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, 211 Democrats, 4 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 was July 16th. LaMonica McIver (D), the current Newark City Council President, won the primary and will likely serve out the rest of former Rep. Payne, Jr.’s term. This is a safe Democratic seat.
NJ-09: Rep. Bill Pascrell (D-NJ) passed away in August. It’s too late for a special election to be held in time for anyone to occupy the seat before Congress breaks for the election, but New Jersey Democrats selected State Senator Nellie Pou (D) to replace Pascrell on the ballot in November which will also serve as the special election to fill the remainder of the term. This is also a safe Democratic seat.
TX-18: Rep. Sheila Jackson Lee passed away in July after a long battle with cancer. The special election to fill the remainder of her term will occur on November 5th to coincide with the general election.
Top Line Takeaways:
Welcome Back for Three Weeks, and Maybe a Bonus Day or Two: Summer is over, the kids are back in school, football is on TV seemingly every night, and your grocery store is really pushing you to buy that Oktoberfest beer (try Solace’s Marzen if you see it!). You’ve probably heard the rumors that the House will try to jam the Senate on a CR and adjourn a week early, vacating that last week. First…LOL at the House jamming the Senate on anything; we don’t think they could successfully jam a peanut butter sandwich. But more pressing is these are the last three weeks in D.C. before an election, which means there are more than 1,000 fundraisers that week. Members do a lot of things, but they don’t leave cash on the table. Technically, the fiscal year ends Monday night September 30th, and we think it’s certainly possible that Members spend an unplanned weekend in town.
Speaking of a CR…: We have more – much more – on what we think will happen below, but we expect House Republicans to try and pass something this week, and for the Senate to sit on it the week after, leaving all the intrigue for the week of the 23rd. However, House Leadership filed 36 bills that aren’t CRs for consideration this week in case they can’t get it together.
Time for a Plug!: As some of you know, Bret serves as the Chairman of the Board for the Congressional Football Game for Charity. The game this year will be September 18th at Audi Field pitting a bipartisan team of Members of Congress captained by Reps. Rick Crawford (R-AR) and Jimmy Panetta (D-CA) against the United States Capitol Police. Plus, a slew of former NFL greats will be on hand to help the Members level the um….athleticism gap. It’s a fun time, everyone is invited to the afterparty (free drinks!), and you get to sleep well at night knowing you helped raise money for the United States Capitol Police Memorial Fund, the charity that helps the families of fallen officers. Details and tickets can be found here: The Congressional Football Game. Hope to see you there!
China Week: Is this the new “Infrastructure Week”? We’re told this time it’s for real. Most of the attention will be placed on prohibiting the CCP from buying up American farmland and Chinese influence in higher education. We had heard that issues like investment and de minimis reform for tariffs were going to be included, but those are not likely to come up right now. Don’t expect any major drama like forcing the sale of TikTok. House Republicans have to do something while they wait for their CR strategy to fall apart and filling time with non-controversial bills (i.e. suspension) to help out rank-and-file Members is just what the doctor ordered!
Filling in the Gaps: Bills targeting ESG and DEI requirements in government agencies and financial/fiduciary institutions. Higher education will get another look over accrediting agencies taking political views into consideration when certifying colleges, a bill to mandate minimum bail standards for municipalities to be eligible for federal grants, a bill to target the anti-Israel BDS Movement, Bruce Westerman’s (R-AR) long-awaited Fix Our Forests Act, and a bill from Nancy Mace (R-SC) that requires undocumented immigrants to be deported if convicted of sexual or domestic violence.
Meanwhile in the Senate: The Upper Chamber will proceed with its own version of killing time before a CR gets agreed to by…you guessed it, confirming judges! With Democratic control of the Presidency and the Senate in the balance, Majority Leader Chuck Schumer (D-NY) told colleagues over the weekend the Senate’s focus for September will include filling out open seats in the federal judiciary. Also on Schumer’s wish list before the end of the year: NDAA, the rail safety bill, and prescription drug reform.
Teaser: In October, your friends here at Elevate will be bringing you an Election Preview briefing with a major national election modeler. No, it’s not Nate Silver, but they do compete with him, and you’ve seen their work in countless major TV and print news organizations. We will have more details for you later in the month!
How We See the Spending Fight
At this point, most of you are likely aware the House GOP wants to pass a CR into March and attach the SAVE Act to it, which requires registering voters to prove they are U.S. citizens. This is a strategy supported by former President Trump and the right flank of the GOP Conference, especially the cantankerous House Freedom Caucus. The Senate has already said they won’t consider the plan, and we expect most, but not all, House Democrats to oppose the measure. A lot of hand-wringing has been paid to whether the entire GOP Conference will support the bill, but don’t listen to anyone who tells you there are House Republicans who oppose the policy (there isn’t a Republican in the country who would vote against prohibiting non-citizens from registering to vote in federal elections). What the more moderate Members are worried about is the strategy. They can read the tea leaves as well as anyone else and if this bill is DOA in the Senate, then…what happens next?
