Inside the fight for an end-of-year deal on the child tax credit

Originally published in Vox on December 5, 2022.
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In 2021, an expansion of the child tax credit delivered hundreds of dollars monthly to some 35 million parents across the United States, helping them afford gas, food, and school expenses, and lifting almost 3 million children out of poverty. But last December, Democrats narrowly failed to approve an extension of the expanded credit, and it expired.

Now, with only a few weeks remaining before a new Congress takes office, advocates for the child tax credit are trying again to get an expansion included in any end-of-year tax package.

It’s a tall order, especially because Democrats would need at least 10 Senate Republicans to agree to pass any broad deal; last year, even a simple Democratic majority proved out of reach. But Democrats believe the political dynamics have since changed in their favor, and so have their policy demands, making a compromise potentially easier for Republican moderates to stomach.

The sticking point since the expanded credit expired has been Republicans and West Virginia Democratic Sen. Joe Manchin’s resistance to the idea that a more generous child tax credit should go to families where no parents are working. 2021 marked the only time in its quarter-century history that the CTC had no parental work requirement, and it was that feature, experts agree, that drove the policy’s substantial reduction in child poverty: a stunning 46 percent drop in one year, according to US Census data. Until the Inflation Reduction Act passed in August, Democrats and their allies were unwilling to entertain any child tax credit expansion that maintained a connection to work.

Now, though, Democrats are signaling they’d embrace a more modest expansion — ideally one that keeps the credit fully available for all families, but at least makes it easier for parents with little to no earnings to access, even if at a reduced rate. Whether lawmakers can increase the amount of funding available for parents of infants and toddlers, as opposed to all kids under 18, is another option on the table.

The biggest negotiating card Democrats have right now is certain expiring business tax breaks. Since 1974, companies have been allowed to deduct research and development (R&D) spending the same year they make the investments, but as a budget gimmick included in the 2017 Tax Cuts and Jobs Act, businesses, as of 2022, now must expense those costs over five or 15 years instead. Restoring the right to annually deduct R&D spending is a top legislative priority of the business community.

Advocates are hoping to pair any restoration of R&D tax breaks with an extension of the child tax credit. In November, Democratic Sen. Ron Wyden, who chairs the Senate finance committee, declared his intent to push for both together while Democrats still control both chambers of Congress.

Democratic Sen. Sherrod Brown, chair of the Senate banking committee, has stated that expanding the CTC is his top priority. “I’ll put it this way, no more tax breaks for big corporations and the wealthy unless the child tax credit’s with it. I’ll lay down in front of a bulldozer on that one,” he said in September.

Additional aid for Ukraine, public health, and disaster relief are the Biden administration’s top priorities for any end-of-year deal, but in late November, Karine Jean-Pierre, the White House press secretary, said that if corporate tax breaks are included in a final deal, tax cuts “for working families” should be as well.

The negotiations ultimately may turn on just how much corporate lobbying pressure Republican lawmakers face. Prior to the midterms, Republicans anticipated much bigger electoral gains, making compromise with Democrats ahead of the new Congress seem less urgent. But now, with Democrats set to retain Senate control and Republican House margins tighter than expected, the expectation that Republicans would even be able to reach a deal on the business tax breaks next year if they wanted to looks dicey.

This reality, in fact, partly explains why Senate Republican leader Mitch McConnell announced last week that he’d like to negotiate an omnibus tax package in December, rather than a temporary spending deal that prevents a government shutdown but kicks the can on serious legislative decisions. Pushing the tax negotiations to 2023 would mean incoming House Speaker Kevin McCarthy, rather than current Speaker Nancy Pelosi, would be tasked with getting an acceptable deal through his chamber. “Nobody trusts McCarthy to pass anything (not even McCarthy),” quipped Politico in late November.

Though some advocates are still publicly calling for the expanded CTC of 2021, most acknowledge they’d accept more modest improvements

The 2021 expansion of the child tax credit, passed as part of President Joe Biden’s pandemic relief program, sent thousands of dollars to parents across the US. It made non-working and poor families fully eligible for the credit’s full value and increased the value of the subsidy itself — up to $3,600 per child.

Democrats had been optimistic that if they could just seed the generous program through the American Rescue Plan, then they would amass the kind of political support that makes a popular subsidy hard to repeal. But they failed, and the CTC is resultantly back to its pre-Covid form, with a maximum of $2,000 per child for working families only — and will remain there unless lawmakers change it.

At the heart of ongoing debates over the CTC are unsettled questions about what the policy is for. Is it to reduce childhood poverty? Is it to incentivize parents to work? Is it to help all kids?

Some Democratic lawmakers and CTC activists have been publicly calling for a reinstatement of the 2021 child tax credit, pointing to the research showing it helped families, reduced child poverty, and did not deter parents from working.

In late October, dozens of centrist Democratic lawmakers sent a letter to House leadership calling for an extension of the CTC passed under the American Rescue Plan. Theirs was followed by a similar letter, making the same ask, signed by dozens of progressive Democratic lawmakers. Another letter in November signed by over 550 hunger groups likewise called on congressional leadership to reinstate the child tax credit from 2021.

Adam Ruben, the director of Economic Security Project Action, a group organizing for the CTC, told me that advocates both in Congress and outside Capitol Hill are “crystal clear and aligned” in calling for the child tax credit that passed the House as part of their Build Back Better package, which mirrored the American Rescue Plan version. “That’s the version that’s most effective at reducing poverty, most effective at helping families with the high cost of gas and groceries,” he said.

Yet privately, most child tax credit champions admit they’d accept something less generous than the American Rescue Plan version, and in lobbying meetings they aren’t pressing lawmakers to hold the line, as they did during the reconciliation process. Even some lawmakers and advocates are saying this now publicly.

One option to expand the credit is to focus on the 19 million children under age 17 who currently receive less than the full $2,000, either because their parents earn too little to qualify or because they aren’t working at all. (These children are disproportionately Black, Latino, American Indian, or Alaska Native.)

Expanding the credit for those 19 million children — or, as policymakers say, making the credit “fully refundable” — would cost about $12 billion per year. But it’s not really the cost, advocates acknowledge, that’s the barrier to doing that. It’s that Manchin and Republicans believe it’s important for the credit to maintain some connection to working parents.

As a compromise, Democratic aides say they’re hoping they could make the credit at least fully refundable for parents of young children, or lower the amount parents need to earn to qualify for the credit’s full value.

“I have always believed that in the end this would be bipartisan, that it wouldn’t be just the way I had designed it, that the Republicans would make some changes to it,” Democratic Sen. Michael Bennet said recently on a Politico podcast.

Elyssa Schmier, a lobbyist with MomsRising, told me that while their long-term goal is to see a permanent extension of the child tax credit passed under the American Rescue Plan, what they’re hoping to see in a lame-duck deal “is first and foremost the inclusion of the child tax credit” and in a form that helps it reach as many families in need as possible. Schmier said their focus is not on increasing the value of the credit right now, but expanding it for low-income families currently barred by work requirements.

Rev. Jim Wallis, another child tax credit advocate who leads the Georgetown University Center on Faith and Justice, said he’s not expecting lawmakers to approve a permanent end to all work requirements in December, and said advocates are pushing for some kind of “expansion” targeted specifically to the poorest and most vulnerable families.

Most liberal activists right now agree with Schmier and Wallis that focusing on the credit’s anti-poverty potential is the most important piece. Other coalition letters have been careful to exclude mention of the 2021 child tax credit, so as to not imply they’re demanding the same policy they were calling for earlier this year. One congressional letter sent by five national civil rights organizations simply called to “expand the CTC,” as did another sent by a coalition of Christian churches and ministries.

The money elephant in the room

One reason many Democrats are trying to minimize discussion of the 2021 expanded child tax credit now is because it — and the version Democrats passed in their subsequent House Build Back Better package — is very expensive, with a price tag exceeding more than $100 billion per year.

“I love the CTC, but I think advocates have done a terrible job of acting like it costs peanuts,” said one Democratic aide working on the negotiations. “It gets you nowhere to pretend we can do this massive transformational thing for nothing. Like expectations here have just been so out of whack because none of the advocates would admit this massive expansion of child benefits costs a lot of money.”

