Congress

Key Senate votes in 2018: CQ Vote Studies

Kavanaugh, Yemen votes were flashpoints

The bitter and divisive confirmation process for Justice Brett M. Kavanaugh, shown here at this year’s State of the Union, reached a fever pitch when the full Senate voted on his appointment.(Doug Mills/Pool file photo)

The oldest of CQ’s annual studies, Key Votes is a selection of the major votes for both House and Senate for the past year. Editors choose the single vote on each issue that best presents a member’s stance or that determined the year’s legislative outcome. Charts of how each member voted on this list can be found at CQ.com.

11. FISA Amendments Reauthorization

Motion to invoke cloture to concur in the House amendment to the bill that would reauthorize for six years, through 2023, the Foreign Intelligence Surveillance Act, which governs electronic surveillance of foreign terrorism suspects. Agreed to 60-38 (R 41-8; D 18-29; I 1-1) on Jan. 16, 2018.

The run-up to the Senate’s January vote reauthorizing the Foreign Intelligence Surveillance Act had much the same flavor as the last congressional debate on the broad powers Congress authorized after the Sept. 11, 2001, attacks to monitor communications in an effort to uncover terrorist plots.

There was plenty of skepticism, colored by the 2013 revelations of National Security Agency whistleblower Edward Snowden that revealed the government was scooping up more information about regular Americans than Congress had expected when it granted the powers.

So it was surprising when the Senate invoked cloture and then passed, with relative ease, an extension of the powers without doing much to curtail them.

The powers in question, in section 702 of the Foreign Intelligence Surveillance Act, permit the National Security Agency to listen to phone calls involving suspected terrorists and read emails mentioning their names,  all without a warrant. Before Snowden, the power was thought to apply only to calls and emails involving foreigners, but Snowden revealed that the agency has, in fact, monitored Americans’ communications in some instances — when they are communicating with foreigners, for instance, or when their emails are routed through servers overseas.

Three years earlier, Congress embarked on a similar reauthorization debate over provisions in the 2001 Patriot Act that permitted the NSA to collect data, but not the content, of Americans’ phone calls, specifically the numbers called and the duration of the calls. Then, over Senate Majority Leader Mitch McConnell’s objections, senators passed a bill rescinding the NSA’s power, requiring it to subpoena call data from the phone companies.

Watch: Preview: A behind-the-scenes look at CQ’s 2018 Vote Studies

But in the intervening three years, the dynamics on surveillance shifted. While in 2015 President Barack Obama supported civil libertarians in Congress eager to curtail domestic surveillance, in 2018 President Donald Trump pushed for a permanent reauthorization of the existing law. Instances of domestic terrorism both in the United States and Europe had given security hawks talking points. When the vote came, Republican senators weren’t united, but far more of them were willing to give Trump what he wanted than to stick with the surveillance skeptics in their caucus. 

35. Immigration Overhaul

Motion to invoke cloture on a bill to appropriate $25 billion from fiscal 2019-27 for border security purposes, such as physical barriers, technology and facilities. It would prohibit deportation of recipients of the Deferred Action for Childhood Arrivals immigration program if they meet certain qualifications, and reduce the cap on family-sponsored immigrant visas. It would require the Homeland Security Department to prioritize enforcement of immigration activities for aliens that have committed felonies or misdemeanors, and those who are unlawfully present in the United States and arrived after June 30, 2018. Rejected 54-45 (R 8-42; D 44-3; I 2-0) on Feb. 15, 2018.

This was the closest the Senate came to meeting President Donald Trump’s demand for $25 billion to strengthen border security, but the administration itself scuttled the deal by refusing to go along with a path to citizenship for the so-called Dreamers, about 1.8 million immigrants brought to the United States illegally as children.

The bipartisan bill crafted by Mike Rounds, a South Dakota Republican, and Angus King, an independent from Maine, garnered 54 votes — six short of the 60 needed to advance — with eight Republicans in support despite Trump’s opposition. That was more than went along with the bill the president favored: providing $25 billion for the border wall and giving Dreamers an eventual path to citizenship, but also setting strict limits on legal immigration and ending a visa lottery aimed at increasing diversity. That bill, sponsored by Iowa Republican Charles E. Grassley, received only 39 “yes” votes.

Two other bipartisan proposals, including one by Arizona Republican John McCain and Delaware Democrat Chris Coons, also failed to get over the 60-vote hurdle to invoke cloture, leaving the Senate in a deadlock over immigration policy that would continue for the rest of the year.

The measures were spawned by Trump’s decision in September 2017 to phase out the Deferred Action for Childhood Arrivals program instituted by President Barack Obama to protect Dreamers from deportation. The end of DACA had been delayed by federal court orders, but program supporters wanted to give its 800,000 enrollees and others who might be eligible more permanent status as U.S. residents.

