Washington

Washington Update (July 1, 2025)

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (June 6, 2025)

Hi everyone. After the House approved its version of a budget-reconciliation bill last week (H.R.1, The One Big Beautiful Bill Act) by a narrow margin, the Senate began to put its own stamp on the legislation this week. 

Senate GOP leaders plan to use the House-passed bill as a starting point, but individual Senate committees will write their own titles that touch on a wide range of spending and tax programs.  They optimistically hope the Senate can complete its new bill by the Fourth of July recess.

Similar to the House, the different Senate committee titles – whether passed through committees or drafted by Senate GOP leaders – will be assembled into a single bill that will go to the Senate floor for debate. 

However, the Senate has strict rules about what can be included in the measure to maintain its privileged status of just needing a simple majority vote to pass – basically allowing the Senate to adjust spending and tax levels but not making policy changes.  This makes for complicated negotiations among the senators and with the Senate parliamentarian about what may be included in the bill.

 Once a bill is debated and passed in the Senate, there are two choices: 

1. The House agrees to the Senate-amended bill and sends it to the President.

2. The House asks for a conference with the Senate to resolve their differences before sending a final, compromise bill to the President.

Nonetheless, problems are multiplying for Senate Majority Leader John Thune (R-S.D.) and other Senate negotiators in their bid to pass the bill by July 4th. Senate committees began releasing draft text of the reconciliation bill this week. As the Senate begins to roll out its version of the bill, there will be some differences with the House-passed bill for procedural and political reasons, but it’s worth noting that the Senate’s legislative text will likely closely resemble that of the House. 

As for the changes to the bill, many will fall into policy areas relating to Medicaid cuts, the Inflation Reduction Act’s (IRA) green energy tax credits, and tax cut permanency. Modifications to the freeze on Medicaid provider taxes, the limitation of tech-neutral IRA credits to companies that begin construction within 60 days of the bill’s enactment, and permanency for a trio of expired business deductions are among the most likely Senate changes to the bill. Other possible adjustments to the text could include additional provisions codifying priorities of Senate Finance Committee members or the elimination of provisions that violate the Senate’s reconciliation rules. 

Thune will need to accommodate the competing demands of Senators who are hesitant to reform Medicaid and the IRA with those of lawmakers who believe the bill doesn’t go far enough in reducing the deficit. The combined pressure from deficit hawks in the Senate and those in the House, who will need to vote again on a modified version of the bill once it passes the Senate, will limit just how many changes the upper chamber can make to the legislation. Thune is aiming for a Senate floor vote on the bill by the last week of June, although it could happen earlier if everything falls into place quickly – or it could slip until after the July 4th week-long recess. Having said that, the real deadline for Congress to complete its work on the bill is the X-date when the debt ceiling needs to be raised by, which is projected by the Treasury Department to be in August. Thus, it is likely that the reconciliation bill will be passed by the Senate and then again by the House and sent to President Trump to be signed into law by mid to late July before Congress departs for its August recess.

Some Republican senators have expressed concerns with leadership about spending cuts for Medicaid and the Supplemental Nutrition Assistance Program (SNAP). At the same time, Senate budget hawks are demanding more deficit reduction and demanding that a House compromise to lift the cap on state and local tax (SALT) deductions be deleted from the bill.

The latest problem for Thune and other Senate negotiators is a proposal being pushed by fiscal conservatives to root out more than $200 billion in what they’re calling waste, fraud and abuse in Medicare — a controversial prospect, given the program’s popularity.

There are also differences in opinion between senators and the Trump White House about making permanent corporate tax cuts, such as 100 percent bonus depreciation for short-term investments and immediate expensing for research and development.

Senate Republicans control 53 seats and can only afford three defections on the bill. Sen. Rand Paul (R-Ky.) says he will vote “no” because it includes language to raise the debt ceiling by $4 trillion. And Sen. Ron Johnson (R-Wis.) says he’s a “hard no” on the House-passed bill because it doesn’t do enough to bring the nation back to a pre-pandemic level of spending. Below are some of the current issues that threaten to derail the bill:

Medicaid

Sens. Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), Jerry Moran  (R-Kan.) and Josh Hawley (R-Mo.) are threatening to vote against the bill if it reduces Medicaid benefits to constituents, and they have yet to see what language the Senate Finance Committee will roll out on the issue. Senate and House GOP leaders insist the legislation won’t cut Medicaid benefits, but the Congressional Budget Office released a report Wednesday projecting 10.9 million Americans will lose health insurance if the bill passes due to changes to Medicaid and Affordable Care Act coverage.

SNAP

Several Senate Republicans are also raising concerns over a projected $267 billion in spending cuts to the SNAP, including Collins and Moran. The Senate Agriculture Committee is hoping to roll out text for its portion of the budget reconciliation bill next week but Agriculture Committee Chair John Boozman (R-Ark.) says the issue remains unresolved.

Deficit-Reduction

A growing number of Republicans are joining budget hawk Sen. Ron Johnson’s (R-Wis.) call for more spending cuts in the bill, which Republicans project will reduce spending by roughly $1.6 trillion over the next decade.

GOP senators, including Sen. Lindsey Graham (R-S.C.), the chairman of the Budget Committee, are calling for bigger cuts.  

Spectrum Auction

Sens. Mike Rounds (R-S.D.) and Deb Fischer (R-Neb.), members of the Senate Armed Services Committee, are opposed to language in the House-passed bill to auction off government-owned spectrum, which they fear could impede the Defense Department’s use of those frequencies for radar and communications. Rounds said the House language is a “deal-breaker” and is urging negotiators to add language in the bill to protect spectrum frequencies used by the Pentagon for as long as the auction period lasts.

Limiting States’ Ability to Regulate AI

The bill contains language that would restrict states’ ability to regulate artificial intelligence for 10 years. Several Senators have expressed have flagged this provision as a major problem.

Making Corporate Tax Breaks Permanent

Senate Republicans and Trump White House officials disagree over making corporate tax breaks — such as bonus depreciation and research and development expensing — permanent.

