Washington

Washington Update (Apr. 2, 2024)

Hi everyone. There are 15 weeks of floor time in the Senate before the election (and before the next funding deadline), which creates both an opportunity and big decisions for Senate Majority Leader Chuck Schumer. He can pursue nominees, particularly judges, with a simple majority (and a tiebreaking VP Kamala Harris if necessary) or try to move bipartisan bills which his incumbents are eager to pass ahead of the election.

A big question is whether Republicans have much interest in doing any legislation at this point on the calendar. The Senate trial for DHS Secretary Alejandro Mayorkas — even if quickly dismissed — will take up a couple of days in April. And funding the government will eat up some of the end of September. 

Normally, confirming lifetime judges would be simpler, but Sen. Joe Manchin’s (D-W.Va.) personal filibuster against any party-line judges means Schumer has to run the table in his 51-member caucus to push through anyone who lacks Republican support. Now, that doesn’t happen that often: 87 percent of President Joe Biden’s lifetime judicial nominees have received bipartisan support on the floor. But Biden will probably have to nail any future nominees — and probably find a replacement for embattled 3rd Circuit pick Adeel Mangi — or risk losing the election and the ability to fill some of these seats.

A lot of the vacancies are in GOP territory, which means some need buy-in — aka a “blue slip” — from Republican senators. Sen. Peter Welch (D-Vt.) credited ranking member Lindsey Graham (R-S.C.) with being “pretty constructive” in his talks with Senate Judiciary Chairman Dick Durbin (D-Ill.) on nominees.

Senate Democrats are urging Leader Schumer to bring bills to the floor, including the rail safety bill introduced by Senator Sherrod Brown. Other bills Democrats would like to bring to the floor include legislation to legalize cannabis banking, claw back money from failed bank executives, as well as a farm bill and an FAA bill. There’s also pressure to crack down on TikTok, and plenty of Democrats want more votes on the failed border security deal. There’s also now a bridge to build in Baltimore. Finishing any of those bills will take up a decent amount of floor time. 

Meanwhile, a bipartisan tax agreement is in real trouble, with Senate Republicans feeling snubbed after being left out of the deal between Senate Democrats and the House GOP. 

The 118th House of Representative is notable for its dysfunction. The House GOP’s narrow majority under divided government has resulted in a minimalist approach to governance. Lawmakers complete the essentials of governing (e.g., funding the government and preventing a shutdown) but are unable to reach for more. In this environment, there’s a rising bar for what’s considered “must-pass” legislation. Bills that traditionally would have been considered as such in the past may not meet that threshold now. Calls to rebuild the Francis Scott Key Bridge in Baltimore, MD after its tragic collapse last week highlight this shift in congressional dynamics.

The President announced last week that he would ask Congress to fully fund the rebuilding of the bridge.  Experts have stated that the project could take years and cost at least $400 million. There may not be quick consensus on Capitol Hill to pass emergency funding for Baltimore, however. Rep. Dan Meuser (R-PA) criticized spending additional federal dollars to rebuild the bridge on Fox News last week. After Rep. Mike Gallagher (R-WI) officially departs the House April 19th, less than two weeks after Congress returns to session following its Easter recess, House Republicans will only have one vote to spare. This makes the passage of any legislation difficult as any one lawmaker in the majority can gum up the works. House Speaker Mike Johnson (R-PA) has had to rely on Democratic votes to get major legislation such as FY24 spending bills over the finish line. Rep. Marjorie Taylor Greene’s (R-GA) pending motion to vacate serves as a sword of Damocles for Johnson upon the House’s return, making this approach potentially risky, particularly when it comes to passing a Ukraine aid bill given the opposition to such a measure from Johnson’s right flank.

BATTLE FOR THE CONTROL OF CONGRESS

Americans will elect 471 federal officials in November: 435 members of the House of Representatives, 34 senators, a vice-president and a president. These contests are overshadowed by the impending rematch between President Joe Biden and Donald Trump which will be pitched as a struggle between democracy and autocracy.

Control of the House and Senate, or at least one of the bodies, is crucial for a President to be able to move his agenda. The Senate approves the appointments that the President makes to his Cabinet, ambassadors, all civilian employees of the government who are not covered by another area and, perhaps most importantly, federal judges. In recent decades the Senate hasbecome very aggressive in turning down presidential appointments — especially to the Supreme Court. Getting his nominations confirmed has now become a high priority for any president. 

The Senate can try cases of impeachment, which can dismiss a President for misconduct. Presidents Andrew Johnson and William J. Clinton were impeached by the House but were found innocent of the charges by the Senate and remained President. President Nixon resigned before the House could bring about its impeachment charges.

The Senate also checks the President by having the power to approve or not approve the treaties he makes with other nations. 

The House of Representatives plays a slightly bigger role in “money” bills — taxation and spending — although any such bill has to pass both chambers (still, they must originate in the House).

But then there’s impeachment. The House must pass a bill of impeachment before the Senate can even take up the matter. In past eras, impeachment was never even talked about except in the most extreme cases of presidential misdeeds. However, times have changed to the point in which the party in control of the House of Representatives typically raises the matter, at least as a possibility.

Below is a breakdown of the key races that could determine control of the House and Senate in the upcoming elections.

SENATE

Democrats currently the Senate holding 48 seats to the Republicans 49 seats. There are three independents who caucus with the Democrats giving Democrats a 51-49 majority.

Republicans have settled on nominees in key states as they look to retake the upper chamber, while Democrats are looking at their crop of battle-tested incumbents to carry the year for them. And both sides are focused on Ohio and Montana as the two most competitive contests.

Both sides readily admit West Virginia will fall into the GOP column in November, with Democratic Sen. Joe Manchin’s retirement from the deep red state. That means Republicans only need to flip one other state to control the upper chamber.

Here are the five other Senate seats most likely to flip.

Montan

Republicans are breathing easier after Rep. Matt Rosendale (R-Mont.) ended his Senate campaign, handing the primary to businessman Tim Sheehy and giving the GOP a clearer shot at defeating Sen. Jon Tester is a top target of Republicans who are hopeful they can flip the deeply red state in November. And Sheehy was a top recruit of Senate Republican leaders.

Both campaigns have been on the air for months, with Tester holding a slight edge according to the latest public polling. An Emerson College/The Hill survey released in early March showed Tester with a 2-point advantage over Sheehy, who is steadily building name ID.

Tester also leads by 10 points among independents, while 14 percent of Trump supporters report that they back the three-term Democrat. 

But whether he can overcome the impact of Trump in the state remains a real question. Trump won the state by more than 15 points four years ago, with that margin potentially increasing as President Biden’s standing in the polls has dipped nationwide.

Ohio

Republicans got the last piece of the GOP candidate jigsaw puzzle when businessman Bernie Moreno prevailed in a three-way contest for the right to take on Sen. Sherrod Brown (D-Ohio), who is looking to overcome the state’s increasingly red hue to secure a fourth term in office.

The final weeks saw the race narrow between Moreno and state Sen. Matt Dolan (R), but Trump world and undecided Republicans powered him to a 17-point victory.

For some national Democrats, Moreno, who was endorsed by Trump, is the perfect candidate for Brown to take on this fall — the Senate Majority PAC believed it to the tune of a $2.7 million ad campaign to boost Moreno ahead of the primary. 

Ohio has trended rightward for years, but Republicans aren’t casting doubt on Brown, who has proven to be a difficult opponent for years and is in a strong spot financially.

Arizona

Sen. Kyrsten Sinema’s (I-Ariz.) decision not to seek a second term has removed a lot of the intrigue from the Grand Canyon State, clearing the path for what is expected to be a close race between Rep. Ruben Gallego (D-Ariz.) and Republican Kari Lake.

Sinema’s exit from the race initially boosted Lake’s chances, because the sitting senator was pulling GOP support at roughly double the rate of Democratic voters. It also pushed a number of Senate Republicans, who had stayed on the sidelines out of deference to Sinema’s track record of bipartisan work, to back Lake. 

Still, recent chatter hasn’t been as good for Lake, who was defeated in the 2022 gubernatorial election, as Republicans have grown increasingly bearish about her chances against Gallego.

An Emerson College poll conducted in mid-March showed Gallego receiving 44 percent support and Lake pulling in 40 percent.

Lake’s decision last week not to defend her past statements about an Arizona election official who is suing her for defamation added a layer of doubt.

