The Look Ahead – July 2024

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: 47 Democrats, 49 Republicans, 4 Independents Caucusing with Democrats

House: 220 Republicans, 213 Democrats, 2 Vacancies

–        WI-08: Rep. Mike Gallagher’s decision to wait until April 24th to resign means the seat will remain vacant until the November general election when his replacement will be elected and fill out the remainder of the term. Under Wisconsin law, Rep. Gallagher needed to vacate the seat before April 2nd to automatically trigger a special election.

–        NJ-10: A special election will be held on Sept. 18th for the rest of former Rep. Donald Payne, Jr.’s term. The primary for that special election is July 16th.

Top Line Take Aways:

• Biden Nominee or Not?: We’d like to start by noting that this newsletter – in January – broached the topic that an effort to replace President Biden atop the ticket may materialize under certain circumstances. We caught a lot of flak for that from certain parts of town. Yet here we are. This is why you read…we tell you what we think is going to happen, not what you want to hear! That said, for a whole number of reasons it remains incredibly unlikely, unless President Biden himself agrees, that he isn’t on the ballot come November. Time is running out with the Democratic National Convention August 17th-19th (or potentially earlier via virtual role call), plus you start to run into ballot access issues which are governed at the state level.

• o   This Will Dominate the News in D.C. This Month: One thing every Member of Congress will tell you: if something bad happens to my party, better it happens when Congress is on recess. Bonus if there’s a national holiday wedged in there. It’s easier to duck national reporters in the district, and local press tends to be much more accommodating. When Congress returns, every Democrat will be asked, repeatedly, if they think President Biden should remain atop the Democratic ticket, while every Republican will be tripping all over themselves to lay out why he should resign. Republican Members will be advocating to invoke 25th Amendment, but the chances of that happening are next to nil. Republicans, especially the Freedom Caucus, are already laying the groundwork to force a vote in the House. Our reading of the 25th Amendment, though, is that this is a futile effort. The Vice President and a majority of the Executive Officers (cabinet) must invoke, in writing, the 25th Amendment. Congress only gets involved if the President then disputes his cabinet that he is incapacitated. So…as long as Biden wishes to remain the nominee, he will be the nominee.

•  GOP Convenes in Milwaukee: As we all know, Milwaukee comes from the Algonquin words for “good land” or “gathering place.” Many of you dear readers may even be gathering there yourselves, but the timing of the convention (July 15-18) means there are three weeks of session left before Congress breaks for the summer. Despite what pundits want you to believe, nothing that happens at the convention will have any bearing on how Congress finishes its term. Unless, former President Trump decides to select a sitting Senator as his running mate. In that case, pretty much everything the Senate does will revolve around the optics of that decision. Four sitting Senators have received vetting documents: Sens. Marco Rubio, Tim Scott, Tom Cotton, and J.D. Vance.

•  Some Slight Breathing Room for the House Republicans: It’s not a lot but it’s not nothing either. The month of June saw special elections for departed GOP Reps. Bill Johnson (OH) and Ken Buck (CO) bringing the total number of House Republicans to 220. Speaker Johnson’s cushion was increased by a whopping 50%!….to 3 votes. Barring any additional vacancies, this margin will hold until Rep. Donald Payne Jr.’s seat is filled on September 18th, just in time for a vote on the C.R.

• To Be, Or Not To Be…In Session: It’s July, which means it’s time for the annual tradition of complaining Congress doesn’t work hard enough and should remain in session for the August recess. Feel free to ignore any Member who makes this demand. There’s no political downside to it and unless their office has the words “Speaker of the House,” or, “Majority Leader,” etched outside the door they don’t have a say in the matter anyways. We’ve actually heard the opposite could happen. You may have noticed that the House brought the most popular, easy(er) to pass Appropriations bills to the floor first. All the problem bills from last session are still outstanding. If the House comes back from the convention and short circuits again on passing an Approps bill or two, expect them to wrap it up and go home early. Many Members we are talking to, including some higher up the chain of command, are already making contingency plans for the last week of July to be abandoned.