Rather than focus on comparing dollar amounts between the child tax credit and the business tax breaks, CTC advocates have stressed lawmakers should focus instead on parity of time for benefits. In other words, if Congress extends R&D tax breaks for another two years, then they should extend the child tax credit in some form for two years, too. A spokesperson for the Chamber of Commerce declined to comment.

For now, Democratic aides say they’re waiting to hear more details from Senate leadership over how much money is on the table to work with at all. McConnell has previously insisted that any end-of-year tax deal must prioritize defense spending over domestic policies, given that Democrats have already passed major domestic policy bills this year, though Senate Majority Leader Chuck Schumer said he intends to fight this.

One crucial factor, according to Senate aides, will be if Republicans feel like they’re getting a fair trade — something that can be measured in terms of dollar amount, length of time, or even, frankly, just “vibes.” When House lawmakers first sent their letters in late October and early November calling for a reinstatement of the 2021 expanded CTC in exchange for business tax breaks, some Republican staffers felt Democrats were not making a serious offer, given that many Democrats also want the R&D credits extended. In other words, since Democrats weren’t coming out of the gate with any proposed cuts to their own priorities, it didn’t seem like a great deal to Republicans, or even a realistic threat.

Democratic aides I spoke with said the threat to vote against R&D tax breaks if not paired with the child tax credit is no bluff, and pointed to the fact that Democrats have stood resolved against approving the business tax breaks to this point despite intense lobbying pressure. “If the number of Democrats willing to support the Young-Hassan bill were compelling then this would have been passed by now,” one aide said, referring to a bill Sens. Todd Young (R-IN) and Maggie Hassan (D-NH) have tried to include in multiple legislative vehicles this past year.

Sam Hammond, the director of social policy at the Niskanen Center, a centrist think tank, thinks the chances of reaching a deal on the child tax credit this month are relatively slim, though he believes the results of the midterms increased its odds. “Even though Democrats lost the House, just having control of the Senate floor is, like, nine-tenths of the battle over what can be put on the floor and up for a vote,” he said. “I think if Republicans had swept, there wouldn’t be a tax package being discussed at all.”

Where are Republicans on this?

Conservatives opposed to expanding the child tax credit are sensing that a legislative deal might not be far-fetched, and have started to ramp up their opposition.

The Wall Street Journal ran an op-ed and an editorial against the CTC in late November, perhaps the clearest indication they recognize it’s time to fight. “The tax credit is a parable about good intentions, unintended consequences, and the insatiable entitlement state,” the Journal argued, citing new studies that estimate a permanent extension of the American Rescue Plan child tax credit would reduce economic output by 0.2 percent over a decade, and lead to 1.5 million people leaving the workforce.

In June, Republican Sens. Mitt Romney (UT), Richard Burr (NC), and Steve Daines (MT) introduced a new bill — the Family Security Act 2.0 — to distribute monthly cash payments to parents. The proposal is a modified version of a child allowance policy Romney introduced in 2021, though his new bill includes a requirement that families earn at least $10,000 to receive its full benefit.

The Republican proposal would mark a big expansion from the current child tax credit. It would increase the maximum value from $2,000 to $4,200 for each child under age 6 and $3,000 for each child ages 6 through 17, paid out in monthly installments.

Romney’s office declined to comment for this story, but the Utah senator told Semafor “it’s probably not going to be until next year that we consider new legislation” on the CTC.

Most other Republicans, though, are being more tight-lipped, and Ruben, of the Economic Security Project, says his conversations with Republicans suggest they’re keeping their negotiating options open for now.

“We’re talking to Republican offices that say they want to do more for families than current law provides, and when we say, ‘What’s your bottom line in terms of what you can or can’t accept?’ they say, ‘Well, I don’t know, it’s a deal,’” Ruben said. “They don’t say, ‘It has to absolutely do this,’ or has to be written in a certain way. It’s all more fluid in Congress right now than that.”

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Democrats eye new legislation to rein in Wall Street landlords

Originally published in Vox on December 2, 2022.
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Institutional housing investors — largely, the commercial banks, private equity, and other financial entitles that flip homes or rent them out — have been the subject of conflicting media messages.

On the one hand, we’re told investors are buying up more housing than ever. In 2021, they bought nearly one in seven homes sold in the 40 largest US metropolitan areas, the most in at least two decades, according to Redfin data analyzed by the Washington Post. In the first quarter of 2022, investors comprised between one-quarter and one-third of home sales in Atlanta, Jacksonville, Charlotte, Phoenix, and Miami. The US House Financial Services Committee reported in June that corporate ownership of single-family rental homes has grown 3 percent annually since 2010, “with the third quarter of 2021 posting the fastest year over year increase in 16 years.”

These trends are worrying, researchers and advocates stress, because there’s evidence that corporate landlords, under pressure to deliver big profits to their shareholders, are more likely to evict their tenants, raise rents more aggressively, and shirk responsibility for basic maintenance and repairs. There’s also evidence that some investors have been targeting homes in Black neighborhoods at disproportionate rates, accelerating gentrification and putting homeownership for some families further out of reach.

On the other hand, housing owned by large corporate investors makes up a much smaller percentage of the nation’s overall housing stock than is often suggested by headlines. Institutional investors, referring to entities that purchase 100 or more properties, accounted for under 3 percent of home sales in 2021 and 2022, according to Freddie Mac. So-called “mom-and-pop” investors, who own fewer properties, are growing at faster rates, and according to the National Rental Home Council, only 1.16 percent of single-family rental homes were owned by rental companies. Americans for Financial Reform estimated that as of June 2022, private equity firms owned about 3.6 percent of apartments and 1.6 percent of rental homes.

Defenders of the sector point to research showing that most people moving into single-family rentals are poorer, younger, have worse credit, have larger families, and are more likely to be single parents than their home-owning counterparts. One study published last year estimated that 85 percent of single-family rental residents would not qualify for a mortgage. Taking away these rental options, advocates warn, would just take away more spacious living arrangements for younger families who can’t yet afford to own, or might not want to even if they could.

Others say the focus on Wall Street investors is largely a scapegoat to avoid wrestling with the real culprit of the housing crisis: the dearth of available units. Sam Khater, the chief economist of Freddie Mac, cited labor shortages, land use regulations, zoning restrictions, political opposition to new housing, lack of developers and lack of land as root causes of the housing shortage. And economic research published this summer found that remote work has also increased US aggregate home prices by 15.1 percent since late 2019.

Still, with damning press and congressional investigations into corporate housing abuses, political pressure has mounted on lawmakers to step in. In August, senators heard testimony from people like Laura Brunner, the president and CEO of the Port of Greater Cincinnati Development Authority. Brunner detailed how institutional investors have upended their local housing market, and dramatically hiked rents in the process. “We’ve been told by institutional investors that they only own about 1 percent of single-family homes; however … this could mean 50 percent of the houses on a single street,” she testified. “When the geographical impact is so concentrated, it has a game-changing effect on what it means to live in that neighborhood.”

In late October, three Democratic House members from California — Reps. Ro Khanna, Katie Porter, and Mark Takano — introduced a new bill, the Stop Wall Street Landlords Act, to address these growing concerns. Senators have also been getting involved, holding listening sessions with renters and housing policy experts. A spokesperson for Sen. Sherrod Brown told me that Brown is focused on “predatory investors and landlords — particularly deep-pocketed investors taking advantage of new technologies” that price out families from homes and leave tenants with unsafe living conditions. Brown is currently working on “legislative steps to protect families and address these predatory practices,” the spokesperson said.

Khanna said he doesn’t see his new bill as a comprehensive housing solution, and stresses that lawmakers need to stay focused on fighting barriers to new housing construction, increasing housing supply, and expanding down-payment assistance. “But we don’t need to be subsidizing institutional investors to go buy up housing in working-class neighborhoods and holding them for appreciation and turning them into Airbnbs,” he told me. “You could make an argument that it was necessary to subsidize Wall Street investors after the 2008 financial crisis when the market collapsed, but that certainly now has run its course.”

The Stop Wall Street Landlords Act, explained

The stated goal of the new House bill is to deter future institutional investments into single-family homes. It would try to do this in a few ways, including by barring corporate investors from claiming certain tax breaks like the mortgage interest deduction, and imposing a transfer tax on the sale value of new single-family home purchases.

