Congress has a busy few months coming up

After a quiet first half of the year, legislators face a series of urgent deadlines for the rest of 2023.

Jul 10, 2023

Good morning! It’s Monday, July 10, 2023. The 2024 elections are 484 days away. If this newsletter was forwarded to you, subscribe here. If you want to contribute to support my work, donate here.

Both chambers of Congress are back from recess this week. I’ve been writing a lot about function and dysfunction in our legislative branch lately, pointing out in June that the debt ceiling deal shows lawmakers can still work together on big issues — but also adding last week that they don’t do so enough.

Congress’ ability to get stuff done will be put to the test in a major way in the months ahead, as a trio of urgent deadlines bear down on Washington. Here’s what’s on the agenda:

Funding the government (deadline: September 30)

The biggest item on Congress’ to-do list is passing a government funding bill; if lawmakers don’t manage to pass at least a short-term fix by the end of September, the government will shut down.

In theory, the appropriations process was supposed to be easier this year because the two parties already agreed to Fiscal Year 2024 spending caps as part of last month’s debt limit deal. However, after the deal sparked a revolt from the right-wing Freedom Caucus, House Speaker Kevin McCarthy agreed to their demands to move forward appropriations bills with spending underneath the caps set by him and President Biden.

Although Republican say this technically doesn’t violate the debt deal — the compromise represented “a ceiling, not a floor,” GOP lawmakers have said — Democrats have accused Republicans of reneging on the spirit of the agreement, as it is commonly understood on Capitol Hill that spending caps equal spending levels. This dispute threatens to derail the spending process.

Although government funding will technically run out in October, the real deadline isn’t until January 1. According to the debt ceiling deal, Congress can pass a stopgap funding bill until then, but after January 1, if lawmakers still haven’t approved a full budget, all government services will receive a 1% cut. Such across-the-board cuts would cover domestic and military spending alike — an outcome no one wants, meaning the two sides are incentivized to reach a deal by the new year.

Setting defense policy (deadline: December 31)

The other major bill Congress must pass annually is the National Defense Authorization Act (NDAA), which sets U.S. defense policy for the next year and specifics how the Defense Department should spend its budget.

So far, the NDAA process has been smooth sailing. The Senate Armed Services Committee voted 24-1 to approve an $844 billion version of the package, while the House Armed Services Committee voted 58-1 in favor of an $842 billion proposal — a fairly conciliatory place to start from. The full House is set to vote on its NDAA bill this week.

However, that’s when things could start to get messy: House members have filed more than 1,000 amendments to the NDAA. Not all of those proposals will receive a vote, but if McCarthy bows to Freedom Caucus pressure and allows a string of conservative policy ideas to be considered, the package might be stuffed with so many “poison pills” that it becomes too toxic for Democrats. Per Politico, hot-button amendments includes proposals to “restrict diversity and inclusion programs, limit punishment for troops who refused to take the Covid-19 vaccine, and roll back aid for Ukraine.”

The DOD’s policy of reimbursing troops who travel to seek abortions — which has caused Sen. Tommy Tuberville (R-AL) to hold up all Pentagon nominations for months — is also expected to become an NDAA flashpoint.

Reauthorizing Section 702 (deadline: December 31)

Section 702, a post-9/11 addition to the Foreign Intelligence Surveillance Act (FISA), is a controversial provision that “allows the government to collect — on domestic soil and without a warrant — the communications of targeted foreigners abroad, including when those people are interacting with Americans,” in the words of the New York Times.

Under Section 702, the government can order tech companies to hand over the communications of a certain foreign national, and the companies must comply.

The provision has previously been renewed on a bipartisan basis, but with skepticism of the intelligence agencies at an all-time high, this year’s reauthorization is expected to be trickier. Republicans have historically championed the measure since its Bush-era creation, but Trump-inspired fears of the “deep state” have led the GOP to sing a different tune; Democrats are also calling for expanded civil liberties protections to be included in any FISA renewal.

In an effort to persuade lawmakers to re-up Section 702, the FBI announced new reforms last month, including a “three strike” policy that will ensure analysts are disciplined if they misuse the surveillance program three times. It is unlikely that these changes will be enough to assuage the program’s critics.

What else to watch

Those are just the most pressing deadlines. Here are lawmakers’ other priorities in the months ahead:

In the Senate: In a letter to colleagues on Sunday, Senate Majority Leader Chuck Schumer sketched out an ambitious to-do list for the upcoming work period. Schumer is hoping to advance bipartisan bills on AI policy, rail safety, banking reform, and other issues.
In the House: House Republicans have been riven by internal splits lately — between the Freedom Caucus and leadership, and within the Freedom Caucus itself. The major question coming up is whether McCarthy’s right flank will persuade him to initiate an impeachment push — or, perhaps more accurately, who they will persuade him to try ousting: Homeland Security Secretary Alejandro Mayorkas, Attorney General Merrick Garland, or Biden himself?
In both chambers: Lawmakers will face pressure to extend two more programs set to expire on September 30: the farm bill and authorization of the Federal Aviation Administration. Both measures must be passed every five years and come with their own wrinkles: specifically, fights over food stamps and a disagreement over how many long-distance flights should be allowed at Washington’s Reagan airport.

