THE LOOK AHEAD - MARCH 2024
Balance of Power
Senate: 48 Democrats, 49 Republicans, 3 Independents Caucusing with Democrats
House: 219 Republicans, 213 Democrats, 3 Vacancies
Former Speaker Kevin McCarthy (R-CA) resigned January 1st; Governor Newsom (D) set a March 19th primary date. If no candidate receives 50%+ of the vote a runoff between the top two vote getters would occur on May 21st. This is a safe Republican seat.
Rep. Bill Johnson (R-OH) resigned January 21st. A special primary will take place on March 19th, and a general election on June 11th. This is a safe Republican seat.
Rep. Brian Higgins (D-NY) resigned Friday, February 2nd. The special election is April 30th. State Sen. Timothy Kennedy won the Democratic nomination for Higgins’ seat and will more than likely be elected to serve out the remainder of the term. This is a safe Democrat seat.
Top Line Take Aways:
The Wheels on the (Mini) Bus Go Round and Round: The House is going to (hopefully) pass a minibus containing the FY24 Energy and Water, Interior-Environment, Transportation-HUD, Agriculture, Military Construction-VA and Commerce-Justice Science appropriations bills this week. It will be considered under a suspension of the rules. The number to watch is how many Republicans vote for it. If the number is significantly lower than 113 (the number that voted for the CR) then the effort to pass a second minibus by March 22 is in big trouble. To be fair, assuming 207 Dem votes for the CR hold there is a lot of leeway. You need 288 yes votes under current House makeup, which means you could lose 32 Republicans and still pass the bill, but that creates a problem for Speaker Johnson. He needs a “majority of the majority” here. However, House Leadership is saying they want to make a stand on immigration with DHS funding so potential for a CR on for half of the government remains.
The Senate will likely need to “work its will” on the package, and we fully anticipate at least one member withholding unanimous consent to speed the package in order to attempt to get a vote on one of their amendments. But there’s no doubt that, eventually, the Senate will pass the bill without modification so long as it can get out of the House.
Don’t kind yourselves—even with the first six bills moving, that doesn’t guarantee the remaining six have a clear path to passage. By including bills in the first minibus that have a lot of earmarks Members want, like THUD and Interior, there could be less momentum to get a global deal for the remainder. House defense hawks will push for resolving that bill, as a CR has real ramifications for DoD, but can Democrats hold the line and insist on pairing it with the Labor-HHS-Education bill while keeping out the perennial policy rider fights in the Homeland bill? Bottom line, there’s a district possibility we end up with a CR omnibus.
Mitch Don’t Kill My Vibe: David’s feelings about Senate Minority Leader Mitch McConnell stepping down as Leader probably mirror those of a lot of other Democrats (or at least those Dems of the DC swamp variety). The man is nearly single handedly responsible for killing a laundry list of Democratic priorities—he is regarded by many on the other side of the aisle as enemy number one. But as a legislative tactician, he’s among the best to ever do it, and you’ve gotta respect that. Moreover, as both Majority and Minority Leader, McConnell was also responsible for cutting critical funding deals and blessed key bipartisan packages like the CARES Act and Infrastructure Investment and Jobs Act. We hope that kind of dealmaking still exists in the Senate going forward, but that’s less of a secure prospect with McConnell’s departure from leadership.
So, with those enormous shoes to fill, who’s next? It’s off to the races for the three Johns, with Sens. Barrasso, Cornyn, and Thune all angling to take the post. But keep a very close eye on Sen. Daines...he’s got Trump’s ear and if he can lead the GOP back to the majority as head of the NRSC he may be a not-so-dark horse with eyes for the job.
Immigration Is Dead, Long Live Immigration: Last month we made a prediction. To wit: the GOP base will react extremely negatively to the bill, and Republican Senators without a dog in the fight will conclude the juice isn’t worth the squeeze and the effort peters out. Well…we were right! That’s why you read folks, nothing but diamonds and pearls!