The legislation also would bar the government-sponsored mortgage companies — Fannie Mae, Freddie Mac, and Ginnie Mae — from assisting certain large investors in financing, and would establish a new tax credit to help affordable housing developers build and rehab homes in low-income areas.

Groups representing institutional investors, unsurprisingly, have come out strongly against the bill. A spokesperson for the American Investment Council, which represents private equity companies, told Vox that “this politically motivated legislation completely misses the mark and won’t help address the real challenges in today’s housing market.”

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David Howard, executive director of the National Rental Home Council, told the Mercury News he believes the bill “will only reduce the availability of single-family rental housing while making it more expensive — ultimately hurting the very people for whom access to affordably priced rental housing is so essential.”

Kristin Siglin, vice president at the National Community Stabilization Trust, a nonprofit that transfers foreclosed and abandoned properties to local housing groups, praised the bill’s inclusion of the neighborhood homes tax credit, which was also included in the Build Back Better bill the House approved last year.

Siglin told me the coalition she leads to promote the tax credit was “really pleased” to see the measure included, and commended the Stop Wall Street Landlords Act for not only including sticks in the form of ending tax preferences for corporate investors, but also carrots, like the tax credit, to increase the supply of homes to sell to owner-occupants. Right now, large corporate investors are often the only entities available with the financing capabilities to make repairs on homes. The neighborhood homes tax credit, Siglin says, can help to fill this gap, and keep more properties out of Wall Street hands.

Khanna’s office said they worked with experts including the Urban Institute to develop their bill. The Urban Institute’s government affairs manager, Victoria Van de Vate, told me she hasn’t read the Stop Wall Street Landlords Act and said her think tank does not suggest bill language or take official positions on legislation. “A team of housing researchers and I met earlier [in November] with Rep. Khanna and his team to discuss policy alternatives to increase rates of black homeownership and the role of institutional investors in the housing market,” she said. “It was a good conversation, and we always welcome the opportunity to share our research, answer questions, and provide evidence-based recommendations about policy.”

Laurie Goodman, the founder of the Housing Finance Policy Center at the Urban Institute, told me separately that she sees Khanna’s legislation as a very “punitive bill” that would deter institutional investors from buying properties in a way that would be unhelpful. The single-family rental industry does a lot of good things, she added, “all of which are ignored by the critics.” Goodman was not familiar with the neighborhood homes tax credit but argued that institutional investors play an important role in financing repairs that prospective homeowners can’t afford.

Dan Immergluck, a professor of urban studies at Georgia State University who has researched the history of institutional investors on housing markets, told me that while he hasn’t had time to closely read the bill, he does not support allowing Fannie Mae and Freddie Mac to help finance large-scale single-family rental operations unless there were “serious strings” attached, like affordability requirements. Immergluck said he’s less convinced simply making it more expensive for single-family rental operators to do business through measures like excise taxes will be effective, “because in places where they already have market power, they could pass those costs onto tenants.”

Where the corporate housing sector is likely going

What about inflation and the much-discussed housing construction slowdown sparked by rising interest rates? Increased building costs have already led to a slowdown in investor homebuying — a decline of 30 percent in the third quarter of 2022, the Wall Street Journal recently reported. Redfin also just closed its own home-flipping business, following Opendoor Technologies, another online house flipper, which just posted record losses.

Khanna told me he thinks his bill would help stabilize some of the rising rents by decreasing demand from institutional investors, which still accounted for 17.5 percent of all home sales in the third quarter of 2022. Even if institutional investors only buy up a small percentage of total housing, their presence in the bidding wars can still lead to higher costs for all buyers. And even though investor sales growth has slowed, experts expect their share of purchases to rise again soon, as builders with unsold homes look to sell to rental landlords. Plus a widely expected recession could raise unemployment and make it even harder for traditional buyers to compete with corporate bidders.

While investment firms began purchasing foreclosed homes after the housing crash, investors more recently have been pouring billions of dollars into new build-to-rent communities in more than 25 states. The National Association of Home Builders reported 13,000 such homes were started in the first quarter of 2022, up 63 percent from a year before. In November the CEO of Tricon Residential, a Canadian real estate company, said on an earnings call Tricon has nearly $3 billion it plans to use to buy and build new homes.

The Stop Wall Street Landlords Act will not tackle the housing shortage, Khanna acknowledged, but maintained it’s a necessary part of the legislative puzzle. “We need to massively increase housing supply, we need to figure out creative programs for first-time homeowners, and we need my new bill, which will stop the financialization of housing.”

The 3 possible outcomes of the midterms in Congress, explained

Originally published in Vox with Dylan Scott and Li Zhou on November 2, 2022
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Once the dust settles from the midterm elections, what — if anything — is Congress likely to do over the next two years?

Right now, polls and forecasts suggest the Senate still is a toss-up, while Republicans are more likely than not to win a majority in the House of Representatives. That would mean some form of divided government, with Republicans in charge of one or both houses of Congress while President Joe Biden and his veto pen would be able to stop them from implementing much of their agenda. But it’s still possible, although it currently looks less likely, that Democrats could hold onto the Senate, giving them two more years of a Democratic trifecta.

Those three scenarios — Republicans winning just the House, Republicans winning the House and Senate, and Democrats holding on to control of Congress — differ in important ways. A Republican-dominated Congress could create something like gridlock, leading to potential battles over the debt ceiling and government funding and giving the Senate the power to hold up Biden’s nominees. A split legislature, with Republicans controlling only the House of Representatives, would put a focus on investigations and, potentially, lead to a vote to impeach Biden. And if Democrats retain control, they’ll face many of the same challenges they did over the last two years.

Here are the three possible outcomes of the midterms and what might happen once the new Congress begins in January 2023.

Scenario 1: Republicans control both houses of Congress

How likely is it? Not unlikely! Forecasts from Politico and FiveThirtyEight suggest Republicans are favored to win the House, while the Senate is a toss-up that comes down to a few key races.

What’s at stake? If Republicans win control of the House and Senate, they’ll have the scope to pursue a legislative agenda beyond what they’ve promised on the campaign trail — even if President Joe Biden’s veto could ultimately block most of their ability to make it a reality.

GOP House Minority Leader Kevin McCarthy, who would become House speaker if elected, released a “Commitment to America” agenda in September — mostly a vague, one-page outline of Republican talking points like “curb wasteful government spending” and “create good-paying jobs,” though it was sprinkled with a few specifics, like a pledge to hire 200,000 more police officers and end proxy voting in Congress, which allows members to cast votes remotely. McCarthy also promises to “confront Big Tech” and expand school choice and a “Parents’ Bill of Rights.”

The one-pager and the Republican campaign for controlling Congress mask what are sure to be larger fights within the Republican caucus around fiscal policy. Many House conservatives are interested in using forthcoming debt limit fights to force Democrats’ hands on cutting entitlement programs.

This hasn’t been a center of the midterm campaigns: The Commitment to America agenda says nothing about Medicare or Social Security. But earlier this year, the Republican Study Committee, the House’s conservative caucus that comprises nearly 75 percent of the House GOP, released a 122-page manifesto that pledged to cut Medicare and Social Security benefits by raising the eligibility age as well as pushing beneficiaries to enroll in private Medicare and retirement plans.

In the Senate, Sen. Rick Scott (R-FL) endorsed the idea of forcing Congress to vote on reauthorizing Social Security and Medicare every five years, and Sen. Ron Johnson (R-WI) backed voting on the entitlement programs annually. Some conservatives and even prominent liberals believe Republicans could use the threat of a government default to force Democrats’ hand in these areas, though, for now, Biden has promised to veto any cuts to the programs. Senate Minority Leader Mitch McConnell has also so far rejected these ideas, calling them nonstarters, but the debate is unlikely to die out.

The Republican agenda for abortion rights also hasn’t been something they’ve sought to campaign on in the midterms but could become a top issue if they take control of Congress. The Commitment to America platform states merely that the Republican Party would “defend the unborn, fight for life,” but the RSC manifesto lists nearly two dozen anti-abortion bills the caucus supports codifying, including a bill effectively prohibiting abortions after about six weeks, and one that would provide 14th Amendment protections to fetuses.

