Washington Wednesday: Changing the rules

MARY REICHARD, HOST: It’s Wednesday the 31st of July.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

LINDSAY MAST, HOST: And I’m Lindsay Mast.

Time now for Washington Wednesday.

Today, Republican priorities for government funding.

But first, a quick look at the Biden administration’s proposal for altering the Supreme Court.

REICHARD: Senator Joe Biden was against changing the high court. Here he is in 1983, referencing President Franklin Roosevelt’s attempt to pack the court:

BIDEN: But it was a bone head idea. It was a terrible, terrible mistake to make and it put in question for an entire decade the independence of the most significant body including the Congress in my view, in this country, the Supreme Court of the United States of America.

REICHARD: Presidential candidate Biden changed his message in 2020…when he promised to put together a commission to study changes to the high court. The resulting report went nowhere…but now he’s gone a step further.

MAST: On Monday, President Biden laid out his three-point plan to overhaul the Supreme Court in an op-ed in the Washington Post.

Point one, 18 year term limits for justices. Point two, a code of ethics. Point three, amend the constitution to limit presidential immunity.

REICHARD: I called constitutional scholar Ilya Shapiro at the Manhattan Institute for analysis. (I note that he happened to be at a tennis tournament, so you’ll need to listen closely.)

First, term limits. Article III of the Constitution gives justices lifetime tenure. While possible to make the change, Shapiro doubts the process:

SHAPIRO: …but the devil is in the detail. How do you get from here to there? Are you saying that Clarence Thomas has served more than 30 years has to come off this year, and Robert and Alito all served more than these 18 years. If that's the case, then it's the same thing as court packing.

MAST: Second, a code of ethics may mandate when a justice must recuse from a case. Shapiro says it’s one thing to clean house across government and say no public official can take any gift whatsoever. But he adds that’s different from Biden’s proposal:

SHAPIRO: You know, judges should be ethical, of course, but there are no credible allegations of corruption going on. I mean, the biggest conflict I've seen is Justice Sotomayor didn't recuse from a case that one of her book publishers was involved with. But some of the other things, you know, it's not a crime. It's not unethical to have rich friends.

REICHARD: The third proposed reform is a constitutional limit to presidential immunity. This after the Supreme Court sent former President Donald Trump’s immunity case back to lower court to sort out action by action what has immunity and what does not. President Obama sending a drone to kill a terrorist abroad? Immunity. A president shooting someone on Fifth Avenue? No immunity.

SHAPIRO: But there's a vast gray area in the middle which lower courts will sort through. That seems eminently reasonable to me. You know, this, like the other elements of the plan, I think, are political messaging that they hope to go into the election with.

REICHARD: These proposals aren’t likely to have the support in this Congress, and that is a prerequisite to enact any of these reforms. So for now, President Biden’s court overhaul remains a suggestion.

MAST: Alright, turning now to government appropriations. Last year, California Congressman Kevin McCarthy was ousted from the Speaker’s chair by Republicans over concerns about spending. His successor, Mike Johnson, stared down similar threats this Spring.

REICHARD: But as Congress heads into Summer recess, what have House Republicans accomplished in their efforts to put Capitol Hill on a budget?

WORLD’s Washington Bureau reporter Leo Briceno.

LEO BRICENO, REPORTER: The government’s fiscal year begins on October 1. That means Congress has up until September 30 to pass its spending bills.

Last year, former House Speaker Kevin McCarthy had promised to fund the government through 12 single-subject appropriations bills—instead of through an omnibus package.

MCCARTHY: We’re going to get the appropriations bills done and we’re going to go into conference with the Senate and we’re going to make sure that we get our border secure, we get our streets safe, we get the funding prioritized, but we also stop this runaway spending.

But by mid-September, he had only passed one bill.

Eventually, the lack of progress caught up with McCarthy. On October 3rd, eight frustrated Republicans forced a vote to remove him as Speaker.

Now almost a year later, Republicans are again facing down the familiar spending headache. They’re struggling to find consensus on the 12 bills and that, in turn, is causing slowdowns in the process overall.

Earlier this month I spoke with Tennessee Rep. Chuck Fleischmann, one of the 12 Republican Cardinals tasked with shepherding the bills through Congress. He’s in charge of the energy and water bill.

FLEISCHMANN: So the sooner, ideally, we can get it passed, hopefully, before the end of the year, the entire process, the better it is not only for the new president, but also for the country.”

Fleischmann’s bill made it through committee, but when it came time to bring the bill to a vote, Republican leadership abruptly took it off the floor. They knew it wouldn’t pass…not just because Democrats would oppose it, but because Republicans need near unanimous support to pass bills in their slim, two-seat majority. And a number of the other appropriations bills had already been shot down by Republicans.

Rep. John Duarte of California believes that most of the hang ups have to do with specific elements in the bills. In Fleischmann’s bill, for instance, Duarte said the finer points still needed to be ironed out.

DUARTE: “These aren’t the big theological battles. These are some policy priorities that some of the, one of the conferences out of Georgia had. They want to get some water projects done; they want it in there. They believe that the water bill is prepared, the authorization is ready, and they want to work it out. So they’re working it out.”

Jared Pincin, Associate Professor of Economics at Cedarville University, says that some of those particulars are legitimate negotiations that have to be dealt with in the specific appropriations bills. Others, however, have little to do with the necessary components of funding the government.

PINCIN: “I mean if you look at almost any bill that’s passed and you work through the legislation, so much of it is just stuff that is not directly related to that bill. And they might not be called policy riders in those bills, but it’s the same process. There’s going to be spending that goes to place X that doesn’t need to be there at all to achieve the end goal of whatever that legislation is… So if you want to get additional border funding for example, that could be part of the appropriations, or it could be part of the authorization of where the money is spent. So I just think there are other ways to do it. Too often these are more poison pills than anything.”

Rep. Michael Cloud of Texas also sits on the House Appropriations committee. He acknowledged that the hold ups were keeping Republicans from where they wanted to be but didn’t seem overly concerned about the Republican dissenters that had stalled the bills.

CLOUD: “Of course ideally, we want to get all 12 bills passed every single time but if you look at the context of where we’ve been, we hadn’t been passing appropriations bills in a long, long time. And so, maybe we didn't get where we wanted to, but we have turned a corner in the sense that we’re passing appropriations bills, people are able to offer amendments once again. And so, the process is improving.”

Despite his bill getting punted, Fleischmann isn’t holding the delay against his Republican colleagues.

FLEISCHMANN: “Appropriations is a difficult process when you look at it, and I’ve been an appropriator for now, what, 12 years ... Somebody asked me the other day ‘is this a function of dysfunction?’ I said ‘no! It’s a function of the process working’ because any member can come forth and say that they’re pleased or not pleased with certain portions of a bill and want to get certain things done. We’ve had a good open amendment process. Some amendments have made it, come have not…”

I asked Fleischmann if he intends to continue negotiating the bill out over the August recess with his counterparts in the Senate. You’ll hear some Republicans cheering Fleishmann on as they walk past our conversation in the background.

FLEISCHMANN: “Yes, I’ve offered that and we will see what happens. I keep an open door with everybody — but uh, I keep an open door with my Republican and Senate Democrat counterparts… [4:51] I can play with the cards that we’ve dealt with the bill we passed out of committee. It’s a rock-solid bill but I always want the strongest hand I can go to the table with.”

Last Thursday, the House of Representatives went on summer recess…and will return on September 9th. With six of the twelve bills passed through the House and none through the Senate, that means Congress will have just three weeks to pass their remaining bills or risk a government shutdown.

Reporting for WORLD, I’m Leo Briceno.

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