The House bill phases out some of the most popular corporate tax cuts after 2029, and White House officials see an advantage in letting them expire after Trump’s term in office. Republican members of the Senate Finance Committee made a pitch to Trump and his economic team at the White House on Thursday to make the business tax proposals permanent, but the issue remains unresolved.

State and Local tax Deductions (SALT)

Republican senators say they’re going to rewrite the deal Speaker Mike Johnson (R-La.) reached with House Republicans from New York, New Jersey, and other high-cost blue states to raise the cap on SALT deductions from $10,000 to $40,000 for households earning up to $500,000 per year.

The House-crafted SALT deal is projected to cost $350 billion over 10 years, and several Republican senators oppose it. GOP senators have said that they want to  lower the cap to somewhere between $10,000 and $40,000 — or find another way to substantially reduce the cost of the provision — and still get the bill through the House.

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (May 1, 2025)

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Apr. 1, 2025)

Hi everyone. The House and Senate returned last week from a week-long recess for what is setting up to be a legislative sprint to the Easter break. Lawmakers are set to take another break in the second half of April, this time two weeks long, to mark the Easter and Passover holidays.
 
The focal point of this short work period will be on negotiations around reconciliation. The Senate GOP, in particular, is under the microscope as pressure mounts from their House colleagues to take action on the House-adopted budget resolution. Senate Republicans plan to move as soon as Wednesday to start advancing the budget plan Congress has to approve to enact Trump’s tax cuts, border agenda and energy policies. Republicans hope to adopt a budget resolution before leaving for the weekend. Senators expect to receive a decision from the Senate parliamentarian on whether they can use an accounting maneuver known as current policy baseline, which would allow them to treat an extension of Trump’s 2017 tax cuts as not costing anything. The Senate GOP needs the parliamentarian to make that call before moving ahead.

Even if Republicans succeed in nailing down a budget blueprint before Easter, they’re still punting key fights over how to pay for Trump’s plans. Trump’s push for action now has the House and Senate GOP moving ahead with budget numbers that don’t match up — meaning the chambers’ committees aren’t aligned on deficit reduction targets. House committees will be asked to cut at least $2 trillion, while Senate committees might be directed to find a minimum of a few billion dollars.

In the meantime, Trump is threatening to ratchet up tariffs on Wednesday and Republicans are scrambling to shield their states from the impacts. GOP lawmakers are coordinating with industry groups to push for exemptions. Trump has been pushing to increase the scope of the tariffs to claim hundreds of billions of dollars in more revenue that he believes will pay for a large chunk of his massive domestic policy bill.

 
In the House, Republican lawmakers are waiting for the Senate to move on the budget resolution. House Speaker Mike Johnson (R-LA) is also determining how to manage the movement within the GOP to impeach federal judges who have issued injunctions against President Trump’s actions. Both members of the Trump administration and some conservatives are pushing for impeachment votes targeting specific judges, but they would almost certainly fail in the House.

 
In the intervening period, the House will likely continue repealing Biden-era regulations via Congressional Review Act (CRA) resolutions, including two resolutions that would roll back Department of Energy rules around the energy efficiency standards of refrigeration equipment. A handful of other CRA resolutions targeting the Federal Communications Commission’s E-rate program and a number of Department of Energy and Environmental Protection Agency rules are slated for action in the coming weeks as well.

Special Elections

There are also some very critical special elections taking place this week. Two special elections are on tap Tuesday in Florida to replace former Reps. Matt Gaetz and Mike Waltz. Republican Randy Fine’s bid to succeed Waltz in the state’s deep-red 6th District has been difficult for the GOP, with the party fearing the race will be closer than expected.

Booker Abides

Senator Cory Booker has held the Senate floor for over 15 hours delivering a nonstop speech protesting the Trump administration’s policies. Booker’s speech took aim at President Trump, White House senior adviser Elon Musk and policies he says show a “complete disregard for the rule of law, the Constitution, and the needs of the American people.”

His speech has covered a wide range of topics overnight, from healthcare and Social Security to immigration, the economy, public education, free speech and foreign policy. And it included portions of letters that Booker said he had received from affected constituents, as well as public comments from world leaders, in recent weeks.

Under Senate rules, unless special limits on debate are in effect, a senator who has been recognized by the presiding officer can speak for as long as they wish.

SENATE ELECTIONS-2026

 The 2026 Senate elections will be held on November 3, 2026, with 33 of the 100 seats in the Senate being contested in regular elections. There will also be two special elections: one in Ohio to fill the remaining two years of JD Vance‘s term following his election to the vice presidency and one in Florida to fill the remaining two years of Marco Rubio‘s term after his nomination as the United States Secretary of Statewas confirmed. With the election of John Thune as leader of the Republican Conference, this will be the first election year since 2006 in which the Republicans are not led by Mitch McConnell, who is retiring at the end of the term.

There are two seats being defended by Democrats in states won by Donald Trump in 2024: Michigan, where incumbentGary Peters will not be running for re-election; and Georgia, where the incumbent is Jon Ossoff. Michigan elected Democrat Elissa Slotkin to the Senate in 2024 by 0.3 points; Georgia did not have a Senate election in 2024, although in the most recent Senate election in 2022, Democrat Raphael Warnock won by 3 points.

There are five incumbent Democratic senators that represent states won by Kamala Harris by single-digit margins in 2024: New Hampshire’s Jeanne Shaheen, Minnesota’s Tina Smith, Virginia’s Mark Warner, New Jersey’s Cory Booker, and New Mexico’s Ben Ray Luján.

There is one seat with a Republican incumbent in the state of Maine, which was largely carried by Kamala Harris (Harris won 3 of 4 electoral votes in Maine’s semi-proportional system). That seat belongs to Senator Susan Collins who was re-elected to a fifth term in 2020. The other Maine Senator, Angus King, an independent who caucuses with Senate Democrats, was re-elected by 17 points in 2024. One Republican, Senator Thom Tillis of North Carolina, is up for re-election in a state won by Trump by a single-digit margin. Tillis beat the last Democrat to win a Senate race in North Carolina, Kay Hagan, in 2014.

