10 min read

Christmas comes early at the Capitol

Why an anodyne aviation bill is attracting amendments on everything from whole milk to nuclear radiation.
Christmas comes early at the Capitol
Photo by Adam Fagen

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The main issue before the Senate this week is something seemingly simple: a bill reauthorizing the Federal Aviation Administration (FAA), the agency that employs America’s air traffic controllers and regulates airplanes and airports.

The $105 billion package, which will re-up the FAA for five more years — the agency’s authorization is set to expire on Friday — has sweeping bipartisan support, as evidenced by an 89-10 vote advancing it last week. (Here is a link to read the bill, all 1,068 pages of it. Here is a CNN roundup of its most notable provisions, including steps to improve runway safety after the recent near-collisions.)

If the bill has such lopsided support, why won’t it breeze to passage? Welcome to Congress, where nothing is that simple.

With the government already funded and the debt ceiling raised, the FAA bill is one of the last “must-pass” pieces of legislation left for this year. It’s the “the last train leaving the station,” as one staffer put it to Axios. (I would have gone with “last plane leaving the runway,” but whatever.)

Because Congress passes so few major bills that it doesn’t absolutely have to, senators from both parties view this as their best opportunity to get their pet projects passed before campaign season — which means they’re all trying to tack various priorities onto the bill as amendments, complicating its passage.

As of this writing, senators have filed 71 proposed amendments to the FAA bill — some related to aviation, and some very much not. In legislative parlance, the package has the potential to become what’s known as a “Christmas tree bill,” where everyone tries to hang their own amendments on it like ornaments. Merry Christmas!

Of the 71 amendments, some are obviously partisan (Steve Daines’ amendment to ban Palestinians from the U.S., or Catherine Cortez Masto’s proposal to build electric vehicle charging stations at airports). Others are fairly obscure, like a push by Martin Heinrich (D-NM) and Jim Risch (R-ID) to add their “Good Samaritan Remediation of Abandoned Hardrock Mines Act” to the package. (The winner for “Least Related Amendment,” though, goes to Kansas Sen. Roger Marshall, who is trying to use the FAA reauthorization to return whole milk to school lunches.)

But there are also a good number of substantive, bipartisan provisions that senators are trying to add to the package, which I’d like to run through here. Taken together, they offer an interesting overview of which issues are gaining legislative traction in the Senate and the sometimes surprising bipartisan coalitions sprouting up behind them. Here are a few amendments to take note of:

NUCLEAR RADIATION

Sen. Josh Hawley (R-MO) is attempting to include his Radiation Exposure Compensation Act (RECA), a bill with broad support on both sides of the aisle. The measure would initiate a five-year extension of benefits — which are set to expire in July — compensating people who have contracted cancer or other diseases as a result of radiation from U.S. nuclear testing during the Cold War.

The bill would also expand the pool of recipients for such benefits, which are currently offered to residents in 12 states; Hawley’s measure would add all or parts of Arizona, Colorado, Guam, Idaho, Missouri, Montana, Nevada, New Mexico, and Utah to the list. Included as part of the expansion would be New Mexicans who were downwind of the first-ever “Trinity” nuclear test during the Manhattan Project, who would be compensated under Hawley’s bill for the first time.

The measure passed the Senate in a 69-30 vote in March, but has yet to receive a vote in the House.

CREDIT CARD FEES

Sens. Dick Durbin (D-IL) and Roger Marshall (R-KS) have tried to attach the Credit Card Competition Act to each of the last few “must-pass” bills, only to be thwarted each time. Now, they’re trying again with an amendment to the FAA package.

The bill is an attempt to reduce the “swipe fees” that retailers have to pay to banks when costumers use credit cards at their establishment. The measure would seek to lower the fees by boosting competition in the industry, requiring that banks allow transactions using the credit cards they offer to be processed through more than one payment network. Currently, Visa and Mastercard make up about 80% of the credit card market; Visa cards can only be processed through the Visa payment network, while Mastercards can only be processed through the Mastercard network. Durbin and Marshall argue that this unchanging dupoloy freezes unnecessarily high “swipe fees” in place; under their bill, banks would have to allow their cards to be processed by at least one smaller network, theoretically giving retailers a choice that will drive down fees.