Watch: A behind-the-scenes look at CQ’s 2018 Vote Studies

Trump attempted to leverage the Dreamers to secure funding for the border wall he promised during his campaign. But when offered $25 billion for “physical barriers, technology and facilities” at the southern border in return for a 10- to 12-year path to citizenship for the Dreamers and continuation of the visa lottery, the administration balked.

Just before the vote on the Rounds/King bill, Trump tweeted a statement from the Department of Homeland Security saying it “would effectively make the United States a sanctuary nation where ignoring the rule of law is encouraged.”

In retrospect, it may have been Trump’s last chance to get what he wanted for the border. As the 115th Congress came to a close in December, the president refused to back a continuing resolution that included no money for the wall, forcing a record-long, 35-day shutdown of numerous government agencies. The shutdown ended in February when Congress, with Democrats now in control of the House, approved funding for the rest of fiscal 2019 with only $1.6 billion for border security enhancements.

52. Dodd-Frank Partial Repeal

Motion to invoke cloture on the bill that would apply the more stringent bank regulation provisions of the 2010 financial overhaul to banks with $250 billion in assets, instead of those with at least $50 billion in assets. Agreed to 67-31 (R 50-0; D 16-30, I 1-1) on March 14, 2018.

The Senate led the way in repealing sections of the 2010 Dodd-Frank financial regulatory law that was Congress’ response to the 2008 financial crisis.

Banking, Housing and Urban Affairs Chairman Michael D. Crapo forged the deal with moderate Democrats, several of whom faced re-election in 2018. The bill freed all but the nation’s largest banks from strict federal oversight.

The bill also freed small and mid-sized banks from the “stress tests” established by the Dodd-Frank law, which tasked regulators with assuring that banks had the capital to weather recessions. It also reduced the number of financial institutions considered “systemically important” and therefore subject to tough scrutiny of their books. And it exempted smaller banks from having to reveal information about their lending practices.

The banks had argued that the rules were excessively burdensome.

Crapo laid the groundwork in 2017, winning over several Democratic co-sponsors, including Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Jon Tester of Montana, Joe Manchin III of West Virginia and Claire McCaskill of Missouri, all of whom were in tough 2018 re-election races.

When he brought the bill before his committee in December, the panel approved it on a bipartisan 16-7 vote. When it went to the Senate floor in March, most Democrats voted “no,” but a united Republican caucus was joined by plenty of dissenters in the Democratic ranks. It marked a major victory for President Donald Trump in his effort to scale back regulations imposed during the presidency of his predecessor, Barack Obama

76. Auto Loan Rule

Passage of the joint resolution that would nullify and disapprove of a Consumer Financial Protection Bureau rule that provides guidance to third parties that offer indirect financing for automobile loans. Passed 51-47 (R 50-0; D 1-45; I 0-2) on April 18, 2018.

For years now a small but devoted band of conservatives has argued that Congress could strike down decades-old regulations — if only it would act.

Using a tool known as the Congressional Review Act, which allows Congress to disapprove recently finalized rules, they have argued that thousands of regulations, including guidance documents, could also be wiped out by Congress due to what amounts to an administrative hiccup — the failure to file paperwork with Congress and the Government Accountability Office. 

In April 2018, the Senate took the unprecedented step of eliminating a 2013 guidance document from the Consumer Financial Protection Bureau that sought to prevent discriminatory practices among auto lenders who had been accused of charging minorities higher interest rates. Patrick J. Toomey, a Pennsylvania Republican, called the regulation, which has led to fines in the tens of millions, a “back-door effort to regulate auto loans.”

An agency rule that is struck down using the CRA cannot be resubmitted in the future if it is “substantially the same” as the old one.  In 2017, Congress struck down 15 recently finalized rules.

Under normal circumstances, the CRA applies only to recently finalized rules; Congress has 60 legislative days to take action to disapprove. But in the case of the auto-lending regulation, the CFPB did not notify Congress and the GAO, which, under the law, would open up the door for Congress to act. Toomey also asked the Government Accountability Office to look at whether the CFPB’s auto-lending guidance could also be treated as a rule under the CRA. The GAO’s answer? Yes.

Critics argue that expanding the use of the CRA to old rules opens a “Pandora’s box” for the legislative system. Regulations dating back to 1996 could now be subject to the CRA.

221. Opioid Abuse

Motion to concur on a bill to expand Medicare and Medicaid to cover medication-assisted treatment for substance use disorder and would place new requirements on states regarding Medicaid drug review and utilization requirements. It would appropriate $15 million annually from fiscal 2019-23 to support public health laboratories to detect synthetic opioids. It would allow Medicaid patients with opioid use or cocaine use disorders to stay up to 30 days per year in certain treatment facilities with more than 16 beds. Passed, clearing it for the president, 98-1 (R 49-1; D 47-0; I 2-0) on Oct. 3, 2018.

