The Senate approved the nominations of Janet Yellen to serve as Secretary of the Treasury, Anthony Blinken to serve as Secretary of State and Lloyd Austin to serve as Secretary of Defense. The upper chamber also rejected a measure that questioned the constitutionality of the impending impeachment trial of former President Donald Trump (see below). The House was out of session.
The Senate will continue to consider the nominations of Biden cabinet officials, including Pete Buttigieg to serve as Secretary of Transportation and possibly Linda Thomas-Greenfield to serve as US Ambassador to the United Nations. Both the Senate and House will begin work on a federal budget for this fiscal year, which may be needed to pass another COVID-19 stimulus bill (see below).
Biden Cabinet Appointments.
The Senate’s highest priority at this time is to approve as many of President Biden’s cabinet nominations as possible. In the last week, the Senate has approved on a broad bipartisan basis the nominees to head key agencies like the Treasury, Defense and State Departments. The administration has roughly 4,000 “political” positions to fill among the various agencies and departments, and over 1,250 of those require Senate confirmation. The President has only named 51 individuals for Senate-confirmed positions thus far, so he has a long way to go. Typically, presidents do not fill most of these positions. President Trump filled 524 over his tenure in office, while President Obama filled 810 in his first term. The Senate will focus on approving Biden administration nominees all of this year, beginning with some of the highest priority cabinet secretary nominations that it cleared this week.
The Next COVID-19 Stimulus Bill.
President Biden has proposed a $1.9 trillion stimulus bill that supplements many existing COVID-19 recovery programs and creates new ones. It also includes some longstanding Democratic policy priorities that may or may not be directly related to the pandemic, including a doubling of the minimum wage. To advance on a standalone basis, the bill would need at least ten Republicans to clear a 60 vote procedural threshold in the Senate. However, the $1.9 trillion price tag is too high for the vast majority of Republicans who favor a more targeted approach. This leaves Senate Democrats with two plausible choices in moving forward. One is to negotiate on the bill and lower its scope and size (to a final price tag of under $1 trillion) to attract Republican support. If lawmakers feel sufficient urgency for a stimulus package, this could possibly be done in the next few weeks. If this option is taken, it’s likely that Democrats would try and pass what was not included in separate legislation down the road. The second option is to push ahead for the full $1.9 trillion (or a similar amount) in a budget reconciliation bill that could pass the Senate with only 50 votes. This would require all 50 Senate Democrats to support the measure (assuming no Republicans support it). This path would be more complicated and take more time, likely a month or longer. Given the preferences of some moderate Democrats whose votes will be necessary and procedural restrictions associated with the budget reconciliation process, the bill is likely to be somewhat smaller in size and scope than the $1.9 trillion Biden proposal. This is a decision that President Biden and Senate Democrats will make over the next two weeks, although they plan on laying the groundwork for potentially using the second option by passing a budget next week.
Encore for the Moderates on COVID-19?
You may recall that the $900 billion stimulus that passed at the end of last year was floundering until it got a boost in negotiations from a bipartisan group of lawmakers known as the Problem Solvers Caucus. Their efforts to find middle ground on the last stimulus bill underscored their new power in Congress – power that may be made more impactful in a closely divided House and Senate this year. So, will this group of moderates step in again and forge a compromise with the next stimulus bill? They will certainly try. This caucus of moderates has increased its membership by 16 and can be expected to play a role in most significant legislation this year. While the group’s power has increased, they won’t always (or usually) get support from their party leadership. Our sense is that despite the moderates’ efforts to craft the next stimulus bill, most Democrats want to act on a larger package (in line with the Biden plan of $1.9 trillion), and a bipartisan compromise in this instance is less realistic.
