McDonald Hopkins Government Strategies Advisory: This Week in Washington -- June 5, 2015

Patriot Act drama comes to an end – for now

The battle over the Patriot Act and the powers of the National Security Agency (NSA) is over – for now at least.

Despite the efforts of Sen. Rand Paul (R-Ky.), the Senate agreed by an overwhelming 83-14 margin to formally end debate on  the USA Freedom Act. The bill restores the three provisions of the Patriot Act that expired on June 1 while ushering in a number of changes designed to better protect privacy and increase transparency.

The bill also ends the NSA's controversial bulk collection of U.S. call metadata, a program secretly justified under Section 215 of the Patriot Act until it was exposed by former intelligence contractor Edward Snowden two years ago. The measure will transition within six months to a system where phone companies provide records to government spies on an as-needed basis after a warrant is obtained from the Foreign Intelligence Surveillance Court.

The bill's passage amounts to the first major loss of Sen. Mitch McConnell's (R-Ky.) six-month stewardship over the Senate as majority leader. Not only did McConnell oppose the NSA reforms, but his efforts to amend the House-passed legislation were also shot down.

While some in Washington are hopeful that the bill’s passage and its signature into law by President Barack Obama ended the battle, privacy advocates say the fight is just starting.

"What you are seeing on the floor of the Senate is just the beginning," said Sen. Ron Wyden (D-Ore.), a civil-liberties stalwart in the Senate who serves on the intelligence committee and has worked for more than a decade to reform government surveillance. "There is a lot more to do when – in effect – you can ensure you protect the country's safety without sacrificing our liberty."

Wyden used the Freedom Act's passage to call for additional intelligence-gathering reforms that he has long advocated, such as closing the so-called "backdoor search loophole" that allows U.S. spies to "incidentally" and warrantlessly sweep up the email and phone communications, including some content, of Americans who correspond with foreigners. He added he plans to move quickly on reworking Section 702 of the Foreign Intelligence Surveillance Act before its renewal deadline in 2017.

Wyden also supports tech companies in their ongoing fight with the administration over smartphone encryption. While Google and Apple have begun to build their phones with "too-tough-to-crack" encryption standards, the FBI has warned that the technology locks out the bad guys and the good, and can impede law-enforcement investigations.

Many of the same players who were engaged in defeating metadata reform warn that it would only take one terrorist attack to completely reverse their reform momentum.

Complicating matters for reformers is that the next set of reforms are likely to be tougher to get through Congress. One program that is a target for such reform is an Internet surveillance program known as PRISM. U.S. tech companies subject to the program, including Facebook, Yahoo, and Google, have called for changes, but PRISM is considered to be useful and focuses primarily on surveillance of foreigners.

While PRISM may prove difficult to reign in, other efforts, such as a broadly supported push to update the decades-old Electronic Privacy Communications Act, may prove more doable. Sens. Patrick Leahy (D-Vt.) and Mike Lee (R-Utah), the lead authors of the Freedom Act in the upper chamber, indicated their desire to move quickly on passing legislation that would update the law to require law enforcement obtain warrants before accessing the content of Americans' old emails.

The latest on Export-Import Bank

Traditional business groups like the Chamber of Commerce and the National Association of Manufacturers can usually count on Republicans to support their agenda on the Hill. However, that's not the case at all when it comes to reauthorizing the Export-Import Bank.

While almost every Democrat in the House and Senate support reauthorizing the bank, the vast majority of Republicans oppose it, including many in leadership roles.

In an effort to show that Democrats aren’t alone in their support for the bank, a group of Republicans in the House joined ia news conference organized by the National Association of Manufacturers (NAM) to make the Republican case for the bank.

The five House GOPers in attendance urged reauthorization of the Export-Import bank at the news conference, which was held on the same day that the House Financial Services Committee convened a hearing on the bank’s future. The Export-Import bank is something that was once an overwhelmingly bipartisan and completely non-controversial event in Congress.