The 2026 Senate elections are considered unfavorable to Democrats, especially since 3 Democratic incumbents are retiring. Democrats are defending 13 seats, while Republicans are defending 22 seats. However, the makeup of the seats up for re-election mean that Republicans remain heavily favored to retain the Senate majority.

DOGE

It its efforts to slash federal programs, departments and fire federal employees the Department of Government Efficiency (DOGE) has claimed huge savings—although it has had to walk back many of its claims. The pain is broad-based, though some areas of government have suffered more than others, including the United States Agency for International Development, which was eliminated.

DOGE has reached into the Small Business Administration, too. More than two dozen federal contracts have been ended as of mid-March, and at least 22 leases for SBA office space have been terminated, according to DOGE’s database. The itemized database doesn’t compile the full extent of the agency’s purported cost savings, though.

DOGE has made big errors in its accounting. And some of its so-called cost savings raises questions. In multiple cases, the agency records its savings as “$0,” while in another instance, the agency claimed credit for cost-savings for a contract that may have ended last year, before the creation of DOGE.

Coverage of DOGE’s actions by the media has been mostly negative and a significant number of Congressional Republicans have complained both publicly and privately. Musk is now taking steps to improve DOGE’s image, suggesting that he is aware of the very negative persona he has created for himself and his cost-cutting push since joining President Trump’s team. In recent days, Musk has appeared on mostly friendly media outlets to defend his work, claiming that he is being careful and compassionate with his overhaul of the federal government, amid mounting criticism over his past statements on social media and emails to federal workers. 

DOGE has faced scrutiny for numerous high-profile mistakes. The Trump administration mistakenly fired employees working with the nation’s nuclear stockpile last month amid broader cuts at the Energy Department. It later scrambled to rehire them. The Department of Agriculture similarly fired employees working on the government’s response to the bird flu before attempting to bring them back to the agency. 

DOGE’s efforts to highlight spending cuts online have been riddled with errors. They accidentally listed an $8 million contract as being worth $8 billion on its “wall of receipts.” And a single $655 million contract at the U.S. Agency for International Development (USAID) was counted three times. Musk also revealed during a public Cabinet meeting last month that DOGE accidentally cancelled Ebola prevention before restoring it. 

Dozens of lawsuits have been filed seeking to stymie DOGE’s efforts. Many challenge DOGE’s ability to access agencies’ confidential systems, some claim Musk was required to face Senate confirmation while others seek to force the group to respond to open records requests. A federal judge ruled earlier this month that Musk and DOGE likely exercised unconstitutional authority “in multiple ways” in dismantling the USAID, which was the group’s first major target within the federal government.

Musk has faced an intense backlash over his work with the administration, which has spilled over into other spheres and begun to impact his businesses. Tesla has seen its stock plummet in recent weeks while being targeted by both peaceful protests and raucous demonstrations. Musk has also drawn backlash from Republican lawmakers, who are bristling at changes to the Social Security Administration that could make it harder for constituents to receive their benefits and assistance with obtaining them. 

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Mar. 6, 2025)

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Feb. 7, 2025)

Hi everyone. As Elon Musk and his Department of Government Efficiency (DOGE) have dug into federal agencies, sought access to payment systems, tried to talk federal workers out of their jobs and worked to demolish the U.S. Agency of International Development (USAID). Congressional democrats have struggled to find their footing. Democrats in Congress are grappling with how to take on Musk and his efforts to remake the federal government, with some favoring direct attacks on Musk and others wanting to aim more at President Trump.

Some Senate Democrats think the party needs to begin anew and are frustrated by leaders including Senate Minority Leader Chuck Schumer (N.Y.). Others say the party’s messaging is completely off and they need to refocus on speaking to the issues voters care about. 

In the House, democratic party leaders and rank-and-file members are have said that they are willing to use all available avenues to stop Musk’s efforts. Democrats unveiled a proposal on Thursday designed to shield taxpayer information from Musk and his crew.

On Thursday, a new poll from The Economist/YouGov showed Republican support for Musk had fallen dramatically  since November. This week’s poll revealed the share of Republicans who wanted Musk to have “a lot” of influence fell to 26 percent, while 43 percent of Republican respondents wanted Musk to have “a little” influence and 17 percent to have “none at all.” Some democrats in Congress believe that Musk is becoming a political liability for President Trump.

In the meantime we have seen resistance efforts to the actions Trump and Musk are taking grow dramatically.

Protests against Trump were held in all 50 states and DC this week. There also were demonstrations against his deportations, his attempt to shut down USAID, and outrage over DOGE’s access to our Treasury payment systems.

More than three dozen lawsuits have been filed challenging major Trump administration actions from gender to immigration to federal employee protections. Many of the plaintiffs sought speedy relief and warned of imminent harm, leading to emergency hearings this week in courtrooms across the country. 

In the courts, the Trump administration’s  workforce buyout was blocked, for now. Two other judges blocked his grant funding freeze, including Judge Loren L. AliKhan, who wrote, “For many, the harms caused by the freeze are…impending, and potentially catastrophic.”

Another judge blocked the DOJ from releasing the names of FBI agents who worked on any of the cases against Donald, or involving Jan 6.

Trump’s unconstitutional birthright order was also blocked—twice so far—by 2 different judges. One of them was Reagan appointee John Coughnenour who said the rule of law to Trump is “something to navigate around or something ignored…under my watch the rule of law is a bright beacon, which I intend to follow.” 

A federal judge this week universally blocked Trump’s order mandating that transgender women in federal prison be moved to men’s facilities and the government stop paying for their gender-affirming care. 

Also this week, several labor unions filed a lawsuit to put an end to Trump’s dismantling of USAID, and the cuts being made to foreign aid. 

And after massive public pressure and a lawsuit, the DoJ agreed to an order limiting access to Treasury systems.

In Congress, Senate Dems held the floor for 30 hours to delay the confirmation of Project 2025 architect Russell Vought. Democrats on the Senate Judiciary Committee were also able to push back Kash Patel’s committee vote by a week.

And a bill to deny DOGE access to Treasury payment systems was announced by Rep. Jeffries and Sen. Schumer. There have been thousands of calls letters to Congress in support the bill. 

