THE LOOK AHEAD - MAY 2024
Balance of Power
Senate: 48 Democrats, 49 Republicans, 3 Independents Caucusing with Democrats
House: 217 Republicans, 213* Democrats, 5 Vacancies
CA-20: Former Speaker Kevin McCarthy’s (R) district. No candidate reached 50%+ of the vote in the special election so a runoff between CA State Rep. Vince Fong and Tulare Sheriff Mike Boudreaux will occur May 21st. Both candidates are Republicans.
OH-06: Rep. Bill Johnson’s (R) district. The special election is June 11th. This is a safe Republican seat.
CO-04: Rep. Ken Buck (R) resigned March 22nd. A special election will take place June 25th. This is a safe Republican seat.
WI-08: Rep. Mike Gallagher (R) announced he would resign April 19th (he ended up staying until April 24th to help pass the Ukraine-Israel-Taiwan foreign aid package). Rep. Gallagher’s decision to wait until April 19th means the seat will remain vacant until the November general election. Under Wisconsin law, Rep. Gallagher would have had to vacate the seat before April 2nd to trigger a special election.
NJ-10: Rep. Donald Payne, Jr. passed away April 24th. Because of the timing, Rep. Donald Payne, Jr. will be unopposed on the primary ballot for the State’s primary on June 4th. As of this writing, a special election to fill the seat for the remainder of the term has not been announced and wouldn’t take place until September at the earliest, if called at all. A special New Jersey Democratic Party committee will replace Rep. Payne, Jr. on the general election ballot. A more complete explanation of New Jersey’s complicated election law can be found here.
*NY-26: Rep. Brian Higgins (D) resigned Friday, February 2nd. Democrat State Sen. Timothy Kennedy won the special election to fill the rest of the term Tuesday, April 30th. He will be sworn in once the State of New York certifies the election.
Top Line Take Aways:
Well by Golly They Did It: A truer underdog story has never been written. The Federal Government is funded, and a supplemental package sending aid to Ukraine, Israel, and Taiwan has been signed into law. FISA was reauthorized. Spring has SPRUNG! What are we going to fight about now? Indeed, the lack of pressing legislative needs once the FAA bill is dealt with has the rumor mill swirling that House Leadership will cancel some of its upcoming session days (weeks?).
Speaker Johnson is (Still) in the Hot Seat, Which in Reality is Quite Cold: Rep. Marjorie Taylor Greene (R-GA) has announced she will invoke her privilege and motion to vacate the office of the Speaker next week. All the spice was removed from this particular situation when House Democratic Leadership announced they’d promptly dispatch the motion by tabling it. It’s a welcome development for anyone who views Congress as a body that has to be responsible for the business of the Nation and not the business of one’s social media feed. Or as the Freedom Caucus will say…the “Uniparty” strikes back, or something.
FAA: All Eyes on the Senate: Count us pleasantly surprised that House and Senate negotiators reached a deal on the FAA. The Senate will take its turn first in the legislative spotlight as it prepares to marshal through a long-awaited FAA reauthorization. But it’ll be a bumpy landing – Senators are keen to attach unrelated priorities to one of the last buses out of town, which could slow down the process and bump up against the May 10th expiration. The thinking is anything added in the Senate would land in a House of Representatives that has difficulty finding 218 votes just to keep the lights on and therefore would be unlikely to strip anything the Senate passed. Some of this is just a posturing/negotiation tactic. How the Senate will “work its will” on FAA is detailed in this month’s Get Smart section below. House Leadership’s preference is for no “non-FAA” provisions to be included in what comes over from the Senate. We expect the Senate to wrap up consideration on the 7th or 8th, giving the House time to clear a bill before May 10th’s expiration.
While You Were Sleeping, a Russian Uranium Ban: The Senate this week quietly passed legislation banning the import of enriched uranium from Russia necessary for next generation nuclear power. It passed the House in December and now heads to the President. The ban goes into effect in four years. Russian is currently the largest foreign supplier of enriched Uranium to the U.S., supplying roughly 25% to domestic reactors. This is worth about $800 million a year to Russia’s state-owned nuclear corporation. That’s series money. With a clear shift underway in the left’s view of nuclear power this could have significant geopolitical ramifications since presumably Russia uses much of this money for its ongoing war against Ukraine. Especially if domestic supply chains can’t pick up the slack.
