McDonald Hopkins Government Strategies Advisory: This Week in Washington -- May 15, 2015

Deal reached on trade authority

It was a wild week in the Senate on the issue of trade. On Tuesday, the Senate fell short of the 60 votes needed to advance legislation that would have granted the White House "fast track" authority to steer the Trans-Pacific Partnership and other accords through Congress by majority vote and without amendment.

Every Democrat, except Sen. Tom Carper (D-Del.), sided with Sen. Elizabeth Warren (D-Mass.) and others who led the coalition of labor and progressive activists who oppose the deal.

However, just one day later, Senate Democrats stood down, desperately clutching a few concessions.

With a fragile coalition, including 10 pro-trade Democratic members who huddled with the president after the vote, Senate Minority Leader Harry Reid (D-Nev.) announced Wednesday afternoon that his members had accepted the path put forward by Republicans, effectively ending the filibuster.

Senate Majority Leader Mitch McConnell (R-Ky.) broke the Democratic filibuster by offering a plan that would grant some votes they wanted up front. Namely, votes on a customs enforcement bill and another bill designed to strengthen trade agreements with developing countries will precede the essential "fast track" legislation.

Separating the first two bills out of the package sharply reduced their chance of passage in the GOP-led House, which may not even bother to take them up.

The fast-track legislation is a priority for the administration because it would improve its leverage in negotiations with Pacific and European countries moving forward. The bill would limit congressional debate by allowing an up or down vote with no amendments, enabling the administration to tell other countries that Congress will not tinker with any final deal it strikes. Free trade divides the president from his party, which largely opposes these agreements over labor, environmental, and other concerns.

While they didn't get what they wanted, Senate Democrats boasted that they still extracted a win, a commitment from Republicans that all four bills would be taken up.

Opponents of fast-track authority are now turning their attention to the House, where they hope a coalition of Republicans and Democrats can stop the bill.

21st Century Cures Initiative

With a commitment to an aggressive timeline, House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) held a subcommittee markup of his 21st Century Cures Initiative on Thursday. Upton hopes to have a bill on the president’s desk by the end of the year.

The bill passed out of subcommittee by a unanimous voice vote.

Unfortunately for advocates of the legislation, the Senate doesn’t seem to be as interested in moving so quickly.

The legislation aims to enhance biomedical innovation by addressing how medical research is conducted and accelerating the process. It's an issue that President Barack Obama singled out in his State of the Union address and has key lawmakers on all sides of Capitol Hill engaged. That doesn't mean everything will go smoothly.

"There are not many things on Capitol Hill today about which there's as much enthusiasm as our innovation project, and that's why we're taking the time during 2015 to get it right, and then we'll take our best ideas and put them together with the House of Representatives in a bill to the president," said Sen. Lamar Alexander (R-Tenn.), chairman of the Senate Health, Education, Labor and Pensions Committee.

Sen. Richard Burr (R-N.C.), who co-wrote a white paper in January with Alexander titled "Innovation for Healthier Americans," agreed about the Senate taking its time, saying "We're not going to rush it, the Senate never does. The likelihood is you couldn't get anything on the Senate floor until the fall, so I don't think we're in any hurry."

Sen. Patty Murray (D-Wash.), the ranking member of the Senate HELP panel agreed as well. "We're taking our time to really look at all the issues. We don't have a bill yet. We want to get it done right, but we're focusing on higher ed first."

The Cures legislation aims to boost the National Institutes of Health funding and support of researchers and young scientists, streamline clinical trials, and establish a public-private partnership to accelerate the discovery, development, and delivery of cures, treatments, and preventive measures. It also would require the FDA to issue guidance in the development of biomarkers, precision drugs, and biological products.

Upton said the bill will likely go through full committee markup next week. His goal is to have the bill on the floor in June, go to conference with the Senate in the Fall, and then send it to the president before the end of the year.

While the bill passed unanimously out of subcommittee, some members continue to have reservations - even though they voted for the bill. Rep. Frank Pallone (D-N.J.) remains concerned at the lack of increased funding for the FDA, even though the agency will bear new review and regulatory burdens as a result of the legislation.