A near-unanimous vote in the Senate capped a months-long effort to develop a multi-pronged response to the nation’s opioid crisis, which the National Institute on Drug Abuse says is causing an average of 130 overdose deaths every day.

The 98-1 tally, with Utah Republican Sen. Mike Lee as the lone dissenter, sent the package approved earlier by the House to the White House. President Donald Trump signed it into law on Oct. 24.

The measure includes new programs for prevention, treatment, research and enforcement of regulations for distributing prescription drugs. For instance, it funds research to find a nonaddictive painkiller and increases support for state monitoring programs to prevent abuse.

“We’re not pretending that a single act here can fix the problem,” said Health, Education, Labor and Pensions Chairman Lamar Alexander, a Tennessee Republican who worked with House Energy and Commerce Chairman Greg Walden, an Oregon Republican, to develop the legislation over much of the year. “We want to do everything that we can do to provide tools to parents and patients and doctors and nurses and communities and governors, anyone we can, to fight this crisis.”

Alexander said the bill supplements the approximately $8.5 billion Congress appropriated in 2018 to battle the opioid crisis.

222. Kavanaugh

Motion to invoke cloture on the nomination of Brett M. Kavanaugh of Maryland to be an Associate Justice of the Supreme Court of the United States, agreed to 51-49 (R 50-1; D 1-46; I 0-2) on Oct. 5, 2018.

The bitter and divisive confirmation process for Justice Brett M. Kavanaugh reached a fever pitch when the full Senate voted on his appointment for the first time.

President Donald Trump sought to put a second conservative on the Supreme Court in as many years, with Kavanaugh expected to solidify the Supreme Court’s conservative tilt for decades on issues such as access to abortion and LGBT rights. Majority Leader Mitch McConnell said the push was key to his Senate legacy.

At first, the confirmation battle raged over that ideological balance. Then, a decades-old sexual assault allegation against Kavanaugh from Christine Blasey Ford forced a dramatic Judiciary Committee hearing, one that Saturday Night Live parodied and that added questions about Kavanaugh’s judicial temperament and the truthfulness of his Senate testimony.

The full Senate was supposed to vote a week earlier than it did. But Jeff Flake of Arizona and other Republicans forced a limited, one-week supplemental FBI background investigation that ultimately answered few questions. Protesters confronted senators and prompted extra security measures as pressure mounted on the few undecided senators.

Lisa Murkowski of Alaska was the only Republican for whom the lingering questions warranted a vote against Kavanaugh. Sen. Joe Manchin III of West Virginia was the only Democrat to vote for Kavanaugh. The 51-49 vote to move to the final confirmation vote reflected a divided Senate and a divided country.

Senators said the fight energized voters on both sides and they spoke of how Ford’s allegations awoke something in their constituents, who shared stories of being sexually assaulted. The Senate voted 50-48 to confirm Kavanaugh the next day, and he heard his first case as a justice three days later.

226. Short-Term Health Insurance

Passage of a resolution to nullify and disapprove of a rule from the departments of Treasury, Labor, and Health and Human Services that would expand the duration of short-term health insurance plans. Rejected 50-50 (R 1-50; D 47-0; I 2-0) on Oct. 10, 2018.

Democrats fell just one vote short in a bid to overturn a Trump administration rule allowing expansion of short-term health insurance plans, but they were successful in putting Republicans on the record for supporting what some call “junk insurance” without several of the guarantees provided in the 2010 health care overhaul.

All 49 Democrats and independents in the Senate supported the measure and were joined by Maine Republican Susan Collins to make it an unsuccessful tie vote. “Short-term limited duration plans do not provide protections for enrollees who suffer from pre-existing conditions,” Collins said in a statement after the vote. “As I have often emphasized, it is essential that individuals who suffer from pre-existing conditions are covered.”

Republicans argued that short-term plans do not block people with pre-existing conditions from obtaining insurance, but instead offer a way for people who can’t afford plans under the 2010 law to get coverage.

“This resolution has nothing to do with pre-existing conditions,” said Lamar Alexander, the Tennessee Republican who chairs the Health, Education, Labor and Pensions Committee. “It doesn’t change one single word of the Affordable Care Act, which guarantees that if you have a pre-existing condition, you have a right to buy Obamacare and you can’t be charged more because of it.”

The vote was largely a chance for Democrats, heading into the midterm elections, to put Republicans on the record on the administration’s August final rule to expand the length of time consumers can maintain a short-term health insurance plan. The plans are not required to meet all of the regulations under the 2010 health care law, and under the August rule are required to disclose that.