But, But, But…: Speaker Johnson has been telling people the plan is to try to leverage the second minibus (which contains funding for DHS) to include House GOP demands on the border. At least one Democratic Senator is open to a deal. So, this could all come back around! And that my friends they call…hedging.
Mayorkas Impeachment: You may be wondering why the Senate hasn’t started its impeachment trial of DHS Secretary Mayorkas yet, since under the rules it’s privileged and must take place immediately. Well, in the year of our Lord 2024, where one can ask an app on your phone to draw a renaissance painting in under 10 seconds, impeachment articles must be physically walked over to the Senate before the trial begins. You may remember then Speaker Pelosi did this when the House impeached President Trump (the first time). House Leadership wants to get through funding the government before putting on their joggers and handing the articles over. In theory they can hold on to them forever, but it’ll probably happen once (if?) the second minibus is passed. How about that – some bipartisan and bicameral cooperation in the 118th Congress!
Alert, Alert, Alert - Earmark Time is Here: If you, or your clients, are in the earmark business…sorry, ‘congressionally directed spending’ slash ‘community project funding’…then look alive! Deadlines are coming and going, and since individual Members and Senators all handle this differently there’s no time to waste!
NDAA Has Begun: Armed Services Committee members are currently in the process of submitting their priorities to the full committees. We’re told, at least on the House side, that the plan is for HASC to mark up in the first two weeks of May, and then go to the floor in June right after the Memorial Day Recess. Color us skeptical they’ll meet that timeline, but it’s nice to have goals, I guess.
Big China Bill Coming: Word is going around that a big bipartisan anti-China bill is on the horizon. Everyone seems to be certain that TikTok is in the crosshairs but that also there is a desire to be bigger than just one company. Temu is likely to get some attention in the wake of their Super Bowl ad controversy (we are still having trouble getting the jingle out of our heads) along with the clothing retailer Shein. Details have been elusive, but we are working on getting intel!
The State of Our Union: Is strong! Don’t forget the U. S. of A. still kicks major butt and we’re lucky to live here! But we’ll hear a whole lot of “actually” this week when President Biden addresses Congress and the various talking heads go back and forth about how important the speech was. To paraphrase the great Harry Doyle… who cares, nobody is listening anyways. Expect most of conversation to devolve in to how strong/weak the President looks and sounds.
Committee Spotlight
The House
The House Agriculture: The sniping in the press is getting worse over the prospects of the Farm Bill reauthorization. This is a terrible sign for a Committee that traditionally works, if not in a bipartisan fashion, at least respectfully towards their colleagues. Between Chairman GT Thompson’s (R-PA) recent health issues (we wish him well!) and reports of dissatisfaction with Ranking Member Scott (D-GA) among Democrats on the panel it’s looking like the Committee will be calling in the punt team.
Appropriations: Members on the Committee will all have their priorities due to their relevant subcommittees in the next two weeks. Traditionally, the Committee waits on the Presidential Budget Resolution (PBR) to kick everything off but in the last several years the PBR has come later and later and been less and less relevant – as we used to say on the Hill, “The President Proposes and Congress Disposes”. This is all probably an exercise in futility since the House shows no inclination that they’ll be able to pass FY 2025 bills with any more ease than FY2024. Nonetheless, they’re going to go through the motions and once the PBR is released Administration officials will start making their annual pilgrimages to answer questions about the programs in their purview. If you see an Approps staffer, they could probably use a hug!
Armed Services: As we noted at the top, Member requests are due this month. The Committee is telling its Members to be ready for a mark-up in the first two weeks of May, with floor action early in June after the Memorial Day recess.
Education and Workforce: We are told that Chairwoman Virginia Foxx is getting ready to weigh into the college Name, Image, Likeness (NIL) and employee status debate. E&W doesn’t have jurisdiction over NIL per se from a Commerce perspective (more on that below) but they do have jurisdiction over universities that receive federal funding, Title IX, and of course the right to organize. We’re told the drama around Subcommittee Chairman Bilirakis’s ever-changing NIL bill and E&C’s inability to advance anything yet, combined with recent court rulings allowing for the unionization of college athletes has spurred our once and future Speaker of the House (in Bret’s dreams) to act.