Sen. Lindsey Graham (R-SC) introduced a bill in September banning abortion after 15 weeks. When he introduced a bill banning abortion after 20 weeks in 2021, 45 Senate Republicans joined in support. While anti-abortion groups are pressing Republicans to go on the offensive, it seems for now congressional Republicans are waiting to see how the issue plays out in the midterms.

With two years ahead of the next presidential election, it’s likely GOP lawmakers will be keen to avoid giving Biden more big bipartisan wins, like they did in his first two years, compromising on issues like gun control, infrastructure, and competitiveness with China.

Were Republicans able to retake the Senate, they would be able to vote down Biden’s judicial nominees (including any that come up on the Supreme Court), block them wholesale from consideration, and pressure the White House to pick what they perceive as more moderate options. Republican lawmakers have already signaled that they may not consider Biden’s nominees.

In April, McConnell wouldn’t commit to giving a Supreme Court pick a hearing in 2023 if the Republicans retook their majority. It’s something he’s done before: During the Obama administration, McConnell notably blocked Supreme Court nominee Merrick Garland from ever getting a hearing by arguing that his nomination was in an election year.

What constraints would the party in power face? The House and Senate will ultimately be limited on what they can enact into law over the next two years, as Biden will remain in the White House with a veto pen he promises to use. The Senate will also lack a veto-proof conservative majority, even if Republicans win control of the chamber. But even if it’s unlikely that Republicans manage to pass very conservative bills into law, a Republican-controlled Congress will certainly be able to stymie Biden’s legislative agenda.

Scenario 2: A divided Congress

How likely is it? Congress could be divided two ways — with a Democratic Senate and Republican House, or the reverse, a Republican Senate and Democratic House. The latter is very unlikely; if Democrats perform well enough to hold on to the House, they’re unlikely to lose Senate control. The Senate is a toss-up while the House leans Republican, so the former certainly could happen.

What’s at stake? In the case of a split Congress, the likelihood of more ambitious legislation passing is exceedingly slim. Instead, the two chambers are poised to focus on their own respective priorities, while facing clashes over must-pass bills like government funding and an increase to the debt ceiling.

As House Minority Leader Kevin McCarthy has made clear, House Republicans are prepared to hold any increase to the debt ceiling hostage in exchange for cuts to other programs like clean energy investments and Social Security. In that case, the House and Senate could face an interminable standoff that could put the United States on the verge of defaulting on its debt, a scenario that could have devastating consequences for the economy.

On the House side, meanwhile, a Republican lower chamber would be able to proceed with its many investigations even if the GOP doesn’t control the Senate. As would be the case if Republicans captured the majority in both chambers, they’d have free rein to hold investigations in the House on everything from Hunter Biden’s financial dealings to the Biden administration’s approach to border security, and they intend to use it.

Investigations and impeachment votes can both proceed without the Senate’s approval or the White House’s signature. Some House members have already said they plan to push for the impeachment of President Biden, and have already introduced at least eight resolutions to do that.

Last week, the Atlantic’s Barton Gellman — who was prescient in predicting that Donald Trump would not admit defeat if he lost his reelection bid — published a piece detailing why he thinks a new House Republican majority would vote to impeach Biden within its first year, largely driven by mounting caucus pressure from election deniers who cast Biden as illegitimately elected.

House Republicans could also push for the impeachment of other high-ranking Biden administration officials, including US Attorney General Merrick Garland, Homeland Security Secretary Alejandro Mayorkas, and Vice President Kamala Harris, and hold a series of House investigations next year if they take power, specifically on areas like Democrats’ handling of the southern border, the DOJ, inflation, and the energy crisis. Rep. James Comer (R-KY) is set to lead the House Oversight and Reform Committee and told Politico he also wants to spearhead investigations into the business dealings of Hunter Biden and the origins of Covid-19.

“Part of our constitutional duty is oversight,” said Rep. Jim Jordan (R-OH), a founder of the Freedom Caucus, who’s expected to wield significant influence in a Republican majority, during the Conservative Political Action Conference earlier this year. “We need to know why the Biden administration has taken the intentional position of not having a border.”

What constraints would the party in power face? With Senate control, Democrats could continue to advance more judges and executive branch nominees. The Senate, after all, retains the critical ability to approve judges for district courts, circuit courts, and the Supreme Court with a simple majority. Filling these vacancies will be a crucial priority for Democrats if they’re able to hang onto the Senate, especially after Republicans spent much of the Trump administration attempting to stack the courts in their favor.

“The main difference between a split Congress and one controlled by Republicans completely would be Biden’s ability to fill judicial and other vacancies,” says Kyle Kondik, managing editor of Sabato’s Crystal Ball at the University of Virginia.

Already, the Senate has confirmed judges at a rapid clip, approving Biden’s faster than any president at this point in their term since President John F. Kennedy. Biden’s nominees have also included a significant number of women, racial and ethnic minorities, and public defenders, all groups that Democrats could continue to prioritize for these roles if they hold the upper chamber. As of early October, there were still 44 judicial nominees pending in the Senate and additional vacancies that did not have nominees yet.

Scenario 3: Democrats keep control of Congress

How likely is it? This is the unlikeliest scenario of the three, according to the polling and election forecasters. The president’s party historically loses ground in the midterm elections, and Democrats hold narrow majorities as it is. But with an unusual political climate — inflation is up, but unemployment is low, while the Supreme Court’s June abortion ruling has animated the Democratic base — they have at least an outside chance to defy one of the most consistent trends in US politics.

What’s at stake: Democrats would have two more years of complete control in Washington (outside of the Supreme Court). The legislative agenda is theirs to set. What do they want to do?

Based on interviews with current and former congressional staff, as well as lobbyists and progressive advocates, two items would almost surely be the subject of legislative debate and possible action: abortion rights and election integrity.

The consequences of the Supreme Court’s Dobbs decision and anti-democratic radicalism within the Republican Party have been the two of the most consistent themes in Democratic campaigns this cycle.

Both would likely require modifying the filibuster in the Senate, presuming (as we safely can) Democrats are still short of a 60-vote supermajority. That is where the difference between a 50-seat Democratic majority and a 52-seat one matters; Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) are resolutely opposed to weakening the filibuster, but incoming Democratic senators will have signaled an openness to it on the campaign trail.

Some bills — the Women’s Health Protection Act on reproductive rights, the Electoral Count Reform Act (if it doesn’t pass this Congress), and the John Lewis Voting Rights Act for election integrity — could serve as a starting point for those efforts, if the filibuster were no longer an obstacle. But they are only starting points and far from finished products, as earlier Senate Democratic disagreements about the WHPA and voting rights laid bare.

Democrats would also have a chance to pass budget reconciliation legislation without having to worry about the filibuster (though they would be limited in what they could do).

“The good news is it’s highly unlikely the government is going to shut down and you can still pass a lot of stuff using the reconciliation process,” said Jim Manley, a longtime strategist for former Senate Democratic leader Harry Reid. “Nothing comes easy on Capitol Hill these days, but it helps your odds of getting something done besides continuing to fund the government.”

The contours of any reconciliation bill would depend on the macroeconomic situation. Is inflation still at historic highs? Has the economy entered a recession and sent unemployment soaring? That would dictate, at least in part, how much Democrats might be willing to approve new spending or hike taxes to pay for their spending plans.

The leftover pieces of Biden’s Build Back Better plan would likely be the starting point for any reconciliation bill that the next Congress might decide to pursue in 2023. Democrats passed climate provisions as well as fixes to the Affordable Care Act as part of the Inflation Reduction Act. But entire swaths of the BBB agenda focused on child care, pre-K, and long-term care for seniors and people with disabilities were cut out during the 18-month negotiations that were largely driven by Manchin and Sinema’s desires.

What constraints would the party in power face? The 2024 election looms, with either Joe Biden preparing to run for reelection (more likely if Democrats win a historic victory in the midterms) or a swarm of possible successors jockeying for a position from Capitol Hill. The Senate map in 2024 is much less favorable to Democrats than it was in 2022, which may make Senate leaders reluctant to put their most vulnerable members (in states like Montana, Arizona, and Wisconsin) through a messy legislative debate or force them to take difficult votes.

“If you’re just thinking of it from that perspective, with all those Democrats up for reelection, I question how much of an appetite there’s going to be for a progressive agenda,” Manley said.