At the end of this memo I have provided links to phone numbers of all Senators and Representatives. I urge you to contact your Congressional Members by phone to register your concern with the actions Musk and Trump are taking. 

Also, if you are interested in tracking the legal challenges to the Trump administration’s actions, please check out the link below. 

https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Jan. 20, 2025)

Hi everyone. The the Chairman and Ranking Democrat of the House Railroads, Pipelines, and Hazardous Subcommittee (rail subcommittee) have been named. The subcommittee Chairman is Rep. David Rouzer (R-NC-7th) and the Ranking Democrat is Rep. Dina Titus (D-NV-1st).

Rouzer represents North Carolina’s 7th Congressional District which includes the coastline of Southeastern North Carolina west and the the agricultural communities around Lumberton and Fayetteville.  He was elected to Congress in 2014.

Prior to Congress, David owned his own business doing consulting and sales work, predominately in the agricultural arena.  He served two terms in the North Carolina Senate. Rouzer and also served as assistant to the dean and director of commodity relations for the College of Agriculture & Life Sciences at NC State University in between two stints with U.S. Senator Jesse Helms.

Rep. Titus has represented  the First Congressional District of Nevada for more than a decade. Previously she served as State Senate Minority Leader from 1993 to 2009.

Titus has been very active on the issue of affordable housing, raising the minimum wage and protecting a woman’s right to choose.

Rep. Titus made the following statement after being appointed as Ranking Member of the House rail subcommittee. “I will advocate for my hardworking brothers and sisters in rail labor, support projects like Brightline West, and help passengers and goods travel safely.”

RAIL SUBCOMMITTEE HEARING

The rail subcommittee will hold a hearing next week to discuss passenger and freight rail issues and the state of the railroad industry, including potential legislative considerations for a surface reauthorization bill. The hearing will be held at 10:00 a.m. ET on Thursday, January 23, 2025, in 2167 Rayburn House Office Building.

Witness List:

• Mr. Ian Jefferies, President and Chief Executive Officer, Association of American Railroads
• Mr. Chuck Baker, President, American Short Line and Regional Railroad Association
• Mr. Joe Daloisio, Chairman, National Railroad Construction & Maintenance Association
• Mr. Jared Cassity, Alternate National Safety and Legislative Director, Sheet Metal Air Rail Transportation-Transportation Division (SMART-TD)

The hearing will be the third in a series with the “America Builds” theme. The full House Transportation and Infrastructure Committee held a hearing on the overall transportation system on Jan. 15. The Subcommittee on Highways and Transit will hold a hearing, “America Builds: Highways to Move People and Freight,” on Wednesday, Jan. 22

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Jan. 8, 2025)

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Dec. 16, 2024)

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Mike Gilliland
Hogan Lovells US LLP

Washington Update (Dec. 5, 2024)

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Nov. 25, 2024)

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Nov. 19, 2024)

Hi everyone. One of the many issues that has arisen since the election is what actions can President-Elect Trump implement solely through executive authority and what requires legislation from Congress. Trump and his advisors are taking an expansive interpretation of what can be done with executive power. They are likely to push the boundaries of what can be achieved with current executive authority, somewhat similar to the Biden administration’s regulatory agenda, but with much less emphasis on institutionalism. In some cases, these actions will have precedents, such as using the National Emergencies Act, but not all will have clear precedents, such as Trump’s plan for universal tariffs. Lack of precedent will not be a disqualifying factor. In these cases, the critical question becomes whether Trump and his team believe that executive authority exists to implement their plans. This is the case with the president-elect’s tariff plans, which he and his advisors see as achievable through the International Emergency Economic Powers Act and with the possibility of an expanded use of budget impoundment. The latter of these plans is technically illegal under the Budget Impoundment and Control Act of 1974. Still, Trump’s advisors believe that the restrictions imposed on the executive branch in the law are unconstitutional. The result could be that budget impoundment in the second Trump administration may follow a pattern of impounding first and then fighting any litigation in the court second.

Budget impoundment is not new to Trump and was a key factor in his first impeachment when his administration was found to have withheld security assistance bound for Ukraine in 2019. Congress and the judicial system could check Trump’s plans relying on executive authority. However, the latter will more likely be the primary avenue as a rebuttal from Congress would require a veto-proof majority in both chambers, which will be difficult to achieve with both having Republican majorities. In areas where Trump lacks executive authority, achieving his policy proposals, such as tax reform, will require Congress. Some issues, including tax legislation, can be passed by a simple majority in both chambers as they can be worked through budget reconciliation. However, most legislation will still require bipartisan support to reach 60 votes in the Senate unless the upper chamber is going to further shrink the filibuster, which Trump may call for. Still, it is not something that is likely to happen. 

The Senate will also be responsible for confirming Trump’s nominees, which could slow his executive agenda if there are any lengthy confirmation processes, as he will be forced to rely on acting agency heads in the interim who may not be ideologically aligned with Trump. These acting heads are often the “first assistant,” typically the top deputy. However, the president can choose other acting leaders if they are in another Senate-confirmed position or a senior career civil servant at the agency. 

Once determining whether Trump’s proposals are possible through executive or legislative authorities, the question becomes whether they will be successful and lasting. Some key factors that will shape the eventual outcome are any pushback from the bureaucracy, adverse financial market reactions, and any backlash from the MAGA base or other Republicans. Trump does not have re-election pressure in his second term, but there are still reactions to his policies that could result in backtracking. How much and how far will depend on who the critics are and how vociferous and sustained the criticism is, but the challenge is that more often than not, any such reversals in policy will likely happen after the fact rather than heading off the Trump administration preemptively. 

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Nov. 18, 2024)

Hi everyone. Only hours after Senator John Thune (R-SD) was selected to lead the Senate GOP conference last Wednesday, President-elect Trump stole his thunder with the nominations of Tulsi Gabbard to serve as director of national intelligence and former Rep. Matt Gaetz (R-FL) to serve as attorney general. The immediate reaction of both Thune and other GOP senators indicated that both nominees could face an uphill battle toward Senate confirmation, something that will require the backing of at least 50 senators. Pete Hegseth, Trump’s nominee for secretary of Defense, and RFK Jr., Trump’s nominee for secretary of Health and Human Services, are also considered by some to be controversial. This skepticism from at least a handful of GOP senators regarding Trump’s nominees then begs the question: could Trump use recess appointments to install his more controversial nominees without the traditional advice and consent of the Senate?
 
