Bumpy Road Ahead for the Remainder of the 118th Congress

The second session of the 118th Congress officially began today at noon although both chambers met only in pro forma sessions. They return for legislative business next week with an intense workload.  Congress kicked the can down the road on almost everything, most notably appropriations. Election years like this are not known for productive legislating as members focus on campaigning. Add to that the slim majorities in the House and Senate and Republican in-fighting in the House, the outlook is not very promising.

The Senate returns for legislative business on Monday and the House on Tuesday. Under the “laddered” Continuing Resolution they passed in November, they have just two weeks to reach agreement on four of the regular FY2024 appropriations bills: Agriculture, Energy-Water, MilCon-VA and Transportation-HUD.  The only space-related entity in that set is the FAA’s Office of Commercial Space Transportation, which is in Transportation-HUD.  Congress must pass and the President sign either another CR or the bills themselves by January 19 or they will be out of money.

February 2 is the deadline for the other eight bills including Defense and the Commerce-Justice-Science (CJS) bill that funds NASA and NOAA.

That’s not much time, especially since the House is scheduled to be in session only 8 days by January 19 and then another 4 days by February 2.

The Senate will be in session throughout the weeks to February 2 except for January 15 (a federal holiday) and January 29.

Reaching agreement in such little time is a high hurdle especially in the House. Virtually all Democrats oppose the bills because the funding levels are below what then-Speaker Kevin McCarthy and President Biden agreed to in the Fiscal Responsibility Act that is the law of the land. The bills also contain social policy provisions that are anathema to Democrats on topics including abortion, LGBTQ rights and diversity.

That means the House Republican leadership needs just about all Republicans to support the bills, but they don’t. The Agriculture bill went down to defeat. The CJS bill never got to be debated because there weren’t enough Republican votes to approve the Rule and that was after the bill could not make it through the full Appropriations Committee because of Republican opposition. Three other bills were pulled from consideration when it became clear they would not pass.

In addition, the slim Republican majority in the House is getting slimmer. During most of the first session, there were 221 Republicans, 212 Democrats, and two vacancies (one for each party). The vacancies were filled after the November elections and for about one week the House had its full complement of 435 members — 222 Republicans and 213 Democrats. But then George Santos (R-NY) was expelled and Kevin McCarthy (R-CA) resigned. Today it is back to 433 members, but this time the two vacancies are both seats that were held by Republicans. On January 21 another Republican, Bill Johnson (R-OH), is resigning to run a university. He’ll still be in the House for the vote on the first set of appropriations bills, but not the second. By then it will be 219 Republicans and 213 Democrats. That’s tough arithmetic for House Speaker Mike Johnson (R-LA) considering how the bills have fared so far.

Unlike the House, the 12 Senate appropriations bills were approved on a bipartisan basis in committee and conform to the funding levels in the Fiscal Responsibility Act. The Senate passed three of them as a package — a “minibus” — but the others have not reached the floor. The national security supplemental appropriations bill that would continue funding for Ukraine and Israel in exchange for Democratic concessions on border policy is consuming most of the Senate’s attention.

The bottom line is that the likelihood of the bills passing by the current deadlines seems rather low. Unless they pass another CR, a government shutdown could happen in the next few weeks. Congress is full of surprises and there is no useful way to rate the odds, but it is a definite possibility.

Meanwhile, all the departments and agencies funded by appropriations are kept at their FY2023 levels under the CR. The Fiscal Responsibility Act included a provision that if all 12 bills were not enacted by January 1, they would be subject to a one-percent across-the-board cut. Officially that now has happened, but it also said the cuts would not take effect until April. Congress has time to change its mind if it wishes.

That is all about FY2024 appropriations. The Administration is currently preparing its request for FY2025. By law the request is supposed to be submitted on the first Monday in February, which is February 5 this year. It’s often submitted late, but the clock is ticking on appropriations and it is far from clear how they will finish FY2024, never mind deal with FY2025.

Appropriations is not the only issue on their plate. Among the space-related bills that already have seen some action and could make progress this year are a commercial space act, a space sustainability/orbital debris act, and extending the FAA’s “learning period” for commercial human spaceflight. Authorization bills for NASA and NOAA might also make headway.

Commercial Space Act. House Science, Space and Technology Committee Chair Frank Lucas (R-OK) and Rep. Brian Babin (R-TX) introduced the Commercial Space Act (H.R. 6131) on November 2. The House SS&T Committee approved it on November 29. The bill addresses many commercial space issues, one of which is mission authorization — assigning an agency or agencies to authorize and continually supervise new types of space activities by non-governmental entities, like companies. The committee vote was on party lines because an hour before it began the markup on November 15, the White House National Space Council released its proposal for mission authorization, which is quite different from the Babin/Lucas bill. The bill would consolidate responsibility at the Department of Commerce, but the White House would split it between Commerce and the Department of Transportation. Lucas complained the White House “proposals just go in the wrong direction.” Democrats wanted more time to look it over.  Completion of the markup was postponed to November 29 when the party line vote took place, but in a friendly manner. Two weeks later Senators criticized the White House proposal at a hearing where Administration witnesses defended it. Diane Howard, Director of Commercial Space Policy at the Space Council, acknowledged they have a lot of work to do in explaining the merits of their proposal to Congress. It’s anyone’s guess as to whether agreement can be reached in an election year when political differences are sharpened, attention is focused elsewhere, and the number of legislative days is short.