The bank is set to expire on June 30 unless the House and Senate act. The Senate has promised a vote this month – a concession Democrats managed in their negotiations over fast-track trade authority. In the House, however, Speaker John Boehner (R-Ohio) has only promised to “let the House work its will” in the event reauthorization passes in the Senate. A plan to move on reauthorization was conspicuously absent when House Majority Leader Kevin McCarthy (R-Calif.) released his schedule for June.

The exact number of House Republicans who can be counted on to support reauthorization is unknown. Last summer, 41 House Republicans signed a letter urging Boehner to reauthorize the bank. Nine of those members have since retired or resigned from Congress, making the number of actual GOP supporters unclear.

Boehner is in a tough spot, with the vast majority of his conference opposing reauthorization, including McCarthy and House Majority Whip Steve Scalise (R-La.).

EPA carbon rule set for release

The Obama administration’s full court press on climate change continues as the Environmental Protection Agency sends its rules on carbon emissions for existing power plants to the White House Office of Management and Budget for a final review, according to a website that tracks federal rulemaking. The rule is set to be finalized in August.

Last Jun the EPA proposed cutting carbon-dioxide emissions from existing power plants by 30 percent of 2005 levels by 2030, targeting one of the nation's largest sources of greenhouse-gas emissions. The proposal sets specific targets for each state, allowing them to craft their own plans through measures like energy efficiency, upgrading power plants, and shifting away from coal power.

The regulatory move tees up the final steps in the rulemaking process for the long-awaited rule. Stakeholder groups, including industry representatives, utilities, and environmental groups, will head to the OMB to meet with White House aides and take their last stabs at the rule.

It's unclear what changes the EPA will make to the final rule, although officials have said they are incorporating input from all sides. There have been reports that EPA is considering dropping a requirement that coal plants install technology that would capture carbon dioxide and store it because the technology is not yet viable.

Congressional Republicans promise to continue to fight the new rules, which they say would essentially kill the coal industry without providing environmental benefits. The House is set to vote the week of June 23 on a bill from Rep. Ed Whitfield (R-Ky.) that would give states the option to opt out of the rule and put it on hold until judicial review is completed. A similar Senate bill is expected to move through the Environment and Public Works Committee.

Senate Majority Leader Mitch McConnell (R-Ky.) is also continuing to press state governors to opt out of the rule. Gov. Mary Fallin (R-Okla.) has said her state won't comply, and Wisconsin governor and Republican presidential contender Scott Walker (R-Wis.) has hinted he will follow suit.

States and industry groups are also sure to set up legal challenges to the rule. One lawsuit against the rule went to the U.S. District Court of Appeals for the D.C. Circuit in April, charging that EPA could not regulate carbon pollution from power plants because it was already regulating other emissions. Although no ruling has yet been issued, justices indicated that the challenge was premature because the rule was not yet final.

Watch this week's Washington Business Brief video, LaTourette Talks Patriot Act, Export-Import Bank and 2016.

Something Democrats and Republicans can agree on: Beer

In the middle of the nasty and divisive fight over the Patriot Act, the Senate found something that could unite the entire body from doves to hawks – craft beer.

The Senate passed a resolution to recognize American Craft Beer Week, which occurs every year in May, by unanimous consent Sunday night just before the chamber adjourned at 10 p.m. Sen. Ben Cardin (D-Md.) introduced the resolution on Sunday to acknowledge "the small and independent craft brewers of the United States."

Cardin has pushed for the American craft-beer industry, which in 2014 comprised more than 3,000 breweries, before. Earlier this year, he and Sen. Susan Collins (R-Maine) introduced the Small BREW Act, which would reduce the federal excise tax for small craft brewers. Both Cardin and Collins represent states with a large craft beer industry.

In 2014, the craft beer market represented an almost $20 billion industry. The craft beer industry is also growing at a much larger pace than traditional large breweries: while overall beer sales rose only 0.5 percent in 2014, craft beer sales rose by 17.6 percent.

According to a 2012 study, the craft beer industry also provided more than 360,000 jobs in the United States, with 108,440 jobs directly at breweries and brewpubs, including serving staff at brewpubs.