Following President Obama's State of the Union address in January, the White House unveiled the Precision Medicine Initiative, which would provide funding to accelerate biomedical research. Upton said the House was working "very closely" with the administration, using its precision medicine language and working closely with the FDA.

Timing isn't the only difference between the House and Senate approach.

The amount of funding for the NIH is a sticking point. The House draft released Wednesday provides $10 billion of mandatory funding—$2 billion a year for five years—to the NIH Innovation Fund, as well as a reauthorization of discretionary funding.

It's also unclear the degree to which the House and Senate bills will differ and the scope of the Senate bill.

"Our bill is going to be more comprehensive because we started so much earlier, really a year. More than a year," Upton said. "We're hoping that they just do a smaller piece and then we can encapsulate it together. Their focus is on innovative medicine ... it'll be things we may not have, but we can certainly come to agreement."

Although it seems the congressman is right about the Senate's focus, it's unclear whether it's looking to put forward a "smaller" piece of legislation.

"Our objective is to align federal policies so that they encourage getting discoveries through the regulatory process more rapidly and into the medicine cabinets of doctors' offices," Alexander said. "So it's going to be a broad piece of legislation.

"It will include the president's Precision Medicine Initiative, and we're on parallel tracks with the House," he added. "They started earlier, and so it'll be the end of the year before we finish our work. But it'll be a very substantial piece of legislation. It has broad bipartisan support."

Burr said the Senate's version will focus on driving innovation and breakthrough technologies.

"Right now, the Cures Act is more disease-specific, and it's talking about funding and NIH, and we're looking at, how do we drive breakthroughs in healthcare?" Burr said. "I think ours is targeted to anything that would fall under the innovation umbrella, and that's talking about 21st-century healthcare."

Showdown over the Patriot Act

Early this week, Sen. Rand Paul (R-Ky.), who is seeking the GOP nomination for President, told a New Hampshire paper that he would filibuster any attempt to reauthorize the sections of the Patriot Act that allow the National Security Agency to run its mass data-collection programs.

"I'm going to lead the charge in the next couple of weeks as the Patriot Act comes forward," Paul told the New Hampshire Union Leader. "We will be filibustering. We will be trying to stop it. We are not going to let them run over us."

With the filibuster threat, Paul placed himself in direct opposition to Senate Majority Leader Mitch McConnell, who proposed reauthorizing the Patriot Act without any changes. Paul was initially quiet after McConnell, his fellow Kentucky Republican, floated reauthorization last month.

Paul's threat was the second such declaration in two days: Democratic Sen. Ron Wyden (D-Ore.) also said he would filibuster a straight reauthorization of the Patriot Act, even if it's just a short-term extension of the law.

Wyden and Paul, both privacy hawks, are longtime critics of the NSA's surveillance programs. Wyden supports the USA Freedom Act, a bill passed by the House on Wednesday, although he says he'd like the legislation to go further to curtail surveillance.

Paul, however, voted against a version of that bill last year, because he said it was too weak. He has indicated opposition to the bill in this session, most recently in an op-ed in which he suggested the effort "actually gave new authority to the Patriot Act to collect records."

On Wednesday, the House voted overwhelmingly for the USA Freedom Act. The final tally was 338-88 in favor of the bill, which would extend the Patriot Act for four and a half years, but change the law to explicitly ban the mass collection of phone records or other data.

The bill would prohibit the NSA from indiscriminately collecting records in bulk. Instead, the agency would be able to ask the Foreign Intelligence Surveillance Court (FISC) for permission to obtain specific records from the phone companies. The NSA could ask for data on particular phone numbers or other "specific selection terms." But those terms couldn't be information such as entire zip codes or cities that would result in large-scale data collection.

The legislation aims to improve transparency by requiring that the FISC, the highly secretive court overseeing U.S. surveillance, make public any "significant" legal interpretations.

In a bid to bolster national security, the bill would make it easier to track suspected terrorists or spies as they enter or leave the country. It also would increase prison terms for anyone convicted of providing material support to terrorism.

