Beltway Buzz, October 6, 2023

Shutdown Fallout: McCarthy Out. On September 30, 2023, the U.S. Congress acted quickly—and surprisingly—to pass stopgap funding legislation to avoid what looked to be an inevitable shutdown of the federal government. With a shutdown looming, former Speaker Kevin McCarthy (R-CA) thwarted the handful of members in his party opposed to a continuing resolution by putting a bill on the floor that ended up passing the U.S. House of Representatives by a vote of 335–91. (Republicans voted 126–90 and Democrats voted 209-1 to continue funding the federal government for forty-five days until mid-November.) The passage of the continuing resolution ultimately cost McCarthy his speakership, as this week eight Republicans joined Democrats in voting 216–210 to remove McCarthy from the leadership position. It was the first time in history that the U.S. House of Representatives voted to oust its Speaker. Needless to say, Capitol Hill is reeling from the events, and the following issues remain unresolved:

• Who’s in charge? As Speaker pro tempore, Representative Patrick McHenry (R-NC) is the acting Speaker, though his powers are unclear. McHenry has said he will hold Speaker elections on October 11, 2023, but until then, legislative activity in the House has essentially come to a standstill.
• Funding not finished. Recall, too, that the dramatic scramble to fund the government this past weekend didn’t solve the problem but merely kicked the funding can down the road. Government funding is now set to expire on November 17, 2023. Can the House elect a Speaker, pass appropriations bills, and reconcile them with the U.S. Senate in a matter of weeks? The task could grow increasingly problematic if the House remains without a Speaker for an extended period.
• Other legislation in jeopardy? Major legislative lifts, such as authorization of funding for Ukraine, reauthorization of the Federal Aviation Administration, and a new farm bill (which sets farm and food policy, such as crop subsidies and insurance, and funds the Supplemental Nutrition Assistance Program) all await legislative attention. Turmoil within the Republican party in the House certainly creates significant uncertainty over these bills’ prospects.

RIP Dianne Feinstein; Newsom Appoints Laphonza Butler. Senator Dianne Feinstein (D-CA) died last week at the age of ninety. As San Francisco’s first female mayor (1978–1988) and as California’s first female U.S. senator (1992–2023), Feinstein was a fixture of California and national politics for five decades.

Given the razor-thin majority Democrats enjoy in the Senate, on October 1, 2023, Governor Gavin Newsom appointed Laphonza Butler to fill the vacant Senate seat.

Senator Butler (D-CA), who was a political activist and consultant, served in various leadership positions with the Service Employees International Union and affiliates in California. Her appointment likely doesn’t change the vote calculus in the Senate, but the Buzz will be watching to see how her labor union background might inform policy debates in the Senate going forward.

EEOC Proposes Harassment Guidance. On October 2, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued proposed guidance entitled, “Enforcement Guidance on Harassment in the Workplace.” The guidance was initially proposed in 2017 but stalled during the change in political administrations. This new proposed guidance reflects changes to the law that have occurred since that time, though the EEOC is quick to note that any final guidance document will “not have the force and effect of law and are not meant to bind the public in any way.” Some of the key provisions of the guidance include the following:

• Pregnancy and childbirth. Sex-based harassment includes harassment based on pregnancy, childbirth, lactation, etc., as well as a woman’s reproductive decisions.
• Sexual orientation and gender identity. In light of the Supreme Court of the United States’ 2020 decision in Bostock v. Clayton County, Georgia, the guidance provides examples of discrimination based on sexual orientation and gender identity, such as intentional and repeated misgendering, as well as “the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.”
• “Virtual” harassment. With many employees working remotely, virtual harassment is actionable, and includes “comments made during a video meeting, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.”
• Social media. Electronic communications, such as texts or posts on social media, can constitute harassment, if they impact the workplace. The guidance further states that “it is increasingly likely that the non-consensual distribution of real or computer-generated intimate images using social media can contribute to a hostile work environment, if it impacts the workplace.”

Stakeholders wishing to provide feedback on the proposed guidance don’t have much time: comments are due by November 1, 2023.

Independent Contractor Regulation on the Way. The U.S. Department of Labor’s (DOL) Wage and Hour Division sent its final Fair Labor Standards Act independent contractor regulation to the Office of Information and Regulatory Affairs (OIRA). The review at OIRA marks the final step of the regulatory process, although the regulation isn’t public at this time. OIRA’s review can take as little as a week or two, or it can stretch on for months (by way of example, the Occupational Safety and Health Administration’s COVID-19 standard for healthcare settings has been stuck at OIRA since December 2022). However, once OIRA completes its review and transmits the regulation back to the DOL, publication of the final rule will be imminent.

Speaker Fun Facts. With Kevin McCarthy making history as the first Speaker of the House to be removed from the position, below are some interesting facts about the history of the Speakership:

• There are six living former Speakers: Republicans Newt Gingrich, Dennis Hastert, John Boehner, Paul Ryan, and Kevin McCarthy, and Democrat Nancy Pelosi. McCarthy and Pelosi (D-CA) continue to serve in Congress.
• Frederick Muhlenberg of Pennsylvania was the first Speaker of the House. He began his service on April 1, 1789, and he served four years in the role, over two nonconsecutive terms.
• Samuel Rayburn (D-TX) holds the record for longest tenure as Speaker. He served for over seventeen years, in three separate stints.
• Theodore Pomeroy of New York holds the record for shortest tenure as Speaker. Pomeroy served from March 3 to March 4, 1869. Pomeroy’s colleagues passed a motion to allow him to serve for one day as a sign of respect to close out the 40th Congress.
• James K. Polk is the only Speaker to subsequently serve as president of the United States.
• The youngest Speaker elected was Robert M. T. Hunter of Virginia, who was thirty years old when he was elected Speaker on December 16, 1839.
• The oldest first-time Speaker was Henry T. Rainey of Illinois, who was seventy-two years old when he was elected Speaker on March 9, 1933.

We will see if whoever is elected as the next Speaker eventually becomes one of these fun facts.