Recess appointments are a legal avenue by which the president can temporarily install a nominee to serve in a Senate-confirmed role when Congress is out of session. Recess appointments were written into the Constitution at a time when Congress recessed for nearly half the year, necessarily requiring presidents to have a pathway to fill vacancies in emergencies during which Congress was out of town. Recess appointments can only last for the duration of one session of Congress, or up to two years, and are often unpaid. Importantly, as the Supreme Court decided in 2014, recess appointments can only be made if the Senate is out of session for 10 days or more, something that both chambers of Congress must agree to.
 
There are a number of reasons to be skeptical that Congress, even under GOP control of both chambers next year, will allow for recess appointments. First and foremost, senators in particular are not in favor of ceding long-standing authority to the executive branch. Although a number of Trump-aligned senators are publicly supportive of recess appointments, at least a handful of moderates are likely to object to them. That presents a problem for Trump; a recess of more than three days can only happen if both chambers of Congress agree to it, typically something that is done by passing an adjournment resolution. That resolution requires majority support in the Senate to pass. Secondly, were Congress to take a recess of 10 or more days, as is legally required for recess appointments, the president’s entire legislative agenda would necessarily be pushed back into February or later. Trump won’t assume office until Inauguration Day on January 20th.
 
More controversially, a second option has been floated in which Trump would draw on the president’s authority under Article II, Section 3 of the Constitution to adjourn Congress himself and then make recess appointments. Trump threatened to do so back in 2020, but never attempted to actually use this authority. Actually drawing on this emergency authority is unlikely for a number of reasons, but chief among them is that it would require the full cooperation of House Speaker Mike Johnson (R-LA) and his GOP majority. For the president to adjourn Congress unilaterally, Congress has to disagree on whether to adjourn or not. As an example (that has been floated in the news), the House could push for an adjournment, the Senate could disagree, and then Trump could step in. Not only is this unlikely, it’s also questionable whether it would hold up in court. The conservative members of the Supreme Court took a very narrow view of a president’s authority to make recess appointments in 2014 and could be poised to do so again under different circumstances.
 
With Congress unlikely to back recess appointments, Gaetz, Gabbard, Hegseth, and RFK Jr. will all likely face the standard Senate confirmation process. For all, and most of all Gaetz, that could prove problematic. None of the above candidates can lose more than three GOP votes given the low likelihood of a single Democratic senator backing them. On Friday, the Wall Street Journal reported that upwards of 30 GOP senators could vote against Gaetz on the floor, although if a floor vote occurred, the actual number is likely to be much smaller.
 
With only three votes to spare, the most important lawmakers to watch will be Senators Susan Collins (R-ME), Lisa Murkowski (R-AK), Bill Cassidy (R-LA), Todd Young (R-IN), John Curtis (R-UT), Thom Tillis (R-NC), and Mitch McConnell (R-KY). Murkowski and Collins are best known for their moderate streaks and have a rich history of voting against Trump’s first term nominees. Neither endorsed Trump this cycle and both have expressed considerable skepticism with regard to all of Trump’s controversial picks. Both Cassidy and Young, while less moderate in voting record than Collins and Murkowski, have expressed historical reservations about Trump’s rhetoric and first term actions. Tillis is a staunch conservative, but with a 2026 election coming up in a hotly contested battleground state, there’s reason to believe he could feel pressure to create distance from Trump. Curtis too is a conservative, but he indicated on the campaign trail that he is hoping to follow at least somewhat in the footsteps of Senator Mitt Romney (R-UT), a prominent Trump skeptic. McConnell stands in a category of his own. The longtime Senate GOP leader is unlikely to break with Trump just for the sake of doing so, but as an institutionalist and avid critic of American isolationism he has incentive to push back on nominees such as Hegseth and Gabbard.
 
Of course, even if Gaetz isn’t able to make it through (or even to) the confirmation process, it doesn’t mean that Trump will replace him with a more traditional nominee for attorney general. Attorney general is the cabinet position Trump is most passionate about installing a Trump-friendly nominee in as a result of the challenges he faced in getting both former Attorney General Jeff Sessions and former Attorney General Bill Barr  to implement his agenda. The same can be said for the secretary of Defense, another position in which his first term appointee, Jim Mattis often pushed back on his agenda and from which Trump later fired Mark Esper, Mattis’ replacement.

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Oct. 22, 2024)

Hi everyone. With two weeks until Election Day, more than 15 million people have already cast their ballots, the clearest sign yet that voting habits were forever changed by the coronavirus pandemic. Republican voters are tapping into early voting a lot more than they did in 2020. However, according to several polls, including the USA Today/Suffolk University poll, Harris has a 2 to 1 lead over Trump among voters who have already cast their ballots. When it comes to voters who plan to wait until Election Day to vote, that number turns around, with 52 percent saying they’ll vote for Trump and 35 percent saying they’ll vote for Harris.

Some states have already started early mail-in and in-person voting. According to the poll, one in seven respondents have said they’ve already cast a ballot. One-third said they plan to vote early, and that group favors Harris, 52 percent to 39 percent.

LAME DUCK SESSION

Regardless of what happens in the upcoming elections Congress will return in November for a lame duck session. To be sure, much of the lame duck agenda, and who will be setting it, will be dictated by the results of the election.  The results of the election, and potentially the control of Congress, may not be known for some time after the election, depending on recounts and ensuing litigation.  That said, here are the biggest items on the Congressional agenda for the rest of the year.   

