Good afternoon. The Senate confirmed the first black woman to the Supreme Court yesterday. Congress is now officially out for a two-week recess.
Russia Trade Bill Goes to Biden’s Desk (Finally)
After weeks of delay and angst, the Senate pulled itself together Thursday and voted 100-0 to end Russia’s permanent normal trade status with the United States. Senators also unanimously approved legislation banning Russian oil imports. The House quickly followed up and passed the two bills resoundingly Thursday afternoon, sending them to President Joe Biden’s desk. Both measures had been delayed about a month, as Russia has waged its brutal war in Ukraine.
I’ve written to you in this newsletter a couple of times recently in detail about the Senate negotiations to advance the Russia trade measure. A lot of this won’t be new to regular Uphill readers, but I think it’s worth describing in one place the process that led up to the bill’s passage, partly because it shows how inefficient Congress can be in times of urgency, and partly because it emphasizes the power of deadlines like scheduled recesses to force movement on stalled bills. (And partly because I think the sheer ridiculousness of how this was handled will get lost in the news coverage.)
The trade measure’s first derailment came when the White House inscrutably convinced House Democrats to scrap a planned vote one month ago. A few days later, with the House finished work for that week, President Joe Biden announced he would actually support it. The delay was ostensibly to gin up support among foreign allies—something not at all needed for Congress to act, and which led to two portions of the bill (the trade status component and the oil ban section) being separated and causing headaches later in the Senate.
The next week, now with Biden’s backing, House leaders opened the bill to more delays when they tossed out a bipartisan, bicameral deal for the trade bill and added a section permanently reauthorizing and expanding presidential human rights sanctions powers. The changes stirred up opposition from Republicans who didn’t want to codify broader powers for the executive branch. Pushback didn’t come solely from weirdos on the fringes—the eight Republicans who voted against it in the House were just the few willing to oppose it in the context of a Russia response bill. Others raised concerns, and several religious freedom groups issued statements rejecting the revisions. New Jersey GOP Rep. Chris Smith, an original sponsor of the Global Magnitsky sanctions law in question, said on the House floor that the new language was an “egregious mistake” and he hoped the Senate would reconsider it.
Kentucky GOP Sen. Rand Paul, always ready to object to legislation, blocked it from quick passage once it reached the Senate. One can disagree (vehemently, even!) with Paul’s reasons for doing so—people across both parties felt the Magnitsky powers were important to include, and there were plenty of Republicans who didn’t oppose the new language. But as they sought quick reprisals to Russia’s war in Ukraine, House leaders should have known that adding it to what had once been a focused bill was going to open the effort to a broader array of questions, with the potential to slow it down.
And to be clear, reupping the sanctions authorities wasn’t strictly necessary as part of what was supposed to be an urgent measure: The powers weren’t set to expire until December. Even the broader language in the House bill wasn’t a matter of practical urgency: The executive branch has been using that language for nearly five years, first laid out in a Trump-era executive order.
Conservatives feared codifying that approach could empower future presidents to target foreign officials who deny abortion access, among other potential overreaches. Even as the White House had been operating on the broader standard for years without controversy, passing it into law could undermine Congress’ ability to call later uses of the sanctions into legal question.
Paul’s office, staff for several other senators involved in the issue, and a coalition of religious freedom groups spent more than a week negotiating changes to the House language, ensuring there would be clear limits defining human rights abuses for future sanctions.
This work was granular: I obtained two copies of revised legislative text that had been negotiated with Paul, sent to various offices by Sen. Roger Wicker’s staff (who were coordinating with Democratic Sen. Ben Cardin on the GOP’s behalf) to see if other Republican senators would approve the language. I reported those changes last week, if you want to read more details. They included a definition of serious human rights abuses and limits making sure speech and advocacy that would otherwise be legal in the United States are not sanctionable abroad. Paul and Senate GOP leaders announced a deal had been reached on the matter last week, based on that framework.
By that point, a group of GOP senators knew the bill was going to change and have to go through the House again either way. So they started pushing for their own priorities: blocking Russian seafood and uranium, language with a higher standard for President Biden to lift a ban on Russian oil, an expansion of sanctions to Russian banks that hadn’t been hit by early reprisals. The delay stretched on through last week as senators negotiated. One of them, Texas Sen. John Cornyn, actually got what he wanted: passage of a lend-lease program that would make it easier to send weapons to Ukraine.
The rest seem to have dropped their demands when the Senate came back this week, as senators got more serious about finishing the bill before leaving town for a two-week Easter and Passover break. Evidence of unimaginable cruelty by Russian troops that emerged last weekend heightened the need for lawmakers to act.
But there were still some ups and downs to come: Sen. Ben Cardin, the Democrat who had been leading the Magnitsky sanctions negotiations with Paul and the Republicans, said Tuesday there never had actually been a deal on the new language. They were still negotiating.
Two GOP Senate aides involved in the process said a few Democratic senators raised objections to Paul’s proposal to limit sanctions powers. A spokeswoman for Cardin did not respond to two requests for comment. Unable to reach consensus on amending the Magnitsky language, Cardin sent a new offer to Republicans over the weekend for a clean permanent reauthorization. Republicans agreed to that approach.
The bill won’t revise the way human rights abuses are described at all, sticking with the 2016 Global Magnitsky law’s original language. It will permanently reauthorize the powers along those lines, though, removing the need for Congress to vote on it every six years.