The fight over the measure pits two large industries against each other: banks, which oppose the measure, and retailers, who support it. Both argue that consumers should be on their side in the debate: retailers say that reduced “swipe fees” would allow them to lower their prices, while banks say that lowering the fees would end their ability to offer credit card rewards, while also negatively impacting credit card security.

CHILD ONLINE SAFETY

This is an issue that has inspired a lot of bipartisan attention this year, and there are two proposed amendments to note here. Sens. Marsha Blackburn (R-TN) and Richard Blumenthal (D-CT) are pushing to add the Kids Online Safety Act (KOSA) to the package, while Sens. Bill Cassidy (R-LA) and Ed Markey (D-MA) are trying to insert a new Children and Teens’ Online Privacy Protection Act (COPPA 2.o).

KOSA would impose a legal “duty of care” requiring tech platforms to do what they can to protect minors from being nudged towards suicide, eating disorders, substance use disorders, and sexual exploitation on their platforms. The bill would also require that social media sites turn on their strongest privacy settings for minors by default and give parents increased ability to monitor their kids’ social media activity.

The bill, which is backed by more than 60 senators, is supported by many parent groups but opposed by some LGBT organizations who fear the measure will open the door to censorship.

COPPA 2.0, an update to a 1998 law, would prohibit internet companies from collecting personal information on users under 16 without their consent and ban the use of targeted advertising towards children and teens. Both KOSA and COPPA 2.0 passed the Senate Commerce Committee unanimously last year.

AFFORDABLE INTERNET

One of the landmark initiatives of the 2021 bipartisan infrastructure package was the Affordable Connectivity Program (ACP), a $14 billion initiative that aimed to subsidize internet access for low-income families. The program offered $30 a month to help qualifying families pay their internet bills, as part of a push to get every U.S. household online.

But funding for the ACP is set to run out at the end of this month, which would mean 23 million U.S. families would suddenly start seeing higher internet bills. Well, only if Sens. J.D. Vance (R-OH) and Peter Welch (D-VT) don’t get their way, that is. The bipartisan duo has introduced an amendment that would add $7 billion more to the ACP fund, ensuring that families in the program would continue to receive assistance and not have to lose their internet access.

The list of proposed amendments goes on, from a bipartisan nuclear energy proposal by Shelley Moore Capito (R-WV) and Mark Kelly (D-AZ) to a Native American housing initiative by Lisa Murkowski (R-AK) and Brian Schatz (D-HI).

Some of them even have to do with air travel, the topic of the underlying bill, including a proposal by Sens. Catherine Cortez Masto (D-NV) and John Cornyn (R-TX) that would ensure human trafficking victims can board airplanes without IDs if they need to do so to escape their traffickers. There is also the fascinating pairing of Josh Hawley (R-MO) and Elizabeth Warren (D-MA), working to make airline refunds automatic.

More amendments are expected to be filed this week, with Sen. Ron Wyden (D-OR) reportedly planning to propose adding the House-passed bipartisan tax deal to the package. Senate Majority Leader Chuck Schumer (D-NY) has also discussed adding a few other bipartisan measures to the mix, including cannabis banking reform and a bill to fund the Baltimore bridge repair.

It’s unclear how many of these amendments will be voted on; nothing happens fast in the Senate without unanimous consent, which means any one of the aforementioned senators can slow down the FAA bill if their preferred amendment doesn’t get a vote.

One thing that struck me, surfing through the list of FAA amendments, was that many of the frequent co-sponsors were names that might surprise people. Despite fears that a new generation of more MAGA-minded Republican senators might reduce bipartisanship in the Senate, Hawley’s there working with Warren on airline refunds and with an aisle-crossing coalition on RECA. Vance is trying to boost funding for a key Biden priority, the internet connectivity program; he’s also a key backer of the Durbin/Marshall credit card bill. Sen. Ted Cruz (R-TX), meanwhile, was one of the lead drafters of the underlying FAA package, another bipartisan endeavor.

As the parties evolve, the issues that attract bipartisan coalitions will naturally change — but even more bombastic figures, once they arrive in Washington, often recognize that bipartisan channels are the best way to get stuff done.