Republicans are also dismayed that Gallego is already up on the airways in an effort to define himself, and he is doing so unopposed. For a candidate largely considered progressive and not in the mold of Democrats who have won statewide in Arizona, Democrats believe he is doing everything he needs to.

Pennsylvania

The air wars in the Keystone State started in earnest last week as Sen. Bob Casey (D-Pa.) and Republican David McCormick both went up with their first batch of television ads.

McCormick faces an uphill climb to oust the three-term incumbent despite his financial might, but national and state Republicans are pleased with the former Bridgewater Associates CEO’s campaign thus far.

Still, their fears that toppling Casey might be too tall of a task haven’t been fully assuaged.

The GOP operative contrasted McCormick’s route to victory for McCormick to Lake’s in Arizona. For Lake, the hope is to run as close to Trump as possible and pull off a narrow win in a state where margins of victory on either side are slim.

McCormick’s path is much different and would likely mirror what former Sen. Pat Toomey (R-Pa.) pulled off in 2016, when Trump outran him in deep red and rural counties, but he ran strong in the Philadelphia collar counties and earned a 1.5-percentage point win. 

To do that, McCormick must either give Biden supporters a reason to back him, or rely on an unforced error by Casey, who isn’t known for them.

According to the latest survey conducted by Emerson/The Hill, Casey leads McCormick by 4 percentage points. The incumbent Democrat holds that advantage despite Trump topping Biden by the same margin.

Wisconsin 

The entrance of Eric Hovde, a wealthy businessman, into the Wisconsin Senate race is giving the GOP something it hasn’t had since Sen. Tammy Baldwin (D-Wis.) first won her seat 12 years ago: a real chance at defeating her.

According to the latest Emerson/The Hill survey, Baldwin holds a 3-point advantage over Hovde, who is expected to spend in the neighborhood of $20 million of his own money on the contest. Hovde went on the air almost immediately after he announced his campaign and has been running television ads since. 

Republicans are also heartened by some key numbers early on, including that Baldwin is short of 50 percent support in polls and that only 42 percent approve of her work, according to the latest Marquette Law School poll, taken in January. 

Democrats, though, remain confident that Baldwin’s winning ways will continue and that she is doing everything she needs to.

They also constantly point to their ongoing attempt to define Hovde as an out-of-touch carpetbagger who is trying to nab the seat and isn’t “one of us.”

HOUSE

Republicans currently control the House with 218 Members to the Democrats 213. There are vacancies. Rep. Brian Higgins (D-NY) resigned effective 2/2/2024. There have been four recent resignations by Republicans:

Rep. Brian Higgins (D-NY) resigned effective 2/2/2024.

Rep. Bill Johnson (R-OH) resigned effective 1/21/2024.

Rep. Kevin McCarthy (R-CA) resigned effective 12/31/2023.

Rep. Ken Buck (R-CO) resigned effective 3/22/2024

The battle for the House majority is starting to come into focus as more states hold primaries ahead of November. 

With Republicans holding just a slim majority in the lower chamber, several races in these states are headed for contentious, close finishes.

Here are nine House races that will help determine who controls the majority in the lower chamber this fall: 

California’s 13th Congressional District (Potential D Pick Up)

In California’s 13th District, Republican Rep. John Duarte and Democrat Adam Gray are advancing to a rematch.  

Duarte finished roughly 9 points ahead in this year’s primary — but he won the midterms by just a couple hundred votes, the first time in decades that a Republican had won the district. It was also the second closest congressional race in the country that year.

This year, Democrats are banking on Gray pulling ahead.

California’s 22nd Congressional District (Potential D Pick Up)

In California’s 22nd Congressional District, Democrat Rudy Salas advanced to the general election with Republican Rep. David Valadao, setting up a rematch after they went toe-to-toe in a close midterm race. 

Some were worried another Democrat in the running, Melissa Hurtado, would siphon votes from Salas on Super Tuesday and lead to two Republicans moving on to the general election. 

Hurtado ultimately drew 15 percent of the primary vote in the 22nd Congressional District race, but Salas advanced with 28 percent to Valadao’s 34 percent, as of the latest counts from Decision Desk HQ. In the midterms, Valadao beat Salas by just 3 points.

Valadao, who was among the Republicans that voted to impeach Trump, was one of several California Republicans who succeeded in districts that voted for President Biden back in 2020.  

California’s 47th Congressional District (Potential R Pick Up)

In Orange County, Democrat Rep. Katie Porter left her House seat to lodge an unsuccessful bid for the state’s rare open Senate seat. Porter and fellow progressive Rep. Barbara Lee were boxed out of the top two in Super Tuesday’s Senate primary, with Democrat Rep. Adam Schiff and Republican Steve Garvey advancing for a partisan showdown.  

Porter will now be out of Congress next year, leaving her seat in California’s 47th Congressional District up for grabs.  

Democratic state Sen. Dave Min will go up against Republican Scott Baugh as the GOP tries to flip the seat previously held by the progressive lawmaker.

The district is rated “lean Democrat,” but Min finished the primary 7 points behind Baugh, with fellow Democrat candidate Joanna Weiss pulling in nearly 20 percent of the vote. Baugh lost to Porter back in 2022 by about 4 points. 

 Michigan’s 7th Congressional District (Potential R Pick Up) 

Rep. Elissa Slotkin’s (D-Mich.) decision to seek retiring Sen. Debbie Stabenow’s (D) seat leaves her spot in the House up for grabs. 

Republican Tom Barrett, who lost to Slotkin by around 5 points back in 2022, is running again for the seat, while the Democratic Congressional Campaign Committee (DCCC) has backed former Democratic state Sen. Curtis Hertel. 

The midterms race was the most expensive House contest in the country, according to reporting from The Detroit News — and the 2024 race is set to be another competitive battle as both parties set their sights on the opening. 

New York’s 4th Congressional District (Potential D Pick Up)

Rep. Anthony D’Esposito (R-N.Y.) is running in one of the most unpredictable toss-up races in the country this year. His district’s political makeup was generally unaffected by the state’s new congressional map that Gov. Kathy Hochul (D) signed into effect last month, but he still has a considerable challenge to overcome. 

He pulled off a win against Democrat Laura Gillen by more than 3 points, despite Biden carrying the district by almost 15. It was one of the best performances in the country by a Republican in 2022 compared with former President Trump’s performance in the same district two years earlier. 

Gillen is running again and could be poised for a rematch with D’Esposito. With Biden likely to easily carry New York in November, D’Esposito will have to rely on a relatively high number of split-ticket voters as he did two years ago to win a second term. 

New York’s 17th Congressional District (Potential D Pick Up)

Rep. Mike Lawler (R-N.Y.) won a major surprise victory in 2022 when he defeated Rep. Sean Patrick Maloney, the then-chair of House Democrats’ campaign arm, by just over half a percentage point. 

Lawler has sought to build up a reputation as a moderate member of the GOP conference and led the charge to expel Santos for the false claims he made about himself and the criminal charges he faces. 

The win was symbolic and key to Republicans winning the House majority by just a few seats.

He seems likely to face former Rep. Mondaire Jones (D-N.Y.), who previously represented the district but lost a primary in a different district after the maps were redrawn. Jones’s candidacy will give Democrats a familiar face and someone with past fundraising experience. 

The race may be just as tight again despite Biden’s 10-point win in the district in 2020. 

New York’s 22nd Congressional District (Potential D Pick Up)

Of all the potentially vulnerable New York House Republicans this fall, Rep. Brandon Williams (R-N.Y.) may have the most significant uphill battle. 

He won election to his House seat by a point and a half in a district Biden carried by 7 points, but his reelection bid just became a bit more difficult thanks to the updated map. Under the current lines of Williams’s district, Biden would have won it by 11 points, and Williams did not see the same amount of split-ticket voting that was critical in 2022 for D’Esposito in his own district. 

Williams has also endorsed Trump for president in 2024, unlike a few of his fellow New York Republicans, which could give Democrats a clear line of attack in the blue state.

Ohio’s 9th Congressional District (Potential R Pick Up)

Rep. Marcy Kaptur (D-Ohio) has represented her state’s 9th Congressional District for four decades and had a reliable Democratic-leaning constituency throughout much of her career. But Ohio’s redistricting process after 2020 made her district a battleground. 

She was comfortably reelected in 2022 with 56 percent of the vote against Republican JR Majewski, whose candidacy was consumed with controversy surrounding claims he made about his service record. 