•  Speaking of Problem Children: The original plan for the remaining Appropriations bills by week is below. They’ll be able to pass Leg. Branch after the annual P.R. stunt over Member pay raises. It’s when the House gets to Ag. and Commerce-Justice-Science (CJS) where the trouble starts. Ag. because it’ll cut farm programs popular with more centrist House Republicans in ag friendly districts (think David Valadao (CA)/Don Bacon (NE)), and CJS because it funds the FBI and Freedom Caucus types want to go after Special Prosecutor Jack Smith, among other things. Though, the Supreme Court’s decision on Presidential immunity may ease the pressure on the CJS bill. Though now House Judiciary is suing over DOJ’s refusal to turn over the tape to Robert Hur’s interview with President Biden on his handling of classified documents. So that could pop up as well. Too early to tell.

  • Week of July 8th: Leg Branch

  • Week of July 21st: Ag., Interior, CJS, Financial Services

  • Week of July 29th: Energy and Water, Transportation-HUD, Labor-HHS

• Appropriations Crowding Out Everything Else: One of the underappreciated and little understood aspects of the workings of the House is the role the Office of Legislative Council (OLC) plays in the timing of activity. Laws aren’t written on napkins and 25-year-old staffers don’t know how to properly cite U.S. Code or format legislative text. OLC is full of lawyers who toil in obscurity at all hours of the day and night to write legislative text that can withstand legal scrutiny while the aforementioned staffer is hard at work on a snappy acronym. OLC triages incoming requests by the relative power/importance of the requestor. Majority Leadership requests get top priority. House Majority has told OLC that appropriations bills are what matters this month, so if you’re working with an office on language for a bill and feel like someone is ignoring you, it’s because they are. We’ve heard several complaints from Full Committee Staff Directors that they can’t get their requests met in a timely manner. It’s as clear an indication of what the House is focused on this month as anything you’ll get.

•  Senate Marches Along…Slowly: The Senate meanwhile is looking to have its appropriations bills ready for Committee markup by mid-July. With Chair Murray and Vice Chair Collins still not aligned on 302(b) allocations for each subcommittee, we’re told it’s been a lot of repeated start-stop action as staff are told a deal is close and to get their bills ready for markup, only to be told to stand down. Despite the hiccups, Approps will, like the House, occupy the main center of attention before breaking for the summer.

Committee Spotlight

The House

Appropriations: The Committee has been working overtime to get bills out and after next week they will have cleared the decks.  These dates could change if problems arise.

Tuesday, July 9, 2024

• Full Committee Markup

  • Fiscal Year 2025 Commerce, Justice, Science, and Related Agencies Bill

  • Fiscal Year 2025 Interior, Environment, and Related Agencies Bill

  • Fiscal Year 2025 Energy and Water Development and Related Agencies Bill

Wednesday, July 10, 2024

• Full Committee Markup

  • Fiscal Year 2025 Labor, Health and Human Services, Education, and Related Agencies Bill

  • Fiscal Year 2025 Transportation, Housing and Urban Development, and Related Agencies Bill

  • Fiscal Year 2025 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Bill

Energy and Commerce: Your hosts have never seen a situation in the House quite like what happened with Energy and Commerce over its privacy legislation.  There is a lot of finger-pointing and we’re not here to say who is right and who is wrong. As far as we can tell from our conversations, Chairwoman McMorris Rodgers had an agreement with Ranking Member Pallone to try and move the bill. They knew they had an issue with some Members on the Republican side but felt if there was a bipartisan agreement they could get enough votes to get the bill out of Committee. House Leadership began hearing from people with direct lines to the principals with concerns, particularly about private right of action. Either a significant number or the right combination of people weighed in, and Leadership moved to spike the effort. Layer on top of that a Chairwoman who has announced her retirement and three senior members of the panel vying to replace her (Guthrie, Latta, Hudson), and you have a recipe for a blowup, which is what happened. How the Committee moves forward will be determined largely by how much trust was lost in the process but will certainly be hampered. Privacy legislation is almost certainly dead, but we hear they may try to rescue safety legislation targeted specifically for children, though some of the issues that plagued APRA will apply here as well.

