Monday, November 14, 2011

CQ Roll Call Daily Briefing: They'll Take It

CQ Roll Call Daily Briefing

Monday, November 14, 2011

Today In Washington

THE SUPREME COURT: The justices agreed this morning to review the constitutionality of the health care overhaul in time for a ruling in June. They said they will hear five hours of oral arguments — likely in late March — focused on the heart of the 2010 law, a requirement that individuals buy medical insurance starting in 2014 or pay a penalty.

THE HOUSE: Convenes at 2 to debate bills that would name seven post offices, a wildlife refuge in Mississippi and a federal courthouse being built in Florida (for Alto Lee Adams, the chief justice of the state Supreme Court from 1949-51). If any lawmakers object, they can demand a roll call vote after 6:30.

THE SENATE: Convenes at 2 for preliminary debate only (no cutting or deregulating amendments from Republicans yet) on the second appropriations minibus for the fiscal year that’s six weeks old: a $129.5 billion package combining what are normally three different spending bills: Energy-Water, Financial Services and State-Foreign Operations.

THE WHITE HOUSE: Obama’s got only one public event on the third day of his Pacific Rim trip: a fundraiser at 11:15 (Hawaii time) at the Aulani Disney Resort in Kapolei.

DECISIONS, DECISIONS: The Supreme Court’s timetable for considering the health care law gives the justices the power to make their most politically decisive ruling since they effectively decided the 2000 presidential election.

But that’s only if a majority of the court decides it even wants to settle the question of whether the federal government has the power to compel people to buy a product in the commercial marketplace (a health insurance policy) and punish them (with a tax) if they don’t. A ruling, four months before Election Day, that the mandate is constitutional would provide a significant and perfectly timed boost to Obama and congressional Democrats — because it would enshrine for the ages their top shared domestic policy achievement. A ruling that strikes it down would grant the GOP nominee-in-waiting, and congressional Republican candidates, their No. 1 campaign season wish — because it would validate all of their vituperative derisions of “Obamacare” as an unconstitutional overreach.

The main reason the justices would take one side or the other is that the regional federal appeals courts have been split on the core question of whether the mandate is within Congress’ power to regulate interstate commerce. (Two have upheld the law, a third has found it unconstitutional and a fourth has ruled it’s too soon to say.) And a main function of the Supreme Court is to make consistent judicial policy when the lower courts disagree. But it’s also true (Bush v. Gore aside) that Roberts and the other conservatives who are the majority on the court have said over and over again that the judicial branch should generally look for ways to stay out of white-hot political disputes — and also should defer, if at all possible, to the will of the elected branches of government when it comes to policy disputes.

And so the easiest way to find five votes between now and June might be for one of those conservatives (the chief justice, Scalia, Thomas, Alito and that big maybe, Kennedy) to shop the view among his colleagues that it’s too soon to decide the constitutional question yet — because the mandate hasn’t actually taken effect and so no one has been “harmed” by having to pay a penalty for not obeying.

ANOTHER WAY OUT: Ten days until the supercommittee’s absolute deadline (counting today) ... six days until the CBO needs to know what it’s scoring if there’s going to be a deal ... and still no glimmer of a bipartisan bargain remotely in sight no matter what co-Chairman Jeb Hensarling says. In fact, Clyburn says his fellow Democrats on the panel are getting more and more itchy to get off the same page, and the Republicans in the group are getting ready for a fusillade of criticism from the rank and file — especially House members returning from a week back home — for their offer to raise $250 billion in new revenue (without actually raising tax rates), which would get one-fifth the way toward the panel’s $1.2 trillion minimum target.

The boomlet today is for the idea that the deal would do nothing more than set reconciliation instructions for a net-revenue-rasing tax overhaul (size not yet determined) to be written next year — and with the same up-or-down-vote/no-filibuster process that’s supposed to help the supercommittee now. It’s the last plausible escape hatch left for the supercommittee to wriggle through, especially because the lawmakers can say their move would be more than kicking the can down the road — it would be facing the reality that rewriting the tax code in a few days would be nearly impossible, because of the prospect that a single misplaced comma could mess things up seriously down the road.

