Good Morning from Washington, D.C….

The United States Senate adjourned for the year early on Saturday morning with plans to return to Washington on January 3rd. This means no votes on the Build Back Better Act, the John Lewis Voting Rights Advancement Act and any number of other Democratic priorities until 2022, at the earliest. This despite energetic efforts by President Joe Biden and Senate Majority Leader Chuck Schumer to get at least the Build Back Better Act done this year.  President Biden acknowledged that negotiations would drag into 2022, giving Schumer and Pelosi the cover to close up shop for the Holiday Recess. “It takes time to finalize these agreements, prepare the legislative changes, and finish all the parliamentary and procedural steps needed to enable a Senate vote,” the President said.

While Biden, Schumer, and Pelosi sounded hopeful they would move forward with the Build Back Better Act in 2022 (and Progressives certainly have been pushing to get it done sooner), Senator Joe Manchin dealt a perhaps fatal blow to the bill—and Biden’s larger agenda—yesterday morning. “I cannot vote to continue with this piece of legislation,” said Manchin, citing concerns about adding to the national debt. “I’ve tried everything humanly possible. I can’t get there. This is a no.”  With Republicans united in their opposition, Democrats need every single Democratic Senator’s vote to pass it through a budget reconciliation process. Without Manchin, the bill is dead on arrival. We will be watching to see what happens over the holiday recess and if Manchin will return to the table with perhaps a further diminished Build Back Better. Also, how will Biden and Schumer, who have been patient and protective of Manchin react? Expect Progressives, already furious with Manchin to let loose.  

As far as voting rights and Democrats’ prospects in 2022 midterms, Senator Mazie Hirono (D-HI) had an equally dire pronouncement, saying “I’m afraid we won’t retain the majority if we don’t pass voter protection legislation, which our constituents also expect us to do.” 

That does not mean nothing got done: the Senate held a marathon session before heading home and the Senate confirmed roughly 50 nominees during the lengthy session, including long-stalled ambassadors and several district court judges. Although you might not know it from listening to Democrats, the confirmations (both in the latest overnight session and throughout the year) were significant as more of Biden’s judicial nominees have been confirmed in the first year than recent predecessors. Sources: CRS; Congress.gov; fjc.gov;

During that same marathon session, the Senate also formally raised the debt limit $2.5 trillion (enough to kick the next discussion on raising the cap past 2022 midterm elections), and passed the $770 billion National Defense Authorization Act (NDAA).    

 Back in New York…

The New York State Department of Health recorded the highest number of COVID-19 cases since the pandemic began, and things in State government are beginning to sound reminiscent of March 2020 (to put into context, Thursday’s case count was 58% higher than April 2020). “The winter surge is in full force,” Governor Kathy Hochul said. “And I believe it’s going to be even stronger and more virulent and I believe we’re in for a rough ride this winter season.” Hochul delivered several admonishments and pleas to New Yorkers to get vaccinated, boosted, and stay safe. She threatened additional measures while standing pat on her vaccinate or mask mandate. Just last month, Governor Hochul promised to have workers back in the office by January.

Nonetheless, Hochul’s campaign continues to roll with endorsements by the politically potent Hotel Trades Council and Steelworkers as well as several legislators, including some who had previously endorsed erstwhile opponent Tish James.

With under a month until the January 5th opening of the Legislative Session and Governor Hochul’s first State of the State Address, the growing spread raises questions as far as what Albany will look like this year. Tackling the largest wave of COVID-19 yet also does not leave a lot of room for many of the major issues facing the decision makers in Albany this year as they head toward Legislative and Gubernatorial primaries in June.

Many in Albany are also questioning that political calendar. Petitions are scheduled to begin in March with primaries set for June 28. The complication, of course, is redistricting.  New York’s Independent Redistricting Commission is required to provide a map on or by January 15, 2022. If that map is rejected by the Legislature, the Commission has until February 28, 2022 to provide a second map. Only when both maps have been rejected, and rejected by a 2/3 majority of the legislature, is the legislature empowered to draw its own lines. Doing so, even with the best will in the world, takes time. Even without COVID concerns, this puts that primary calendar in doubt.

The redistricting battle is behind the scenes, but more prominently—and public—is the widespread effort in Albany to continue to expiate ten years of Andrew Cuomo. To wit, the New York State Joint Commission on Public Ethics formally ordered the former governor to return the proceeds of his book, American Crisis: Leadership Lessons from the COVID-19 PandemicPer the order, he has 30 days to return the proceeds to Attorney General Tish James. However, constitutional and procedural questions remain on the ability of JCOPE to order repayment. In a letter to JCOPE’s Executive Director on Friday, Larry Schimmel, General Counsel in the Office of the Attorney General said that the claw back could only occur after a “substantial basis investigation report” had been made, specifically detailing any violations of the Public Officers Law, which has not yet happened. Similarly, the Working Families Party is preparing an endorsement questionnaire for 2022 candidates asking candidates if they support legislation that would prohibit elected officials convicted of a crime or who resign while facing an impeachment inquiry from using campaign funds for any political purpose.

Further, a few bills were introduced in the Legislature to crack down on “volunteering” of official State employees on unofficial work, like Cuomo’s book. “No government employee should be ‘volun-told’ to do work outside their official duties that personally enriches their superior,” said State Senator Todd Kaminsky.

As we head into Christmas week and prepare for the New Year, on behalf of all of us at O’Donnell & Associates, thank you for being our friends, our clients, and a part of our team. Every one of us is grateful for the opportunity to partner with you to make New York a better place to work, to live, and to raise our families. Please accept our best wishes for a successful and prosperous New Year. 

Finally, a programming note. The Monday Morning Memo will not publish on December 27th and will return on Monday January 3rd with a preview of Governor Hochul’s State of the State, scheduled for January 5th. Until then, and as always, please reach out with questions or concerns.

See you in the new year!

-Jack O’Donnell

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