negotiate a bicameral financial legislative package that goes farther than the Senate-passed legislation. The Financial Services Committee has passed more than 30 pieces of banking reform legislation over the past year and Chairman Hensarling and many of his rank-and-file Republican Committee members would like to see some of these items added to the Senate-passed bill. Moderate Democrats who helped support the Senate measure say they are unwilling to re-work the legislation. House Republicans passed a sweeping banking reform bill in 2017, aimed at loosening or repealing much of the Dodd-Frank Act, but the bill does not have a viable path forward in the Senate where it would need some Democratic support. Something closely resembling S. 2155 appears to be the best chance for Congress to achieve financial system reforms during the 115th Congress, as the White House has signaled the President would sign the bill in its current form. Chairman Hensarling is term-limited in his leadership of the Financial Services Committee and is set to retire from office at the end of his current term, making this his last opportunity to complete work on a years-long effort at rolling back portions of the Dodd-Frank Act.
The Senate will continue to spend floor time confirming executive and judicial nominees, with six nominees under consideration early this week. The extensive time spent on processing Executive Branch nominations from a new Administration has been compounded by the frequent turnover of officials in President Trump’s cabinet. Following the relieving of Secretary of State Rex Tillerson and Veterans’ Affairs Secretary David Shulkin in March, as well as the promotion of Gina Haspel to serve as CIA Director, Senators will again have to dedicate considerable committee resources and floor time to vet the individuals nominated, even though they have already been through the exercise once for these cabinet positions. Another agency head, Scott Pruitt, Administrator of the Environmental Protection Agency (EPA) is currently under investigation by the EPA Inspector General over ethical questions and travel costs associated with agency business. Even though the White House has so far expressed confidence in Administrator Pruitt to the press, many in Washington believe the intense scrutiny over his behavior could lead to Pruitt’s removal in the weeks ahead. Cabinet level nominations pose congressional oversight opportunities for Senators to push their respective agendas with the relevant agencies. Particularly as we get closer and closer to the midterm election in November, Senate confirmation hearings for these high-profile nominations could expose political vulnerabilities across the Trump Administration.
A number of congressional committees will be busy during the April work period. After achieving a temporary extension of expiring Federal Aviation Administration (FAA) authority through September 30 in the omnibus appropriations act, the House Transportation and Infrastructure Committee and the Senate Commerce, Science, and Transportation Committee are expected to proceed with work on a long-term FAA reauthorization package. House Transportation Chairman Bill Shuster (R-PA) and Senate Commerce, Science, and Transportation Committee Chairman John Thune (R-SD) steered bills through their committees in 2017, but neither received a floor vote. Chairman Thune and Chairman Shuster have recently agreed to drop controversial provisions in their respective bills, improving the outlook for a long-term reauthorization. Both have publicly stated their hope to complete a four-year reauthorization bill before the August recess.
The House Armed Services subcommittees are in the process of drafting their respective portions of the National Defense Authorization Act (NDAA). The annual authorization bill sets Department of Defense policy and authorizes spending levels for the year ahead. The subcommittees are set to mark up their portions of the National Defense Authorization Act (NDAA) on April 26, and the full committee will mark up the bill on May 9. Secretary of Defense Jim Mattis and Joint Chiefs Chairman General Joe Dunford will testify this week at a House Armed Services Committee hearing on the FY 2019 defense budget on Thursday, April 12.
In addition, the House and Senate Agriculture Committees are in the process of drafting a new Farm Bill, which is reauthorized by Congress every five years. The current authority is scheduled to expire on September 30. Both committees have spent the bulk of the past year holding hearings and listening sessions with stakeholders and began the process of outlining legislation in early 2018. However, negotiations in the House Agriculture Committee are reportedly now at a standstill over the majority’s nutrition proposals, particularly its proposed changes to the Supplemental Nutrition Assistance Program (SNAP), also commonly known as food stamps. Press reports indicate the draft bill introduced by Chairman Mike Conaway (R-TX) would tighten eligibility and work requirements on able-bodied adults who participate in the program. House Agriculture Committee Ranking Member Collin Peterson (D-MN) released a statement on March 15 declaring the Democratic members of the committee “unanimously oppose the farm bill’s SNAP language as it has been described to them and reported in the press” and that the Ranking Member “will not be continuing negotiations with the chairman per the unanimous request of all Democratic members of the committee.” On the other side of the Capitol, members of the Senate Agriculture Committee say that progress is being made on a draft bill and in a bipartisan fashion. Senate Agriculture Committee Chairman Pat Roberts (R-KS) has publicly expressed confidence that the full Senate could pass a bill by the end of April if given the floor time. Chairman Roberts also acknowledged that any eventual Senate bill will have to be conferenced with the House legislation, and has urged House leadership to be bipartisan in their negotiations in order to achieve the necessary 60 votes in the Senate that will get a bill to the President’s desk for signature. Some Democratic members of the Senate Agriculture Committee, including its Ranking Member Debbie Stabenow (D-MI), have competitive reelections in the Fall in states that President Trump carried, and being able to deliver a Farm Bill could help their reelection chances. This political factor is not lost on Republicans, however. A viable Farm Bill remains a heavy lift in an election year, but it’s possible.
Perhaps the most anticipated and high-profile event of the week will be the appearance of Facebook CEO and founder Mark Zuckerberg on Capitol Hill to answer questions regarding the social media platform’s management of personal data it has acquired from users. The company and Mr. Zuckerberg have come under intense scrutiny following revelations that Cambridge Analytica, a data firm used by the Trump campaign in the 2016 election, improperly used Facebook data from more than 87 million individuals in the U.S. and the U.K. Since this news broke, Facebook has warned that a number of third-party applications have access to user data. The Federal Trade Commission (FTC) is currently investigating Facebook data practices. This new scandal comes as Facebook is still working to uncover the depth of a paid political influence campaign initiated by the the Russian government and outside groups through the social media platform and other outlets, intended to affect the 2016 election.
Mr. Zuckerberg, who has taken personal responsibility for the data debacle, which he characterized as a “huge mistake,” is scheduled to testify at a joint hearing before the Senate Judiciary and Senate Commerce, Science, and Transportation Committees on Tuesday afternoon. On Wednesday morning he will appear again and provide testimony before the House Energy and Commerce Committee. Senate Judiciary Committee Chairman Chuck Grassley (R-IA) said in a statement that the hearing “will explore approaches to privacy that satisfy consumer expectations while encouraging innovation.” Senate Commerce Committee Chairman John Thune (R-SD) said in a statement that lawmakers will ask Zuckerberg for his vision on “addressing problems that have generated significant concern about Facebook’s role in our democracy, bad actors using the platform, and user privacy.” House Energy and Commerce Committee Chairman Greg Walden (R-OR) and Ranking Member Frank Pallone (D-NJ) said in a joint statement that their hearing with Zuckerberg will be an “important opportunity to shed light on critical consumer data privacy issues and help all Americans better understand what happens to their personal information online.”
This article was originally published in Law360.