Today in Congress.

December 21, 2022

          On a day of many important stories, most should be viewed through the lens of congressional action. Developments in Congress provide insight into the political dynamics of the next two years and should be the focus of our attention. Those stories include (a) progress on the omnibus appropriations bill; (b) inclusion of the Electoral Count Reform Act in the omnibus bill; (c) the threats by House Freedom Caucus members against Senate Republicans who support the omnibus spending bill; and (d) the release of Trump’s tax returns by the House Ways & Means Committee.

Let’s take a look at those stories.

The omnibus appropriations bill advances toward vote this week.

         The Constitution vests Congress with the sole power to appropriate money from the US Treasury to fund the operation of the federal government. Article I, Section 9 provides, in part,

No money shall be drawn from the treasury, but in consequence of appropriations made by law and a regular statement and account of receipts and expenditures of all public money shall be published from time to time.

          At the end of this week, the authority to withdraw money from the Treasury will expire unless Congress passes a new appropriations bill. As of Tuesday evening, reports from Capitol Hill are cautiously optimistic that Congress will pass the appropriations bill on or before Friday, December 23rd. See Politico, Senate trudges toward vote on $1.7T spending bill amid conservative pushback.

          The current form of the bill is here Consolidated Appropriations Act of 2023. Fair warning to those inclined to read the bill in its entirety: It is 4,155 pages long.

          Because of foul weather covering much of the nation, legislators hope to decamp from Washington on Wednesday evening. Some Republicans in the Senate are complaining about the “barbaric pace” of the negotiations—a situation for which they have only themselves to blame. Given the express constitutional duty to appropriate funds and prepare a budget, it is shocking that Congress has left this critical function to the last moment (as is always the case).

          Assuming the Senate passes the appropriations bill on Wednesday morning (a hope expressed by Mitch McConnell), it is possible that the House will vote late Wednesday evening or after midnight on Thursday morning. Let’s hope that happens. Americans deserve a national budget enacted in an orderly and sober fashion. The current process creates a cauldron of political pressure that distorts the appropriations process. Read on!

The appropriations bill includes the Electoral Count Reform Act.

          Because of the “must pass” nature of the appropriations bill, a bipartisan group of Senators has successfully “attached” to the spending bill a separate bill that reforms the antique Electoral Count Act. It is included in the Consolidated Appropriations Act as the Electoral Count Reform and Presidential Transition Improvement Act. See generally, Democracy Docket, Electoral Count Act Reform Included in Omnibus Bill.

          The current provisions of the Electoral Count Reform Act embedded in the omnibus spending bill include the following:

• Selection of electors must occur as provided by the laws of the state enacted prior to election day.

• Electors must be selected on election day.

• The role of the vice president in counting electoral votes is purely ceremonial.

• The threshold for members of Congress to initiate objections to electoral results is raised to one-fifth of each chamber,

• There is one conclusive slate of electors from each state

• Establishes a process for expedited court review of election results.

• Specifies that during the counting of electoral college votes, Congress must treat the electors certified by a state (as modified by any state or federal court relief) as conclusive.

          See the full text of the electoral reform language in the bill here at pages 1934 through 1954.

          If passed, the Electoral Count Reform Act will make the peaceful transition of power more secure. It will also repudiate the so-called “Independent Legislature Theory.” How? Because states must specify the manner of selecting electors prior to election day, and electors may be selected only on election day. Together, those provisions will prohibit a state legislature from setting aside the popular vote on election day and substituting its own slate of electors after the fact.

          It is difficult to overstate the importance of including the Electoral Count Act reform in the omnibus appropriations bill. Let’s hope that it remains embedded in the omnibus bill.

House Republicans threaten Senate Republicans who support the omnibus appropriations bill.

          The GOP “Bomb Throwing Caucus,” er, I mean, the GOP Freedom Caucus in the House, has threatened to “thwart” the legislative priorities of Senate Republicans who support passage of the omnibus appropriations bill. See The Hill, House GOP bloc threatens to ‘thwart’ legislative priorities of GOP senators who vote for omnibus. The letter from the Freedom Caucus states, in part,

We are obliged to inform you that if any omnibus passes in the remaining days of this Congress, we will oppose and whip opposition to any legislative priority of those senators who vote for this bill – including the Republican leader [Mitch McConnell] We will oppose any rule, any consent request, suspension voice vote, or roll call vote of any such Senate bill, and will otherwise do everything in our power to thwart even the smallest legislative and policy efforts of those senators.

          Ouch! In fact, “Double ouch!” Those are strong words from an utterly unhinged group of legislators currently occupying a minority position in the minority party in the House. Of course, spineless Kevin McCarthy added his support for the delusional letter because he would sell his soul to gain support for his speakership bid.

          Senate Republicans branded the letter “an idle threat” that is the product of a contested race for Speaker in the House. Others called the effort “immature chest-thumping.” See The Hill, Senate GOP pans ‘immaturity’ by House Republicans with omnibus threat.

          The infighting between Republicans makes the snippiness of Manchin and Sinema seem like child’s play. But we should not gloat. The recriminations between House and Senate Republicans do not bode well for the next term of Congress. Biden and the Democrats will have difficulty finding a working coalition among the fractured Republican party, a coalition necessary to perform the duties delegated to Congress by the Constitution. Ah, well! Let’s deal with the immediate problem of passing a budget and then worry about GOP fratricide in the new year.