• Government Funding: The current Continuing Resolution (CR) is set to expire Friday, December 20th.   At this point, it is unclear how exactly Congress will meet that deadline.  For those in favor of stability, Congress could act to pass an omnibus spending measure, funding the government through September 2025.  Appropriations leaders from both parties would prefer this path and will do their best to push an omnibus forward.  However, if past is prologue for the 117th Congress, this will be a difficult lift, especially for a fractured House Republican majority.  Short of a full-year omnibus, Congress could pass another CR into early 2025.  Congress could also pass some mixture of both, passing a package or packages of full-year minibus(es) for some bills and a shorter CR for others. 
• Disaster Funding:  Following the devastation in North Carolina, Florida, Georgia and elsewhere, from Hurricanes Helene and Milton, it is almost certain that Congress will have to pass supplemental disaster funding in the lame duck.  This money could be included in whatever year-end CR or omnibus legislation is negotiated to help “sweeten the deal” for potential opponents of the funding bill.  While disaster funding typically passes on a wide-bipartisan basis, the House Freedom Caucus and other fiscal hawks, often do what they can to slow the process and voice their concerns about government spending and fiscal policy.  The Maryland delegation, meanwhile, could try to use the disaster supplemental to secure funding for the Francis Scott Key Bridge collapse. 
• Debt Limit: Also hanging over the funding fight is the upcoming Debt Limit, which expires January 2, 2025, (though Treasury will be able to enact “extraordinary measures” to delay defaults for some time following January 2nd).  I have yet to hear even “concepts of a plan” for the debt limit but expect to hear more after the election.  A debt limit extension could ride along with the end of year funding bill(s).
• NDAA: Thus far, Congress appears on track to pass the National Defense Authorization Act for the 63rd year in a row.  The NDAA leaders are still in lockstep in trying to keep the bill “clean” of unrelated legislation that could slow the process. The House-passed BIOSECURE Act is among those in the mix.  Additionally, should President Trump win, we would expect Ukraine supporters in both parties to try to push for another Ukraine aid package before the Trump Administration can oppose it.  Finally, as the situation in Middle East continues to evolve/escalate, there could be a push for additional funding programs for Israel and/or humanitarian aid to Gaza and the region.
• Extensions:  At this point it is extremely unlikely that Congress will pass the Farm Bill this year, meaning the current authorization will have to be extended again.  Likewise, various public health programs will have to be extended as well.  
• Permitting Reform: There are embers of bipartisanship surrounding the permitting reform bill passed by the Senate Energy & Commerce Committee, led by outgoing Senator Joe Manchin (I-WV) and Senator John Barrasso (R-WY).  While it is possible this moves, Senate Democrats do not seem inclined to do any legacy favors for Senator Joe Manchin.
• Tech & Privacy: Congress still has yet to act on data privacy or kids online safety legislation.  I continue to think that a comprehensive data privacy bill will not be enacted this year, but there is some pressure on the House to take up various online safety bills, including the Kids Online Safety Act.  That said, Speaker Johnson and House Leadership has expressed concerns and it’s not a sure thing those concerns will be resolved in the short legislative calendar. 
• Consumer Bills:  Another area of broad bipartisan work has been around consumer-focused pricing transparency bills, in particular related to the live event ticketing and travel industries.  Many of these bills have cleared the House but have had a more troubled path in the Senate, where there are subject to Member holds, preventing them from being adopted by unanimous consent.   If there is a vehicle for extraneous bills moving, however, these could be candidates to be added as both sides are eager to show progress for their constituents. 
• Nominations: With downtime until the government funding negotiations come to fruition, look for the Senate to continue to focus on confirming judicial nominations, particularly if Trump wins in November.  
• Leadership & Committee Assignments:  Once the results of the election are known, or as known as they can be, both parties will undertake leadership elections and Committee assignments.  In terms of leadership, barring a massive Red Wave, I expect Senator Chuck Schumer (D-NY) and Rep. Hakeem Jefferies (D-NY), to maintain the top positions.  It remains to be seen whether that will be as Senate Majority Leader and House Speaker, or as Senate and House Minority leader, or some combination of the two.  It is not clear who will lead Republicans in either House and these decisions will likely be much more dependent on the results of the election.  

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Oct. 4, 2024)

Hi everyone. Congress is out for the elections and will return on November 12. Before leaving, the House and Senate approved a stopgap measure to keep the government funded for three months to stave off a shutdown. Following the bill’s passage President Biden signed the funding bill into law. The legislation keeps the government funded through Dec. 20 and includes around $230 million in additional funding for the Secret Service following the second assassination attempt against former President Donald Trump. Lawmakers had until Oct. 1 to pass the extension or face a shutdown.

 The House approved the legislation by a vote of 341 in favor and 82 opposed. Ultimately, more Democrats than Republicans backed the legislation, propelling it to the two-thirds majority that was required for passage. All 82 members who voted against the bill were Republicans. The vote came after Speaker Mike Johnson tried to move forward with a six-month continuing resolution that was paired with a noncitizen voting measure, which the House rejected. At the time, a small group of House Republicans joined with most Democrats to oppose the measure. 

With the three-month funding measure, Congress will face a pre-holiday deadline to prevent a shutdown after their return. House Republicans have expressed concern about the outcome, which Congress frequently falls back upon and has in the past led to a vote on a massive appropriations bill known as an “omnibus.” But Johnson has said that House leadership opposes an omnibus funding package around the holidays. Johnson has suggested that he will push to approve the 12 full-year spending bills individually after the election. Whether lawmakers can do so in the lame-duck session remains to be seen. House Republicans have so far approved a handful of the full-year spending bills, although they’ve done so on a partisan basis that makes them nonstarters in the Senate. Meanwhile, the Senate has yet to vote on any individual spending bills this year.

President Biden said this week that he expects to ask Congress for a supplemental bill to fund Hurricane Helene relief efforts, suggesting lawmakers may have to return from their election recess to pass it. 

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Sept. 11, 2024)

Hi everyone. Congress returned this week from the summer break but will only be in session a short time before adjourning to hit the campaign trail. The biggest issue facing Congress is funding the government. The government will shut down Oct. 1 unless Congress agrees to a funding bill by the end of this month. The continuing resolution (CR) is a measure the parties have been discussing to keep the government funded. It stops short of the annual appropriations measures passed by Congress to fund the government but would essentially keep the government open and functioning at a funding level equal to what is now law. Speaker Mike Johnson announced today that he is delaying a vote on the House Republicans’ six-month stopgap funding plan which was originally scheduled to hit the floor later this afternoon. Johnson said he’ll delay the vote until next week so that House Republicans can work over the weekend to tamp down GOP defections and “build consensus.”