Kaptur will likely face an opponent with less baggage this time, which could make it her most difficult campaign yet. 

The district also narrowly voted for Trump by a few points, and the state is very likely to back Trump again this year, so she will need to outpace Biden at the top of the ticket to hang on. 

Winning the district would be a boost to Republicans looking to pad their majority and give themselves some breathing room with other tough battlegrounds in bluer states. 

Oregon’s 5th Congressional District (Potential D Pick Up)

Also on the West Coast, Democrats are looking to take back a seat that flipped into Republican hands for the first time in decades when Republican Rep. Lori Chavez-DeRemer won Oregon’s 5th Congressional District in the midterms.  

Chavez-DeRemer won by two points against Democrat Jamie McLeod-Skinner last cycle, becoming the first Republican woman to represent Oregon in Congress.  

McLeod-Skinner is running again, teeing up a possible rematch ahead of Oregon’s May primary — but Democrats’ House campaign arm has put its backing behind Oregon state Rep. Janelle Bynum instead.  

Bynum has already bested Chavez-DeRemer twice, in two previous races for seats in the Oregon Legislature — and the DCCC hopes the Democrat will “do it again in 2024,” while McLeod-Skinner has expressed frustration with the move.    

TWO MAN CREW

Major freight railroads will have to maintain two-person crews on most routes under a new federal rule that was finalized today in a milestone in rail labor’s long fight to preserve the practice. The Federal Railroad Administration released the details of the rule this morning after working on it for two years. Out of more than 13,000 comments on the rule, about 60 opposed it.

The final rule codifies train crew staffing rules at a federal level, ensuring that freight and passenger rail operations are governed by consistent safety rules in all states. This is an on-going issue as Ohio, Virginia, and Colorado, among others, have recently considered legislation to require two-person rail crews. In addition, the final rule contains some differences from the initial notice of proposed rulemaking in how it treats freight railroads, especially Class II and III freight railroads. In limited cases, the rule permits exceptions for smaller railroads to continue or initiate certain one-person train crew operations by notifying FRA and complying with new federal safety standards. 

The final rule as submitted to the Federal Register can be viewed here.  

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Mar. 5, 2024)

Hi everyone and Happy Super Tuesday! Sixteen states will head to the polls today to vote in presidential primaries. While former President Trump and President Biden are on a collision course for a rematch in November, Tuesday’s results will allocate enough delegates to solidify that reality. The expected general election rematch between  Biden and Trump is roughly eight months away, but the starting gun for the marathon campaign will go off this week.

Trump will have all but secured his party’s nomination after Super Tuesday, and Biden will use Thursday’s State of the Union address as a springboard to offer up a vision for a second term to millions of Americans before traveling in the days after the speech to battleground states Pennsylvania and Georgia.

Both men and their campaigns see it as being in their respective best interests for the general election cycle to kick into gear as quickly as possible, albeit for different reasons.

Trump and his team are ready to fully move on from nagging questions about Nikki Haley winning thousands of votes in the GOP primary, and the Trump campaign is eager to fully merge with the Republican National Committee (RNC) so it can bolster its lagging fundraising.

The former president’s team has projected he will secure the 1,215 delegates needed to become the presumptive nominee by March 19 at the latest.

Once Trump is the presumptive nominee, his campaign can more formally merge with the Republican National Committee (RNC), opening joint fundraising opportunities, allowing them to share data and other resources, and potentially cracking the door to the RNC helping with Trump’s legal bills.

Recent polling has shown Trump ahead of Biden in key swing states like Michigan, Arizona and Georgia, with Biden ahead in Pennsylvania and the two candidates neck-and-neck in Wisconsin.

CONGRESS

The big news out of Congress last week was Senator Mitch McConnell (R-KY) announcing that he would be stepping down from his role as Minority Leader in November — a move that surprised many members of his own party. Now, Senate Republicans are discussing whom they should put forward as their next leader as three potential candidates have emerged: Sens. John Thune (R-S.D.), John Cornyn (R-Texas) and John Barrasso (R-Wyo.).

Sen. Markwayne Mullin (R-Okla.) has advised Trump to stay out of the leadership race to succeed McConnell.

Also, Congressional leaders on Sunday finally revealed long-awaited bipartisan bills to fund parts of the government for most of the year, setting off a bicameral sprint to avert looming shutdown threat in less than a week.    

The weekend rollout entails six full-year spending bills to fund a several agencies until early fall, including the departments of Agriculture, Interior, Transportation (DOT), Housing and Urban Development (HUD), Veterans Affairs (VA), Justice (DOJ), Commerce and Energy.   

Lawmakers have until Friday to pass the legislation or risk a partial government shutdown under a stopgap plan President Biden signed into law this week to buy more time for spending talks.    

The Republican-led House and Democratic-led Senate entered negotiations with vastly different bills this year, as House Republicans pursued much more partisan measures with steep cuts to government funding that went beyond budget caps agreed to as part of the debt limit deal brokered between President Biden and Speaker Kevin McCarthy (R-Calif.) last year.  

Senate Majority Leader Chuck Schumer (D-N.Y.) said upon the package’s unveiling on Sunday that the party both sides were able to reach a funding compromise that will “the government open without cuts or poison pill riders.”  

TRANSPORTATION APPROPRIATIONS BILL

 On March 3 House and Senate Appropriations Committee leaders released the final, bipartisan Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2024 as part of a “minibus” bill of six appropriations acts which the House is expected to consider March 6.

 The final, bipartisan THUD Appropriations Act “provides the overwhelming majority” of public transit and passenger rail investments authorized in the Infrastructure Investment and Jobs Act (IIJA).

 The THUD Appropriations Act provide $16.3 billion for passenger and freight rail in FY 2024, which is $383 million (or 2%) less than the FY 2023 enacted level. This total funding represents 80% of the amount authorized in the IIJA. The THUD Appropriations Act and IIJA provide a total of $16.3 billion for passenger rail investments, including:

• 7.3 billion for Federal-State Partnership for Intercity Passenger Rail grants;
• 6.8 billion for Amtrak grants ($4.5 billion for National Network grants and $2.3 billion for the Northeast Corridor);
• $1.2 billion for Consolidated Rail Infrastructure and Safety Improvement (CRISI) grants (including $99 million for specific Congressionally directed CRISI projects); and
• 600 million for Railroad Crossing Elimination grants.

• Within Amtrak National Network funding, the THUD Appropriations Act provides up to $66 million for corridor development activities and $40 million to improve Chicago Union Station’s concourse and related infrastructure.

The THUD Appropriations Act authorizes CRISI grants for commuter railroad projects that implement or sustain positive train control systems. It also authorizes CRISI grants for passenger rail planning and project development activities (e.g., preliminary engineering).

The THUD Appropriations Act and IIJA provide $1.8 billion for Rebuilding American Infrastructure with Sustainability and Equity (RAISE) competitive grants for surface transportation projects, including public transportation and multi-modal projects. The bill sets aside five% of these funds for grants for historically disadvantaged communities or areas of persistent poverty.

FEDERAL RAILROAD ADMINISTRATION

Newly released data from the Federal Railroad Administration (FRA) shows  that overall rail safety improvements have made the past decade the safest ever for rail.

Specifically, train accident rates are down 27% since 2000 and 6% since 2022, according to the data.

Notable employee safety statistics include:

• For all railroads, on-duty fatalities declined 71% since 2000 and reached an all-time low in 2023.
• For Class I railroad employees, the rate of injuries and fatalities has dropped by 63% since 2000 reaching an all-time low in 2023.

Analysis of 2023 FRA data per million train miles indicates:

• For all railroads, the derailment rates have dropped 30% since 2000.
• Per carload, the hazardous materials (hazmat) accident rate is at its lowest ever and down 75% since 2000 based on preliminary data.
• Class I railroads’ mainline accident rate is down 42% since 2000 but increased slightly compared to 2022.
• Class I railroads decreased yard accident rate per million-yard switching miles by 11%, reversing last year’ increase.

Year-over-year human error and equipment-caused accident rates both improved, decreasing 18% and 31% respectively since 2000. Although the track-caused rate increased slightly since 2022 underscoring the need for continued action, it remains down 50% since 2000.

 TWO MAN CREW

As the federal government considers requiring two crewmembers on all trains, similar legislation to increase rail safety statewide passed both chambers of the Virginia General Assembly. 

