Congress Leaves for Summer Break With Long To-Do List When They Return

The House and Senate left town Thursday, a day earlier than planned, eager to begin their summer break. The Senate is gone for five weeks, the House for six. While both succeeded in passing their FY2024 defense authorization bills and getting the defense appropriations bills through committee, they will return in September with a hefty to-do list before FY2024 begins on October 1.

Congress did make progress on several space-related fronts in the first half of the year, but there’s a long way to go and not much time. Here’s a quick recap of where four top issues stand, three of which need to be resolved by September 30.  The Senate returns on September 5, the House on September 12.

FY2024 appropriations are at the top of the list. FY2024 begins on October 1 and Congress must pass at least a Continuing Resolution to keep government space programs running.

The House Appropriations Committee was on a roll to get all 12 FY2024 appropriations bills approved at full committee level when the process pretty much came to standstill after House Freedom Caucus members demanded even deeper cuts than what the committee allocated.

Committee Chair Kay Granger (R-TX) was already under heavy criticism from Democrats for reneging, in their eyes, on the deal cut by House Speaker Kevin McCarthy (R-CA) and President Biden in the Fiscal Responsibility Act. That act would essentially hold total government discretionary spending at the current FY2023 level, but she decided to use lower FY2022 spending levels instead. The 10 bills that cleared the committee did so on strict party-line votes.

As the House prepared to take up the first two bills, MilCon-VA and Agriculture, this past week, however, the House Freedom Caucus demanded deeper cuts, angering not only Democrats but some moderate Republicans as well. The approximately 20 House Freedom Caucus members have outsized influence because the political margin in the House is so small. With 222 Republicans and 212 Democrats (there’s one vacancy), McCarthy can only afford to lose only five votes from his own party to assure passage.

The MilCon-VA bill finally came to floor and passed by a slim margin Thursday, but the debate was so fraught that McCarthy decided to send everyone home rather than bring up the Agriculture bill. Committee plans to finish marking up their last two bills, Commerce-Justice-Science, which includes NASA and NOAA, and Labor-HHS, fell by the wayside.

That clearly does not bode well for getting appropriations bills done by October 1 and even passing a Continuing Resolution is far from assured. House Freedom Caucus member Rep. Bob Good (R-VA) asserted that “We should not fear a government shutdown. … Most of the American people won’t even miss it if the government is shut temporarily.”

Shutdowns affect government activities funded in the discretionary portion of the federal budget — what the 12 appropriations bills cover — including civil and national security space programs. Exceptions can be made for activities deemed essential. In the past that’s included operating spacecraft already in space, including the International Space Station, but not those preparing for launch like the Psyche mission in October (although that might win an exception because it can only launch during certain planetary windows).

By contrast, the Senate appropriations process is going more smoothly and quickly than usual. The Senate Appropriations Committee approved all 12 bills, finishing the last four on Thursday. All the votes were strongly bipartisan. Chair Patty Murray (D-WA) and Vice Chair Susan Collins (R-ME) vowed at the beginning of the year to restore “regular order” to the appropriations process and have been true to their word.

The Senate bills could hardly be more different from the House versions, though. Not only did the Senate committee abide by the spending caps set by the Fiscal Responsibility Act, but they already are planning supplemental appropriations bills to augment them, especially for defense. Prominent Senate Republicans like Sen. Lindsay Graham (R-SC) are among the most vocal advocates for the additional funding, so it is not a partisan issue. The House bills also contain a lot of “culture war” amendments that are not in the Senate versions.

It’s an understatement to say that reaching a compromise between House and Senate Republicans, between Democrats and Republicans, and among the House, Senate, and White House, will be difficult. Shutdown angst is a familiar ritual this time of year, but the prospect seems a bit higher this time. The longest shutdown, 35 days, took place during the Trump Administration from December 22, 2018-January 25, 2019.