Natural Resources: You may have missed it, but the Committee reported (by voice vote!) a NEPA reform bill for forest management on June 26th. It might be small but it’s also a sign that quietly there is still a bipartisan effort trying to reform our nation’s permitting laws. Members we talk to who are involved in the conversations are still holding out hope that a larger package will materialize but for the moment key players seem to realize that smaller targeted bills like this, and for nuclear power before it, will be the way to go.

Transportation and Infrastructure: Arguably, House T&I has been the most productive and low drama Committee on both sides of the Capitol. Owing especially to the good relationship Chairman Graves and Ranking Member Larsen enjoy as much as their dual belief that good legislation is developed through cooperative compromise. One thing we are unlikely to see from the Committee is rail safety reform, even in the wake of the NTSB report on the derailment in East Palestine. Going forward, look for IIJA oversight, specifically the slow pace of distributing the nearly $661 billion awarded to DOT, and potentially activity on the solvency of the Highway Trust Fund.

Ways and Means: Ways and Means leadership is busy putting together a reconciliation package. This won’t make headlines and won’t impact public Committee activity, but the call has gone out to Republican Conference for reconciliation priorities to be submitted. If you’re unfamiliar with the process, just know for now that the Ways and Means Committee has a starring role. Certainly, the main focus will be extending the Tax Cuts and Jobs Act (Trump Tax Cuts), but it’ll be a wish list of conservative priorities. If you have tax priorities let us know!

A Note on SALT: Much has been made about the failed efforts to roll back the reduction in the SALT deduction, proponents of such a move (mostly Dems and coastal Republicans) have a new arrow in the quiver, and it’s time. The reduction expires, and unless the GOP majority increases significantly the House does not have the votes to reinstate the reduction. Combine that with the fact that mortgage rates are north of 6% and the SALT members are bullish on their chances of ensuring it reverts back to pre-TCJA levels. W&M Republicans are aware of this of course, and the big problem it creates is lowering the SALT deduction raised the vast majority of the revenue used to defray the cost of TCJA. Ergo, the Committee is also on the lookout for revenue raisers that aren’t tax hikes. Good luck.  

The Senate

Appropriations: As detailed above, Appropriations is a slow-burn, behind-the-scenes affair right now…until it’s not. So, consider this your last opportunity to bug your friendly Committee clerk about your priorities before it’s off to the races with subcommittee and full committee FY 2025 markups. No matter how the 302(b) discussion lands, expect the Senate’s bills to look dramatically different than the House’s. Oh, and did anybody notice the White House last week dropped a nearly $4 billion supplemental request for the Baltimore bridge collapse? Discussions are well underway on the possibility of it riding along on the CR. The Committee is planning on marking up Ag, Leg Branch and Mil-Con on July 11th. The next tranche is likely to be CJS, Interior, THUD and SFOPS on July 25th and August 1st.

Agriculture: The committee will hold a hearing on cryptocurrency regulation on July 11th, Congress still hasn’t worked out jurisdiction in this space so you’re going to see a lot of Committees looking at the issue. We’re told JD Vance is writing his own bill as well. As it should be obvious by now – and you’re your friends here at the Look Ahead have been saying for well over a year — Farm bill isn’t happening.

Commerce: June didn’t quite go as planned for the Commerce. Despite reaching a deal with the White House and negotiating bipartisan amendments on the Affordable Connectivity Program, the Committee for a fourth time scuttled a markup on Chair Cantwell’s spectrum bill as Ranking Member Cruz failed to relent on objections to the Affordable Connectivity Program. So where do we go from here? The trick to negotiating with Cruz is that he always wants a trade. Finding something unrelated to telecom policy may be the only path forward to unlocking a deal this Congress. Elsewhere, with the final report on the East Palestine, Ohio train derailment finalized by the NTSB, there’s a renewed push for the bipartisan rail safety bill – but not much looks to change with that dynamic given the continued opposition from GOP leadership over the two-crew rule and other objections. And the high drama on privacy in the House certainly does nothing to help the Senate-side efforts in moving forward with a bill this year.