Last year’s Norfolk Southern Railway Company train derailment in Ohio – which caused some cars to catch fire and spill dangerous materials, with some infiltrating local waterways – sparked the state legislation and a greater focus on railway safety standards.

Del. Shelly Simonds, D-Newport News, and Sen. Jennifer Carroll Foy, D-Prince William, carried the measure successfully, which is now headed to the governor for his signature. With the governor’s signature, Virginia would join states such as Arizona, Colorado, Kansas, New York, and Ohio to reform rail safety efforts. 

Under the legislation, no railroad company will be able to operate a train, locomotive or light engine by moving freight without at least two qualified individuals aboard. The bill carries a civil penalty of up to $2,000 for the first violation and $5,000 for three or more. 

The legislation was amended, cutting regulations on the train length. The legislation would not apply to using a train, locomotive, or light engine for moving locomotives or for utility services. 

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Feb. 14, 2024)

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Feb. 5, 2024)

Hi  everyone. Since returning in early January Congress has been very busy. Last week, the House passed a sweeping tax bill  on a strongly bipartisan, 357-70 vote. The Tax Relief for American Families and Workers Act mixes business tax breaks with an expansion of the child tax credit. In a historically unproductive Congress, lawmakers’ vote to approve the $78 billion measure was a rarity. The bill now heads to the Senate where the timing for a vote is unclear. Majority Leader Chuck Schumer told reporters he would confer with tax writers on next steps. Before the House vote Wednesday, Senate Finance Committee Chairman Ron Wyden said a strong bipartisan vote in the House could spur the Senate to move more quickly.

Also, over the weekend the Senate unveiled its national security supplemental appropriations bill. A final vote on the measure could come on Wednesday. The measure includes $60 billion for Ukraine, $14 billion for Israel, $2.5 billion to support operations related to the conflict in the Red Sea, $10 billion in humanitarian aid to Gaza and other hot spots, $2.3 billion for refugees from Ukraine and other areas, and $20 billion for enhanced border security, plus the border policy fixes negotiated by Sens. Chris Murphy, Kyrsten Sinema, and James Lankford. House Republicans have already announced their opposition to the bill, primarily because former President Trump wants to use immigration as a  campaign issue and has urged his Congressional Republicans to oppose the bill. As if to underscore the House GOP’s opposition to the catchall package, Johnson announced in that the House would vote this coming week on a standalone $17.6 billion bill to aid Israel.

RAIL SAFETY LEGISLATION

There has been no movement on the rail safety bill introduced by Sen. Sherrod Brown (D-OH) early last year. With the new year here and the one-year anniversary of the Feb. 3 Norfolk Southern train derailment just over a month away, legislation to avert a similar rail disaster has slowed. Introduced March 1 2023 , by Senators Brown and J.D. Vance, R-Ohio,  in response to the derailment and toxic chemical release, the Railway Safety Act of 2023 still awaits a vote on the floor 11 months later.

The bill would enhance and strengthen rail safety and mandate, among other things, wayside defect detectors, two-person crews and increased fines against rail carriers. It would also grant the Department of Transportation the authority to institute and modify new safety requirements and procedures for trains carrying hazardous materials like vinyl chloride.

So far, the rail industry has pushed back at significant provisions in the bill, particularly the two-person crew requirement. The American Association of Railroads (AAR) released a statement May 10, the day the Senate Commerce Committee voted to advance the Railway Safety Act, saying that the bill “falls short of its goal to rectify a current safety challenge.” The AAR stated that “challenges remain with certain provisions, including those that mandate crew staffing models, expand hazmat transportation operating requirements, micromanage detector networks, and unnecessarily broaden manual inspections.”

Norfolk Southern CEO Alan Shaw, who has embraced parts of the bill, has been an outspoken critic of the two-person crew requirement, citing no link between safety and crew size and pointing out that the train that derailed in East Palestine had three crew members on board.

On the state level, Ohio Gov. Mike DeWine made two-person crews mandatory for all trains that transport commodities through the state when he signed the $13.5 billion state transportation budget in March. On June 29, the day before the rule was to go into effect, the rail industry pushed back when the AAR filed suit in U.S. District Court to block the provision, arguing jurisdiction of the U.S. railways is exclusive to federal agencies.

Senator Brown has stated that he is continuing to push Majority Leader (Chuck) Schumer to bring this bill to the floor and is making the case to his Senate republican to pass the legislation. The last time federal legislation addressed railway safety was with the Railroad Safety Improvement Act of 2008. That law mandated such things as hours-of-service requirements for railroad workers, positive train control implementation, standards for track inspections, certification of locomotive conductors and safety at highway-rail grade crossings. A series of hazardous train disasters which resulted in a combined 13 deaths and made hundreds ill was the catalyst to that legislation, but that was 15 years ago.

ELECTIONS UPDATE

Nevada Republicans have the chance to vote in both a primary and a caucus this week though the outcome is already certain: Former President Trump will secure the state’s 26 delegates, as the only major candidate in the party-run caucuses. Haley is competing in Tuesday’s primary as the only major candidate on the ballot, but her foregone primary victory is only symbolic because the state GOP defied “the will of the Democratic-controlled state Legislature by hosting an exclusively in-person caucus on Thursday, awarding the winner 100% of the delegates. Haley has vowed to stay in the race through Super Tuesday, but she did not yet commit to continuing through the Republican National Convention in July. She has said that she does not need to win South Carolina, but she needs to perform better than she did in New Hampshire. Haley has 10 fundraisers scheduled over the next two weeks, including in California, Florida, New York, and Texas.

President Biden starts this week in Las Vegas, the last stop in a two-day trip to California and Nevada. After returning to the White House tonight, on Tuesday he will hold a reception to mark Black History Month. On Wednesday, he will go to New York City for three campaign fundraisers before returning to Washington in the evening. On Thursday, he will take the short trip to Leesburg, Virginia, to speak at the House Democratic Caucus Issues Conference. On Friday, he will meet with German Chancellor Olaf Scholz at the White House.

Sitting on a huge amount of money, the president’s campaign teams are now looking to deploy it.  Future Forward, the main super PAC backing his reelection, reserved $250 million in advertising across the most important battleground states, a blitz that it says is the largest single purchase of political advertising by a super PAC in the nation’s history. The group is splitting the funds, $140 million on television and $110 million on digital and streaming platforms and will start airing ads the day after the Democratic National Convention through Election Day.

The Biden campaign is also trying to arrange a spring fundraiser in which Biden, Bill Clinton, and Barack Obama would appear together.

RAIL SAFETY ACTIONS BY THE ADMINISTRATION

In 2023, the Department of Transportation deployed a historic level of infrastructure funds for programs including the Consolidated Rail Infrastructure and Safety Improvements (CRISI) program, the new Railroad Crossing Elimination (RCE) program, and Railroad Rehabilitation & Improvement Financing (RRIF) program to modernize and upgrade rail infrastructure, including track improvements, bridge replacements and rehabilitations, highway-rail grade crossing eliminations, at-grade rail crossings, upgrades on routes carrying hazardous materials, support for workforce development and training activities, and more.  These federal investments address long-standing rail needs and support communities nationwide by moving people and goods safely, efficiently, reliably, and conveniently.  

• Through the first ever Railroad Crossing Elimination Program, DOT awarded $570 million to 32 states to eliminate or improve more than 400 at-grade crossings—making our roads and railways safer, while also helping countless Americans save time on their commutes.  Award information is available here: https://railroads.dot.gov/elibrary/railroad-crossing-elimination-rce-program-program-fy2022-selections. 
• In September 2023, through the Consolidated Rail Infrastructure and Safety Improvements (CRISI) program, DOT made passenger and freight rail safer, more efficient, and more reliable, awarding $1.4 billion to 70 projects. https://railroads.dot.gov/elibrary/fy-2022-consolidated-rail-infrastructure-and-safety-improvement-program-selections-project. 
• In November 2023, FRA announced $16.4 billion in grant awards under the Federal-State Partnership for Intercity Passenger Rail Program to support 25 passenger rail projects of national significance along the Northeast Corridor, the nation’s busiest passenger rail corridor. Information on these awards is available here: https://railroads.dot.gov/elibrary/fy22-23-FSP-NEC-fact-sheets.     
• In December 2023, FRA announced $8.2 billion for grants for 10 passenger rail projects across the country to be awarded through the Federal-State Partnership for Intercity Passenger Rail Program – National. More details on the awards are available here: https://railroads.dot.gov/elibrary/fy22-23-FSP-National-rail-program-project-fact-sheets.    
• Also in December 2023, FRA announced the selection of 69 proposed passenger rail corridors in 44 states through the Corridor Identification and Development Program, another Bipartisan Infrastructure Law mandate. More information is available here: https://railroads.dot.gov/elibrary/fy22-CID-program-selections.     

