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SCOTUS nominee elbows into crowded agenda and midterms

Major legislative priorities include appropriations, elections overhaul and China competition bill

Senators face a heavy workload in the coming weeks while also considering a nominee to replace retiring Justice Stephen G. Breyer, shown at the 2018 State of the Union Address.
Senators face a heavy workload in the coming weeks while also considering a nominee to replace retiring Justice Stephen G. Breyer, shown at the 2018 State of the Union Address. (Bill Clark/CQ Roll Call)

President Joe Biden may not have given up on advancing parts of his climate and social safety net agenda, but as a former senator he must know that a quickly filling calendar in a midterm election year means there will be limited opportunities.

Lawmakers already had plenty to deal with as the calendar turns toward spring, and that was before a Supreme Court confirmation was added to the Senate agenda.

The immediate priority is the deadline for funding the government, with another House-passed short-term continuing resolution needing to clear the Senate by the Feb. 18 deadline.

But that measure, which the House passed on Feb. 8, would only buy appropriators until March 11 to finalize an omnibus appropriations bill to address discretionary spending for the balance of fiscal 2022.

By week’s end, leaders of the House and Senate Appropriations committees were signaling agreement on a “framework” that should allow the appropriators to write the omnibus spending bill, but no topline numbers had been released.

“We will now proceed with great intensity to enact legislation making transformative investments to create good-paying American jobs, grow opportunity for the middle class, support the vulnerable who work hard, and protect our national security,” House Appropriations Chair Rosa DeLauro, D-Conn., said in a Thursday statement.

In any case, the absence from Washington of Sen. Ben Ray Luján, D-N.M., who is recovering from brain surgery following a stroke, means there aren’t currently 50 Democratic votes to advance legislation or nominations along party-line votes.

Luján released a video statement Sunday saying his recovery was progressing well. “I’m proud to report, then I’ll be back on the floor of the United States Senate in just a few short weeks to vote on important legislation and to consider a Supreme Court nominee,” he said.

But that’s far from the only thing on the agenda.

Competition and elections bills

The House passed its version of competitiveness legislation at the beginning of February, setting up a conference with the Senate on a sweeping measure intended to help the U.S. compete with China in technology and manufacturing.

Democrats want to see a quick conference agreement, but that may be wishful thinking given the number of provisions in the House-passed package that have been opposed by Senate Republicans who are crucial to advancing a further compromise.

“A few days ago, instead of passing the Senate’s careful compromise, House Democrats slapped together a partisan bill stuffed with poison pills and the kinds of things they tried to put in their reckless taxing and spending spree that failed last year,” Senate Minority Leader Mitch McConnell, R-Ky., said in a Feb. 7 floor speech.

The Senate bill passed June 8 of last year, and the two chambers will now need to reconcile differences through a formal conference or a less formal exercise in legislative pingpong.

Democratic efforts to overhaul election and campaign finance laws have proved futile, owing in part to the opposition of Democratic Sens. Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona to using the so-called nuclear option to change the Senate rules to impose new limits on the legislative filibuster. But senators are working on efforts to update the Electoral Count Act of 1887.

That’s the law that governs the actual counting of electoral votes, which became fraught on Jan. 6, 2021, with an insurrection by supporters of then-President Donald Trump and with Trump supporters in Congress backing meritless election challenges.

Also on the potential priority list is a Russia sanctions bill being led by Senate Foreign Relations Chair Bob Menendez, D-N.J. Negotiations have been under way on finalizing language — though there’s no telling whether such a measure could advance before what may become a Russian invasion of Ukraine.

Supreme Court confirmation

The pending retirement of Supreme Court Associate Justice Stephen G. Breyer, which was formally announced Jan. 27, also adds to the Senate’s workload heading toward spring.

Senate Democrats do not anticipate the absence of Luján to affect the timeline for considering the nomination of Breyer’s successor once Biden makes the announcement. There will be no immediate rush, since Breyer plans to serve until the court departs for its summer break.

Once Biden transmits a nominee, however, the Senate process could move quickly. Associate Justice Amy Coney Barrett, the third of Trump’s three Supreme Court picks, was confirmed on an accelerated timeline that took just 27 days, so Republicans could fill the seat ahead of the 2020 presidential election.

A lot of the legislative agenda for congressional Democrats has been stalled since before lawmakers departed last year for Christmas. Senate Democrats’ most notable floor action so far this year was an ill-fated effort in January to change the chamber’s rules to advance voting rights legislation with only Democratic votes.

And there has been no sign of negotiation between the administration and Manchin on the pieces of the Biden economic agenda that have been priorities for inclusion in a budget reconciliation measure.

“Well, the Build Back Better as it has been presented over, what, the last seven, eight, nine months, that bill no longer will exist, OK?” Manchin said in a Feb. 6 CNN interview, referring to the Biden administration’s term for the reconciliation package.

Biden made another push for his agenda during remarks on Tuesday to the National Association of Counties, highlighting a push to lower prescription drug prices among other priorities. He also spoke to ongoing concerns about inflation, saying: “I’m going to work like the devil to bring gas prices down. We’re going to keep working to strengthen the supply chain and bring the cost of every good down, particularly food and automobiles.”

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