The talk of dismantling the punishment trigger — the across-the-board sequester cutting both military and civilian programs in the absence of a deal — is getting louder again today, mainly because Obama over the weekend made clear that he opposes the idea but pointedly did not use the word “veto” in discussing how he would react to a bill that would disarm the trigger.

TOTALLY SPENT: Negotiators are on course to announce their deal today on the first minibus of fiscal 2012 spending bills — in plenty of time for Congress to clear it by week’s end. The package will provide $128 billion in discretionary appropriations through next September for the Agriculture, Commerce, Justice, Transportation and HUD departments as well as NASA, the FDA and the National Science Foundation. It also will have language keeping all the rest of the government on autopilot until the middle of December — meaning there’s really not even the theoretical threat of another government shutdown this week. (The first shutdown resulting from the fabled Gingrich-Clinton budget standoff started 16 years ago today, by the way.)

Two of the more important policy shifts that will be carried by the minibus are restrictions on NASA’s relationships with China and Chinese-owned companies, and an end to restrictions on heavy trucks using the interstate highways in Maine and Vermont.

RIM SHOT: Fresh off his success in winning bipartisan congressional backing for trade deals with South Korea, Colombia and Peru, Obama is making headway on another front that could make trade liberalization one of the “who knew?” hallmarks of his presidency. At the APEC summit in Honolulu over the weekend, he won commitments from Japan and Canada to join talks aimed at binding nine Pacific Rim nations to a trade pact in the next year. If it happens, it would be the biggest such deal since NAFTA in 1994 — and would be a significant step toward giving American goods and services a commercial advantage against those from China. (The talks already involve Australia, Chile, Peru and Singapore, all of which already have separate free-trade agreements with the U.S., as well as Malaysia, New Zealand, Vietnam and Brunei.)

ONE-DAY STORY: There won’t be any investigative or poor public relations “legs’’ to last night’s “60 Minutes” report suggesting that Boehner, Pelosi, House Financial Services Chairman Spencer Bachus and other lawmakers made stock-trading profits off of insider information. That’s because what’s being alleged is based on implication only; insider-trading laws don’t apply to members of Congress; the story was bipartisan in nature, and thus one side can’t use it against the other; and, besides all that, the public perception of Congress is already so low that it won’t be driven lower by additional evidence that buttresses existing suspicions that people at the Capitol get preferential treatment.

All that said, the issues raised by CBS (and Peter Schweizer, the conservative Hoover Institution scholar who drove the reporting process for Steve Kroft’s piece) are as ethically complex as they are important. But, in a sense, those issues boil down to this: Since House members and senators have access to non-public information on the full range of American and global economic activity — and have the capacity to shape the futures of almost any business — should their every investment transaction be suspect to suspicion? If the answer is “yes,” but the notion is that lawmakers should have a chance to buy stocks like the rest of us, should they be compelled — if not by law, then by public pressure — to make all of their investments through blind trusts?

QUOTE OF NOTE: “They’re wrong. Waterboarding is torture. It’s contrary to America’s traditions. It’s contrary to our ideals,” Obama said last night during his press conference after the APEC summit, reacting to the support for the practice expressed by Herman Cain and Michelle Bachmann at Saturday night’s GOP presidential debate.  “That’s not who we are. That’s not how we operate. We don’t need it in order to prosecute the war on terrorism, and we did the right thing by ending that practice.”

HAPPY BIRTHDAY: No lawmakers today, but four celebrated during the three-day weekend: On Veterans Day, Sen. Barbara Boxer (71), fellow Californian Pete Stark (80), fellow House Democrat Corrine Brown of Florida (65) and freshman House Republican Tim Huelskamp of Kansas (43); on Saturday, Democratic Sen. Jack Reed of Rhode Island (62).

— David Hawkings, editor

Become a Facebook fan at facebook.com/DavidHawkingsDC. Or follow me on Twitter at twitter.com/davidhawkings.

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