266. Yemen

Passage of the joint resolution that would direct the president to remove U.S. armed forces from hostilities in or affecting the Republic of Yemen, except forces engaged in operations directed at al-Qaida or associated forces. Passed 56-41 (R 7-41; D 47-0; I 2-0) on Dec. 13, 2018.

Not since 1973 has the Senate invoked the War Powers Act to debate and pass a joint resolution ordering the executive branch to cease military operations.

The vote was ultimately symbolic as House Republican leaders in the last Congress used a procedural move to block a similar resolution from receiving a floor vote.

Nonetheless, the Senate vote was historic for marking a rare congressional rebuke of the U.S. military, for its watershed potential in paving the way for similar future votes under the act and for its implications for U.S. relations with Saudi Arabia, which is leading the military campaign in Yemen.

The resolution from independent Bernie Sanders of Vermont and Republican Mike Lee of Utah explicitly permitted the continuance of military operations in Yemen targeted against al-Qaida. It defined prohibited military activities to include in-flight fueling for non-U.S. aircraft conducting missions over Yemen.

The vote was also consequential for being an exception to the traditional Republican-versus-Democratic voting structure that characterized so many Senate votes in the 115th Congress. Seven Republicans voted with all 49 Democrats to end military operations in Yemen. The measure required a simple majority for passage.

An even greater number of Republicans (14) voted in late November with all Democrats, 63-37, on a motion to discharge the joint resolution from the Foreign Relations Committee, paving the way for floor votes on the measure.

That was a result of significant GOP sentiment that a public debate on why the United States was providing military support to Saudi Arabia — despite its worsening human rights record — was worth having, regardless of the ultimate vote outcome.

In the days prior to the vote on passage, the Trump administration dispatched to Capitol Hill Cabinet officials including Secretary of State Mike Pompeo, then-Defense Secretary James Mattis and later CIA Director Gina Haspel to argue against the resolution.

But senators were frustrated with the lack of detail they received in the classified briefings and were particularly angered by an initial administration decision to keep Haspel from briefing senators.

The CIA was reported to have concluded that Saudi Crown Prince Mohammed bin Salman was behind the October assassination of a prominent dissident Saudi journalist — a conclusion not accepted by the White House. Jamal Khashoggi’s death, while not directly related to the Yemen war, unleashed bipartisan criticism of the administration’s handling of relations with the Gulf kingdom.

271. Criminal Justice Overhaul

Motion to concur with a bill to reduce federally incarcerated individuals through changes in sentencing laws. The bill would seek to do so, in part, by allowing judges more flexibility when handing down sentences below the mandatory minimum for nonviolent drug offenders. It would also establish programs to provide support for prisoners returning to society in an attempt to reduce rates of recidivation. Approved 87-12 (R 38-12; D 47-0; I 2-0) on Dec. 18, 2018.

Though it was overshadowed by a looming government shutdown, passage of a criminal-justice overhaul was one of the biggest successes of the 115th Congress.

The legislation approved by the Senate in an 87-12 vote was years in the making and came at the end of a Congress mired in gridlock over immigration policy, federal spending and other major issues. The House would pass the measure two days later and President Donald Trump signed it into law on Dec. 21 — the same day he forced a partial government shutdown by refusing to sign a stop-gap spending bill that did not include funding for a wall along the U.S.-Mexico border.

Among its many provisions, the bill aims to lower the number of federal inmates through changes in some sentencing laws and through better support for prisoners returning to society so they don’t commit new crimes and return to prison. It gives judges more freedom to hand down sentences below the mandatory minimum for nonviolent drug offenders and reduces mandatory minimums associated with the three-strikes law for habitual offenders.

It would also eliminate a provision that prosecutors used to “stack” firearm charges for long sentences for first-time offenders. And it makes retroactive a 2010 law that reduced the sentencing disparity between crack and powder cocaine.

On the prison side, the bill creates more job training and drug treatment for inmates, among other changes. It increases direct spending by $346 million over the next 10 years, according to the Congressional Budget Office.

The legislation also prohibits the shackling of pregnant inmates and the use of solitary confinement for juveniles in almost all cases.

Judiciary Chairman Charles E. Grassley, an Iowa Republican who co-wrote the bill, said before the vote that it had support across the political spectrum. “I don’t know whether we’ve had legislation like this before the United States Senate where you put together such a diverse group of people and organizations supporting the bill,” he said.

[Trump’s winning pattern with legislation might become a thing of the past: CQ Vote Studies]

[Key House votes in 2018: CQ Vote Studies]

[At least senators showed up to vote in 2018: CQ Vote Studies]

[Party unity on congressional votes takes a dive: CQ Vote Studies]

This story originally appeared in CQ Magazine’s “Annual Vote Studies & 2018 Key Votes” special report on Feb. 25.

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