We’re Basically in Silly Season at This Point: It’s an election year; each chamber has 12 weeks of session remaining before adjourning for the election; 10 of those overlap. It’s highly probable at least some portion of those session days in the House will be converted to “district work periods” since at present Congress isn’t in some sort of legislative crisis. After FAA, there will be no “must pass” legislation before election day except a continuing resolution to keep the government operating, and maybe an emergency supplemental for the Baltimore bridge which could be attached to a CR. There may be some noise around a shutdown but trust us, it’s going to be a CR. The Senate therefore will focus on things that would be in jeopardy should the Democrats lose the majority, namely judicial nominations. The House will pass messaging bills.
Alas, Poor Appropriators: House Leadership has instructed House Appropriations to begin markups on its 12 annual appropriations bills by early June. If you have business in front of the Committee, don’t wait to press the issue!
Committee Spotlight
The House
Agriculture: Ag Committee Republicans released the framework of their Farm Bill reauthorization bill on Wednesday May 1st and announced plans to hold a full committee markup later this month on May 23rd. In addition to fights over offsets, Chairman GT Thompson is considering text targeting California’s Prop 12, which regulates space requirements for egg laying hens, breeding pigs, and calves raised for veal. California businesses are prohibited from selling products from animals raised in conditions that don’t meet the space requirements, which includes products imported from other states. Given the market size in California, Prop 12 has generated significant opposition from farmers in other states. A Committee vote will be interesting to watch; this would likely be the only Farm Bill related vote before the November election. Several of the Committee’s Democrats hail from rural districts or targeted swing seats and two, Reps. Abigail Spanberger (D-VA) and Elissa Slotkin (D-MI), are running statewide in purple(ish) states.
Appropriations: The Committee that never sleeps. Newly minted Chairman Tom Cole (R-OK) announced a tight turnaround for Member requests, and then extended the deadline after Member pushback. Programmatic and language requests are due May 3rd, and Community Project Funding (earmark) requests are due Friday, May 3rd for Ag, Energy & Water, Homeland Security, and Mil-Con Subcommittees. For CJS, Interior-Environment, and THUD they are due Friday, May 10th. Members have until May 17th to post earmark requests to their website as required by House Rules. The Committee will continue with Member Day and budgetary hearings as it attempts the herculean task of putting together 12 appropriations bills in time for consideration this summer. Leadership wants markups in June.
Armed Services: The Committee is on track, we’re told, to move forward with Committee markups in May. Staff we talk with are skeptical they’ll meet the mark, but they benefit from having Members in town for four consecutive weeks. The goal remains to have a bill out of committee by Memorial Day, however there is frustration on funding levels. Chairman Rogers announced he would abide by the Fiscal Responsibility Act levels in drafting the bill while trying to secure additional money later in the process. How that plays out could (read: will likely) delay the NDAA process.
Energy and Commerce: E&C held a hearing last month on social media, kids online safety, and data privacy legislation. The full committee is expected to have a mark-up May 9th where some, if not all of the bills from the legislative hearing, will be marked up. We are told the American Privacy Rights Act will definitely get a vote, but TBD on the Kids Online Safety Act (KOSA). Additionally, Energy and Commerce is going to have some big names in budget hearings. Secretary Granholm will brief the Department of Energy’s FY 2025 budget request, the FCC Commissioners will all appear for an FCC Budget hearing and NTIA Administrator Alan Davidson will also make a trip to the Hill.
Education and Workforce: Yale, UCLA, and the University of Michigan will get their turn in front of Chairwoman Virginia Foxx (R-NC) on May 23rd. Additionally, we hear Members are likely to increase scrutiny of universities receiving public funding. Speaker Johnson has indicated that there will be a full House effort to investigate and provide oversight over what is happening on campuses nationwide. This Committee will be at the center of it.
