01.25.2021 Washington Update

Senate – House Speaker Nancy Pelosi (D-CA) sent the article of impeachment against former President Trump to the Senate last tonight. Following an agreement between Majority Leader Chuck Schumer (D-NY) and Minority Leader Mitch McConnell (R-KY), the Senate trial will begin the week of February 8.

As to the rules of the trial, and what they mean for individual senators, the Congressional Research Service wrote the following on Jan. 21:

Compared to when the Senate meets in legislative and executive session, the opportunity for individual participation by Senators in a Senate trial is limited. The rules require that any debate among Senators take place in closed session. Senators can make motions under the impeachment rules, but these rules are silent on what motions can be offered, and when.  In modern trials, when Senators proposed motions, it was often pursuant to a previously-agreed-to order of the Senate.  Senators can also submit written questions during the trial—to House Managers, counsel for the impeached officer, or witnesses—that the Presiding Officer presents on their behalf. Orders of the Senate, however, might structure the time and process for posing questions. During the open portion of an impeachment trial, Senators spend most of the time listening to arguments presented by House Managers and counsel for the impeached officer.

The Trump trial will be by the book, and the outcome, though by no means assured, is not hard to fathom.  Getting 17 Republicans voting to convict is a tall order.  It’s possible that a handful break; some are looking to what Sen. McConnell, who publicly rebuked Trump for what happened on Jan. 6, will do.  But it’s not clear if McConnell voting “aye” would cause the dam to break.  Many Republicans dismiss this effort as a “snap impeachment,” which, they say, has unlawfully deprived Trump of the due process he deserves.  Others question the constitutionality of conducting an impeachment trial of a private citizen, arguing that impeachment was designed by the framers to deal with those holding office.

As the Senate trial unfolds, Schumer will have to continue moving Biden’s Cabinet nominees, as well as maneuver to cut deals on COVID legislation, and potentially draft and pass a budget reconciliation bill.  And he will do this in the absence of an organizing resolution, which creates an awkward status quo, in which Republicans continue to control the committees, while Democrats control the floor.

Several non-controversial cabinet nominees have received bipartisan support and will be confirmed quickly: Janet Yellen as Secretary of the Treasury (today) and Antony Blinken as Secretary of State soon thereafter. Pete Buttigieg (Transportation) and Alejandro Mayorkas (Homeland Security) are also likely to be confirmed soon.

In the end, Biden’s Cabinet will likely be filled out, even as Republicans try to raise procedural and policy objections.  The real fight, in our view, comes with sub-Cabinet nominees, who are likely to be more ideologically inclined and therefore more controversial.  These are the policy players who make the agencies tick.  Republicans can block scores of these nominees, forcing Schumer into a box, as he did repeatedly to McConnell during the Trump years, of having to endlessly file cloture.  There’s simply not enough Senate floor time to do that, even with the Senate’s 2019 rule change allowing for 2 hours of debate (rather than 30) post-cloture for these nominations.

Meanwhile, Leaders Schumer and McConnell continue to haggle over a power-sharing agreement. McConnell wants a commitment from Schumer that Senate Democrats won’t touch the legislative filibuster. Not surprisingly Schumer has demurred, pointing instead to the precedent set by the 2001 agreement forged between then-Leaders Lott (R-MS) and Daschle (D-SD), when the Senate was also 50-50.  McConnell’s rejoinder: there was no legitimate threat in 2001 to eliminate the filibuster; there is now.  In any event, the longer this process takes, the more detrimental it could be to President Biden’s early legislative agenda.

 White House – Republicans appear united in opposition to President Biden’s COVID package. Moderate Republicans contend the proposal is too broad and coming too soon after Congress passed a $900 billion COVID bill in December.  Republicans continue to focus on targeted stimulus checks, vaccine distribution, liability protections and funds for other critical health needs.  Moreover, repurposing unspent funds from previous COVID packages could help reach compromise, especially one that addresses Republicans’ deficit concerns.

Democrats are eager to move quickly, so the question is how long they will wait for a bipartisan package to emerge.  Democratic Budget Committee staffers are already moving on a budget resolution with reconciliation instructions, in the event negotiations crater.  Reconciliation will be a partisan exercise, which undoubtedly vitiates Biden’s inaugural message of unity and bipartisanship.

President Biden spent his first week in office issuing 19 executive orders—a record. More are expected this week on U.S. manufacturing, racial justice, immigration, and climate change.  The EOs represent the beginning of a long process to systematically dismantle the policies of the Trump era.  The road to doing so is fraught with political and especially, legal, peril, as new regulations, and those promulgated to rescind old ones, will be challenged in court.

House – In a change to the schedule, the House will not be in session this week, but will be back the week of February 1, which was originally a district work period.