First, Why March?: Primarily two reasons. First, conservatives in the House dread the end-of-year “omnibus” spending bill, which gets loaded up with anything and everything that needs to pass in one giant package while most of the country is busy preparing for Christmas dinner. Outgoing Members, both retiring and those who lost, have nothing to lose by compromising. They simply hate that style of legislating and have a deep distrust of GOP leaders in those scenarios. Just ask Messrs. Boehner, Ryan, and McCarthy. Second, conservatives are bullish on the race for the White House and control of the Senate is certainly the GOP’s to lose. There’s also a decent argument that if Trump wins, it’s hard to see the Democrats retaking the House, and therefore they’re looking to move this fight onto friendlier territory.
What Does the Senate Do?: Majority Leader Schumer will take the House bill and throw it in the trash, or archive it, or whatever they do with the physical copy that technically has to be walked across the Capitol. There must be an enormous filing room somewhere in the depths of the Capitol basement. Then Senate Leaders and Appropriators will likely float several options for a series of mini-buses – remember the Senate Appropriations process was a lot more bipartisan – which likely won’t be able to clear a 60-vote cloture threshold in time to avert a shutdown. At that point they’ll start talking about a CR with sweeteners…can we interest you in a Farm Bill, NFIP, or TANF extension? The final bill that is signed into law will almost certainly need to pass the Senate first, so Leader Schumer has the incentive to drag this out a bit.
What Do House Republicans Do in the Meantime?: Pass messaging bills and complain about Senate Minority Leader Mitch McConnell (R-KY). Some Members will clamor for the House to adjourn but as we said earlier that won’t happen. They’ll sit and wait to see what hand they’ll get dealt and pray that former President Trump comes out in support of whatever that is to give Freedom Caucus types an excuse to not complain. It will pass with broad bipartisan support (300+ votes).
What Do We Expect Will Happen?: We have a high degree of confidence ultimately, some form of a CR that expires in early December will be the result. There’s a good chance a few sweeteners are attached, like extending the Farm Bill, NFIP, and/or TANF, which all expire at the end of September, and possibly (though we think unlikely) the DOD and/or MilCon-VA funding bills.
Mapping Out the End of the Year:
There’s simply no way anyone can state with any level of confidence how this same fight will play out three months from now. Remember, Leader McConnell is stepping down from Leadership. Senate Republicans will almost surely be staring at a pending majority while a wide-open race for Majority Leader plays out. Who prevails in that race will have a major impact on how the Senate GOP approaches the end of the year. Indeed, how the contenders will handle spending will be a major part of the race for Leader. Ditto who wins the White House.
We see two combinations as the most likely election outcomes: A GOP trifecta, or a Dem House and White House with a GOP Senate. There’s a chance the GOP holds the House with a President Harris (remember Republicans won 13 seats in 2020) but in this scenario, it’s likely Harris would be winning voters that will make races in CA and NY very difficult for Republicans. The opposite is true if Trump prevails.
Those two combinations have inverted incentives. Under a trifecta, the current House GOP strategy will harden. Under a Dem House/WH and GOP Senate, House Republicans will want to lock in a yearlong continuing resolution while the Dems will want a shorter CR because Dems view a Senate GOP as easier to work with than a House GOP on matters of spending (and probably every other matter too) and House Republicans don’t trust Senate Republicans.
Committee Spotlight
The House
Appropriations:
So they did it, they passed every bill out of committee! The Committee (staff) gets its reward by spending the month of September writing, and rewriting, various CR proposals until they find something that will pass the House, fail in the Senate, and then kick the can probably until late 2024. What a life (but at least you get invited to a lot of cool staffdels). While all this is going on we expect the Committee to hold oversight hearings on political flashpoints or programs that are generating bad press. The first oversight hearing will be September 11th on issues affecting tribal food assistance programs.
Energy and Commerce:
We are told that E&C will hold a markup the week of the 16th, but this may slip to the week after. Our understanding is that the Committee will be moving a slate of health bills but is not ruling out Right to Repair or the House’s version of the Kids Online Safety Act, whose Senate companion passed overwhelmingly before the break. HOWEVER, we are told by aides in the Capitol that GOP Leadership is not moved at all by the large vote in the Senate and is still cool to the idea of moving data privacy legislation before the election. Our sources did say though that it’s unlikely Leadership would intervene as they did in July leading to E&C canceling their planned markup of the American Privacy Rights Act at the last minute.
Homeland Security:
House Homeland is going to hold a hearing on the CrowdStrike outage on July 19th that disrupted large portions of the U.S. economy and travel network.
Transportation and Infrastructure:
This week the Committee will hold a hearing on WOTUS, and we hear a markup is in the works likely focused on Amtrak (bonus transparency and open board meetings) and Economic Development issues.
The Senate
Appropriations:
As detailed above, Appropriations is in a hurry-up-and-wait stance right now, patiently awaiting the House’s dead-on-arrival CR proposal. Expect a lot of drafting of various CR proposals and some last-minute dealmaking late in the month. Gotta love that September back-from-recess feeling!