Natural Resources: Brenda Mallory, who chairs the Council on Environmental Quality, will testify in front of the Committee on May 16th. CEQ has become a lynchpin of large-scale infrastructure projects in recent administrations as an impediment or facilitator depending on the priorities of the White House. Expect a lot of discussion around permitting reform with the expected release of a White House rule. CEQ is billing as an “update” to the National Environmental Policy Act (NEPA), which for the uninitiated is the law that needs amending when anyone talks about “permitting reform.” Already Senator Joe Manchin (D-WV) has said he isn’t happy with what the White House will release, so we can be sure Chairman Bruce Westerman (R-AR) and his Members aren’t going to like it.
Transportation and Infrastructure: Chairman Sam Graves (R-MO) and Ranking Member Rick Larsen (D-WA) are expected to release draft language on the biannual Water Resources Development Authorization (WRDA), a piece of legislation whose primary purpose is to authorize the U.S. Army Corps of Engineers to engage in activities related to flood control, inland navigation, water infrastructure financing, and ecosystem restoration. We expect broad bipartisan support for T&I’s package, which we’re told committee leaders are trying to keep strictly related to Corps projects.
Ways and Means: We are hearing there will be a busy May schedule including a markup next week. No indication of what exactly they’ll be voting on but we continue to poke around!
The Senate
Agriculture: Following her House counterparts, Senate Ag Committee Chair Debbie Stabenow (D-MI) also released a Farm Bill framework on May 1st, which offers a starkly different approach to the farm safety net than what her Republican colleagues have been proposing. Senate Republicans are expected to publish a counter-proposal after the House finishes marking up their bill. We're not optimistic that a Farm Bill can be completed this Congress given the lack of bipartisan cooperation and wide differences in policy priorities.
Appropriations: Much like the House, Senate Approps has wasted no time (since they can’t afford to) on the FY 2025 process, releasing guidance on earmarks and programmatic requests with deadlines staggered over the next two weeks. Despite a lot of difficulties reconciling House and Senate earmarks in the final FY24 bill, the Committee ended up making minimal changes to this year’s guidelines. And the subcommittees are also kicking off budget hearings, with the Department of Defense, Department of the Interior, and FDA all coming before the committee next week.
Banking: Sens. Dick Durbin (D-IL) and Roger Marshall (R-KS) are trying to marshal support (couldn’t help ourselves, sorry) for a vote on the Credit Card Competition Act as part of the Senate’s consideration of the FAA bill. With the credit card companies and banks still throwing everything but the kitchen sink to oppose the bill, count us skeptical.
Environment & Public Works: EPW staff are seeking to finalize the committee’s version of the 2024 WRDA bill by this week. A potential May 16 markup is on the horizon if Chairman Tom Carper (D-DE) and Ranking Member Shelley Moore Capito (R-WV) can get to agreement.
Commerce: Let’s talk about the non-FAA bill hot topics in front of CST. The biggest of the bunch are AI, privacy, and spectrum: on AI, the Committee had planned to mark up this week Chair Maria Cantwell (D-WA) and Sen. Todd Young (R-IN)’s Future of AI Innovation Act, which would have created a new U.S. AI Safety Institute; and the CREATE AI Act from Sens. Martin Heinrich (D-NM) and Mike Rounds (R-SD), which would authorize a public-facing cloud computer with AI models. But both bills were pulled down from the markup last week with more work needing to be done before they can get the votes needed. Likewise, Commerce pulled down consideration of Cantwell’s five-year spectrum reauthorization bill and a bill from Sen. Brian Schatz (D-HI) on a bill to limit kids’ access to social media. Expect a make-up executive session later this month to move those. Meanwhile, on privacy, the Cantwell/McMorris Rodgers proposal continues to face an uphill battle with Ranking Member Ted Cruz (R-TX) strongly opposing the bill’s provision on private right of action.
Finance: Despite a push from Chairman Ron Wyden (D-OR) to attach his tax deal with Rep. Jason Smith (R-M0) to the FAA bill, it looks as unlikely as ever that Republicans will see any incentive to consider the tax bill before the election. So, what else does the committee look to for action this year? One possibility is reforms to the de minimis tax rule for imported goods and the Generalized System of Preferences. With Ways & Means passing bills on these topics in April, Finance will look to bring their own approach.