 Republicans are divided over the length of the CR, with Senate Appropriations Committee ranking Republican Sen. Susan Collins (Maine) among those calling for a shorter one. The proposal is unlikely to gain traction in the Democratic-controlled Senate. House Republicans have been battling with Democrats over the funding bill. Former President Trump on Tuesday appeared to call on his party to block government funding if legislation does not include “assurances on Election Security.” Trump’s Truth Social post came as the House approved a rule governing debate on the measure. The bill, unveiled by Speaker Mike Johnson (R-La.) in recent days, pairs a six-month CR with a bill backed by Trump to require proof of citizenship to register to vote, titled the Safeguard American Voter Eligibility Act.

PRESIDENTIAL DEBATE    

Last night, Vice President Harris and former President Trump participated in a debate on ABC News: the first and perhaps last time they’ll ever face off.  Research suggests that debates have little influence on election outcomes. In 2019, researchers Caroline Le Pennec & Vincent Pons analyzed survey data from 31 elections in 10 countries since 1952 and did not find an association between TV debates and voting choice.

Both sides saw defining Harris as the major battleground. The switch to Harris late in the campaign opened the opportunity for both sides to define her as a candidate. While she’s hardly an unknown as the sitting vice president, there’s a difference between simple name recognition and the median voter having an opinion of what they’re like and what they stand for. In the NYT/Siena poll released over the weekend people still say they’re making their minds up about her. Twenty-eight percent of the likely electorate said they feel like they need to know more about her compared to just nine percent for Trump. That includes both wavering portions of the Democratic base and swing voters. Those same numbers were 41 percent for Black likely voters, 43 percent of Hispanics, and 53 percent for those under 30. 

Harris presented an image of a happy warrior on stage last night, combining a cool demeanor with a good attitude, frequently smiling, often laughing off in disbelief some of the former president’s lies and exaggeration, while at the same time trying to bait Trump into having a meltdown. She repeatedly reiterated the need to “turn the page,” casting herself as the candidate of change and trying to harness current dissatisfaction with the state of the country. She insisted on a message that unifies the country while Trump tied her back to the Biden administration. They each played to their policy strengths. She hammered him on abortion, while he repeatedly fell back on immigration. On the economy, Harris stressed populist positions, claiming her policies would benefit the middle class while Trump’s would benefit large corporations and the wealthy. She repeatedly turned back to her humble roots to try to illustrate her position on the side of the everyman. Trump painted her as “failed, weak, and dangerously liberal,” weak on crime and immigration.  On policy, he hit her for changing some of her policy positions and adopting some of his own. Both claimed the other was the more extreme candidate with Harris name-dropping the conservative Project 2025 and highlighting some of the restrictive abortion bans. Harris tried to angle for conservatives and Never-Trump Republicans, showing off her recent endorsement from former GOP Vice President Dick Cheney and, at one point, explicitly welcoming them into her big tent. Trump tried to lock in his gains with some of the traditional Democratic base: Black voters and young people. He asserted that illegal immigrants were taking the jobs of African Americans and accused the current administration of “taunting” young people by trying and failing to implement one proposal alleviating student debt. 

Now we must wait for the hard data. We’ll need sustained polling after the fact to determine what, if any, impact the debate had on voters. Overall, this appeared to be a big win for VP Harris.

Thanks,

Mike Gilliland
Hogan Lovells US LLP

(Sept. 11, 2024)

Washington Update on the Harris-Walz Campaign (Aug. 6, 2024)

Hi everyone. This memo provides a brief update on the state of Vice President Kamala Harris’ campaign and her decision to name Minnesota Governor Tim Walz as her running mate.  Much of this information is based on conversations with Members of Congress and key staff, current and former administration aides, and Democratic Party advisors and insiders.  

State of the Race: Can the Dem Momentum Last?  

• In the two weeks since President Biden dropped out of the 2024 presidential election and Vice President Kamala Harris rose to the top of the ticket, Democrats have enjoyed newfound momentum that seemed impossible for most of July.  As it stands, the race again looks like a dead heat but Democrats clearly have momentum.  
• Two weeks in and Vice President Kamala Harris and her campaign appear to be hitting every mark (and then some).  She has gotten support from every key Democratic leader and contingent of the Democratic base, set record-breaking fundraising marks, maintained the Biden Campaign’s key staff and campaign infrastructure, supplemented it with other Dem campaign all-stars, and proven herself to be a much more energetic and skilled campaigner than many expected.  Today, she named Governor Tim Walz as her running mate (more on that below). 
• As low and apathetic as the Democratic Party felt in July, it feels as energetic and motivated in August. 
• Nearly every national and battleground state poll shows the race well within the margin of error.  While Harris has gained back ground that Biden lost in July following his June 27^thdebate, Donald Trump’s assassination attempt, and the Republican Convention, it remains to be seen if this is her ceiling or if she can continue the momentum and surge ahead of Trump. 
• Pollsters have also noted that Trump’s support has remained remarkably static in the mid-to-upper 40s, suggesting he has little room to grow.  This isn’t surprising, given how strongly the public feels about him (one way or other).  The question for Harris and Dems is whether they can recreate or strengthen the Biden 2020 coalition to overcome Trump’s “baked-in” support.  
• Harris should receive a bump following the Democratic Convention at the end of the month.  Whether the Convention bump is a short-term boost or a continuation of the polls trending in her direction will remain to be seen.  The relatively unknown Bill Clinton used his running-mate selection and a successful convention to slingshot past George H.W. Bush in 1992.
• The events of the last month have also made many DC insiders even more cautious about making bold predictions of where voters – and the country – will be in six weeks when voting begins in some states.  Monday’s global stock market crash is just one example of the type of outside event that can quickly reshape the race’s narrative and what issues are resonating with voters. 
• In short, it’s a brand new race. The million-dollar question is whether Democrats can maintain the newfound momentum through the dog days of August and turn it into votes in the Fall.    