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It would also make a difference whether Democrats continue to cling to 50 seats in the Senate, leaving Manchin and Sinema (who are up for reelection themselves in 2024) with an effective veto pen over the legislative agenda. If they can expand their majority to, say, 52, that would give party leadership some wiggle room in deciding which policies to pursue.

Those would likely be difficult debates, on both the particulars of the policy and the prospect of changing the Senate’s rules for good. But progressives argue Democrats would have a mandate to act.

A Democratic victory would reflect “overreach by the GOP in terms of extremism, plus Democrats competently governing in some difficult terrain,” said Mary Small, national advocacy director for Indivisible. “Codifying abortion rights has also been a galvanizing issue for voters.”

Still, progressives hope Democrats feel emboldened if they wake up one morning in November (or December, depending) and learn they are still in control of Congress. They will have passed two major bills (the American Rescue Plan and IRA), weathered soaring inflation, and still earned the trust of voters.

They will also try to learn from the mistakes of the past two years, where they feel a lengthy legislative debate reduced the urgency to get something done as the immediate concerns of voters and lawmakers transitioned from the economic recovery of early 2021 to the inflation crisis of 2022. They are hoping they can tell a more consistent story about how the policies that Democrats are proposing will materially improve voters’ lives.

“Doing nothing is not going to help us make the argument in 2024,” Small said. An unlikely victory in 2022, she said, would call for “repeating their work to call out the extremism of the GOP and to competently deliver on ways that improve people’s lives materially.”

Senators Push for Free Prison Phone Calls in Next Coronavirus Relief Bill

Originally published in The Intercept on August 7, 2020.

THE CORONAVIRUS PANDEMIC has put into sharp relief an issue criminal justice reformers have been raising for years: the astronomical rates that prison-phone corporations charge for phone and video calls to incarcerated individuals. Now, as Congress debates the next coronavirus stimulus deal, some lawmakers are pushing for provisions to make such calls free.

On Thursday, 17 Democratic senators, led by Sens. Amy Klobuchar and Tammy Duckworth, sent a letter to Mitch McConnell and Chuck Schumer urging them to make this a federal priority in the next package.

“Before the pandemic, more than 50 percent of families with an incarcerated loved one struggled to pay for housing and food, and one in 29 children had a parent incarcerated,” the letter stated. “In addition, one in three families with an incarcerated loved one went into debt in order to stay connected with them, and women shouldered 87 percent of these costs. Now, as many facilities have suspended in-person visits and families face layoffs, furloughs, and evictions due to the pandemic, these calls are more necessary—and cost prohibitive—than ever.”

In some jurisdictions, a local 15-minute phone call can run as high as $25, a cost that was untenable even before the current economic crisis. The Federal Communications Commission currently has jurisdiction to regulate interstate calls, but more than 80 percent of prison phone calls are in-state, meaning the vast majority of calls for the 2 million incarcerated individuals across the U.S. could not be regulated unless Congress changed the law — a challenge highlighted in the senators’ letter.

“Without action from Congress to address the rates for in-state calls, families will continue to suffer,” they wrote.

The pandemic and the nationwide protests for racial justice following George Floyd’s murder brought significant attention to conditions in U.S. jails and prisons, where there is a disproportionate rate of Covid-19 cases as compared to the broader U.S population; one recent estimate put it at 5.5 times higher. At the same time, the pandemic has made it even harder for incarcerated people to communicate with their loved ones, due to the combined stresses of expensive phone calls and the lack of in-person visitation. It’s an issue federal officials have been quietly chipping away at for months.

IN 2015, THE FCC announced it would act to address predatory in-state calling rates, but after telecom companies sued, FCC Chair Ajit Pai, a Trump appointee, in 2017 stopped defending his agency’s right to regulate those calls. Later that year, a federal court ruled that the FCC has the authority to regulate interstate prison phone calls but not in-state ones.

In June 2019, Duckworth, along with Sens. Rob Portman, R-Ohio; Cory Booker, D-N.J.; Brian Schatz, D-Hawaii; Ed Markey, D-Mass.; and Angus King, I-Maine, introduced a bill to expand the FCC’s authority to regulate prison phone calls. The Martha Wright-Reed Just and Reasonable Communications Act is named in honor of Martha Wright, a woman who filed a lawsuit in 2000 against the private prison where her grandson was living, saying the costs of calling him were unconscionably steep. The court ruled that Wright’s complaint was an issue for the FCC to handle, so she then moved to petition the agency to intervene. In 2013, the agency finally acted, voting to cap rates for interstate phone calls in jails and prisons.

Little changed following the introduction of Duckworth’s bill last year, but then the pandemic hit. In the first stimulus package authorized by Congress, to advocates’ surprise, language was included to make all phone calls free in federal facilities for the duration of the national emergency.

“It wasn’t clear who led the effort with the CARES Act … but after years of advocacy, the prison phone justice movement certainly has its allies in Congress, and it paid off in a bizarre moment,” said Bianca Tylek, the executive director of Worth Rises, a group focused on dismantling the prison industry. “Unfortunately, the downside of that bill is that it’s only for the duration of Covid.”

In late March, Rep. Bobby Rush, D-Ill., introduced a House bill, the Martha Wright Prison Phone Justice Act, which builds on Duckworth’s legislation. In addition to expanding the FCC’s authority to regulate in-state prison phone calls, Rush’s bill would also bar state and local government agencies from collecting commissions from prison phone calls and set interim rate caps during the pandemic. It was included in the HEROES Act, a supplement to the CARES Act that was passed by the House in May, a measure Tylek called “the most significant federal legislative vote on prison phone justice in history.”

Meanwhile in the Senate, Duckworth and Klobuchar continued to push on the issue. In mid-April, Duckworth organized a letter, signed by 18 other senators, urging Pai, the FCC chair, to pressure telecommunication providers to commit to reducing call rates in prisons and jails. “The FCC is uniquely positioned to seek commitments from these providers,” the senators wrote. “We applaud the FCC’s efforts to encourage traditional providers to bolster connectivity for Americans impacted by the coronavirus, most notably through the Keep Americans Connected Pledgehowever, this effort does not adequately reflect the dynamics of prison and jail telecommunication systems.”

In May, Klobuchar and Dick Durbin, D-Ill., led 27 other senators in sending a bicameral letter to the Department of Homeland Security and ICE urging them to provide free phone calls to detained people during the pandemic. In the House, Reps. Jerrold Nadler and Zoe Logfren organized 50 colleagues to also sign on.

Then in July, Pai surprised advocates by coming out forcefully on the issue. On July 16, the FCC announced a new proposed rule to significantly lower the per-minute rate caps for interstate prison phone calls, from $.21 (prepaid) and $0.25 (collect) to $0.14 for calls from prisons and $0.16 for calls from jails. The proposed rule would also cap rates for international prison phone calls for the first time. In an accompanying blog post, Pai wrote, “Not surprisingly, without effective regulation, rates for inmate calling services can be unjustly and unreasonably high and make it difficult for inmates and their loved ones to stay connected.”

Four days later, Pai sent a letter to the president of the National Association of Regulatory Utility Commissioners, a trade association of state utility commissioners, urging the group to take action on the “unjust and unreasonable rates” of in-state prison phone calls, which he noted disproportionately hurt Black Americans. In 33 states, rates are at least double the federal cap, and in 27 states, the first-minute charge can be up to 26 times higher than that of an interstate call. In his letter Pai pointed to recent statements NARUC made following George Floyd’s killing about addressing discrimination and racial injustice. “These are noble sentiments … but it is time for these sentiments to manifest in action,” Pai wrote.

On July 23, NARUC issued a response to Pai’s letter, saying they “agree” and will ask their members to “take a comprehensive review in their jurisdictions around these rates and take action where warranted.” NARUC president Brandon Presley noted that in some states, corrections officials negotiate prison phone call contracts “outside the purview of state public service commissions,” so they would need to be involved, in addition to governors. But NARUC opposes expanding the FCC’s power over in-state prison calls, and in the last few weeks Pai has begun campaigning more vocally for Congress to give his agency that authority. While Pai has not endorsed Duckworth’s bill specifically, he has endorsed the most significant component of her bill. On Thursday the FCC voted to advance the proposed rule to lower interstate prison phone call rates, setting the stage for public comment.

