Produced By:  

Bret Manley (bret@elevatega.com) former Chief of Staff to Rep. Rodney Davis (R-IL)

David Marten (david@elevatega.com) former Legislative Director for Sen. Maria Cantwell (D-WA) 

Elevate Government Affairs (www.elevatega.com)

Balance of Power

Senate: 53 Republicans, 45 Democrats, 2 Independents Caucusing with Democrats
House: 218 Republicans*, 215 Democrats, 2 Vacancies

  • FL-01: This is former Rep. Matt Gaetz’s (R-FL) seat he vacated to avoid an embarrassing ethics report, which was released anyways. Was he embarrassed? Who knows? The special election to fill the seat will be April 1st, and you’ll hopefully never have to think about him again, unless your buddy pranks you with a cameo birthday message. This is a safe Republican seat. 
  • FL-06: Rep. Mike Waltz (R-FL) vacated the seat when he became President Trump’s National Security Advisor on January 20th (the NSA is not a Senate confirmed position). The special election to fill this seat will also be April 1st, and this is also a safe Republican seat though the nominee is currently in a ferocious Twitter (X) battle with Governor Ron DeSantis and his allies over immigration legislation in the state legislature. A preview of things to come perhaps? 
  • Rep. Elise Stefanik (R-NY) will resign her seat in upstate New York when she is confirmed as President Trump’s envoy to the United Nations. Stefanik’s confirmation hearing was January 21st. No floor vote has been scheduled as Senate Republicans have used limited floor time to move more high impact nominations. Governor Kathy Hochul (D-NY) will have 10 days from the announced vacancy to set a special election date, though there are rumors Hochul is trying to change this to delay a special election. New York is somewhat unique in that there will be no primary; County parties will select the nominees for the special election. This is a safe Republican seat.

Top Line Takeaways:

  • The Elevate Team Gets Bigger: Obviously the most important thing everyone is talking about is that our team here at Elevate had some major additions in January. Michelle Richardson, long-time Chief of Staff to Senator Roger Wicker (R-MS), and Chris Leuchten, Deputy Chief of Staff and Legislative Director to Sen. Kyrsten Sinema (I-AZ), joined the Elevate lobbying team. Additionally, your Look Ahead co-host Bret Manley and his wife Cara welcomed a healthy baby girl, Sophie Anne Manley, into the world on January 16th.  Two out of the three of them will make excellent lobbyists. 
  • All Eyes on FAA/Congress: In the wake of the horrific tragedy in Washington D.C., where 67 souls were lost when a commercial airliner and an Army helicopter collided, an air medical jet crashed in suburban Philadelphia costing at least seven people their lives. The circumstances of both accidents are wildly different, but each will place an enormous spotlight on the FAA who has been without an administrator since Mike Whitaker’s resignation. President Trump has since elevated his appointment for Deputy Administrator, Chris Rocheleau, to Acting Administrator. Rocheleau has two decades of experience with the FAA and as a former Air Force Officer is well acquainted with the issues facing the agency. Expect to hear a lot in the coming months about ATC staffing shortages, ATC modernization efforts, airspace congestion, traffic alert and collision avoidance systems, and pilot training requirements. In the interim, FAA has restricted helicopter flights around DCA.
  • Meet the New Boss, Same as the Old Boss: The return of President Trump means the return of aggressive tariff policy. Trump has been remarkably consistent on his belief in tariffs his entire life – here he is in 1987 on Larry King striking a very similar tone – and he spent the entire campaign promising such maneuvers. With Trump, it’s important to remember that the tariffs themselves aren’t always strictly about economic fairness. Remember he first threatened Canada and Mexico over the flow of migrants across the border, and this time it’s (ostensibly) about fentanyl. Many times, the tariffs never materialize when his target blinks, but eventually someone may throw their cards on the table to see if Trump’s bluffing. Mexico has already blinked, and now this afternoon there’s a 30 day pause for Canada as well. As it pertains to China, it’s worth pointing out that despite all the hand wringing, President Biden largely left in place Trump’s tariffs and in some cases expanded them. A significant, if less discussed, element of these tariffs is the end of the de minimis tariff exemption on Chinese imports, which will certainly scramble the small packaged goods market. Regardless, this isn’t the last time tariffs will dominate the news cycle, so prepare for the long haul as these situations will be very fluid (this paragraph has been rewritten at least 4 times today).
  • Thriving Under President Trump: With the flurry of activity catching a lot of people off guard, we thought of two things worth pointing out to our fellow government affairs professionals. First, President Trump thrives on chaotic situations and in many ways it’s part of Team Trump’s strategy. Staying calm and quietly going about your business away from the public fracas is a winning strategy. In other words, don’t give the Administration a target to fight with in the press. There are always exemptions to any policy if you work it right. Second, pay attention to what Team Trump does, not what it says. It sounds counterintuitive, but this is related to our first point and the (now old) adage to take Trump seriously, not literally. A good example of this is Trump riffing about eliminating FEMA, sending the press into a frenzy. FEMA will not be eliminated, but it should be taken as a signal that the Administration will seek to reform how FEMA aid is administered and delivered.  
  • And Then There Were Two: After the confirmation of Pete Hegseth as Secretary of Defense, only two big question marks remain for President Trump’s slate of nominees. HHS nominee Robert F. Kennedy Jr. and DNI nominee Tulsi Gabbard. Each had contentious confirmation hearings last week and drew skepticism from panel Republicans. Part of this is due to both nominees being prominent Democrats for decades until very recently joining Trump’s coalition. They simply don’t have the relationships or goodwill with Senate Republicans due to years of working at cross purposes. Republicans on the Senate Intelligence Committee only have a one vote majority, so Gabbard cannot lose a single Republican (assuming Dems oppose), though we may not know how each member voted since it’s not a public vote. For RJK Jr. the one to watch is Senate HELP Chairman Bill Cassidy (R-LA). While Senate HELP will not hold a vote on RFK Jr’s nomination, Senate Finance will, where Cassidy is also a member. Cassidy is up for re-election four years after voting to impeach President Trump in a state that went for Trump with 60% of the vote…and did we mention the state’s Legislature got rid of its open primary system for federal offices?
  • Let Me See Ya, One, Two Step: Don’t expect GOP reconciliation plans to get any clearer in the near term. Before the argument over one or two bills is even addressed, both the House and Senate have to pass identical budgets with reconciliation instructions. We know the Speaker wants this done by Easter break, but there’s the thorny matter of a looming government shutdown on March 14th. The coalition of votes for a budget resolution package and for funding the government are fundamentally different. Republicans will need Democrats to keep the government open (remember you need 60 votes in the Senate), so view any suggestion that these votes will be paired with major skepticism. We don’t expect the reconciliation picture to really come into focus until (if?) Hill Republicans can get the funding question settled. After that, we’re betting on one bill. The last time two reconciliation bills were passed in the same fiscal year was in the 1980s. For his part, Ways and Means Chairman Jason Smith (R-MO) is adamant there will only be one bill. Anyone clamoring for two should be viewed less as a principled stance and more of a legislative strategy to create leverage points to maximum their influence. More bills = more leverage points.