Libertarian-leaning lawmakers such as Rep. Justin Amash (R-Mich.) voted against the bill, saying it wouldn't do enough to protect privacy. Rep. Zoe Lofgren (D-Calif.) argued that the bill won't stop the "most egregious and widely reported privacy violations" that occur under a separate legal authority. She voted for the legislation, but warned she may pull her support if the Senate weakens the legislation.

Drill baby drill

This week, the Obama administration approved Royal Dutch Shell's plan to drill off Alaska's northern coast. It's a move that angers environmentalists who say development in the remote Arctic waters poses big risks to whales, polar bears, and other species.

The Interior Department's offshore-drilling branch offered a preliminary green light on Monday for Shell's plans to drill exploration wells this summer in the Chukchi Sea, a region that regulators estimate could hold more than 15 billion barrels of recoverable oil, and large natural-gas resources.

The initial green light is not the end for Shell. The company still has to obtain specific drilling permits, receive authorizations under the Marine Mammal Protection Act, and clear other regulatory hurdles before it could commence with multi-year plans to eventually drill up to six wells in relatively shallow waters about 70 miles offshore.

But the exploration plan's approval demonstrates a growing rift between the White House and the green movement over Arctic drilling and protections.

In addition, more Arctic lease sales are tentatively scheduled in 2016 and 2017, and a recent Obama administration draft proposal envisions other auctions of drilling rights in Arctic waters in 2020 and 2022.

The Interior's offshore drilling regulators are still crafting drilling safety rules tailored specifically for the Arctic, but say they will hold Shell to high standards even though the rules are unlikely to be in place before Shell restarts development.

While it's seeking to drill in the coming months, Shell predicts that actual oil production from its leases in U.S. waters in the Arctic is a decade away.

Transportation in Focus

Shuster Touts Amtrak Plan

Usually, a tragedy like Tuesday's fatal Amtrak crash near Philadelphia would have spurred Congress to action. For once, however, it didn't take a tragedy for Congress to start its search for a solution. House Republicans and Democrats had already agreed on a plan that they say will help fix Northeast passenger rails.

In March, the House approved a measure reauthorizing funding for Amtrak, which would rework the accounting structure of the rail network so that money made from the Northeast Corridor would be reinvested in the same line. One of the biggest criticisms of Amtrak is that it funds its money-losing long-range routes with profits from the Boston-New York-Washington line. Some of those long-range routes, like the Texas Eagle from Chicago to Los Angeles, lose hundreds of dollars per passenger. Meanwhile, the Northeast Corridor, a profitable route, has its own bottlenecks that can back up hundreds of trains for hours.

On Wednesday, House Transportation Committee Chairman Bill Shuster (R-Pa.) touted his House-passed Amtrak plan, circulating bullet points on how his measure would change the way the corridor is funded. The bill from March would keep the Northeast Corridor funds within that rail line for upgrades. It would also create a dedicated grant program, matched by the states, to fix the projects with the highest priority. State transportation departments would be required to partner with Amtrak on portions of the rail line that they run, ensuring a smooth path to maintenance and upgrades.

The measure is part of a broader push-and-pull over the size of Amtrak's budget, where that money should come from and where it should be spent. Conservatives, particularly in the House, have been opposed to increasing funding for Amtrak. Progressives, on the other hand, favor increasing the rail budget.

Shuster managed to thread the needle between right and left when he struck a compromise with Rep. Peter DeFazio (D-Ore.), the transportation panel's top Democrat. With the panel's top lawmakers on board, the bill passed the House in March by a vote of 316-101. All 101 no votes came from Republicans.

Now the measure moves to the Senate. Senate Commerce Committee Chairman John Thune (R-S.D.) and ranking member Sen. Bill Nelson (D-Fla.) issued a joint statement Wednesday saying they would "continue working with our colleagues on passenger rail reform." Thune and Nelson both say they are committed to seeing an Amtrak bill through passage sometime in this Congress.

 

  

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