House Ways & Means Committee votes to release Trump tax returns.

          Amid efforts to pass the omnibus appropriations bill, the House Ways & Means Committee voted to release Trump’s tax returns for the last six years. The vote effectively puts Trump in the position of every other presidential candidate for the previous fifty years. See Politico, ‘Only days’ before Trump’s tax returns are released, top Dem says.

          Members of the House Ways & Means Committee reported that Trump’s tax returns filed when he was president were not audited as required by IRS regulations instituted in the wake of Watergate. See Business Insider, The IRS Failed to Audit Trump During His First Two Years in Office.

          The IRS policy that requires a mandatory review of the tax returns of the President and Vice President is here: Mandatory Audit of President and Vice President, Section 4.8.4.2.4 (03-12-2015).

          According to Ways & Means Chair Richard Neal, it appears that the IRS failed to follow its internal policy until Neal sent a letter inquiring about the status of the mandatory review. Even then, according to Neal, the IRS has failed to complete a single audit of Trump’s tax returns.

          Journalists and experts are scouring reports issued by Ways & Means relating to Trump’s returns. It is early in the process and no one has yet to see the original returns. But early comments by journalists and experts suggest that the returns contain suspicious and unsubstantiated deductions and credits in the hundreds of millions of dollars. I suspect that each day will bring fresh indications of tax evasion by Trump. Defending against those allegations may become Trump’s new full-time job!

          Let’s hope that Merrick Garland opened an investigation into Trump’s tax returns eighteen months ago. At that time, it was clear that Trump had concealed the true nature of payments to Stormy Daniels and Karen McDougal—a crime under the Federal Elections Code and (likely) under the Tax Code. If not, special counsel Jack Smith should open an investigation immediately.

In other news . . . .

President Zelenksyy to visit Washington, D.C. and speak to Congress.

          Ukrainian President Volodymyr Zelenskyy will visit the White House and make a statement to Congress on Wednesday! See CBS, Zelenskyy expected to visit Washington, D.C. on Wednesday, sources say. Per CBS,

Zelenskyy is expected to give an evening speech before a joint session of Congress, meet with Congressional leaders, and visit with President Joe Biden at the White House.

          Zelenskyy’s visit comes as spineless Kevin McCarthy is carping about US aid to Ukraine. Let’s hope that Zelenskyy’s visit will shame some members of the GOP into abandoning their anti-Ukrainian stance.

KellyAnne Conway sold business to head of Federalist Society while Trump in office.

          Reports have emerged that KellyAnne Conway sold her political consulting business to a firm affiliated with Leonard Leo when Conway was advising Trump on Supreme Court nominees. Why does this matter? Because Leonard Leo is the head of the Federalist Society and was lobbying Conway about Supreme Court appointments while Conway was in turn lobbying Trump about those same appointments. In other words, the appearance that money changed hands to influence the selection of Supreme Court justices is palpable. See Press Release of U.S. Senator Dick Durbin, Statement On Report That Kellyanne Conway Sold Business To A Firm With Ties To Leonard Leo While Advocating For Fedsoc SCOTUS Nominees.

          If true, the report is deeply disturbing and raises questions about possible corruption in the selection and nomination of Supreme Court justices in the Trump administration. Stay tuned to this story; it will not get better with time for KellyAnne Conway.

Concluding Thoughts.

          The J6 Committee will release its full report and supporting documents on Wednesday. We should expect a full day of news alerts detailing conspiracy, sedition, and perjury by members of Congress, Trump administration officials, campaign staff, and attorneys for Trump. Given the onslaught of details, a natural cognitive bias will be triggered in our minds: We will conflate the number and frequency of news reports with the conclusion that Trump is guilty and should be convicted post haste with ease.

          Count me among those who believe Trump should have been convicted months ago. But I want to introduce a note of caution to temper expectations in the wake of the Committee’s full report. Prosecuting Trump on the crimes that matter most to the defense of democracy may be the most difficult task facing special counsel Jack Smith. As former prosecutor Dennis Aftergut notes, special counsel Jack Smith “could be excused for not charging Trump with insurrection [because] [a]mong the four crimes alleged by the committee, insurrection is by far the most difficult to prove.” See Dennis Aftergut in Slate, Why the DOJ Might Have a Tough Time Proving Trump Committed “Insurrection”.

          As Aftergut notes, proving insurrection will be difficult because Trump will have a First Amendment defense to the claim that his speech on the Ellipse incited the attack on the Capitol. Other criminal referrals by the J6 Committee will be easier to prove (in the sense that Trump will not have a First Amendment defense). Moreover, the special prosecutor has a clearer path to conviction on defense secrets and the interference in the Georgia presidential election. And after the release of Trump’s tax returns, it is possible that Smith will have multiple claims of tax fraud to pursue against Trump.

          Here’s my point: With each passing day, the likelihood that Trump will be charged with multiple felonies increases dramatically. Whether Jack Smith will pursue insurrection should not be viewed as the touchstone for success or failure. The J6 Committee has established the judgment of history against Trump regarding insurrection. Let’s hope that Jack Smith focuses on prosecuting those crimes that can be easily and expeditiously tried to conviction. We have reason for increasing confidence that Trump will eventually be held to account for his crimes. If that happens, our obligation to defend democracy will have been honorably discharged.

Talk to you tomorrow!