Legislative Action in February

In the Senate: Lots of noms.

In the House: The House is likely to hold votes to complement the actions President Trump is taking in the Oval Office. This means bills on fentanyl trafficking, energy production, and immigration legislation targeting sanctuary cities. At some point Republicans will hold a vote on banning taxpayer funding for abortions and requiring doctors attempt to save babies who survive abortion attempts. If you want a peek at what issues House Democrats and House Republicans want to message about, H.R. 1-10 is reserved for the majority party while H.R. 11-20 for the minority and each party’s leadership decides which bills are awarded those numbers. You can be (relatively) certain H.R. 1-10 will get votes on the House floor. So far only H.R. 7, no taxpayer funding for abortion, has been introduced. House Republicans are still very much figuring out their legislative strategy for the session. 

Committee Spotlight

House Budget: The House Budget Committee was supposed to markup a budget (with reconciliation instructions) this week, but they’ve already delayed that. If Congress is going to make the Speaker’s deadline for a reconciliation package by May, then the first part of that process needs to get underway in February, so the delay is not a good sign. We covered how reconciliation works here, but reminder that the House and Senate must pass a budget (with instructions) FIRST, before any reconciliation package can even be assembled. That bill originates in the House Budget Committee. Chairman Jodey Arrington has already distributed a 50+ page document and held multiple presentations to feel out his Conference. Looks like those didn’t go as well as they’d like. 

House Transportation and Infrastructure: House Transportation and Infrastructure’s deliberate march to a highway bill got interrupted with the twin aviation disasters. Chairman Graves (along with Ranking Member Larsen) will give NTSB the space it needs to investigate. Both members have good relationships with NTSB Chair Jennifer Homendy (who used to work for the Committee and is a friend of the Look Ahead) so there won’t be any “gotcha” type activity. They will eventually hear from DOT and FAA, though the timing will be dependent on the pace of the investigations.

House Appropriations: We have some news that House Appropriations is going to try to open up additional accounts/bills to earmarks that were off limits last Congress. Our understanding is this is due to cardinals not wanting to be left out and having a trifecta helps lower the temperature from the anti-earmark crowd. Additionally, and this is important, we are hearing that House Republicans will require earmarks to meet the same metrics that Trump has applied to grants with his executive orders…so no DEI programs, no sanctuary cities, etc. This is going to be very unpopular with Democrats, and probably some Republicans in blue states, so we will see if they can hold to that. If they end up needing Democrats to pass spending legislation, then probably not. *Pssst*…they’re going to need Democrats.

Speaking of spending, there is a lot to sort out here for Chairman Tom Cole. For starters he has to negotiate a spending package for the remainder of the fiscal year. We are told there is a top line number the “Big Four” have agreed upon/had blessed by leadership. But we’ve heard that story before. To add to the confusion, the Committee will kick off its subcommittee hearings in March to try and get all 12 appropriations bills across the floor. We’ve also heard that one before. Our yearly reminder to send your well wishes and prayers to your friendly neighborhood appropriations staffer. 