Walz Selection: 

• After a week of speculation, Kamala Harris tapped Minnesota Governor Tim Walz to be her running mate over Pennsylvania Governor Josh Shapiro, among others.  
• Many in the D.C. chattering class thought that Shapiro would be the pick, given the importance of Pennsylvania in the Electoral College and his popularity in the state. Harris, however, ultimately went with Walz, who has proven to be both a good Midwestern foil for J.D. Vance and an effective communicator of the Democrats’ economic messaging, a core weakness for Democrats among voters.  
• Walz’s accomplishments as governor – including expanding paid family and medical leave, free college tuition for families making less than $80,000 per year, and free school lunch – mirror the types of economic messages that Harris hopes to make a centerpiece of her campaign.  Walz has been unapologetic in his support for these priorities, and these issues generally poll well.  Democrats hope that with a more effective communicator voters will respond.  
• Look for Democrats to also highlight his background as a veteran, teacher, and football coach to balance out Harris’ resume, which is largely legal and political.  They will also use it to draw contrast to Vance’s appeals to Midwest voters.   Dems also hope that his background will play not only in the Midwest, but also in Pennsylvania and with working class voters around the country.  Shapiro is also expected to hit the trail hard in Pennsylvania over the next 90 days, a commitment he made this morning.
• Trump and Republicans immediately panned the pick, painting Walz as an ultra-liberal Bernie Sanders clone and arguing Harris caved to the left wing of the party (particularly on Israel).  While they likely would have characterized Shapiro as a liberal coastal elite lawyer and Democratic Party insider, Walz will have to use his introduction speech tonight and the early days on the campaign to assuage concerns that he is an out of touch leftist.  The hope among Dems is that his folksy-but-seemingly authentic style, his background, and his ability to defend his record and talk kitchen table issues will dull these criticisms.   
• Democrats will also try to blunt these concerns by pointing out that Walz has support from everyone from Bernie and AOC to Pelosi to Joe Manchin and even former Maryland Governor and current Republican Senate candidate Larry Hogan.  The hope is that when the spotlight is more clearly on Walz he can dispel these attacks.  
• While quick to point out that traditionally, the VP selection does not move the needle much in November, selecting the “wrong” candidate can hurt a campaign (and Democrats are more than eager to speculate whether that will be the case for the Trump-Vance campaign).  
• Before the Walz selection, one Democratic strategist commented that  Dems are united in the need to beat Donald Trump in November and are willing to keep their powder dry for internal fights over Cabinet positions after a Harris victory. The party will now unite behind the Harris-Walz ticket, which no one would have predicted less than a month ago. Ultimately, four main things sealed it for Walz:

Trump Criticisms:

• Democrats have also been pleasantly surprised at the difficulty Donald Trump and Republicans have had finding effective ways to attack Vice President Harris.  
• Many Republican strategists would prefer to use “traditional” attacks against Dem candidates (at least until Harris makes mistakes or fully defines herself), characterizing her as a California liberal, highlighting her progressive positions in the 2020 Democratic Primary, attacking her on immigration and crime, and tying her to the Biden Administration.  Candidate Donald Trump and the MAGA world, however, seem to be going in a different direction. 
• Trump’s decision to question Harris’ race and ethnicity at last week’s National Association of Black Journalists event has put these more traditional attacks on the backburner.  It is unclear whether this was a planned decision by Trump or if he simply got rattled and veered back into his “Trump Rally” persona.  Either way, it has shaped the media discourse and given Harris more time to hone her message rather than defend against attacks on her record. 
• After nearly a decade of debating how best to respond to Trump’s personal attacks, Harris seems to have found a strategy that works for her. Rather than allow the attacks to distract from her message, Harris has chosen essentially to be dismissive of Trump and the comments and tie them back to voters’ desire to “turn the page” from this era of politics.  
• Thus far, the strategy has proven effective, at least in Democrats’ eyes, particularly after Trump’s attempt over the weekend to back out of the planned ABC debate in September. 

Potential  Vulnerabilities: 

• While things are trending well for Democrats, no one expects an easy path to November.  
• Yesterday’s global stock market crash underscores the importance of the economy and the vulnerability of both campaigns to exogenous shocks – economic, national security, or natural (we are heading into the heart of what is expected to be an active Atlantic hurricane season).  While the market looks to be recovering and by all accounts the drop was unrelated to U.S. politics, it is a stark reminder of the fact that there is still a lot outside of Harris’ control that can swing the race.  
• Further, Harris still has to craft her policy priorities, a task that risks losing the newfound enthusiasm from the base and young voters in particular.  She has not been in this position at the national level.  In the Senate, she was a relatively junior member who could not dictate the Senate Democrats’ agenda, and as Vice President, it was President Biden calling the policy shots.  Harris will have to walk the fine line of articulating a message that keeps progressives engaged without scaring off moderates and independents.
• The Israel-Gaza issue also remains a problem that Democrats will have to deal with.  Many expect Harris to be “tougher” on Israeli Prime Minister Benjamin Netanyahu than Biden has been, but most we have spoken with do not think her Israel position will stray out of the Democratic mainstream, which has been increasingly critical of the Israeli government, and calling for a cease fire, return of hostages, and ultimately a two-state solution.  However, most expect more protests at the Democratic Convention in Chicago, akin to those around the U.S. Capitol in July, and on college campuses once classes resume in the Fall. While Democrats point out that these protests do not represent the Democratic Party, rest assured that the Trump Campaign will do all they can to tie Democrats to the most extreme images.  If the conflict in the Middle East escalates, this issue could become even more critical. 

What’s Ahead: 

• The Democrats have enjoyed two good weeks after a very bad month.  Right now, they have momentum; the party is unified behind Harris and she has drawn even in the polls.  While Dems should enjoy more good new cycles following the VP selection and the Convention, no one I have spoken with thinks this race will be easy or is a foregone conclusion. 
• In the weeks ahead, we will see whether Harris’ current momentum is sustainable or merely a “sugar high” from the excitement of Biden dropping out and her rapid rise to the top of the ticket.   

Thanks,

Mike Gilliland
Hogan Lovells US LLP