Energy and Commerce: Speaking of NIL, we’re left wondering where E&C goes from here. The primary thing holding up a bill is Chairwoman McMorris Rodgers’ desire to have it be bipartisan, but Ranking Member Pallone (D-NJ) has been successful in keeping his Members on the sidelines. It looked like for a minute that Rep. Bilirakis (R-FL) found a partner in Rep. Debbie Dingell (D-MI) but that ultimately didn’t materialize. The Committee is likely getting an earful from the NCAA in the wake of a federal judge issuing an injunction against the NCAA enforcing its NIL rules. At this point it’s safe to say our own Washington Wizards are more successful on/in court than the NCAA (it’s ok to laugh, the Wiz are terrible). But any effort to rescue the NCAA with an anti-trust exemption will be met with fierce backlash from advocacy groups. The politics of this one get pretty tricky too, once the universities engage.
Natural Resources: Resources is working on a package of public lands bills. These are popular in election years, especially for Members west of the Mississippi. Often extremely local issues (what’s a Sage Grouse anyways?) that nonetheless are very important to districts with large portions of federal land.
Transportation and Infrastructure: Waiver Wire?…Well placed and reliable sources tell us Chairman Sam Graves (R-MO) is floating a waiver to continue as Chairman should the House GOP maintain its majority. It’s an uphill battle and would rely on the precedent Chairwoman Foxx set this Congress at E&W but granting additional waivers could be seen as the end of the term limit rule. We will watch this space as it develops. Additionally, T&I is still searching for a path forward on Coast Guard Reauthorization as there are some House rules creating problems for a suspension vote. Without a corresponding Senate bill even introduced they have some space here to continue working on a WRDA reauthorization, federal aviation safety standards and hearings on sexual assault in the Coast Guard.
Ways and Means: Ways and Means is still working to finalize a package of health bills, and then identify a bill it could ride on. Finally, we continue to hear from Members that a trade package with GSP/de minimis updates is being finalized, potentially for action in March. This package will be bipartisan.
The Senate
Agriculture: Senate Agriculture Chairwoman Stabenow (D-MI) made headlines last week saying she’d delay the Farm Bill until next Congress over GOP priorities. This kind of posturing isn’t all that unusual, but it broaches that territory when you consider Sen. Stabenow is retiring at the end of the year and would thus be giving up her ability to put her stamp on Farm Bill programs. Given the impasse, Stabenow is reportedly directing the committee to resume negotiations on cryptocurrency legislation to regulate digital commodity markets, legislation that stalled in 2022 after the once-leading cryptocurrency exchange FTX collapsed.
Commerce: We have a bill! After successfully getting a bipartisan FAA reauthorization out of committee in February, it’s off to the races with committee staff diving into discussions with their House counterparts to resolve differences. But wait...what about all the members of the Senate who don’t serve on CST? They probably have some thoughts. The Committee is now soliciting ideas from off-committee members they’ll try to incorporate into the bill, but whether that means actual floor consideration is hazy. Elsewhere in CST’s broad jurisdiction, the committee is embarking on discussions surrounding their own Coast Guard bill, with the aim of putting it on the FY25 NDAA along with a MARAD reauthorization. And work continues potential artificial intelligence bills to wrap into the broader package helmed by Majority Leader Schumer (D-NY), including a couple focused on workforce. Finally, with the Kids Online Safety Act (KOSA) reaching a filibuster-proof 62 co-sponsors, look for Sens. Blumenthal and Blackburn to ratchet up the pressure for the Senate to take up the bill.