Space Sustainability/Orbital Debris. Ensuring the space environment remains sustainable for the long-term future and not ruined by space debris is widely discussed. The Senate passed Sen. John Hickenlooper’s (D-CO) Orbital Sustainability Act (S. 447) on October 31, but a House bill (H.R. 1338) that included orbital debris provisions was defeated on July 25. The bill’s focus was streamlining the Federal Communications Commission’s (FCC’s) process for licensing the use of spectrum for satellites, but the FCC also sets requirements for disposal of some of those satellites through a broad interpretation of its authority. The House Energy and Commerce Committee oversees the FCC. Committee chair Cathy McMorris Rodgers (R-WA) introduced H.R. 1338 that among other things would have codified that authority. But the House SS&T Committee oversees commercial space activities and its bipartisan leadership objected saying it would have “significant consequences for the U.S. commercial space industry and threaten U.S. leadership in novel space activities.” They urged their colleagues to vote against the bill and enough did to kill it. The House SS&T’s Commercial Space Act (H.R. 6131) addresses these issues as do other bills (H.R. 5431, Beyer; H.R. 6385, Kean). Time will tell if the interested parties can reach agreement. Hickenlooper’s bill passed the Senate in 2022, too, but did not get any further.

Extending the FAA Commercial Human Spaceflight Learning Period.  In 2004, Congress established a “learning period” or “moratorium” that prohibits the FAA from issuing additional regulations for commercial human spaceflight for eight years to give the industry a chance to develop without heavy-handed regulations. The industry took much longer than expected to launch its first passengers, however, and the learning period has been extended several times. The 2015 Commercial Space Launch Competitiveness Act extended it to September 30, 2023 and two short-term extensions have passed Congress in recent months so it remains in effect until March 9, 2024. Typically this issue is dealt with in commercial space legislation like CSLCA, but the extension to March 9 was done as part of a stop-gap reauthorization of the FAA (H.R. 6503). The FAA must be reauthorized every 5 years and the House passed a bill last summer, but action in the Senate is stalled over pilot training requirements. There is widespread expectation that the learning period eventually will be extended again, probably for another eight years, but whether it will be standalone legislation, incorporated into whatever FAA reauthorization can get passed, or in a commercial space bill remains to be seen. The House SS&T bill, H.R. 6131, would extend it for eight years to October 1, 2031.

NASA Authorization. The 117th Congress passed the 2022 NASA Authorization Act, but the chairs of the House Science, Space, and Technology Committee and the Senate Commerce, Science and Transportation Committee, Rep. Frank Lucas (R-OK) and Sen. Maria Cantwell (D-WA), have said they want another bill in this Congress. NASA authorization acts were annual until the 1990s, but have been periodic since then. Sometimes they cover just one year and other times several years. Bill Nelson, then a Senator (D-FL) and now NASA Administrator, and then-Sen. Kay Bailey Hutchison (R-TX) wrote the most recent multi-year NASA authorization bill in 2010 that covered FY2011-2013. Another bill was enacted in 2017 and then the 2022 bill, each for one year. Nelson told Cantwell at a May 16, 2023 hearing that he’d like a 5-year bill this time. No bill has been introduced yet, however.

NOAA Authorization.  Lucas introduced a NOAA authorization act last year, but there has been no action on it. NOAA includes the National Environmental Satellite, Data, and Information Service (NESDIS), which operates the nation’s civil weather satellites, as well as the Office of Space Commerce.  NOAA was created by executive action in 1970, not by law, and Lucas wants to give it statutory authority and make it an independent agency.

Those are all possibilities, but the only space-related legislation that seems certain to pass this year is the annual National Defense Authorization Act (NDAA). The House and Senate Armed Services Committees have managed to get their bill passed every year since 1961 despite political rancor on other topics.

Political rancor could well define the coming year. The House is attempting to impeach President Biden and Secretary of Homeland Security Alejandro Mayorkas. The small group of House Freedom Caucus members who tried to prevent Kevin McCarthy from becoming Speaker a year ago and succeeded in ousting him in October are still there and expressing their discontent with the new Speaker, Mike Johnson (R-LA). It was McCarthy’s decision to work with Democrats in September to pass a Continuing Resolution to keep the government operating that led to his dismissal. Then Johnson did the same thing in November to pass the current CR. Johnson is closely aligned with the House Freedom Caucus, but they made no secret of their displeasure. What that bodes for the appropriations bills never mind any other legislation is difficult to assess. The Senate is dealing with appropriations on a bipartisan basis, but there are plenty of partisan battles on that side of Capitol Hill, too.

The first session of the 118th Congress was one of the least productive in decades. There’s no sign that will change in 2024.