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What to Look for in the First 100 Days

- January 2017

Nominations:

The Senate is expected to spend much of its time in the first months of the year handling the confirmations of Trump Administration nominees. The Center for Presidential Transition reported in a study released last May that there are 1,212 presidential appointments that require Senate confirmation (out of a total of more than 4,000 appointments). Senate Democrats are threatening to “slow-walk” many of those nominations to slow down the confirmation process and therefore make it difficult for the Trump Administration to begin reversing Obama Administration policies. In response, GOP Leader Mitch McConnell says he will keep the Senate in session round the clock to force votes on nominees in the middle of the night if necessary.

Of particular note in this context, the Senate minority party can no longer filibuster presidential nominees other than candidates for the U.S. Supreme Court. Until November, 2013, executive branch nominees were subject to filibuster just as is legislation, and therefore 60 votes could be required for confirmation. In a move adamantly opposed by Senator McConnell and the then-GOP minority, then-Majority Leader Harry Reid executed an “extraordinary procedural move” – the co-called “nuclear option.” By a simple majority vote (instead of two-thirds), they changed the Senate rules to provide for the confirmation of nominees by a simple majority vote.

Proving that you should be careful what you ask for, and that what goes around often comes around, Senate Democratic Leader Schumer said this month that he regrets that his Party pulled the nuclear trigger in 2013. So one of Harry Reid’s lasting legacies will be facilitating the confirmations of Trump nominees – including significant positions on the Federal District and Circuit Courts of Appeals yet to come.

Budgets and Reconciliation

Much of the rest of the first months will be consumed by consideration and adoption of two Congressional budgets. The adoption of the budgets will allow the GOP majority to consider both repeal of Obamacare and possibly tax reform under the complicated “reconciliation” process which prohibits filibustering measures by limiting debate and providing for a simple majority vote.

Congress normally considers only one budget in a fiscal year, but in this unusual year, they are being rewarded for their failure to discharge their duty last year. Because the Congress did not pass a fiscal year 2017 budget last year, they can do so in the early weeks of 2017 – before they have to act on the fiscal year 2018 budget. The budgets provide “reconciliation instructions” to other committees, thus providing the means to pass health care and tax reform without the threat of a filibuster.

If this sounds like an inappropriate way to legislate on major policy issues, it is; but it’s worth pointing out that it was the means by which the Democrats passed Obamacare in 2010 without a single Republican vote.