Energy & Natural Resources: He’s not running for President, but he’s definitely not closing out the last nine months of his Senate term quietly, either. Chairman Manchin (D-WV) is full speed ahead pushing for a permitting deal to get done—and has been working closely with Ranking Member Barrasso (R-WY) on a path forward to move a package forward. Reminder, there’s a large appetite for permitting reform in the GOP controlled House.
Finance: A perennial challenge with legislating is that the longer a bill is out for discussion without getting to a vote, the more opportunities there are to poke holes in it. And so is the case with the tax bill led by Chairman Wyden (D-OR) and Ways & Means Chairman Smith (R-MO). It may have gotten an overwhelming vote in the House, but Ranking Member Crapo (R-ID) is holding out as he pushes for more Senate GOP-led provisions to make it in the bill and bashes Democratic priorities that were included like LIHTC and the Child Tax Credit lookback provision. But with many members in his caucus itching for a bill to get done the pressure is sure to mount as election season approaches.
Get Smart – The State of the Union
Everyone reading this has surely watched at least a dozen State of the Union (SOTU) speeches, probably more (we got a real niche readership here!). You might have even spent your formative years with the cast of West Wing getting you to care about it in the first place! So when you saddle up to your SOTU watching party this Thursday, here are some details to show off to all your friends!
Why Is This a Thing At All?: Article II, Section 3, Clause 1 of the Constitution states that the President “shall from time to time give to the Congress information of the State of the Union and recommend to their Consideration such Measures as he shall judge necessary and expedient.” So technically the President is required, at some point, to deliver a message to Congress. The Constitution does not stipulate the manner in which this information is conveyed. In theory, this meeting could be an email.
Does It Have to Be In-Person? No. President’s George Washington and John Adams delivered theirs in person, but this was abandoned by President Jefferson and not picked up again until 1913 by President Woodrow Wilson. It was often argued that it was “monarchical” for the President to address Congress directly (we’ve been arguing over whether Presidents wanted to be dictators or kings since the birth of our great country.) Once radio became ubiquitous (and then of course TV), it became unthinkable for a President to avoid giving the address in-person and so it has been ever since. But some Presidents have avoided giving the address in the year they were inaugurated or in the final year of their term. The last seven presidents did not give a SOTU address in the first year of their terms, treating the inauguration address as a de facto substitute.
It should be noted that the President can’t simply show up to address Congress. Because of the separation of powers, and that the Constitution bestows upon the House and Senate control over their rules and procedures, the President technically needs to be invited.
What Does Congress Have to Do To Set This Shindig In Motion?: First, the House and the Senate have to adopt a Concurrent Resolution setting aside the exact date and time of the address that is technically the invitation “for the purpose of receiving such communication as the President of the United States shall be pleased to make to them.” The day of the event is filled with much pomp and (little) circumstance. First, Senators and House Members assemble in the House Chamber along with various other dignitaries like the Supreme Court, Joint Chiefs, and the Diplomatic Corps. Then a specially appointed committee of Members from both houses escorts the President to the House Chamber where the Sergeant at Arms of the House of Representatives announces the President. The Speaker of the House then introduces the President and after all the clapping the speech begins.
What’s With the Line of Succession Thing?: Typically, one person from the President’s Cabinet is named the designated survivor and does not attend. This is in case someone blows up the building or some other unbelievably rare but tragic event befalls everyone in the room. The practice started – or was at least first publicly acknowledged – in 1984, not officially (but probably) over fears of a nuclear strike from Russia during the Cold War. The first person to be publicly designated was Housing and Urban Development Secretary Samuel Pierce. Now that’s a trivia question!
Who Holds the Records for Shortest and Longest Speeches?: President George Washington’s first address was the shortest at 1,089 words – clearly he had something better to do that night. President Bill Clinton’s 2000 address is generally considered to be the longest, clocking in at one hour and 29 minutes. If there’s a prop bet at your party on how long this speech will be, the American Presidency Project estimates that all speeches average between 35 and 80 minutes.
Who is Delivering the Response Speech This Year?: Senator Katie Britt of Alabama (R-AL).