In a feat worthy of a Hanukkah miracle, Congress actually accomplished something more than 24 hours ahead of its deadline. On Thursday, both chambers approved a measure to keep the government funded at current levels through February 18, in addition to allocating $7 billion for Afghan refugee care and resettlement.
Sure, avoiding a government shutdown and punting on efforts to actually agree to and pass real appropriations bills may seem like the bare minimum, but for a legislative body so often mired in dysfunction, it was a notable accomplishment. Lawmakers have yet to reach a deal on the must-pass annual defense authorization bill or on suspending the debt limit to avoid catastrophic default, and Senate Democrats still have to finalize and vote on their version of President Joe Biden’s massive public investment bill, the Build Back Better Act. So all things considered, narrowly averting a shutdown is a win that allows members of Congress to move onto other pressing issues.
But an effort by some Republicans to defund Biden’s recently announced rule from the Occupational Safety and Health Administration that would require large firms to implement mandatory vaccination policies or take alternate steps to provide Covid-19 tests for their workforce almost derailed the continuing resolution to keep the government open. A few GOP senators, led by Senators Mike Lee and Roger Marshall, had threatened to object to quick consideration of the stopgap measure unless Democrats agreed to deny funding for Biden’s mandate. This would have meant delaying a vote until after Friday at midnight—the point at which government funding was set to expire.
Lee, it should be noted, has been vaccinated against Covid-19, after contracting the virus in October 2020. He has publicly encouraged others to get vaccinated, as well—as has Senate Minority Leader Mitch McConnell. But being personally pro-vaccine does not mean that the senators approve of vaccine mandates, and Republicans have identified vaccine holdouts as a potential voting constituency. As Axios reported last week, Republican officials across the country are testing unemployment benefits for workers who are fired or quit over vaccine mandates. Four states—Florida, Iowa, Kansas, and Tennessee—have since employed such measures.
Lee argued to reporters that recent rulings against mandates justified his position. “Given that federal courts across the country have raised serious issues with these mandates, it’s not unreasonable for my Democratic colleagues to delay enforcement of the mandates for at least the length of the continuing resolution,” he told Politico on Wednesday.
Marshall on Thursday told reporters that he had received support from his constituents on his position. “My phone has blown up and continues to blow up with the vaccine mandate issue, but not one Kansan has reached out to me to say, ‘Don’t shut the government down,’” he said.
But the cadre of Republicans threatening to shut down the government over vaccine mandates had folded by Thursday evening. They agreed to an amendment vote against the vaccine rules, which failed by 50 to 48. Two Republican senators were not present, meaning that had even one Democratic senator voted in favor of the amendment, it still would have failed. But Democratic Senator Joe Manchin, who opposes vaccine mandates for private businesses, joined all other Democrats in voting against the amendment. This fruitless amendment vote paved the way for a final vote on the continuing resolution, which was approved 69–28, with 19 Republicans joining all Democrats in approving the measure.
“I am glad that in the end cooler heads prevailed,” Senate Majority Leader Chuck Schumer said on the Senate floor before the vote. “The government will stay open. And I thank the members of this chamber for walking us back from the brink of an avoidable, needless, and costly shutdown.”
Marshall and Lee’s stance was not a popular one among many Republican senators who did not wish to shut down the government. Republicans on the whole oppose Biden’s directive for companies with more than 100 employees to mandate vaccination or weekly testing for their workers. But that policy, which was set to take effect in January, has been placed on hold due to legal challenges. “I just don’t quite understand the strategy or the play of leverage for a mandate that’s been stayed by 10 courts,” GOP Senator Kevin Cramer told reporters on Wednesday.
Moreover, Republicans already had plans to challenge the vaccine mandate, with Senator Mike Braun planning to force a vote to nullify it through the Congressional Review Act. All 50 GOP senators are on board and at least one Democrat: Manchin said in a statement on Thursday that he had co-sponsored and will “strongly support” the bill due to his opposition to vaccine mandates for private businesses. (Other Republican members of Congress have professed support for a bill that would abolish OSHA altogether.)
“I have long said we should incentivize, not penalize, private employers whose responsibility it is to protect their employees from Covid-19,” Manchin said.
The drama over the continuing resolution and vaccine mandates capped a particularly frustrating week in the Senate. Multiple efforts to vote on the National Defense Authorization Act were stymied by Republicans, ending with GOP Senator Marco Rubio delaying a vote on the bill to force action on his amendment to address forced labor of Uyghurs in China. (The Washington Post reported on Thursday that the State Department had asked Senator Jeff Merkley to slow-walk bipartisan legislation on the Uyghurs.) The Senate now appears to be abandoning its current floor strategy, and lawmakers will address the issue next week, with the House likely to vote on a compromise “pre-conferenced” version of the NDAA that it will send to the Senate.
There’s a possibility that lawmakers will attach a debt ceiling suspension to the NDAA, although many Republicans remain opposed to this strategy. Congress will nevertheless need to address the issue quickly, as the “X Date” on which the country will default on its debts is fast approaching.
Schumer has also promised that the Senate will vote on the Build Back Better Act before Christmas, although Manchin and Senator Kyrsten Sinema—two key Democrats—are reportedly skeptical that it can pass before the end of the year.
And even though government funding was temporarily approved, there are still disagreements between Democrats and Republicans that could hinder progress on real appropriations bills. Senator Richard Shelby, the ranking member of the Appropriations Committee, told reporters on Thursday that if Democrats press forward with policies such as lower defense spending and repealing the Hyde Amendment, “we’ll be having the same conversation in February.”
Senator Patrick Leahy, the chair of the Appropriations Committee, alluded to some of these issues in a statement after the continuing resolution was passed. He noted that Democrats had proposed a 5 percent increase to defense spending from the previous fiscal year, higher than the Biden administration had proposed, and a 13 percent increase for all other programs.
“With this vote, we are buying time to complete those negotiations, and we must. But in order to complete these negotiations, we have to begin them. And my Republican colleagues still, to this day, refuse to come to the table,” Leahy said. “Refusing to come to the negotiating table undermines national security, inhibits our ability to invest in American families, and impedes our capability to respond to the coronavirus and its emerging variants.”