Of course, that doesn’t mean some members don’t prioritize attention over legislating: this week, for example, Marjorie Taylor Greene’s contribution to bipartisanship will be forcing a doomed-to-fail vote on Speaker Mike Johnson’s ouster. But, if the observation is true of most other lawmakers, it would suggest that Congress’ issues lie somewhere else than where most people place them.

In a Pew poll last year, 84% of Americans said members of Congress were “bad” at working with members of the opposing party. But the FAA amendment rush shows that members actually are working on substantive issues across party lines — they’re just struggling to get votes on the resulting legislation. Congress has more of a procedure problem than a people problem.

As the Washington Post’s Paul Kane has noted, the Senate now considers much less legislation than it used to — and also takes more time to do it. Every Friday, I chronicle bipartisan bills that do manage to get passed, but in the Senate, most of the measures I mention are approved by unanimous consent. If just one senator objects, it requires the chamber to jump through hoop after hoop, which is why the chamber increasingly only goes through the full legislative process for big bills like the FAA package.

Hence, the pile-up to add completely unrelated amendments to the FAA bill, for fear that (without many pressing deadlines to address) little else will reach the Senate floor in the next eight months.

Of course, there are fixes here, ones that would ensure a threshold to quickly advance legislation that is higher than 51 but lower than 100. Former Sen. Rob Portman (R-OH) once told me that he supported the Senate adopting a version of the House’s “suspension of the rules” process, which allows bills to be fast-tracked if they are backed by a supermajority of members. This, for example, would ensure that bills like the Kids Online Safety Act — which hasn’t received a vote despite being backed by almost 70% of senators — aren’t in the bizarre position of needing to wait for an aviation bill to have a chance at passage.

As I’ve written previously, there could also be processes to fast-track bills that receive sweeping support in the other chamber, which would at least ensure more up-or-down votes for bills with bipartisan buy-in. This, for example, would have allowed Ukraine aid to pass much quicker; why should it take months for a bill to get a vote if it had the support of 71% of House members and 79% of senators?

Returning to the list of FAA amendments, it would also mean the House might have already taken up the nuclear radiation compensation bill (which passed with support from 69% of senators) and the Senate might have already considered the bipartisan tax package (backed by 82% of House members). In a fully functional system, there wouldn’t be much need to wait for the FAA’s authorization to lapse to approve either of those measures.

More news to know.

Israel appears to be moving ahead with an invasion of Rafah, the southernmost area of Gaza, a move which would likely end any hopes of a ceasefire-for-hostages agreement with Hamas. The talks had been reportedly moving in a positive direction, but were mired over the weekend by a disagreement over the duration of a ceasefire: Hamas has insisted that the deal plot out a permanent end to the war, which Israel has resisted. A Hamas rocket attack near a Gaza aid crossing threw another wrench into the negotiations.

But it is unlikely the talks could survive an Israeli offensive in Rafah, where more than 1 million Palestinians — over half of the Gazan population — are currently residing, many of them after escaping Israeli attacks elsewhere in the territory. (Israel says that senior Hamas leaders are located there as well.) The Biden administration has repeatedly urged Israeli Prime Minister Benjamin Netanyahu not to move forward with an incursion; per Axios, the U.S. put a hold on a shipment of U.S.-made ammunition to Israel last week, its first such move since the war began in October.

The New York judge overseeing Donald Trump’s criminal trial ruled this morning that the ex-president once again violated his gag order. Finding him in contempt of court for a tenth time, the judge fined Trump another $1,000 and warned that a future violation could lead to jail time.

More headlines to know:

The day ahead.

— President Biden will meet with King Abdullah II of Jordan, present the Commander-in-Chief’s Trophy to the Army Black Knights, and host a Cinco de Mayo reception.

— Vice President Harris will deliver remarks on the economy in Detroit, Michigan.

— The Senate will return tomorrow.

— The House will vote on several bills, including the Securing the Chain of Command Continuity Act, a bipartisan response to Defense Secretary Lloyd Austin’s lack of transparency during his hospitalization earlier this year. The bill would require that the president and congressional leaders be notified whenever members of the National Security Council (such as the Secretaries of State, Defense, and Treasury) are medically incapacitated.

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Gabe Fleisher