It might have been predicted two weeks ago: In the end, after weeks of negotiations and tinkering with the bill, senators landed on the most simple compromise possible.
Congress Contemplates Continuity
My colleague Harvest kindly wrote an item for Uphill readers this week on a interesting (if slightly morbid) hearing:
It’s the kind of question most lawmakers don’t want to consider, or even speak aloud: What happens if disaster—natural or manmade—incapacitates or kills members of Congress en masse?
Despite the unpleasant topic, the Select Committee on the Modernization of Congress chose to face the question head-on in a two-hour hearing this week that featured a panel of expert witnesses for whom the deadly serious nature of the subject hits home.
Former Rep. Mike Bishop, a Republican from Michigan, stood next to home plate when a lone gunman opened fire at a congressional Republican baseball practice in Alexandria, Virginia, in 2017. Louisiana Rep. Steve Scalise was critically injured.
“I couldn’t believe it took this event to make me realize the implications of a planned attack,” Bishop told the committee of the baseball shooting. He also was aboard a train to a GOP policy retreat in West Virginia the following year when the train derailed.
Former Rep. Brian Baird, a Democrat from Washington, remembered watching from his office in the U.S. Capitol as a fireball bloomed from the Pentagon on Sept. 11, 2001.
Former Florida Democratic Rep. Donna Shalala testified about serving as the designated survivor during the State of the Union in 1996, when she was secretary of Health and Human Services.
And for the lawmakers on the committee, a more recent event lends urgency to the issue: the attack on the Capitol on January 6, 2021.
“I’ve studied this for two decades, in extensive detail,” Baird told The Dispatch after the hearing. “If there’s a lesson from the past two decades, the lesson is that one, threats are real. September 11. The anthrax attack. The attempted assassination of Gabby Giffords. The attempted assassination at the Republican congressional baseball [practice], a pandemic, and then insurgency in the Capitol. That’s six major instances in which we, frankly, got away lucky, as bad as they were. So the first lesson is we are more vulnerable than people wish to believe. And that threat is only increasing.”
The problem is only growing more acute: Capitol Police officials cite massive increases in death threats and violent messages to members of Congress in the past few years. Per Roll Call, Capitol Police estimated reviewing 9,600 disconcerting messages and direct threats against lawmakers in 2021, compared to 8,613 the year prior. In 2017, that number was 3,939 threats.
“The possibility of a Congress without a Capitol and without its members is obviously something none of us want to contemplate. But as representatives of the people, we need to,” said Rep. Derek Kilmer, chair of the committee.
The hearing primarily focused on the House’s current system. The problem, experts argued, is time. The Constitution specifies that House vacancies are filled via special elections. Seats open for a variety of reasons: death, resignation, retirement, an election or appointment to other positions, and, in rare circumstances, expulsion. But the special election process to fill House seats can take anywhere from a couple of months to half a year, leaving the people of districts with vacant seats without voting representation.
Section 8 of Title 2 of the United States Code says that in “extraordinary circumstances”—if vacancies in the House exceed 100 members—states can hold expedited special elections.
But that can still take weeks, or, according to the statute, more than a month and a half, to accomplish. In the wake of an emergency, Congress might act quickly to enact changes with nationwide ramifications—such as shortly after Sept. 11, when a spate of laws passed authorizing a military response and overhauling airport security, among other changes.
The experts who testified this week put forward several recommendations to make sure Congress can continue its work during crises. One suggestion: a constitutional amendment that would allow House members to appoint temporary replacements in advance to take their place after a catastrophe.
As Baird noted, about a dozen states have already passed emergency interim succession laws requiring their state legislators to select potential successors in advance. South Carolina’s, for example, mandates that legislators designate at least three interim successors, with a specified line of succession to take over their duties if needed. This process would keep the partisan makeup of those state houses intact, with processes for special elections later.
Georgia Republican Rep. Barry Loudermilk pushed back on adopting that kind of system, saying it could lead to a sort of nepotism—appointing family members or friends. He also said he was concerned about potential new security risks by making such designations.
“Politically, I can see a lot of issues with that,” he said. “I would double my security if there was somebody who could immediately accede to that position.”
Other GOP members in attendance argued that the Constitution’s original plan—people choosing their representatives via elections—should be maintained.
The hearing also featured a discussion of how the provisional quorum rule—allowing for a majority of members to conduct business—affects this issue. One problem, known as the “quorum trap,” happens when members may be alive but unable to perform their jobs (being in a coma, for example), which would effectively leave their constituents without true representation. Another nightmare scenario (say, at the State of the Union) is if a disaster wiped out the president, vice president, and severely reduced the number of lawmakers, which could allow for a small group of remaining members to drastically overhaul the nation’s laws.
“The most dramatic case would be one where the president and vice president are killed and these 11 remaining members would elect a new speaker of the House who would assume the presidency in the line of succession,” said Arthur B. Culvahouse, co-chair of the American Enterprise Institute’s Commission on Continuity of Government. Congress must clarify what would happen in such cases, he argued.
Lawmakers reached no particular conclusions by the end of the hearing. It’s uncertain whether the Modernization Committee—which is set to sunset this fall—or individual members will take on the issue legislatively.
“We are all on notice. We have a real problem on our hands, and we can’t afford to ignore it any longer,” Bishop testified. “We’ve dodged a bullet in the past, so to speak, but who knows when our luck will run out.”
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