Holding Railroads Accountable: 

• Focused Inspection Programs: FRA initiated multiple inspection programs in 2023 and completed a focused review of tank cars transporting hazardous materials. FRA also completed the field work for its high hazard flammable train (HHFT) route assessment, a focused inspection and investigation program encompassing approximately 7,500 inspections to assess the condition of track and signal and train control infrastructure, equipment, and operating practices along HHFT routes and routes where large quantities of hazardous materials travel. This program in total inspected over 40,000 freight cars, 76,888 miles of track (87% were on routes over which hazardous materials are transported), and thousands of wayside detectors on over 25 different railroads. FRA is taking action based on these finding, and the inspections completed are prompting railroads to take corrective actions to increase safety. The results are available here. 
• Safety Assessment of Norfolk Southern: FRA conducted a supplemental safety assessment of Norfolk Southern’s safety culture and safety practices. FRA is in the process of conducting comprehensive assessments of the safety culture, practices, and regulatory compliance of each Class I railroad. FRA also is assessing issues, trends, and commonalities across the multiple railroads reviewed. 
• Rail Worker Confidential Close Call Reporting System: Secretary Buttigieg pressed them, and all Class I freight railroads agreed to participate(link is external) in the Confidential Close Call Reporting System (C3RS) for rail employees to help identify and better prevent safety issues. FRA has held a series of meetings encouraging Class I freight railroad participation, Nearly a year after, Norfolk Southern just announced they would be joining a pilot program C3RS with some of their workers. No other Class I railroad has. FRA is still pressing the issue and expects the Class 1 railroads will make good on their commitment. 
• DOT put Norfolk Southern on notice(link is external) for needed safety reforms and called for an end to the rail industry’s “vigorous resistance” to increased safety measures, which in the past has included lobbying and litigation to kill commonsense rail safety reforms.   

Raising Rail Safety Standards: 

• Two-Crew rule: FRA is pushing forward the final rule that would address the potential safety impact of one-person train operations, including appropriate measures to mitigate an accident’s impact and severity. Specifically, this rulemaking would address the issue of minimum requirements for the size of train crews, depending on the type of operations.  The proposal is available here.  
• Certification of Signal and Dispatcher Employees: FRA is pushing forward rulemakings that would require railroads to develop written programs for certifying dispatchers and signal employees.  
• Emergency Escape Breathing Apparatus NPRM: FRA issued a Supplemental Notice of Proposed Rulemaking that would require railroads to provide emergency escape breathing apparatus to train crews and other employees when transporting certain hazardous materials. 
• Calling for rail industry and Congress to step up. DOT is pressing for passage of the Bipartisan Railway Safety Act, which would phase in newer, safer tank cars, increase fines against railroads for safety violations, require defect detectors, expand the list of hazardous materials that qualify for strict safety precautions, and more.  
• Advisory on Long Trains: FRA issued a Safety Advisory to increase awareness of the potential complexities associated with operating longer trains and urged railroads to address them to ensure safety. The advisory also highlights several safety risks relating to blocked crossings, notably the impacts blocked rail crossings can have on first responders as they work to address emergencies and reach people in need. 
• Advisory on Train Makeup: FRA issued a Safety Advisory calling on freight railroads to prioritize proper train makeup and provided recommendations to improve train safety and reduce the risk of future accidents. The advisory makes clear that railroads need to take proactive measures to ensure the configuration of railcars and the loading of cargo is performed safely and railroad workers are supported and trained fully to ensure safety. The configuration of railcars and how cargo gets loaded can be critical to the risk of derailment.  
• Advisory for Tank Car Covers: USDOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) acted on initial findings from the NTSB investigation into the Norfolk Southern derailment in East Palestine, and issued a Safety Advisory for tank car covers.  
• Advisory on Tank Car Type: PHMSA released a Safety Advisory pressing rail tank car owners and hazmat shippers of flammable liquids to remove their DOT-111 and CPC-1232 tank cars and replace them with DOT-117 tank cars. The incident in East Palestine, OH, demonstrated that DOT-111 and CPC-1232 tank cars do not perform at the highest level of survivability during derailments and fires, unlike the DOT-117 tank cars.    
• Advisory for Hot Bearing Detectors: FRA urged railroads using hot bearing detectors (HBDs) to evaluate their inspection process, prioritize the proper training and qualification of personnel working with HBDs, and improve the safety culture of their organizations related to HBDs decision-making. The full advisory can be found here. 
• Safety Advisory on Roadway Maintenance Machines: FRA issued a Safety Advisory to emphasize the importance of rules and procedures regarding the safety of roadway workers who operate or work near roadway maintenance machines. The advisory recommends reviewing and updating rules regarding the safety of roadway workers who operate or work near these machines. 
• Safety Bulletin on Hand-Operated Main Track Switches: FRA issued a Safety Bulletin to emphasize the importance of ensuring safe operations of hand-operated main track switches. FRA is investigating an April 16 train collision and derailment involving a misaligned switch that resulted in serious injuries to crew members.      
• Safety Bulletin on Car Switching Hazards: FRA issued a Safety Bulletin to increase awareness of the hazards relating to switching cars. FRA is investigating a recent switching accident that resulted in a crewmember leg amputation. 

Supporting First Responders and Rail Workers: 

• Sick leave:  Since the Administration has pressed railroads to provide paid sick leave for railroad workers, more than 88 percent of railroad workers now have paid sick leave. 
• Funding Hazmat Rail First Responders: In September 2023, PHMSA announced more than $30 million to support firefighters, and local hazardous materials safety planning and response efforts. These grants help train first responders, strengthen safety programs, improve general safety, reduce environmental impacts, and educate the public on local safety initiatives. In recent years thousands of responders nationwide have received training thanks to this program, including 2,500+ responders in 137 different locations in Ohio. 
• Advanced Notifications: Recently, (PHMSA) proposed a new rule to require railroads to always maintain — and update in real-time — accurate, electronic information about rail hazmat shipments in a train consist that would be accessible to authorized emergency response personnel. Railroads would also be required to proactively “push” that information to authorized local first response personnel as soon as the railroad is aware of an accident involving any hazardous materials.   
• Opening an expanded HAZMAT training facility: This week, PHMSA is holding a ribbon cutting to expand its National Training and Qualifications Branch (NTQB) facility. This expansion will allow PHMSA to train more first responders than ever before — increasing throughput by 150%. Since 2013, this national training facility has trained thousands of pipeline and hazardous materials transport investigators, inspectors, and staff, as well as other hazardous materials safety professionals, and first responders from around the United States and around the world. 
• Advisory for Emergency Response Plans: PHMSA urged all railroad operators to create and maintain emergency response plans for the transport of hazardous materials, strengthen the accessibility of the AskRail system that provides real-time information on shipments to first responders, and inform PHMSA when they identify responders who are not able to access PHMSA’s grant-funded training. The full advisory can be found here. 
• Advisory for 9-1-1 call centers: PHMSA encouraged 9-1-1 call centers to use technologies such as the AskRail application that provide critical information to first responders regarding rail incidents. The advisory is available here.

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Dec. 6, 2023)

Hi everyone. For better or for worse Congress is currently in session but will soon recess for the Christmas break. A spending deal may be reached before the end of the year, but that does not mean a drama-free December in Congress. It has been an eventful last few days with the expulsion of George Santos from the House, the announcement by Kevin McCarthy that he is resigning from Congress, and Senator Tommy Tuberville’s (R-AL) release of his hold on the confirmations of several hundred of all military nominations. In the House, Republicans are trying to drum up support to move forward on a Biden impeachment inquiry regardless of having no evidence, none, of any wrongdoing by the President. The House plans to hold a formal vote next week to authorize the on-going impeachment inquiry into President Biden. 

Outside the impeachment farce, Members’ attention for the rest of the month will primarily be on three separate legislative packages: the FY24 National Defense Authorization Act (NDAA), the national security supplemental, and reauthorizing the Federal Aviation Administration’s (FAA) funding authority. Of these bills, the NDAA is the closest to completion with votes in the Senate beginning at the end of this week. Negotiations on the package are down to the last issues between leadership and appear close to being resolved. 