VP Biden’s son passes away of brain cancer

Over the weekend, the family of Beau Biden (D-Del.), son of Vice President Joe Biden, announced that he had died after a battle with brain cancer. Biden, who was 46, served as the Attorney General of Delaware from 2007 until early this year.

Biden was a major in the Delaware National Guard, served in the Iraq War, and last year announced his intention to run for governor in Delaware.

As attorney general, Beau Biden was known for prosecuting child abusers. In 2010, he abstained from running for his father's old Senate seat because, at the time, he was handling what he called "a case of great consequence" involving an abusive pediatrician.

In a statement released by the White House Saturday night, President Obama said he and first lady Michelle Obama were "grieving tonight" for their deceased friend, who "made a difference in the lives of all he touched – and he lives on in their hearts."

In a statement, Senate Minority Leader Harry Reid (D-Nev.) called Beau Biden a "wonderful, strong and courageous man," and said "it is unspeakably sad to see him leave us far too soon."

"I know Joe is very proud and he should be proud because Beau was simply a joy to know," Reid said.

According to a report in Politico, the Biden family, including the vice president, was with him when he died.

Little information about Beau Biden's health had been made public in recent years. Three years after suffering a stroke, he was treated at a cancer center in August 2013 for a brain lesion. A few months later, he was said to be healthy. Last month, the Office of the Vice President told ABC News that he was being treated at Walter Reed National Military Medical Center.

Biden, along with his brother, Hunter, survived a 1972 car crash that killed their baby sister, Naomi, and mother Neilia, Joe Biden's first wife. At the time, Joe Biden was the senator-elect from Delaware, and he was sworn in at Beau's hospital bedside weeks after the crash.

Transportation in Focus

Amtrak Faces Congress

On Tuesday, the House Transportation and Infrastructure Committee held a hearing that gave members of Congress their first opportunity to grill officials over the May 12 Amtrak derailment that killed eight and injured more than 200 people.

Committee members were given the opportunity to ask question of officials from Amtrak, the National Transportation Safety Board, and the Federal Railroad Administration. Much of the questioning swirled around whether or not technology – known as positive train control (PTC) – could have prevented the accident.

PTC technology is designed to prevent collisions between trains and mitigate speed-induced derailments.

"I still believe the single greatest contribution that my generation of railroaders can make to this industry is to implement PTC as rapidly as possible," said Amtrak President and CEO Joseph Boardman. "And I promise you that by the end of this year this system, which will dramatically enhance safety, will be complete and operational on the NEC." The NEC, or Northeast Corridor, is the nation's busiest rail line.

Boardman was citing the Dec. 31, 2015, deadline Congress gave several of the nation's rail operators to implement PTC. Boardman said the technology would've been implemented sooner throughout Amtrak's rail lines if the company had more federal funds several years ago.

Rep. Sean Patrick Maloney (D-N.Y.) said PTC technology could've prevented accidents on commuter rail lines like Metro North, where a 2013 derailment killed four people. In an exchange with Feinberg, he pointed the finger at Congress for insufficiently funding those commuter lines.

Committee ranking member Peter DeFazio (D-Ore.) said that although insufficient funding can't be directly linked to the derailment, reducing Amtrak's budget jeopardizes operations and in the future could, "even worse, cause an accident directly" due to old infrastructure.

"We can't ignore we're running trains over 100-year-old bridges of dubious stability," DeFazio said. "We can't ignore that we're running trains through 140-year-old tunnels that need total rehabilitation."

Amtrak's funding has been a contentious issue between congressional Democrats and Republicans for years now, with Democrats wanting more money appropriated to the rail line and Republicans wary of how the company spends public money. After the May derailment, several Democrats blamed their Republican colleagues for the rail system's financial woes; Republicans shot back by saying Democrats were politicizing the accident.

A day after last month's derailment, a House committee voted to cut Amtrak's annual budget to $1.13 billion, from $1.4 billion. But as the debate continues in Washington – and as Amtrak continues to operate at a deficit – riders are seemingly undeterred from using the rail service. Last year, ridership on the Northeast Corridor was at its highest level ever.

 

  

 Steven C. LaTourette, President | 202.559.2600

McDonald Hopkins Government Strategies LLC
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