The Almost-Do-Nothing Congress
Good morning! It’s Wednesday, April 12, 2023. The 2024 elections are 573 days away. Click here to read this email in your browser.
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The Almost-Do-Nothing Congress
If you were on Twitter yesterday, in between posts about Elon Musk and the plot twist in “Succession,” you may have seen one of several messages that went viral taking aim at the country’s oldest senator, California’s Dianne Feinstein.
Here’s a representative example, which has more than 30,000 likes and counting:
Is this true? No, not exactly.
What the tweet gets right: Feinstein, 89, has indeed missed the last 58 Senate votes, due to a shingles diagnosis in February. That statistic was first reported by the San Francisco Chronicle on Tuesday, sparking a firestorm of criticism across liberal media, including calls for Feinstein to resign from The New Republic and Obama speechwriter-turned-influential podcaster Jon Lovett. (Feinstein is set to retire from the Senate when her term ends in January 2025 but has said she will not resign before that, although she has also expressed confusion abut her own retirement announcement.)
What the tweet gets wrong: That does not mean the Senate cannot confirm any of President Biden’s judicial nominees. In fact, the Senate has voted on 13 federal judges during Feinstein’s absence, and all were confirmed without her help.
Democrats, after all, now control a 51-seat majority (including the three Independents, who reliably vote for Biden judges), giving them a cushion on most votes; in addition, many of Biden’s nominees have been confirmed with bipartisan support. Sen. Lindsey Graham (R-SC), for example, votes for almost every Biden judicial nominee.
As the tweet notes, Feinstein does sit on the all-important Senate Judiciary Committee — but so does Graham, meaning at least some nominees would still be able to receive committee approval without her support. In fact, there are currently 18 Biden judicial nominees waiting for Senate confirmation votes who have already been approved by the Judiciary Committee, meaning Feinstein alone can’t be blamed for their delays.
Which brings us to the broader truth: this is a problem that’s bigger than just Feinstein. The entire Senate (with its median age of 65) has been plagued with health-related absences this year, going beyond the octogenarian from California. Sen. John Fetterman (D-PA), 53, missed 66 votes during his six-week hospitalization for clinical depression; he was discharged at the end of last month and will return to the Senate when the chamber reconvenes from recess next week.
Senate Minority Leader Mitch McConnell (R-KY), 81, has missed 33 votes since being hospitalized for a concussion earlier this year. He was released from rehab in March; like Feinstein, he has not named a return date to the Senate.
There’s also Sen. Dick Durbin (D-IL), 78, who missed 10 votes while quarantining for Covid (and, as chair of the panel, had to postpone several Judiciary Committee nominee votes). And Sen. Bob Casey (D-PA), 62, who missed 14 votes this year while undergoing surgery for prostate cancer.
With any of these absences alone, the Senate could function fine. With all of them added up, it begins to force delays, requiring a careful calculus in the closely divided chamber of what can go through and what cannot. Per Politico, the last time all 100 members of the Senate were in attendance for a vote was August 7 of last year, more than eight months ago.
In the first four months of 2023, the Senate has held a roll call vote on just one bill, rolling back the formal authorizations for the Gulf and Iraq Wars. (The chamber, which took several weeks to be organized in the first place, has also voted on four joint resolutions passed by the House.)
Zooming out even further, it’s not only the Senate that has been notably unproductive this year. So has the House, although the reason there is more because of majority party divisions than majority party absences.
House Republicans have passed only six of the 11 bills they promised to vote on in their first two weeks in the majority; the others are security, law enforcement, and abortion bills that had to be pulled from the floor due to intraparty disagreements.
By comparison, at this point in 1995, the new House Republican majority led by then-Speaker Newt Gingrich had managed to approve all 10 planks of its “Contract with America.”
A spokesperson for House Majority Leader Steve Scalise (R-LA) recently told Politico that House Republicans have “passed more bills, had more bills reach the president’s desk, and will have an equal number signed into law compared to last Congress.” But that is not true. The House lags behind last Congress on all three metrics:
It may not surprise you to learn that Congress hasn’t been as productive in this period of divided government, but that actually hasn’t been the norm historically.
In a 1991 paper, political scientist David Mayhew found that, on average, Congress passes about as many major pieces of legislation during periods of divided control as it does during periods of unified control.
More recently, Frances Lee and James Curry found in a 2019 paper that “divided government appears to have little relevance for how partisan or bipartisan lawmaking is in Congress.” In some cases, political scientists have suggested that divided government actually encourages bipartisanship, forcing the parties to reach across the aisle and work together to get things done.