So far, the 118th Congress has not been the most productive. With control of Congress divided between the parties, lawmakers have managed to enact a grand total of seven laws since January.

But, if all goes according to plan, the second half of the year promises to be much busier than the first.

Here’s what else I’m keeping an eye on:

Failure to launch.

That was the headline of my report on Ron DeSantis’ presidential announcement back in May. Six or so weeks later, his campaign has yet to get off the ground.

I linked to an NYT piece to that effect in Friday’s newsletter on the static 2024 campaign. Several other outlets picked up the baton over the weekend. Alex Leary and John McCormick made a sharp point in the Wall Street Journal on one reason DeSantis has had trouble gaining steam:

He is trying to sell himself to Republican Trump foes, many of whom are moderate. At the same time, he is appealing to Trump fans by portraying himself as more conservative on key issues. “There is this real conflicted nature to the DeSantis messaging,” said Craig Robinson, a former political director of the Republican Party of Iowa.

Instead of picking an ideological lane against Trump, DeSantis has tried to run in multiple at once — thereby over-extending himself and failing to make a cogent case to voters about why he’d be a better nominee than the former president.

I also thought this graph tweeted by GOP lobbyist Liam Donovan was revealing. DeSantis polled best against Trump right after his landslide re-election win in November — but then he waited six months to launch his candidacy, only for his momentum against Trump to wane in the process:

Mark your calendars.

From AP’s Thomas Beaumont:

Iowa Republicans announced Saturday that the party’s presidential nominating caucuses will be held Jan. 15, on the federal holiday honoring Martin Luther King Jr., putting the first votes of the 2024 election a little more than six months away as the GOP tries to reclaim the White House.

In addition to MLK Day, the caucuses will also coincide with the day that magazine writer E. Jean Carroll’s second defamation trial against Trump is set to begin.

An op-ed of note.

Normally sympathetic towards President Biden, New York Times columnist Maureen Dowd had harsh words for the president in Sunday’s paper over his refusal to acknowledge his seventh grandchild, Hunter Biden’s daughter out of wedlock. Dowd writes:

The president’s cold shoulder — and heart — is counter to every message he has sent for decades, and it’s out of sync with the America he wants to continue to lead.

KBJ’s first term.

An unexpected alliance between Justices Ketanji Brown Jackson, a Biden appointee, and Neil Gorsuch, a Trump appointee, emerged on some issues during Jackson’s first term, Politico’s Josh Gerstein reports:

Lawyers say Jackson’s background as an appellate lawyer for a federal defender’s office and Gorsuch’s libertarian instincts sometimes intersect... “[Several of the cases they aligned on] broadly are about individual rights versus the state, and what sort of safeguards are in place when an individual goes up against the state in some sort of administrative procedure,” [the Cato Institute’s Thomas Berry] said.

Jackson spoke more during oral arguments than any other justice this term, which is unusual for a new justice. She also proved unafraid to issue her own opinions. Per NYT’s Adam Liptak:

Chief Justice John G. Roberts Jr. did not write his first solo dissent in an argued case until 16 years into his tenure. Justice Jackson issued three such dissents in her first term.

A few more headlines.

The day ahead.

President Biden is in the United Kingdom, where he met earlier this morning with Prime Minister Rishi Sunak. Later today, he will meet with King Charles III and participate in an event on climate change with him. Tonight, Biden will travel to Lithuania, the site of this year’s NATO summit.
Vice President Harris will ceremonially swear in two officials: Jared Bernstein, as chairman of the Council of Economic Advisors, and Geeta Rao Gupta, as U.S. Ambassador-at-Large for Global Women’s Issues.
The Senate is back from recess. The chamber will vote to advance the nomination of former Rep. Xochitl Torres Small (D-NM) to be Deputy Secretary of Agriculture.
The House will return from recess tomorrow.
The Supreme Court is off until October.

Before I go...

Here’s something fun: Can use of the thumbs-up emoji enter someone into a legally binding contract?

Yes it can, a Canadian judge recently ruled.

The case in question concerned a 2021 deal for 87 metric tons of flax. As part of the deal, grain buyer Kent Mickleborough texted farmer Chris Achter a picture of the contract and wrote, “Please confirm flax contract.” Achter responded “👍 ” but never sent the flax to Mickleborough.

Mickleborough sued, arguing that he had understood Achter’s emoji response as a sign that he agreed to the contract.

Judge T.J. Keene of the Court of King’s Bench in Swift Current, Saskatchewan, agreed, ordering Achter to pay Mickleborough $82,200 in Canadian dollars ($61,000 in U.S. dollars).

“This appears to be the new reality in Canadian society and courts will have to be ready to meet the new challenges that may arise from the use of emoji and the like,” Keene wrote in his opinion.

Read more via USA Today:

Can a thumbs-up emoji seal a contract? A Canadian judge rules 👍

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