Homeland Security & Government Affairs: Investigations Subcommittee Chairman Richard Blumenthal’s recent hearing with Boeing CEO Dave Calhoun ended up being a more civil affair than it could have been. But we don’t expect Blumenthal to let up in his laser focus on the company, especially with DOJ reportedly reaching a new plea deal related to its deferred prosecution agreement. The Chairman has said he next plans to get airline CEOs to testify on the impacts of delayed deliveries and groundings…something no member of the Conquistadores del Cielo would like to do. A July hearing on the subject remains a possibility.

 Get Smart – Why Trump’s V.P. Pick (Almost Certainly) Won’t Come From Florida

At some point during the Republican National Convention the week of July 15th, the party will reveal who will run alongside former President Trump as the party’s nominee for Vice President. Trump being Trump, there will probably be a lot of stagecraft around the reveal. We’re here to help you sound confident at the 4th of July family barbeque, when you can gently let down your mother-in-law and Rubio-stan that the senior Senator from Florida will not be on the ticket. Like Charles Barkley, we might be wrong…but we doubt it!

Who’s In The Mix: Reportedly, at least eight people have received vetting documents: Sens. Marco Rubio, Tim Scott, Tom Cotton, and J.D. Vance, Reps. Byron Donalds and Elise Stefanik, former brain surgeon turned HUD Secretary Ben Carson, and the man with the best hair in politics, North Dakota Governor Doug Burgum. This is probably the entire list, since being invited to the vetting party isn’t something one keeps quiet. It’s an honor to be considered as they say, but only if you tell everyone in earshot how honored you are to be considered.

What Are the Rules for Being Vice President?: Constitutional eligibility to be Vice President is identical to that of the President. Other than presiding over the Senate and casting a tie breaking vote, the Constitution is mostly silent on the purpose of the Vice Presidency. This of course led our first Vice President, John Adams, to remark “My country has in its wisdom contrived for me, the most insignificant office that ever the invention of man contrived or his imagination conceived.” But basically, as long as you’re a natural born U.S. Citizen of at least 35 years of age you’re eligible.

So What’s the Problem?: Originally, the Constitution provided in Article II, Section I, Clause 3 that the President and Vice President would be chosen separately by constitutional electors, and that the electors themselves must vote for at least one person, President or Vice President, inhabiting a different state as the voting elector. However, the Twelfth Amendment to the Constitution superseded this and established the President and Vice President would be elected together as a ticket. It’s the Twelfth Amendment that ensures Sen. Rubio, Rep. Donalds, or any other Florida resident is unlikely to be on the ticket.

What Does the Twelfth Amendment Say?: “Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves…” While President and Vice President run as a ticket, the electors cast two, distinct ballots for President and Vice President. Former President Trump is a resident of Florida, meaning the 30 electoral college votes from the State of Florida can only be cast for Trump and another person not from the State of Florida. Were his VP pick to be from Florida, and the election were decided by fewer than 30 electoral college votes, then President Trump could be saddled with a Vice President Harris. This wouldn’t happen though…more likely no Vice President would receive the necessary 270 electoral college votes.

What Would Happen In That Case?: Unlike the Presidency, which goes to the House in the event no candidate reaches 270 electoral votes, the Vice-Presidency is decided by a vote of the Senate. The Senate can only decide between the top two electoral college vote getters (sorry Nicole Shanahan!) Each Senator would get one vote and 51 votes would be required to select the Vice President.

Has The Senate Ever Chosen a Vice President?: YES! In 1837, Kentucky’s Democratic Senator Richard Johnson fell one electoral vote short of a majority. He was ultimately elected by the Senate to serve as Vice President to Martin Van Buren by a vote of 33-16.

So Yeah, It’s Not Going to Be Rubio (or Donalds): Probably Not.

Who Are We Pulling For?: We’re just rooting for everyone to have fun and leave it all out on the field. But Gov. Burgum has at least two fans in the Elevate offices. He used to be a chimney sweep! Burg-mentum!

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