 

Tylek said no activist anticipated this momentum from the FCC. “We can’t say we expected Commissioner Pai would come out and say, ‘State regulators, all of you are writing Black Lives Matter statements but aren’t doing anything about prison phone calls,’” she said, adding, “Having a pro-industry, Trump-appointee conservative acknowledging the issue is very positive for the movement and a welcome change.”

Pressure has continued to ramp up in the Senate to get this included in the next stimulus package. Advocates are planning to deliver a petition to Congress next week with over 75,000 signatures urging the passage of phone justice legislation, and this past Tuesday, Klobuchar formally signed onto Duckworth’s bill, and joined her in circulating the Dear Colleague letter on Thursday. Advocates say they are particularly excited about Klobuchar’s leadership since she has a good record of being able to corral Republicans onto legislation.

The real Republican gatekeeper on this issue is Sen. Roger Wicker, the chair of the Commerce, Science, and Transportation Committee. Tylek says Wicker’s office has met with them, but he has not committed to support the legislation. Wicker’s office did not return requests for comment. 

Why Environmental Groups Are Urging Congress to Vote Against Trump’s North American Trade Deal

Originally published in In These Times on December 16, 2019.
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While Congressional Democrats made clear that they would not bring the United States-Mexico-Canada Agreement (USMCA) to a vote until it had the backing of the AFL-CIO, support they finally secured last week, Democrats appear comfortable voting on the replacement trade deal that has virtually no support from leading environmental groups.

A House vote could come in the next few days and on Friday December 13, ten environmental organizations, representing 12 million members, sent a letter urging Congressional representatives to vote against the proposed deal, which will replace the 25-year-old North American Free Trade Agreement (NAFTA).

“This final deal poses very real threats to our climate and communities and ignores nearly all of the fundamental environmental fixes consistently outlined by the environmental community,” the letter stated. The groups—which include the Sierra Club, Greenpeace and 350.org—noted that “the deal does not even mention climate change, fails to adequately address toxic pollution, includes weak environmental standards and an even weaker enforcement mechanism, supports fossil fuels, and allows oil and gas corporations to challenge climate and environmental protections.” The groups link to a two-page analysis produced by the Sierra Club that goes into greater detail about what the group sees as the deal’s environmental shortcomings.

House Democrats, meanwhile, have been touting the environmental provisions negotiated in USMCA, insisting they’re both strong and the best they could have feasibly achieved.

According to the environmental news organization E&E News, at a Politico event last week, House Speaker Nancy Pelosi described the USMCA as “substantially better” than NAFTA and said “we are very pleased with the environment [provisions].” While she conceded “we want more,” she stressed, “but we don’t have to do it all in that bill” and praised it for “talk[ing] about the environment in a very strong way.”

Rep. Suzanne Bonamici (D-Ore.), who co-led the House working group focused on environmental trade issues, told reporters at a press conference last week that “this is going to be the best trade agreement for the environment” and cheered its monitoring and enforcement provisions. Rep. Bonamici did not return In These Times’s request for comment.

Back in May, every Democrat on the House Ways and Means Committee, chaired by Rep. Richard Neal (D-Mass.), sent a letter to President Trump criticizing the draft agreement for its language around the environment, including its lack of “any apparent provisions directed at mitigating the effects of climate change.” Now the Committee is championing its work to shape the final text, saying the “revised version will serve as a model for future U.S. trade agreements.”

Having so many members of Congress support this agreement is especially frustrating for climate advocates because, in September, more than 110 House Democrats, including 18 full committee chairs, sent a letter to the president urging the new trade deal to “meaningfully address climate change” and to “include binding climate standards and be paired with a decision for the United States to remain in the Paris Climate Agreement.”

“While Democrats claim this deal improves on some environmental provisions, they have yet to explain how it meaningfully addresses climate change,” said Jake Schmidt, the managing director for the International Program at the Natural Resources Defense Council.

Climate advocates point to the growing problem of “outsourced” pollution—where wealthier countries like the United States and Japan take credit for improving their own domestic environmental standards, while then importing more goods from heavy-polluting countries. Critics say the current draft of USMCA does nothing meaningful to address this problem.

The trade agreement is being hailed for rolling back the Investor-State Dispute Settlement, controversial private tribunals that have enabled corporations to extract huge payments for government policies that may infringe on their profits. But Ben Beachy, a trade expert with the Sierra Club, says the agreement includes a major loophole for Mexico, where oil and gas companies will still be able to sue in those private tribunals.

“The approach the NAFTA 2.0 deal takes is recognizing there’s a problem but then allowing some of the worst offenders to perpetuate it,” he told In These Times. “It’s an unabashed handout to Exxon and Chevron: It’s like saying we’ll protect the hen house by keeping all animals out, except for foxes.”

Beachy says the deal overall “dramatically undercuts” the ability of the U.S. to tackle the climate crisis. “By failing to even mention climate change, it’ll help more corporations move to Mexico, and this is not a hypothetical concern,” he said. “We cannot simultaneously claim to fight climate change on one hand and enact climate-denying trade deals on the other. Do we really want to lock ourselves into a trade deal for another 25 years that encourages corporations to shift their pollution from one country to another?”

Karen Hansen-Kuhn, the program director at the Institute for Agriculture and Trade Policy, told In These Times the final agreement represents an even worse situation for farmers than under NAFTA. “On food and farm issues it’s definitely several steps back,” she said, pointing as an example to how USMCA will make it easier for companies to limit the information they provide to consumers about health and nutrition.

Emily Samsel, a spokesperson with the League of Conservation Voters (LCV), told In These Times that her organization informed members of Congress “that [they] are strongly considering scoring their USMCA vote when it comes to the House floor on LCV’s Congressional scorecard.” LCV was one of the ten environmental groups to sign the letter opposing the trade deal last week.

USMCA does include language requiring parties to adopt and implement seven multilateral environmental agreements, but the 2015 Paris Agreement is not among them. Getting the president to agree to putting anything about climate change or the Paris Agreement was always going to be a tough sell, considering Trump has promised to withdraw from the landmark climate pact. Still, environmental advocates insist House Democrats have real leverage that they should use more aggressively, particularly since getting the trade deal through Congress is Trump’s top legislative priority for 2019.

Democratic supporters of USMCA say the existing language is good enough for now, and that it will position the government well for when Trump is out of office. A spokesperson for Nancy Pelosi told The Washington Post that “the changes Democrats secured in USMCA put us on a firm footing for action when we have a President who brings us back into the Paris accord.” Earlier this year 228 House Democrats voted for a bill to keep the U.S. in the Paris Agreement.

U.S. labor groups have thus far remained mostly silent on the concerns raised by environmental organizations.

The International Association of Machinists and Aerospace Workers, which opposes the deal on labor grounds, did not return request for comment on the USMCA’s environmental provisions. The Communications Workers of America released a statement on Friday saying the deal includes some “modest improvements” for workers over NAFTA, but a spokesperson for the union told In These Times, “We don’t have any comment on the environmental provisions.” The BlueGreen Alliance, a national coalition which includes eight large labor unions and six influential environmental groups, has issued no statement on the trade deal, and did not return request for comment.

And the AFL-CIO issued a statement last week praising the deal, though noted “it alone is not a solution for outsourcing, inequality or climate change.” A spokesperson for the labor federation did not return request for comment.

Goodbye Public Housing?

Originally published in The American Prospect on November 12, 2015.
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In 2013, the U.S. Department of Housing and Urban Development (HUD) launched the Rental Assistance Demonstration (RAD) program—a far-reaching effort to preserve the government’s affordable units by transferring them into the private sector. Rather than have Congress directly fund local housing authorities to support the program, RAD allows private companies to rehab and manage public housing units in exchange for tax credits and subsidies. The contracts, which are set to continually renew every 15-20 years, require developers to keep units affordable for low-income tenants.

While Congress initially authorized just 65,000 units to be transferred—roughly five percent of the nation’s 1.2 million public housing stock—it later upped the RAD cap to 185,000 units, under pressure from the Obama administration and a coalition of public housing authorities, real estate developers, and other stakeholders. In August 2014, I took a deep look at the RAD program, and explored the concerns that tenants and housing advocates shared about its risks.

