New Session of Congress Begins Amidst Lack of Certainty

The Second Session of the One Hundred Sixteenth Congress began at noon today, but the agenda for the House and Senate, at least in the short term, is not clear.

Instead of opening the session with a rollout of surface transportation reauthorization legislation, the House Transportation and Infrastructure Committee is starting with a hearing on a water resources development bill next Thursday. No other transportation-related hearings are scheduled so far for next week, but if some get scheduled later today, we will post them here.

Traditionally, not much gets done in Congress each year prior to the State of the Union address, and President Trump has been invited to give his SOTU on the evening of Tuesday, February 4. This interferes with the schedule for releasing the fiscal 2021 federal budget request – while the Budget Act calls for the budget to be submitted on the first Monday in February of each year (i.e. February 3), one of the modern uses of the SOTU is to preview some of the substantive proposals that will be released in the budget, so it looks like the White House is aiming to release the 2021 Budget the following Monday – February 10.

Both the House and Senate have published their tentative floor calendars for 2020 (House here, Senate here), but there is a lot of short-term uncertainty on the north side of the Capitol, since no one really knows what the Senate will be doing for the next month. They may be sitting silently for 6 hours a day, six days a week, for two or three weeks listening to an impeachment trial, or they may not be.

The House voted on December 18 in favor of two articles of impeachment against the President. But by rule (and by hundreds of years of precedent), the Senate can take no official notice of any House action (or vice versa) unless one chamber formally transmits a message in writing to the other, and the Speaker has not yet sent the articles over to the Senate. First, the House also has to pass a resolution naming certain House members to be impeachment managers (prosecutors), who would then carry the impeachment articles to the Senate and present them.

House Speaker Nancy Pelosi (D-CA) has indicated that the House may not name impeachment managers until the Senate sets ground rules for the trial first, but Senate Majority Leader Mitch McConnell (R-KY) is adamant that the Senate won’t commit to anything unless the House actually finishes the process and sends over the impeachment articles first.

McConnell and his Democratic counterpart, Charles Schumer (D-NY), both spoke in the noon hour today on the Senate floor about the issue, and are still talking past each other. Both men claim to support the process by which the Senate tried Bill Clinton 21 years ago – but there is a difference in emphasis.

Background: The House voted to impeach President Clinton on December 19, 1998, and immediately named managers and sent the articles to the Senate – but the Senate had already adjourned sine die for the year. Accordingly, the articles were received in the Senate on the first day of the new Congress (January 6, 1999), and then the House managers showed up in the Senate first thing the next morning and presented the articles, whereupon the Senate summoned the Chief Justice and promptly started the trial.

The following day (January 8), the Senate adopted, by a vote of 100-0, S. Res. 16., a resolution setting the schedule for the first part of the trial – giving the President until the 11th to file his answer, the House managers until the 13th to file their reply, and allowing any motions – “except for motions to subpoena witnesses or to present any evidence not in the record.” Then S. Res. 16 called for votes on motions, then for the House and Senate to each make presentations of up to 24 hours each, followed by up to 16 hours of questioning in writing by Senators (submitted in writing, through the Chief Justice).

At that point, S. Res. 16 made it in order “to consider and debate a motion to dismiss.” If that motion were not made, or if it failed, motions to call witnesses or subpoena documents not in the record would then be in order.

After two weeks of trial arguments, Senator Robert Byrd (D-WV) made the motion to dismiss the charges, which failed by a vote of 44 to 56, after which the Senate spent a day debating which witnesses to call, and the Senate finally agreed, on January 28, to S. Res. 30, subpoenaing witnesses to be deposed, by a 54-44 vote. (At the end of the trial, on February 12, Clinton was found not guilty.)

So, how are McConnell and Schumer talking past each other, exactly?

  • McConnell is now promising to handle the procedure exactly as the Senate did 21 years ago – wait for the managers to be appointed, then pass a resolution with text exactly or nearly exactly identical to S. Res. 16 (but with the names and dates changed), and start the trial. Then, the Senate could decide whether or to dismiss the charges or whether to continue with witnesses and/or documents. Decisions on witnesses and documents would be postponed to mid-trial, as it was in the Clinton trial.
  • Schumer is demanding the outcome of the Senate’s procedural debates of 21 years ago (witnesses and documents outside the record subpoenaed), but demanding those subpoenas go out before the trial begins, instead of determining the issue mid-trial, as was done in 1999.

In any event, after his speech today, McConnell called up the nomination of the Small Business Administrator and filed cloture, which will come up for a vote on Monday afternoon, and if the impeachment articles aren’t transmitted on Monday, he will probably start calling up other nominations on the Executive Calendar.

(Ed. Note: For all those people out there who wish that the Senate functioned more like the House – simple majority rule, limited debate time, and all that – an impeachment trial is your opportunity to see how it would work. Under the Senate’s rules for impeachment trials, all motions related to procedure, witnesses, etc. are only debatable for one hour and are decided by a simple majority vote – no filibusters, and no 60-vote or 67-vote margins needed. This empowers the few moderates remaining in the chamber, who might defect to one side or the other an a 53-47 Senate.)

Looking farther ahead in 2020, those House and Senate calendars remind us that this is, indeed, an election year. The House is scheduled to hang it up on July 31, with the Senate leaving a week later, on August 7, and they won’t return until the second week of September for the truncated pre-election sessions, which rarely include much productivity. Anything serious that is not settled by the end of July will either have to be considered in the post-election lame duck session (set to begin on November 16, on the House schedule), or else get kicked into the following Congress.

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