Senate Budget: Chairman Graham is forging ahead with putting together a two-step plan on reconciliation, and backchanneling with Freedom Caucus members opposed to Speaker Johnson’s plan for one mega reconciliation bill with tax reform lumped in with energy, border, and defense provisions. You could view this as acknowledging the inevitable – to get something passed you need to get the most conservative House Republicans onboard. But let’s not assume moderates will just roll over to get a bill through. No matter what, reconciliation is unlikely to happen on the aggressive timelines both the House and Senate have laid out.

Senate Commerce: Commerce starts off the month with a markup that includes a smattering of bipartisan or noncontroversial bills that already passed Committee last year. While nom hearings and markups will prominently feature, the DCA air collision is likely to scramble at least some of the committee’s agenda with both majority and minority members eager to take action even as the NTSB’s investigation is in its infancy. Separately, we hear Chairman Cruz is looking to move aggressively on his NIL bill after action on college athletics languished last Congress.

Get Smart – Acting Administrators/Secretaries and the Federal Vacancies Act

In the wake of the aviation disaster that took 67 lives in Washington D.C., President Trump named Chris Rocheleau, his appointee for Deputy Administrator of the FAA, to the role of Acting Administrator. It may seem like an exercise in semantics designed to simply point to a person in charge, but there are important legal ramifications of the title in addition to certain qualifications one must have to serve in the role. The law that covers this can be found in Title V, Chapter 33, Subsection III, Part III, Subpart B (you got all that?) of the U.S. Code, also known as the Federal Vacancies Act.

Why Is This Even a Thing? Believe it or not, there are people in the government that are responsible for making decisions. More precisely, there are specific jobs (occupied by people) that are legally responsible. The reason they’re responsible is somewhere along the line someone like us decided to write it into law. A common way this manifests itself is a bill requiring some position in the government to promulgate some policy like allowing dogs and cats on Amtrak (you’re welcome, America).  Well, what happens when that position isn’t occupied? That’s the purpose of the Federal Vacancies Act: to provide for a person who can legally exercise that responsibility, lest the government get sued and the policy is undone in court. These types of responsibilities are referred to as “non-delegable”. You cannot delegate them to the intern while you go out for pizza.

What Positions are Covered?: All positions that have non-delegable functions are “advise and consent” positions (aka Senate confirmed), but not all Senate confirmed positions have non-delegable functions. Generally, we are talking about the top dog (Secretary/Administrator), and their deputy dog (Deputy Secretary/Administrator). 

Who Can Fill in as Acting?: Sadly, you can’t just grab your cousin Randy and have him fill in for a few weeks while you “hike the Appalachian Trail”. Limited types of people can fill this role. The most obvious is the first assistant, and that person is the default if the principal is absent. For instance, when Secretary of Defense Lloyd Austin was admitted to the hospital, Deputy Secretary Kathleen Hicks assumed his authority, even though she was on vacation in Puerto Rico (whoops). The President may also designate a specific person (who must occupy a specific senior role at the agency) or any other person who is in a position that was Senate confirmed regardless of which agency they currently serve. 

So Once They’re Acting They Can Totally Like Burn the Place Down if They Want?: No. The acting officer may only perform the duties that are “non-delegable”. If the duties can be delegated, then the acting officer may not perform the duties. So, if you find yourself in such a position, we’re sorry to say you cannot make every Tuesday “Taco Tuesday” in the cafeteria.  

Can They Act Forever?: Also no. A person may not serve as acting for longer than 210 days, unless the vacancy occurs within 60 days of a Presidential transition, in which case the clock runs to 300 days. 

Are There Any High Profile Exceptions?: Of course there are! The Department of Labor has a specific law (dating back to FDR) that allows the Deputy Secretary of Labor to fill the role of Acting Secretary indefinitely. This is why Deputy Secretary Julie Su, who was subsequently nominated by President Biden but never confirmed as Secretary, was able to serve as Acting Secretary for as long as she did. 

What Happens During a Transition if Nobody Has Been Confirmed/Can a Nominee Serve?: No, the nominees are not allowed to serve as acting unless they meet one of the three criteria (currently the principal assistant, a senior person at that agency, or occupying a separate senate confirmed position). An agency’s highest-ranking attorney makes for a popular pick. This is why these people were designated as acting officers on January 20th and not the nominees. 

Wait Wait Wait…What About Chris Rocheleau; He Wasn’t Confirmed, How Can He Be Acting!? President Trump previously named Chris Rocheleau as Deputy Administrator of the FAA, which is not Senate confirmed so he could just start the job when he was appointed. He is eligible because the Deputy role at FAA does meet the other criteria both by being the principal assistant and being a senior agency employee eligible for designation as Acting Administrator by the President.

Why Does This Matter?: It matters because non-delegable functions tend to be the more serious ones with larger ramifications.  Not having an officer qualified under the law to perform the duties undermines core government functions, or, in the event the duty is handled by an unauthorized person, exposes the government to litigation risk. 

Reminder: Elevate Government Affairs offers monitoring and full coverage of hearings and markups for our clients. Be sure to ask us if you need something covered!

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