Get Smart – Senate Floor Procedure for Dummies, or Maybe Just Bret
Wait so there was a bipartisan, bicameral deal April 28th on an FAA Reauthorization but somehow the Senate won’t make the May 10th deadline? Bret is a House guy and this befuddles him…he is fuddled. We are here to clear up his befuddlement. If you’ve ever wondered how the Senate operates, here is a brief primer but by no means does this cover everything!
Does The Senate Have an Official Rule Book?: YES! You can find it here. Unlike its House counterpart, the Senate does not adopt an entirely new set of rules each session, and instead has standing rules that carry over year over year, with a strong emphasis on precedent and custom. The Senate also utilized Riddick’s Senate Procedure, which contains the contemporary practices and precedents of the Senate. Additionally, the biggest difference between the House and Senate is that Senate rules emphasize the rights and prerogatives of each individual Senator, by enshrining the concepts of unlimited debate and unanimous consent. This has the practical effect of empowering the minority party, which is opposite to the House Rules which emphasize majority rights.
Unlimited Debate/Unanimous Consent: As mentioned above, the Senate functions on the concept of unlimited debate and unanimous consent. Historically, Senators would debate bills and amendments for weeks and sometimes months on end, drawing out the legislative process and using up valuable floor time. In recent times, Senate leaders have typically reached agreement on the scope and time for debate, and how many amendments will be offered, (established through a unanimous consent agreement), otherwise in theory debate could go on forever.
So Where Does Cloture Come In?: In the Senate, all motions including motions to proceed, and motions to pass legislation are subject to a 50-vote threshold – or simple majority. In theory, once senators exhaust their debate and agree through unanimous consent to move forward, the Senate can happily move forward and vote at a simple majority threshold. However, in practice, senators have been increasingly reticent to grant unanimous consent, leaving Senate leadership to utilize the only tool to end debate – by invoking cloture (as established under rule XXII of the standing rules of the Senate). As with most things in the Senate, this process takes quite some time (which makes sense as the cloture process seeks to undermine the Senate’s foundation of unlimited debate). To start, a Senator can file a cloture petition, with the signatures of 16 members, and send it to the desk. Once a cloture petition is filed, the Senate must wait for an intervening day for the cloture petition to “ripen”, after which, a vote to invoke cloture must be held 1 hour after the Senate has convened. The threshold to invoke cloture is 60 votes, (or three-fifths of the Senate). Once cloture has been invoked, there are 30-hours of post-cloture debate allowed followed by the vote on which cloture was invoked (for instance, a motion to proceed, if cloture was invoked on the motion to proceed). In practice, here is how this process can play out:
Day 1 – Cloture Petition Filed
Day 2 – Intervening Day
Day 3 – Cloture petition ripens 1-hour after the Senate convenes. Senate votes to invoke cloture at 60-vote threshold. If invoked, 30-hour post-cloture debate begins.
Day 4 – 30-hours later... the cloture clock expires, and the Senate votes on the motion.
Now, rinse and repeat this process for motions to proceed, motions to vote on amendments, and motions to vote on final passage, and you can quickly see how weeks of floor time can be eaten up by one bill. To add to the confusion, the Senate can do anything with unanimous consent, including changing the nature of the cloture clock, so the Senate can take anywhere from two hours to two weeks to pass a bill.
I’m Always Hearing About the Hotline Calendar and Holds, How Does That Work?: To “hotline” something is in essence, to ask for unanimous consent to pass a bill, or really act on any motion(s). A Senator’s staffer will call their party’s cloakroom staff and ask that their particular bill be placed on the hotline, at which point the rest of the Senate is alerted via email that a Senator is seeking unanimous consent. This is generally done in consultation with their party’s leader. At this point any senator can place a “hold” on the request preventing its passage. Any number of senators can place a hold, but it only takes one to prevent passage. Holds can only be broken by the senator “releasing” his or her hold or the Senate using valuable floor time to break it through a cloture motion, which as we’ve seen is difficult. So, a hold is a senator’s most powerful tool to secure leverage.
So What You’re Saying Is Really Everyone Just Needs to Agree: Pretty much. The Senate was designed by our Founders to slow and temper the emotions of the House. It’s an institution built on consensus and provides significant power to the Minority party.
I Wanna Know More, Where Do I Go?: Outside to enjoy nature? Kidding…kinda. CRS has a great report on it here if you want to read more.