On the other end of the spectrum, the national security supplemental seems in danger of falling apart as Republicans insist that their border security reforms are included as a prerequisite to providing aid for Ukraine and Israel. Senate Republicans blocked the bill from moving forward in the Senate today. The vote was 49-51. 60 votes are needed in order to bring the bill up for consideration. 

 Finally, while passing an FAA reauthorization bill by the end of the year may be difficult, there is potential for progress in the Senate, which has yet to vote the bill out of committee. At the end of last week, members involved in the negotiations indicated that a deal may be reached soon enough to allow for a markup of the legislation this week. 

Beyond these three packages, it is hard to envision any other legislation passing Congress before the end of the year, which likely means that efforts to secure even a narrow bipartisan tax package will have to wait until broader tax reform legislation in 2025. 

FIVE SENATE SEATS AT MOST RISK FOR DEMOCRATS 

Sen. Joe Manchin’s (D-W.Va.) decision to retire has made the Senate landscape in 2024 even more complicated for Democrats. Dems were already facing an uphill battle to hold on to its Senate majority, as it prepared to protect seats in West Virginia, Montana and Ohio — three states where the GOP nominee for president will be heavily favored.

Manchin’s name on the ballot suggested a competitive race. Without him, the Senate seat will likely go to a republican. Losing the state would leave no room for another loss for Democrats if they hope to keep their majority, which now stands at 51-49 with Independent Sen. Kyrsten Sinema (Ariz.) voting with Democrats.

Still, Dems are hopeful it can carry the day even as a recent run of polls show former President Trump, the frontrunner for the GOP presidential nomination, leading President Biden. Trump’s rise has given a major boost to Republicans, who believe they can win not only in red territory, but purple states as well if that stays true a year from now.

Here are the five Senate seats most likely to flip.

West Virginia 

The decision by Manchin — who was considered by most, if not all, to be the only Democrat with a prayer to keep the seat blue — virtually guaranteed West Virginia will go red next year and put Republicans one step closer to retaking the majority.

Manchin’s decision not to seek a third full term in office came as he was staring down a tough match-up with West Virginia Gov. Jim Justice (R) and had seen his favorable polls dip. 

Justice is the heavy favorite to win the GOP primary over Rep. Alex Mooney (R-W.Va.), who is backed by the Club for Growth. Former President Trump last month threw his weight behind Justice.

Montana 

With Manchin out of the way, the battle for the Senate majority truly boils down to two states, and Republicans hope to to oust Sen. Jon Tester (D-Mont.) and put Montana in their own column.

Like Manchin, Tester is widely considered the lone Democrat with a chance in Montana, a state Trump won by 16 points. But he, too, has a mountain to climb. He is expected to face Tim Sheehy, a highly sought GOP recruit, in a presidential election year expected to feature Trump atop the ballot.

Tester isn’t a stranger to outperforming presidential nominees, having won by nearly 4 percentage points in 2012 while then-President Obama lost the state by nearly 14 points. But times have changed, and Trump remains a dominant figure in ruby-red territory such as Montana. 

Tester is already up across the state with TV ads — a necessity, especially as Sheehy has been on the air since the summer as he seeks to introduce and define himself to voters. 

Ohio

Ohio Democrats haven’t seen many wins in the past decade, but that changed earlier this month when voters codified abortion rights into the state’s constitution. That gave Democrats a major shot in the arm as they look to follow suit next year and secure Sen. Sherrod Brown(D-Ohio) a fourth term. It won’t be easy. The political transformation of Ohio from the swingiest of swing states as recently as 2012 to reliable territory for Republicans is unmistakable.

Nevertheless, the Issue 1 vote that saw 56 percent of voters cement abortion rights is a blow to the  state’s Republicans. Ohio Secretary of State Frank Larose (R) one of the leading Senate candidates alongside businessman Bernie Moreno, has had a particularly difficult stretch. A GOP-led effort to raise the vote threshold needed for referendums failed earlier this year, and he had a lackluster third-quarter fundraising report.

LaRose and Moreno are considered the leading contenders for the primary nomination, but the main question at this point is whether Trump weighs in with an endorsement. The former president did just that two years ago and helped push Sen. JD Vance (R-Ohio) over the top in a six-way race. 

Arizona

The National Republican Senatorial Committee rolled out a new ad with the goal of lifting incumbent independent Sen. Kyrsten Sinema among Democratic voters and taking a sledgehammer to Democratic candidate Rep. Ruben Gallego all in a bid to raise Republican candidate Kari Lake’s standing with Republicans. Nearly a quarter of all GOP voters would back Sinema, according to a recent poll prompting Republicans to attempt an early softening of that group. 

Important things to watch in this race include whether Sinema sticks with her independent campaign or drops out entirely, and whether Lake continues to stick to the less-bombastic message she’s rolled out in the early stages of her campaign. 

The poll released earlier this month showed Gallego leading with 39 percent support, followed by Lake and Sinema with 33 and 29 percent backing, respectively. 

Pennsylvania

Sen. Bob Casey (D-Pa.) is likely facing his toughest reelection fight yet this year as he stares down a contest against David McCormick in one of the few match-ups that is virtually set in stone. 

McCormick has essentially cleared the field in a primary, giving him a free runway ahead of next November. That’s a far cry from what he encountered last year when he lost to Mehmet Oz in a razor-thin primary. 

Adding to the Democratic nerves is Trump’s standing as he leads President Biden in a recent wave of polls. The ability for Trump to pull off a 2016 reprisal in Pennsylvania would also do wonders for McCormick, who will likely attempt to replicate former Sen. Pat Toomey’s (R-Pa.) victory in the same year. Toomey nabbed a second term by riding Trump’s coattails in the rural counties and peeling off enough votes in the suburbs. 

2023 ELECTIONS

The 2023 elections are behind us and, overall, democrats did much better than expected. It was a very good election for democrats in a year that has seen President Biden’s approval rating continue to slide in battleground states. Nonetheless, it is difficult to say whether this year’s contests  tells us much in the way of what to expect in the 2024 elections. 

The big results from November’s elections:

• Kentucky Gov. Andy Beshear (D) turned aside a challenge from Trump-backed state Attorney General Daniel Cameron (R) relatively easily in a red state

• Ohio became the latest red-leaning state to vote in favor of abortion rights on the ballot — and by a large margin. It passed Issue 1, enshrining the right to abortion into the state constitution. The pro-abortion-rights position has now won on all seven state ballot measures since Roe v. Wade was overturned in mid-2022. Turnout was also strong in Ohio, suggesting this issue continues to animate voters.

• Democrats not only avoided a potential GOP takeover of the Senate in much-watched Virginia but they actually flipped the state House, taking full control of the legislature.

Democrats are on a bit of a roll. They clearly won in 2018 and 2020 and, in 2022 after Roe fell, had one of the best midterms for a president’s party in modern history. Democrats continued to significantly over-perform their 2020 presidential margins in special elections and other races throughout 2023.

Youngkin and Virginia Republicans campaigned hard on what they reasoned was a more palatable 15-week abortion ban (as opposed to a total or 6-week ban), after antiabortion GOP hard-liners struggled mightily in 2022. It didn’t work.

Democrats also won a Pennsylvania state Supreme Court race in which they sought to emphasize abortion rights.  While the race wasn’t determinative for control of the court, it echoed Democrats running and winning on the issue in a vital state Supreme Court race in another swing state earlier this year: Wisconsin.

The Ohio result is worth emphasizing for a couple other reasons. Republicans had sought a workaround to defeat the measure in August: raising the threshold for passing ballot measures to 60 percent. So voters effectively rejected the GOP’s position by large margins twice.

RAIL SAFETY LEGISLATION

Unfortunately, the prospects for rail safety legislation moving forward in Congress tin the waning weeks of 2023 appear dim, given other pressing national issues. Still, labor is pushing hard for the Senate to take up the bill before the end of the year. Below is a letter TTD sent to Senate leaders on December 1 urging them to schedule a floor vote on S. 576, Senator Sherrod Brown’s rail safety bill, as soon as possible.