Last week I spoke with Alex Schwartz, a professor of urban policy at The New School, who has been researching some preliminary RAD data. He presented his unpublished findings at the International Sociological Association RC43 Conference this past September.

One key assumption behind RAD is that public housing was never that politically popular to begin with, and that it’s unlikely it’ll become more popular in the near future. Due to its low level of political support, (despite residents who live there being relatively satisfied), Congress has financially starved the program for decades; HUD estimates that nearly $30 billion would be required to repair and rehab the units at this point. And the longer it takes to make such repairs, the more unsafe and uninhabitable the units will become. Each year, roughly 10,000 units are permanently removed from the public housing program, through demolition or dispositions.

Through RAD, public housing units are “converted” into Project-Based Section 8 rentals, thereby becoming eligible for debt financing, tax credits, and other private funding sources that can be used to help cover rehab and maintenance costs.

While Congress has decreased federal funding for public housing over the past two decades, it has increased funding for project-based rental assistance during this time. Between fiscal year 2005 and fiscal year 2015, appropriations for project-based rental assistance increased by 82 percent, and appropriations for public housing’s Capital Fund decreased by 27 percent.

In other words, by transferring the affordable units out of the public housing program into one that has received more political and financial support, RAD proponents feel they will be better able to preserve the physical units over the long haul, even if they become less “public” as a result.

In his paper, Schwartz explains that:

Historically, because project-based rental assistance is largely used to support low-income properties with subsidy contracts involving private owners, Congress has been reluctant to undermine these contracts by failing to appropriate adequate sums for the program. If appropriations for project-based rental assistance falls short of the need required by the subsidy contracts, the properties would be at risk of foreclosure. At times Congress has delayed its appropriations for this program, and sometimes it has provided funding for less than a full year, but it has seldom cut back support for project-based rental assistance by a substantial amount.

The biggest takeaway, for me, is that there’s a great possibility that public housing will ultimately end in the United States. While RAD is often framed as a way to “save public housing”—that’s not quite accurate. RAD is designed to help fund much-needed capital repairs, and provide financing options to keep the units habitable and affordable in the future. But the only way it works is by transferring the properties out of the public housing program, and into the Project-Based Section 8 world.

Schwartz thinks there are some units that are in such bad shape, located mostly in high-poverty neighborhoods, that not even tax credits, mortgage financing, and other RAD funding streams will be sufficient to attract private developers to fix them up. In light of this, the Obama administration requested that Congress appropriate $10 million to the RAD program, to help repair those units with particularly challenging needs. But Congress was adamant that RAD remain a “revenue-neutral” program, and refused to do so.

What this means is that if RAD expands, which it likely will, then we’ll see most affordable units transferred out of the public housing program, and those that remain will be the ones in the most abysmal shape.

“If people had a bad image of public housing before, it’ll just get even worse,” said Schwartz in an interview. “It’s analogous to the health insurance pool—where all the healthy people leave, and then you’re just left with just those who have the most expensive health needs.” Ultimately Schwartz thinks that whatever properties remain in the program will be left to decay until they are eventually demolished once and for all.

How to Sabotage Iran Negotiations in the Name of Avoiding War

Originally published in The American Prospect on March 4th, 2015.
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As multilateral talks over Iran’s nuclear program continue with the U.S. leading the negotiations, Congress seems to be doing its best to complicate things. And both Israel and the American Israel Public Affairs Committee (AIPAC) are doing their part to help.

Earlier this week, as 16,000 people convened in Washington, D.C., to attend AIPAC’s annual conference, the powerful pro-Israel lobby made it clear that the organization would push not only for increased sanctions on Iran—through the passage of the Nuclear Weapon Free Iran Act—but also for the ability to make it more difficult to lift sanctions later, via a new bill, the Iran Nuclear Agreement Review Act.

This latest bill, introduced on Friday by Republican Senator Bob Corker and Democratic Senator Robert Menendez, would give Congress a 60-day period to review any negotiated nuclear deal, and if Congress were to reject the deal, then the president would be barred from lifting sanctions.

Josh Rogin reported in Bloomberg View that top members of the Obama administration, including Secretary of State John Kerry, pressured Democrats to oppose the Corker-Menendez bill, lest it complicate the already fragile negotiations with Iran. Nevertheless, some Senate Democrats signed on, because there is, as Rogin puts it, “broad Congressional desire not to be totally shut out of the [negotiating] process.”

AIPAC and Israel Prime Minister Benjamin Netanyahu have set a considerably higher bar for what a “good deal” with Iran would look like.

After AIPAC’s annual conference, it is evident that the pro-Israel lobby plans to capitalize on this congressional “desire” and to escalate its fight with the White House. While the Obama administration and AIPAC both declare that a nuclear-armed Iran is not an option, AIPAC and Israel Prime Minister Benjamin Netanyahu have set a considerably higher bar for what a “good deal” with Iran would look like.

For AIPAC and Netanyahu, a “good deal” would mean allowing for zero enrichment of uranium for any purposes—a non-starter for the Iranians. They also seek a “permanent” deal that locks Iran under restrictions indefinitely. But as Lara Friedman, from the pro-Israel policy organization Americans for Peace Now, has explained:

Iran is in trouble right now because it has repeatedly violated the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), resulting in sanctions. Negotiations over Iran’s nuclear program are grounded in the understanding that by demonstrating compliance with all of its NPT obligations, Iran will no longer be in violation of the NPT and Iran’s tenure in the international doghouse—at least with respect to its nuclear program—can come to a close (at least so long as Iran remains in compliance). An Iran nuclear agreement—whether its provisions are in place for 10 years, or 15 years, or however many years are agreed on—would dramatically mitigate the threat of Iran acquiring nuclear weapons.

Just like the “zero enrichment” idea, Iran would never be able to sell a “permanent” deal to its people. The six world powers leading the diplomatic efforts with Iran (Russia, China, France, Great Britain, Germany, and the U.S.) understand this and are working to come up with a reasonable compromise that still ensures Iran cannot develop a nuclear weapon. If AIPAC and Netanyahu are serious about pursuing a diplomatic resolution to this conflict—and avoiding war—then their adamant opposition to both of these ideas raises serious questions.

At the AIPAC conference, speakers spelled out how they could use Congress to thwart the president from passing a deal they deem “bad.” On the gigantic screens in the convention center’s large plenary hall, AIPAC instructed attendees to “insist on a congressional role” when they lobby on Capitol Hill, because “on such a critical issue to U.S. national security, Congress must assert its historic role in foreign policy and review any agreement.”

Passing the Corker-Menendez bill might be an easier sell in Congress than imposing additional sanctions, because it is easier to argue that Congress should have “a voice” in the negotiating process. However, Senate Majority Leader Mitch McConnell announced Tuesday night that he wants to fast-track the bill, which might complicate its ability to garner enough Democratic support in time. Menendez has threatened to vote against his own bill, “outraged” at McConnell’s political move.

Edward Levine, an advisory board member for the Center for Arms Control and Non-Proliferation, a nonprofit research organization dedicated to international peace and security, argues that the bill is more harmful than helpful:

Do [Senators] really want to send a message to Tehran that the President may be unable to fulfill his commitments? Do they really want to move the goalposts by adding support for terrorism to the list of reasons for reinstating sanctions? The Corker bill will endanger both the negotiations and the sanctions regime; it does not merit support.

AIPAC is also trying to bolster Congress’s role in the negotiations by minimizing the fact that there has always been significant presidential authority built into U.S. sanctions legislation. The authority comes through various mechanisms, such as “waivers,” special rules, and legislative exemptions, which allow a president to decide, often unilaterally, whether and to what degree to lift or implement sanctions. He can make these choices if he believes doing so is in the national security interest of the United States.

On Capitol Hill on Tuesday, AIPAC’s legions of supporters pressured Congress to impose more sanctions and to reduce the executive branch’s power to lift sanctions. Let’s just hope that the Iranians do not take this as a signal that the negotiators’ commitment to ease sanctions in exchange for good behavior is feeble. Because if the negotiations fail, the war that everyone is trying to avoid is that much more likely.

Congress Seeks To Strip Waiver From Law On Moving Israel Embassy

Originally published in the Daily Beast on June 10, 2013.