So far this year, a handful of bipartisan joint resolutions have passed — including one ending the Covid national emergency that Biden signed into law this week — but those findings have largely not held up.
Partly due to an uncommon number of absences in the Senate and an uncommon level of intraparty divisions in the House, this Congress has been off to a downright sluggish start.
Biden: Earlier today, in Northern Ireland, the president met with UK Prime Minister Rishi Sunak and delivered a speech marking the 25th anniversary of the Good Friday Agreement. Biden is now en route to Ireland, where he will visit County Louth, his ancestral homeland. He will visit a cemetery where he has family members buried, tour Carlingford Castle, and participate in a community gathering.
Harris: The VP, meanwhile, is in Washington and focusing on abortion, an issue she has tried to own within the administration. Amid the litigation over medication abortion, she will convene a meeting of the White House Task Force on Reproductive Health Care Access.
Senate: 50 Senate Democrats — every one except Joe Manchin — signed on to an amicus brief backing the FDA in the legal challenge against its decades-old approval of the abortion pill mifepristone. Independent Sen. Kyrsten Sinema also joined the brief, along with 190 of the 213 House Democrats.
House: Judiciary Committee chairman Jim Jordan (R-OH) is engaged in an all-out legal battle with the Manhattan district attorney, Alvin Bragg, who indicted Donald Trump. Bragg sued Jordan on Tuesday to block him from issuing a subpoena to an ex-prosecutor who worked on the Trump case in Bragg’s office.
Supreme Court: As the justices wait for the mifepristone case to make its way to them, legal experts tell the New York Times that even conservative justices may be hesitant to uphold a lower court judge’s reversal of the FDA authorization, based on similar cases in the past and uncertainty over the plaintiffs’ standing.
Pentagon: The Defense Department has “significantly” culled its list of who receives access to classified information, in response to the recent massive documents leak. The FBI is conducting a criminal investigation into the disclosure, the source of which remains unknown.
Main Justice: Trump senior adviser Stephen Miller testified Tuesday before the Washington grand jury investigating Trump’s actions on and around January 6th. He is the latest in a parade of top witnesses called to testify by Special Counsel Jack Smith.
Campaign trail: Sen. Tim Scott (R-SC) launched an exploratory committee this morning to consider a 2024 presidential bid. “America is the land of opportunity, not a land of oppression,” Scott, the sole Black Republican U.S. senator, said in a launch video. “I know it because I’ve lived it.” He currently polls at less than 1%, according to the RealClearPolitics average.
Chicago: Democrats announced that their 2024 nominating convention will be hosted in the Windy City. The decision is a sign of the emphasis both parties are placing on the Midwest: Republicans are set to gather in nearby Milwaukee. The DNC’s choice was also a victory for Gov. J.B. Pritzker (D-IL), who is widely seen as positioning himself for a presidential campaign in the post-Biden era.
Arizona: Pimal County sheriff Mark Lamb became the first major Republican to join the Arizona Senate race, which will likely be a three-way contest. A Trump ally, Lamb had previously embraced the former president’s 2020 election fraud claims before distancing himself from them more recently. Independent Sen. Kyrsten Sinema is reportedly gearing up for a run; Democratic Rep. Ruben Gallego is already running while Republican Kari Lake is mulling a bid as well.
At the border: As many as 1,000 U.S.-born children were separated from their migrant parents by the Trump administration’s “zero tolerance” policy in 2018, in addition to around 5,500 foreign-born children. “Some have yet to be reunited with their parents” almost five years later, the New York Times reported.
Wisconsin: In yesterday’s newsletter, I noted a positive sign for Democrats: the issues at the center of politics right now (abortion, gun control, Trump) are ones that galvanize young voters, their must-win constituency. Some evidence of that, via the Washington Post: in last week’s abortion-focused Wisconsin Supreme Court race, turnout in college campus precincts exploded — and significantly favored the Democratic choice, who won.
Here’s something interesting: Pang Pha, an elephant at the Berlin Zoo, has learned to peel bananas with her trunk.
That may not sound impressive, but there is scant evidence of other elephants who have been able to do the same.
Researchers believe Pang Pha picked up the skill by observing a specific zookeeper who helped raise her. (He always peeled each banana for her, while most elephant keepers typically give their charges fully peeled bananas.)
Pang Pha is picky, though: she will only peel bananas at a certain, yellow-brown level of ripeness. That’s probably because those bananas are easier to handle, according to researchers — but there’s also another possibility: “The other thing that we thought of is that the brown peel might taste disgusting,” one scientist who studied Pang Pha said.
Read more from the New York Times.
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