ON THE SENATE FLOOR: Before the new fiscal year begins October 1, the Senate is expected to give final approval to a continuing resolution to provide government funding through December 11. The continuing resolution (CR) cleared the House September 22 on a bipartisan 359-57 vote after Speaker Nancy Pelosi and Treasury Secretary Steven Mnuchin agreed to include $21 billion for the Commodity Credit Corporation and $8 billion for various nutrition programs to help families and children, including young students who are not getting their usual free or reduced-price meals at school. The CR also provides one-year extensions, through September 30, 2021, for surface transportation programs and the flood insurance program. The Senate will vote at 5:30 p.m. today on the cloture motion to limit debate and plans to vote Wednesday on final passage.
IN THE HOUSE: Members will vote this week on dozens of non-controversial bills under suspension as they wait for a possible vote Wednesday on a revised Covid-relief package. Chairmen of the committees with jurisdiction for the legislation have spent the last several days reworking the $3.4-trillion Heroes Act that the House passed in May so that the total cost is no more than $2.4 trillion. Under the schedule envisioned by House leadership, the modified bill will be unveiled today and voted on by the full House on Wednesday. Pelosi has left open the door to the House voting on a negotiated passage if she and the Administration are able to forge a deal in the next day or two. This latest package is expected to include the major provisions from the Heroes Act, with shorter durations to bring down the overall cost, as well as additional provisions, such as aid for airlines and restaurants.
SUPREME COURT: The Senate Judiciary Committee is looking to quickly begin consideration of the nomination of Amy Coney Barrett to the Supreme Court. While the schedule has not been officially announced, Hill aides indicate that the committee will meet on Monday, October 12, for opening statements followed by two days of questioning on October 13 and 14. Outside witnesses will testify October 15, and the committee plans to vote (and approve) the nomination on October 22, clearing the way for a floor vote in the Senate the week of October 26. The Supreme Court is scheduled to hear challenges to the Affordable Care Act to determine whether the ACA is constitutional on November 10.
COMMITTEE ACTION OF NOTE:
- Tuesday, September 29
- House Financial Services Committee Task Force on Financial Technology Hearing: License to Bank: Examining the Legal Framework Governing Who Can Lend and Process Payments in the Fintech Age.
- Wednesday, September 30
- House Transportation and Infrastructure Committee markup on legislation relating to aircraft certification reform.
- House Oversight and Reform Committee Hearing on drug prices. Testimony from the CEOs (Part I).
- House Energy and Commerce Subcommittee on Oversight and Investigations Hearing: Pathway to a Vaccine: Ensuring a Safe and Effective Vaccine People Will Trust.
- Thursday, October 1
- House Oversight and Reform Hearing on drug prices. Testimony from the CEOs (Part II).
- House Energy and Commerce Subcommittee on Energy Hearing: Generating Equity: Improving Clean Energy Access and Affordability.
- House Select Committee on the Climate Crisis Meeting: Creating a Climate Resilient America: Strengthening the U.S. Financial System and Expanding Economic Opportunity.
- Friday, October 2
- House Select Subcommittee on the Coronavirus Crisis Hearing with Secretary of Health and Human Services Alex Azar.
POLITICS:
Debates: The first Presidential debate will be held tonight at 9 p.m. EDT in Cleveland. Fox News’ Chris Wallace will moderate and the debate will focus on six pre-announced topics: the Trump and Biden records, the Supreme Court, Covid-19, the economy, race and violence in our cities, and the integrity of the election. There are 8 days until the Vice Presidential debate on October 7 at the University of Utah in Salt Lake City.
Polls: According to the latest Real Clear Politics average, Joe Biden is at 49.8% with a 6.9-point advantage over President Trump; a New York Times poll shows Biden with an 8-point lead. Looking at state polls, Biden is ahead in North Carolina, Wisconsin, Michigan and Minnesota, while Trump holds a 1-point lead in Georgia. Those polls also show incumbent Senators Gary Peters (D-MI) and David Perdue (R-GA) leading their challengers by 5 points. In the Carolinas, Senator Thom Tillis (R-NC) is 10 points behind Democrat Cal Cunningham while Senator Lindsey Graham (R-SC) is up by only one point over Democrat Jaime Harrison. New polls out of Pennsylvania this morning show Biden with a 8-10 point lead.
Early Voting: Nearly one million voters have already cast their vote by mail and in person according to the U.S. Elections Project. Virginia, North Carolina, and Wisconsin have all had over 200,000 returned ballots so far. In Wisconsin this accounts for about 7% of 2016 turnout numbers.
Late Voting: In an unusual turn of events, one House race – the 2nd District in Minnesota – won’t be decided until February, and as we've mentioned in the past, it’s possible that the two Senate races in Georgia could await the outcome of runoffs in January. Minnesota law provides that if a candidate dies shortly before the election, a special election will be held in February, in this case, February 9. The death of a third-party candidate last week means that Democratic Rep. Angie Craig will have to vacate her seat in January and then run in the special election. Craig’s campaign, however, is still reviewing legal options and is encouraging voters to vote in November as if the results will be valid.