December 1, 2023

The Honorable Chuck Schumer
Senate Majority Leader
United States Senate
Washington, D.C. 20510

The Honorable Mitch McConnell
Senate Minority Leader
United States Senate
Washington, D.C. 20510

Majority Leader Schumer and Minority Leader McConnell:

On behalf of the Transportation Trades Department, AFL-CIO (TTD), representing the totality of U.S. freight rail workers, I urge you to reach a time agreement to schedule a Floor vote on S. 576, the Railway Safety Act of 2023, and allow amendments to be offered to the legislation and voted on by the full Senate. We recognize that the House’s Speakership change and delays in passing appropriations bills to keep the government open this fall has delayed Senate action. Given the importance of the issue, we echo the urgency of Senators Brown, Vance, Fetterman, and Casey of bringing this rail safety legislation to the floor for consideration.

Sadly, yesterday marked 300 days since Norfolk Southern’s toxic train derailment that devastated the lives and livelihoods of the East Palestine, Ohio community and surrounding communities in Pennsylvania and Ohio. Many residents were forced to abandon their homes and still fear the long-term environmental impacts. From the 1989 Exxon Valdez oil spill to the 2014 Elk River chemical plant spill, corporate environmental disasters have spurred federal safety reforms. Congress’s inaction now is inexcusable.

The East Palestine derailment is a result of the freight rail industry’s corporate greed, driven by the adoption of the profit-seeking Precision Scheduled Railroading business model. As the freight rail industry has maximized profits in recent years, it has minimized rail safety by laying off 45,000 workers who performed safety tasks. The workers that we represent experience this stark truth everyday: the industry is unsafe for them and for surrounding communities. In fact, there are over 1,000 freight train derailments a year. Since East Palestine, there have been at least 108 train derailments in 41 states and several worker deaths. Last week, there was a CSX train derailment in Livingston, KY that forced evacuations.

Still, the freight rail industry resists any voluntary safety measures and retaliates against workers who report safety concerns. Congress must mandate rail safety reforms by passing robust legislation. This bill was explicitly designed to address the factors that may have caused the East Palestine derailment. Since then, investigations by the National Transportation Safety Board (NTSB) and other derailments have highlighted additional necessary rail safety improvements, including track inspections and ensuring the safety of rail workers in the right-of- way. Amendments are an opportunity to address these points and show your constituents where their elected representatives stand on the urgent issue of rail safety.

Additionally, our nation’s fire fighters and emergency medical responders urgently need Congress to increase its investment in hazardous materials response training. While the Department of Transportation (DOT) currently provides some support for this training, there is an overwhelming demand that exceeds the available resources. The East Palestine incident shows that our first responders must have the training and equipment to protect lives. S. 576 provides critical increases in funding levels to ensure more fire fighters and emergency responders can access training programs from the DOT and its partners.

Every day that passes without congressional action is another day that communities are at risk of toxic train derailments. Now is the time for action on rail safety. I urge you to reach a time agreement to bring up S. 576 for consideration and allow amendments to be considered and voted on by the Senate.

Sincerely,

Greg Regan, President
Transportation Trades Department, AFL-CIO

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Nov. 6, 2023)

Thanks,

Mike Gilliland
Hogan Lovells US LLP

Washington Update (Oct. 17, 2023)

Hi everyone, as I write this memo on the afternoon of Tuesday October 17, the circus that is the House Republicans continues on. The House Republicans latest nominee for Speaker, Rep. Jim Jordan (R-OH-4th), failed to get the 217 votes he needed to clinch the position during Tuesday’s first ballot, with 20 GOP votes against him. The House recessed immediately after the vote concluded, and Jordan’s office vowed that another ballot would take place Tuesday. The pause will apparently allow Jordan to meet with some of the 20 Republican holdouts to try and bring them into his camp before voting again. This will also allow sorely divided Republicans to regroup in private away from the House floor and potentially consider their strategy. Many Jordan allies had predicted it could take multiple ballots, but it’s unclear if they’ll be able to flip enough holdouts in subsequent votes.

It’s also possible that Jordan could lose rather than gain support. For example, Rep. David Joyce (R-Ohio-14th), who eventually voted for Jordan on the first ballot, didn’t commit to backing him on a second one.

The Republicans who bucked Jordan are largely in three categories: those in vulnerable districts, defense hawks with concerns about military spending and appropriators wary of Jordan’s history of voting against spending bills. Seven voted for Majority Leader Steve Scalise (R-La.), who had dropped his bid for the gavel, six voted for former Speaker Kevin McCarthy and various others voted for Majority Whip Tom Emmer (R-Minn.) and Reps. Mike Garcia (R-Calif.), Tom Cole (R-Okla.), Thomas Massie (R-Ky.) and former Rep. Lee Zeldin (R-N.Y.).

But the biggest common theme among the detractors is a deep distrust for the Freedom Caucus-aligned wing of the GOP, which has wreaked havoc on their conference since January. Most Republicans backed Jordan, but he can only afford to lose four votes from his own party given unified Democratic opposition.

While Jordan’s closest allies said they were prepared for multiple rounds of ballots and projected confidence that they could swing holdouts, some Republican members believe he may not have the deep backing to last the 15 ballots it took McCarthy back in January.

And on it goes.

FRA ANNOUNCES RAIL IMPROVEMENT PROJECTS

The Federal Railroad Administration (FRA) announced several days ago that it has invested more than $1.4 billion from President Biden’s Bipartisan Infrastructure Law into 70 rail improvement projects in 35 states and Washington, D.C. This is the largest amount ever awarded for rail safety and rail supply chain upgrades through the Consolidated Rail Infrastructure and Safety Improvements (CRISI) program.

As part of President Biden’s Investing in America agenda, federal investments are tackling long-standing rail needs by supporting communities nationwide to help get people and goods where they need to be safely, quickly, and conveniently. Projects selected through the CRISI program, which is four times larger since President Biden signed the Bipartisan Infrastructure Law, support community safety through track improvements, bridge rehabilitations, fewer highway-rail grade crossings, upgrades on routes carrying hazardous materials, and more. Selected projects also improve connectivity, reduce shipping costs, increase resiliency to extreme weather, reduce emissions, and support workforce development.

Projects will benefit every region of the country, with nearly two-thirds of CRISI funding flowing to rural communities.

• In Alabama, Louisiana, and Mississippi, more than $178.4 million in federal funding is going to Amtrak, in partnership with the Southern Rail Commission, for the Gulf Coast Corridor Improvement Project, which will restore passenger service in a region that has not had access to it since Hurricane Katrina in 2005. Investments will make several track and signal-related improvements, grade crossing upgrades, and station improvements to add two new daily round trips between New Orleans and Mobile, Alabama. While expanding passenger service, the project will also help maintain reliable freight operations along a line used by CSX Transportation and Norfolk Southern Railway and benefit the Port of Mobile.

• In eastern Washington State, more than $72.8 million will make several track-related improvements, upgrade grade crossings, and enhance infrastructure on the Palouse River & Coulee City Railroad (PCC) through the Rural Rail Rehabilitation Phase II Project. The project is part of a multi-phase effort to improve the PCC, which is vital to the wheat supply chain. Investments will allow the line to carry modern 286,000-pound railcars, increase speeds, and protect against the effects of severe storms and washouts.
   
• In Tennessee, the Tennessee Short Line Railroads Bridge Bundle Project will put more than $23.7 million to work upgrading approximately 42 bridges along 10 different short line railroads in need of immediate, extensive repair or replacement. The impacted bridges are located throughout the state, and their upgrades will strengthen the short line rail network and improve operational efficiency.
   
• In Kentucky, more than $29.5 million in federal funding will make improvements along Paducah and Louisville Railway’s 280-mile main line, including upgrading multiple bridges, rehabilitating locomotives, and improving track in a local rail yard through the Foster Economic Sustainability Throughout Kentucky Project. This project will help reduce delays and increase safety and resiliency on a vital freight rail line that contributes to economic activity across 18 rural cities and urban clusters./
   
• In Nebraska, more than $15.2 million will modernize the Cornhusker Railroad, improving track, grade crossings, and a railcar repair facility through the Cornhusker Railroad Regional Connectivity Project. Investments will result in safer and more efficient operations, including improved interchanging of regional trains with Class I railroads.
   
• In Maryland, more than $11.5 million will bring the first-ever zero-exhaust emissions locomotives to an east coast port through the Port of Baltimore Strategic Acquisition of Battery Electric Locomotives Project. In total, three older, higher-emission locomotives will be replaced with new battery electric locomotives and a battery charger at the Port of Baltimore, benefiting shippers, port employees, and nearby communities by decreasing air emissions and noise. CSX Transportation will use the battery electric locomotives in its Curtis Bay Piers terminal.
   