Senate lawmakers – both Democratic and Republican – often have cited the Constitution in their explanation of how they are likely to vote on whether to convict former President Trump on the article of impeachment approved by the House earlier this month. Yet, the Constitution is not very clear on how to proceed with a second impeachment of a president, let alone a president who is no longer in office. It’s not hard to forgive the founders for not envisioning this type of predicament. The Constitution cites impeachment rules for the “President,” but Trump is no longer in that office. However, he was in the office when the House impeached him a second time. Is the Senate now obligated to hold a trial and vote on his conviction? This is the emerging focus in the Senate as it prepares for a trial that will begin on February 8. While it’s not clear how long the trial will last (the first impeachment lasted four weeks), the trial will be all-consuming for the Senate during this period. Any conviction will require 67 votes, which seems all but impossible based on our reading of where the votes will fall. In the unlikely event the former president is convicted, a vote will follow to prevent him from holding any federal office in the future. The outcome from the trial seems predictable, and most members of the Senate are very eager to get beyond it.
An Impeachment Alternative.
A possible but longshot alternative is to forgo the trial and instead censure the former president. A censure in this case would serve as a public reprimand of the former President’s conduct. Andrew Jackson has been the only US president ever censured by Congress (in 1834), but this action was later rescinded. A bipartisan group of Senators have had behind-the-scenes discussions on censure, but it has not gained any traction with Senate leaders. Advocates believe censure would be a more bipartisan approach that could lower the political temperature on Capitol Hill. We do not envision this option being used at this point. However, it could emerge as a potential alternative if Senate Majority Leader Chuck Schumer (D-NY) concluded that the time spent on the impeachment trial would be better used approving the nominations of Biden cabinet officials and advancing the next stimulus bill. Conversations about censure will continue until the impeachment trial begins.
As has become customary with new administrations, the Biden administration issued a regulatory freeze last week. The freeze will give the new administration’s appointees time to review and potentially revise or rescind regulatory proposals and rules issued at the end of the Trump administration. Notably, it likely will stop the progress of late-stage Trump administration regulatory initiatives concerning labor (including a rule making it easier for companies to classify gig workers as independent contractors), environmental standards and immigration, among other areas. In the financial space, the Office of the Comptroller of the Currency (OCC), which regulates national banks, postponed a regulation that would block banks from denying credit to companies based on their industry. This controversial rule was rushed through after the election and is likely to be withdrawn. Democrats in Congress also can use the Congressional Review Act (CRA) to overturn late-stage Trump administration regulations, but a crowded agenda and the limitations that CRA places on regulators’ ability to issue new requirements likely will limit the use of this tool. Instead, clearing the deck of late-stage Trump regulatory activities will be a top priority for many Biden appointees.
Supreme Court Watch.
Over the past four years, the Senate has approved 234 judicial nominations, including President Trump’s three selections for the Supreme Court. We have often remarked that securing judges for lifetime appointments to the federal courts will be one of Trump’s most enduring legacies and that remains the case. Given the nearly 50 vacancies that currently exist on federal courts, President Biden will have his chance to affect the makeup of the federal judiciary in time. Moreover, we expect there to be serious efforts by advocacy groups to convince Supreme Court Justice Stephen Breyer to retire so that President Biden can fill that spot with a younger judge, especially either this year or next when Democrats will control the Senate. Justice Breyer was appointed by President Clinton and is now 82 years old, making him the oldest member of the Supreme Court by ten years. A replacement for Justice Breyer would still leave the makeup of the court the same –- 6-3 in favor of judges appointed by Republican presidents, but a younger replacement would ensure his seat remains one appointed by a Democratic president. We don’t know what Justice Breyer’s plans are, but we do know that efforts to convince him to retire will not subside.
Increased Diversity in Government.
In announcing the most diverse cabinet in US history, President Biden seems to have delivered on a key campaign promise. On the other side of Pennsylvania Avenue, the newly sworn-in 117th Congress also can boast of increased diversity. The 117th Congress is 27% female and composed of 28% of racial and ethnic minorities, both increases from the record-breaking numbers of the previous Congress. While these figures don’t match up exactly with the breakdown of the overall US population, they are more reflective of the population than Congress was even a decade ago when it was 17% female and 16% racial or ethnic minorities. These trends are likely to continue as the US population continues to change.