In Georgia, state law requires a candidate to garner a majority of the vote in order to win outright. With 21 candidates competing in the special election for the seat now held by Senator Kelly Loeffler (R-GA), no one is expected to win a majority. The question is whether a runoff will pit two Republicans – Loeffler and Rep. Doug Collins – against each other, or whether a Democratic candidate will edge out one of the Republicans. In Georgia’s other Senate race, incumbent Republican David Perdue is facing Democratic candidate Jon Ossoff. However, there is also a third candidate in the race, and recent polling shows neither Perdue nor Ossoff with more than 50% of the vote. If a runoff is needed in either or both Georgia races, it will be January 5.
Make sure you check out the Legal Catalysts piece below by my colleague Paul Glenchur - a member of the Supreme Court bar.
Supreme Court Appointment and Election Litigation Risk
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President Trump hopes the Senate will confirm his Supreme Court nominee, Judge Amy Coney Barrett, before the November 3 election. It appears the Senate Republicans have the votes to accomplish this, adding a conservative Justice to the Court on the eve of potential election vote-counting disputes. There is a reasonably significant risk that mail-in ballot disputes will escalate and could prove critical in battleground, determinative states. Last night, the Seventh Circuit Court of Appeals, the court on which Judge Barrett now serves, stayed a lower court order that authorized mail-in vote counting in Wisconsin up to six days after the November 3 election date. The Seventh Circuit order came from the court generally and there is no indication that Judge Barrett was involved in the decision. The order puts the vote-counting extension on ice until full arguments and disposition on an expedited basis. The same mail-in ballot fight is taking place in several states. The Pennsylvania Supreme Court last week issued an order allowing the counting of mail-in ballots three days beyond the election date but also ruled ballots received without insertion in a separate "secrecy" envelope, even with sufficient declarations and signatures on the external envelope, will be discarded as illegal. Similarly, a Michigan state court, citing the pandemic as an extraordinary condition, allowed the counting of mail-in ballots up to two weeks after the election date and lifted statutory restrictions on the categories of people who can assist a voter in casting an absentee ballot. Usually, under Michigan statutes, only family members or housemates can offer such assistance. If Judge Barrett is confirmed to the Supreme Court before the November election, the Court will gain a constitutional textualist disinclined to sustain statutes or legal orders that wander from commonsensical definitions. For purposes of the upcoming election, mail-in ballots raise a big issue that could trigger a massive challenge and it's possible the Seventh Circuit case establishes near term precedent that could modify mail-in ballot procedures before the November election. Article II of the U.S. Constitution requires that each state legislature establish rules for the appointment of electors that will cast electoral college votes on behalf of the state. In the above example, courts, not legislatures, are expanding the due dates for mail-in votes. In Bush v. Gore, the 5-4 Supreme Court case that rejected the Florida Supreme Court's recount order, three Justices penned a concurring opinion that rejected judicial decrees in that case as usurping the legislature's exclusive responsibility to appoint electors. One of those Justices was Antonin Scalia, Judge Barrett's mentor for whom she clerked a couple of terms before Bush v. Gore was decided. Based on the same Supreme Court precedent, the rush to create absentee and mail-in ballot protections could also lead to equal protection challenges if the process for receiving, reviewing, counting and rejecting such ballots is not uniform throughout a particular state. The statutory "safe harbor" deadline for electoral vote certification is December 8, suggesting all controversies and disputes need resolution by that date to assure congressional acceptance of the certification. The electors in all states meet December 14 and cast their electoral votes. The new congress, which is sworn in on January 3, meets on January 6 to count the ballots. With Maine and Nebraska as the exceptions, all other states allocate all electors to the winner of the state's popular vote regardless of margin. The seeds of the legal battle have been planted and could grow into a disruptive legal fight over ballot harvesting. Because there is an assumption that mail-in ballots favor Democrats over Republicans, a close election could hinge on the legitimacy of rules authorizing receipt and counting of such ballots in selected battleground states. Fights over state court orders (federal in the Wisconsin case) extending deadlines for the receipt of mail-in ballots invite a challenge in any state with a statutory provision explicitly setting the deadline as election day, as is the case in the states mentioned above, i.e, Wisconsin, Michigan and Pennsylvania, all potentially critical states to determine the election outcome. Worth noting here is the 20th Amendment of the Constitution. This would all be novel, but if the winner of the Presidential election remains unclear by January 20, Speaker Pelosi would likely resign from her congressional seat and become acting President. Congress would then have the authority to pass a law establishing the acting President or the process by which an acting President would be selected. Of course, if ballots in various jurisdictions remain in legal limbo, the final makeup of the new congress may be unclear, raising doubts about its legal authority to pass laws for this purpose. Hopefully, things never get to that point. |