Last week, President Obama granted a six month extension to a waiver on the Jerusalem Embassy Act of 1995, a law mandating the relocation of the U.S. Embassy in Israel from Tel Aviv to Jerusalem. For almost a decade, events around the propsed move have been repeating themselves endlessly like a broken record. It has become an uneventful, unchanging story—one that reflects the peace process it arguably aims to protect.

And yet, given settlement growth, recent timetables set by Secretary of State John Kerry and renewed efforts in Congress to circumvent the anticipated Presidential waivers (more on that in a bit), it seems naive to assume that these political maneuvers could go on forever.

When Congress passed The Jerusalem Embassy Act on October 23, 1995, it called to move the U.S. Embassy in Israel to Jerusalem no later than May 31, 1999. The law also notably called for Jerusalem to remain an “undivided city” and for the U.S. to recognize it as Israel’s capital. This law sailed through Congress with wide margins, passing the Senate 93 to 5 and the House 374 to 37.

So what happened? Despite the vast majority of presidential candidates on the campaign trail, both Republican and Democrat, promising to move the embassy and to recognize Jerusalem as Israel’s capital, once elected into power, they all wisely avoided making their words into deeds. This is not because they were incapable, but because they recognized that the U.S. Congress should not make decisions regarding final status issues outside of bilateral peace negotiations, let alone for such a decision to be one that no other country in the world would accept or recognize.

Every President since 1995 has used the Presidential waiver, arguing that it breaches the executive branch’s constitutional authority over foreign policy. They understand that such a move would shrink the United States’ already thin credibility in the Middle East.

In the words of Jerusalem expert, Danny Seidemann, “Many recite the Jerusalem-The-Undivided-Capital-Of-Israel mantra because doing so is electorally expeditious, and inconsequential. But moving the U.S. Embassy to Jerusalem outside of the context of a permanent status agreement would be HUGELY consequential. It would drive the U.S. into abject, unprecedented isolation, put it on a collision course with much of the rest of the world, and not contribute one bit to ‘uniting Jerusalem.’”

Some in Congress are looking to push back against the waiver power. In January, Representative Scott Garrett (R-NJ) authored a new bill: The Jerusalem Embassy and Recognition Act of 2013. While the likelihood of such a bill passing in the near future is extremely low, it would seem that as statements from John Kerry increase about various shrinking timetables for already tenuous peace prospects, the Obama Administration’s need to define its policy moving forward on Israel and Palestine will become more pressing. 

These policy shifts could have an impact on the enactment of the Jerusalem Embassy Act.One notable difference between the Jerusalem Embassy Act of 1995 and the Jerusalem Embassy and Recognition Act of 2013 is the attempt to remove the executive waiver authority granted by Section 7 of the law. Senator Dean Heller (R-NV) introduced a similar piece of legislation in the Senate, which also strikes the section allowing for the use of the Presidential waiver.

Garrett’s House bill has 23 co-sponsors right now, picking up its latest this past Monday with Representative Gene Green (D-TX). 19 Republicans and four Democrats represent the makeup of the House bill’s co-sponsors. Heller’s Senate version currently has a mere five co-sponsors, all Republican.

It is good news that Obama extended the Presidential waiver on the Jerusalem Embassy Act. Responsible leaders have recognized that moving the embassy to Jerusalem would be a mistake. Given the changing factors in the region, the question is how much longer will the United States be able to waive the law in the name of holding out for direct bilateral peace negotiations?

We’ve just passed the 46th anniversary of the Six Day War, whereby Israel took control of East Jerusalem, among other territories. If there is ever to be a two-state solution, then the Palestinian capital will be there. President Obama rightly passed another six month waiver this time. With the peace process in a shambles and Congress seeking to remove the presidential waiver, it would be a mistake to get complacent, and assume that this can go on forever.

Measure to Limit Solitary Confinement Advances in Senate Immigration Bill

Originally published in Solitary Watch on May 29, 2013.

The immigration reform bill approved by the Senate Judiciary Committee last week includes an amendment that would curtail the use of solitary confinement on immigrant detainees. While the measure’s reach is limited, its passage by the Committee nonetheless represents a significant step for human rights activists working to help shape the Border Security, Economic Opportunity and Immigration Modernization Act, which will be debated by the full Senate in June.

The amendment, Blumenthal 2, was drafted by Senator Richard Blumenthal (D-CT). It sets limits on the use of solitary confinement for adults–in most cases, 15 days–and bans it for all children under 18 years old. The measure also explicitly prohibits the use of solitary confinement to “protect” detainees based on their sexual orientation or gender identity.

While the amendment does make it more difficult, it falls short of banning solitary confinement for detainees with mental illness. Detention centers that opt to isolate mentally ill individuals are required to have a medical professional visit with the immigrant at least three times each week as well as weekly visits by a mental health clinician for regular evaluations.

Lastly, the amendment has an oversight component so that detention facilities must submit both the reason for and the duration of all solitary confinement sentences to Congress annually for review.

The Senate’s attention to solitary confinement is relatively historic. Last June the first-ever congressional hearing, led by Richard Durbin (D-IL) was held to discuss the legal, economic and psychological costs of solitary confinement. While a host of local groups have cropped up to fight solitary confinement on the state level, Congress has largely avoided the issue.

The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations, sent a letter in support of Blumenthal 2 to Senator Patrick Leahy and Senator Charles Grassley, Chairman and Ranking Member of the Senate Judiciary Committee, respectively. The letter said, “The amendment balances the operational needs of facilities that hold immigration detainees with basic respect for the health and human rights of detainees subject to solitary confinement.”

The American Civil Liberties Union also gave vocal support to the passage of the amendment and said, “The adoption of the amendment takes positive steps forward in fixing a serious injustice the extent of which has only recently come to light.”

Due to increased enforcement measures put in place by the Obama administration, the immigration detention population has dramatically increased. There are 85 percent more immigrants detained today than there were in 2005, and these detentions are usually indefinite sentences. Individuals are held, often for months at a time, until either they voluntarily sign deportation documents or until immigration authorities decide whether to deport the immigrants or let them stay.

Observers argue that while placing U.S. prisoners in solitary confinement is problematic, placing alledgedly undocumented immigrants in solitary confinement is even worse because these individuals are not even serving criminal sentences, but are simply waiting for civil deportation hearings. Beyond that, critics argue that solitary confinement hurts detainees’ ability to fight their cases due to highly restricted access to telephones and other means of communication.

In March, Homeland Security Secretary, Janet Napolitano said that she believes “solitary confinement should be the exception, not the rule.” She asked federal immigration officials to report back with greater detail about the usage and implementation of solitary confinement in federal facilities.

March 2013 article by the New York Times and The Investigative Reporting Workshop found that on any given day, U.S. Immigration and Custom Enforcement (ICE) officials hold approximately 300 immigrants in solitary confinement at the 50 largest detention facilities across the country. Their research showed that nearly 50 percent of these individuals are kept in solitary confinement for 15 days or more–a point that psychiatric experts say detainees are at risk for severe mental harm. The study found that about 35 detainees are kept for more than 75 days.

Senator Charles E. Schumer, Chairman of the Senate Judiciary’s subcommittee on immigration, responded to the report by sending a letter to John Morton, director of ICE urging him to change their use of solitary confinement. “This report suggests an overreliance by the ICE on the harshest forms of incarceration,” Schumer wrote.

In 2012, the Heartland Alliance’s National Immigrant Justice Center and Physicians for Human Rights, surveyed conditions in many detention centers and county jails that work in conjunction with the ICE. This was the first comprehensive study on the effects of solitary confinement on immigration detainees. The research showed that solitary confinement is often arbitrarily and punitively applied, inadequately monitored and damaging to detainees’ health; investigators also found that most immigrants are denied any meaningful avenues of appeal. Additionally, they found that ICE failed to hold detention centers and jails accountable for their use and abuse of solitary confinement.

Blumenthal 2 would be first federal legislation to place limitations on the duration and circumstances under which detained immigrants can be placed in solitary confinement.  It is unclear at this point whether the amendment will pass the full Senate or the House.

The measure would apply only to those held in immigrant detention, and not to all federal prisoners. The U.S. Bureau of Prisons is estimated to hold at least 10,000 individuals in isolation in prisons across the country, and is not subject to any laws that that regulate, monitor, and restrict the use and abuse of solitary confinement in federal prisons.