Armed Services:
Negotiators are not as far apart on the FY25 NDAA as some may believe. That said, Committee Chairman Jack Reed (D-RI) has said the bill still needs work and more likely than not won’t be ready for floor consideration this work period, potentially meaning negotiators would bypass floor consideration of the Senate bill altogether and negotiate a final product with their House counterparts.
Commerce:
The Committee is keeping the nominations moving with a hearing this Wednesday, September 11th on nominees to the Amtrak board of directors. We hear they are also provisionally planning a cyber-related hearing on September 18th, but nothing has been nailed down.
Get Smart – Understanding The Congressional Budget Process
In our August Look Ahead where we previewed next year’s changes at the top of Committees, we took a shot at the Budget Committee. Our apologies to all the Budget Committee veterans out there whose valuable experience and work have produced many many many pages of Congressional reports that have gone straight into the trash. Kidding! (but you know…come on…). So to make it up to you we thought we’d give a brief breakdown of what the Congressional Budget process is (statutorily)….and what it isn’t (relevant….kidding again!).
What Does the Constitution Say?: We have all heard the phrase that Congress has “the power of the purse” but what does it actually say? Specifically, the important parts of the Constitution are Article 1, Section VIII, Clause 7 “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States,” Article I, Section VII, Clause I “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills,” and Article I, Section IX, Clause 7 “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” The word “budget” doesn’t actually appear in the Constitution. Ergo, there is no Constitutional requirement to formulate, debate, or pass a budget.
Fun fact: Ben Franklin is most often credited with why the House gets the honor here to originate Appropriations law, as part of the deal at the Constitutional Convention giving the House proportional representation and the Senate equal representation. Though, some historians note this may not actually be true and Franklin got credit because he chaired the proceedings and so many records were destroyed to keep details about who was arguing what confidential.
So Why Do We Do This, Other Than Like Good Government or Whatever?: In 1974, Congress passed the creatively named Congressional Budget and Impoundment Control Act of 1974. The acronym intern revolution didn’t really take shape until the rise of the internet. The Act requires Congress to adopt a budget resolution each spring, establishing an agreement between House and Senate. You commonly hear this referred to as a “topline spending” agreement. Importantly, the Budget Resolution does not become law.
If It Doesn’t Become Law, Why Does It Matter?: The spending and revenue numbers that are agreed to become enforceable on points of order when considering legislation…which in the House can be conveniently sidestepped by waiving points of order in a Rule resolution. However, the topline number in the budget is what is given to the Appropriations Committee (the “302(a)” number, which derives its name from Section 302(a) of said Budget Act) which then slices it up for the 12 subcommittees (the “302(b)” numbers). If a budget isn’t adopted, each party will “deem” a topline spending number, usually as part of a rule for some piece of legislation, which is what happened the last few years.
Does the Budget Have Anything to Do With “Reconciliation”?: Yes! In modern times (the last 15 years or so) this is probably the most consequential aspect of the budgeting process. Without it, we likely wouldn’t have the Affordable Care Act (“Obamacare”) or the Tax Cuts and Jobs Act (“Trump Tax Cuts”). The Senate is able to bypass the 60-vote cloture threshold on legislation that “reconciles” with the budget. So, budgets typically include a whole bunch of “instructions” to Committees to produce legislation that accomplishes something related to revenue. Committees comply and they put it all together in a “reconciliation package.” There are a bunch more rules, which we have covered in Get Smart previously and if you’d like a reminder let us know we will send it to you.
So Because of the Budget Control Act, This Thing Happens Every Year, Right?: HAHAHA. No. By our count, since Fiscal Year 2003, there have been 13 years where Congress did not adopt a budget resolution. 40% of the time, it works every time.
Is There ANY Enforcement?: Ok this one is for the Budget Committee veterans. The primary way budget activity affects the operations of the House and Senate is mostly unseen. In recent years, depending on who is in charge, Congress has adopted Pay-As-You-Go, aka “PayGo”, or Cut-As-You-Go, aka “CutGo”. Basically, if a bill or amendment spends money over what is currently authorized by federal law, the bill or amendment must find an offset. Offsets can be revenue raisers (taxes, selling government assets, etc.) or spending cuts (abolishing the Department of Education). This is the number one issue staff and Members run into when trying to enact authorization legislation or get amendments considered on the floor. You see this A LOT in the appropriations process which is why so many amendments go after “salaries and expenses”. Nobody sheds a tear for the salaries of government employees…except government employees and honestly who cares about them…Kidding! It’s also why omnibus spending bills always include a PayGo waiver.
So When is the Next Time We Will See a Budget?: If one party controls the House, Senate, and White House it’s almost a guarantee because they want to use reconciliation to enact some proposal that they otherwise wouldn’t be able to get through the Senate. You may see it if only the House and Senate are controlled by the same party but in today’s hyper-polarized political environment, we doubt it.
*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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