Turning to the FAA Reauthorization, the House passed its bill on June 14. The Senate Commerce, Science, and Transportation Committee was scheduled to mark up its bill the next day, but it was pulled from consideration because of deep divides over two key issues: pilot training and whether to allow more long-haul flights from Reagan National Airport. Neither topic is space-related, but that’s what’s holding up the bill. Rumors that the Senate Commerce Committee might add it to their markup list on Thursday didn’t materialize, so this is another issue in limbo with a looming deadline. The FAA’s current 5-year authorization expires on September 30.

The FAA’s Office of Commercial Space Transportation (AST) regulates, facilitates and promotes commercial space launches and reentries. What will happen to AST’s operations absent a new authorization by September 30 is not clear.  If enough members agree, Congress could quickly pass a temporary authorization to give themselves more time, but that certainly cannot be taken for granted.

Liftoff! pic.twitter.com/7fep4mFSOi

— SpaceX (@SpaceX) July 29, 2023

Every U.S. commercial space launch, like SpaceX’s Falcon Heavy launch of EchoStar’s Jupiter-3 communications satellite last night (above), needs an FAA license. That’s every launch except NASA’s government-owned Space Launch System. Except for SLS, NASA and DOD purchase commercial launch services just like any other customer.

A third time-critical issue is the commercial human spaceflight “learning period” or “moratorium.” AST exists within the FAA, but most of its work is governed by legislation on commercial space activities, not the FAA authorization act. A provision that prevents the FAA from creating new commercial human spaceflight regulations expires on September 30.

Private citizens climbing aboard commercial space missions like Blue Origin’s New Shepard, Virgin Galactic’s SpaceShipTwo, or SpaceX’s Crew Dragon need only give their “informed consent” to fly. The FAA has very few other passenger-related regulations, with the focus more on crew. The FAA’s primary role is protecting the safety of third parties — the uninvolved public — not passengers. Existing law prevents FAA/AST from promulgating additional passenger regulations while the business matures and more information becomes available on what regulations might be needed, what’s called a “learning period.”

Congress originally passed the restriction in 2004 with an 8-year moratorium on new regulations, but it took much longer than expected for commercial human spaceflights to begin so the deadline was extended several times, most recently to September 30, 2023 in the 2015 Commercial Space Launch Competitiveness Act.

The question is whether to extend it again. The House Science, Space, and Technology Comitttee held a hearing on July 13 where industry representatives urged an extension, but no bill has been introduced in either the House or Senate. Absent congressional action, the moratorium will expire and the FAA will be free to issue new regulations.

In April the FAA established a Human Space Flight Occupant Safety Advisory Rulemaking Committee co-chaired by an FAA employee and an industry representative. This week the 25 members were announced. The committee will gather recommendations from industry and other stakeholders.

As with the FAA reauthorization, if enough members agree, a temporary extension could pass, but even if the moratorium lapses it would be some time before new regulations are ready to begin the laborious journey through the government rulemaking process. It took more than two years for the FAA to update its commercial space launch and reentry regulations during the Trump Administration.

All of those issues need resolution by October 1, but others are right behind. Chief among them is the annual National Defense Authorization Act (NDAA) that sets policy and recommends funding for the Department of Defense including the U.S. Space Force and U.S. Space Command.

The House and Senate have passed their versions of the FY2024 NDAA, but they are vastly different not so much because of programmatic and funding recommendations, but because the House version is full of culture war provisions like those in the appropriations bills that generate almost unanimous Democratic opposition. The Senate largely avoided those issues in the final bill.

The difference between the two versions can be discerned from the votes. The House bill passed largely on party lines 219-210: only four Democrats voted for it and four Republicans voted against. The Senate bill passed with strong bipartisan support 86-11.

It is a matter of great pride to Republicans and Democrats on the House and Senate Armed Services Committees that the NDAA has been enacted by December 31 every year since the first in 1961. There certainly have been other years when reaching a compromise on the NDAA seemed impossible only to have agreement reached at the last minute even when it meant overriding President Trump’s veto in 2020. This year will be another test.

Many other issues remain to be resolved, including Sen. Tommy Tuberville’s (R-AL) blockade of senior military promotions.

One can only hope that after a 5-6 week break members will return with a spirit of compromise, but hope is all it is.

 

This article has been updated.