• In Ohio, more than $16.2 million in federal investments will rehabilitate bridges and make several track-related improvements along approximately 180 miles of the Kanawha River Railroad (KNWA) through the North Central Appalachia Rail Enhancement and Rail Corridor Preservation Project. The project will allow for increased speeds while improving safety, reliability, and capacity on a rail line that moves needed goods, including chemicals and hazardous materials, in rural areas of West Virginia and Ohio.

 BATTLE FOR THE SENATE

 The battle for the Senate is ramping up a little more than one year before Election Day, with candidate and primary fields getting more settled by the month. 

Democrats remain hopeful of their chances to keep hold of their slim majority despite a difficult map for the party in 2024, but Republicans have prime opportunities to knock off incumbents and pick up seats in states won by former President Trump in the 2020 and 2016 presidential elections.

Here are the top five Senate races to watch at this point.

West Virginia 

The road to reelection for Sen. Joe Manchin (D-W.Va.) — if he decides to run — is a difficult one as we await word on whether he will seek a third full term in the Senate. 

Manchin is expected to decide either late this year or shortly before the January filing deadline, just as he did in 2018. He faces an uphill climb. Not only would he be running in a presidential year that could see Trump — who won the state by 39 points in 2020 — atop the ballot for Republicans, but he would likely be doing so against sitting Gov. Jim Justice (R). 

Democrats acknowledge this is a difficult race even though they refuse to discount Manchin’s ability to connect with the electorate. 

According to a survey taken last month, Justice holds big leads over Manchin in a general election match-up and Rep. Alex Mooney (R-W.Va.) in the primary.

Montana 

Sen. Jon Tester (D-Mont.) is awaiting his eventual GOP challenger in a push for a fourth term next year, with questions surrounding whether Rep. Matt Rosendale (R-Mont.) will end up launching a second consecutive bid for the seat. 

Tester faces many of the same potential issues as Manchin: a tough environment with Trump atop the GOP ticket and a deep red state that forces him to rely on the support of independents and some Republicans on top of his Democratic base.

The big difference for Tester is the unpredictability of his GOP opponent.

National Republicans have thrown their full weight behind businessman Tim Sheehy, who they argue is uniquely set to take on Tester. But to do that, he’ll have to defeat Rosendale — if the conservative follows through with a statewide run that he’s been teasing for months.

Political watchers argue that time is running low on Rosendale to launch a bid, especially considering that Sheehy has been up on the airwaves since July.

Adding to the questions is the fact that Rosendale voted with seven others to oust former Speaker Kevin McCarthy (R-Calif.) from his post. 

Rosendale’s battles with McCarthy have not helped his fundraising. He posted a paltry $334,000 in the third quarter, a total dwarfed by both Tester, who raised more than $5 million, and Sheehy, who raised $2.8 million. 

Rosendale has signaled he believes he has time to decide. He said in a recent interview that he is ready to greenlight a run as late as the state’s filing deadline in March.

Ohio

Sen. Sherrod Brown (D-Ohio) is gearing up for what is expected to be the toughest contest of his career.

Brown won his 2012 and 2018 contests by 6 and 7 percentage points, respectively, but is likely looking at a much closer affair this time around as he grapples with a state that has grown decidedly more red since he last faced the voters.

The incumbent Democrat is doing his part, posting a $5.8 million fundraising quarter, but he is running into major headwinds. 

Unlike the last time he ran — in a presidential year when then-President Obama won the state — Brown will have to do the heavy lifting, as Democrats believe it is unlikely President Biden’s operation will devote major resources to the state.

Who Brown will face is a major question.

Ohio Secretary of State Frank LaRose (R), state Sen. Matt Dolan (R) and businessman Bernie Moreno are battling it out for the Republican nod. Dolan and Moreno each reported roughly $4 million raised in the third quarter, including $3 million from their own pockets.

LaRose is the lone non-self-funder on the GOP side, prompting questions over whether he can keep pace with the two financially. None of the three are giving Republicans boatloads of confidence heading into one of the cornerstone contests on the map.

Arizona

Sen. Kyrsten Sinema, originally elected as a democrat recently left the party and is now an independent. She will face off against popular House democrat, Rep. Ruben Gallego.

Last week Kari Lake rolled out her campaign, likely cementing the GOP nomination in the fight for Sinema’s seat.

The main question on the GOP side is whether Lake’s rebrand is real or not. During her launch event early last week, Lake sounded like a different candidate from the one during and after her losing 2022 gubernatorial bid that commonly featured talk about a stolen election and Lake infamously telling McCain Republicans in the state to “get the hell out.” 

Instead, she extended an olive branch to Biden’s supporters as she seeks to broaden her base of support. 

According to sources, some Republicans are buying into it — for now — and cite a more buttoned up operation than the shoestring one she ran in 2022.

A source familiar with strategy at the National Republican Senatorial Committee said that it has not ruled out endorsing her. 

However, her path to victory could be much more different if Sinema continues on course with an independent bid against her and Gallego.

Pennsylvania

Unlike any of the other states on this list, the GOP at almost every level has unified behind David McCormick in his second run in as many cycles to take on Sen. Bob Casey (D-Pa.) next year. 

McCormick made his bid official last month and has quickly coalesced the party behind him, including the entire delegation of House Republicans and the state party, both of which endorsed him shortly after his announcement. Republicans believe McCormick is a far superior candidate to the one that failed against Mehmet Oz last year and that he has cleaned things up where they needed to be. 

McCormick’s ideal scenario is the map that put former Sen. Pat Toomey (R-Pa.) across the finish line in 2016: outperform Trump in the suburbs and hold serve where the ex-president is strong throughout the reddest parts of the state. 

However, taking on Casey is a massive challenge for Republicans, and one that has not been successful ever since he knocked off former Sen. Rick Santorum (R-Pa.), formerly the No. 3 Senate Republican, in 2006. The three-term senator has notched resounding victories in each of his reelection bids.

A recent Quinnipiac poll shows this might happen again, with Casey leading by a 6-point margin — 50 percent to 44 percent — over the former Bridgewater Associates CEO. 

BATTLE FOR THE HOUSE

Republicans are on defense as they look to protect their razor-thin majority in the House. Democrats need to net just five seats in order to retake the majority, and the math currently favors them: There are just five Democrats in seats former President Trump carried, compared to 18 Republicans in districts President Biden won in 2020.

Redistricting in several states could change the battlefield. North Carolina Republicans are set to redraw their map later this month, potentially netting their party up to four seats. But litigation in Louisiana, Georgia, and Florida could all break in Democrats’ favor. Because of this uncertainty, those districts remain off the list as well.

These rankings of the seats most likely to flip were initially reported by Hotline and reflect conversations with campaigns, candidates, strategists, pollsters, and operatives in both parties.

1. Alabama’s 2nd: Rep. Barry Moore (R)

The Supreme Court’s decision in Allen v. Milligan does Republicans no favors in Alabama. State Republicans appealed the decision to no avail, and one of three maps crafted by a special master will be used for the 2024 election—all of which mean Moore’s district will now favor the Democrats. It’s a near-instant flip for the minority party.

2. New York’s 4th: Rep. Anthony D’Esposito (R)

The math in Long Island simply doesn’t favor the former police officer, who represents the bluest district held by a Republican. Biden carried the seat by nearly 15 points. D’Esposito has navigated the House chaos effectively, but both parties say that the freshman is the most vulnerable in New York. For Democrats, Laura Gillen, who lost to D’Esposito by nearly 4 points in 2022, is back again, and state Sen. Kevin Thomas has also entered the race.

3. California’s 13th: Rep. John Duarte (R)

In one of the final races called last year, Duarte skated by Democratic state Assemblyman Adam Gray by less than a point in a district Biden carried by double digits. Initially viewed as a reach GOP target, this mid-Central Valley district typified the blue-state gains that delivered the majority for Republicans. Gray is back again, and strategists in both parties say Duarte faces a tough road to reelection in a presidential year, and with a potential Democrat-on-Democrat Senate race topping the ticket.

4. Washington’s 3rd: Rep. Marie Gluesenkamp Perez (D)

Republicans think they can win with Joe Kent atop the ballot again, though they might not be the most excited to see him there. Kent’s election denialism and ties to white-supremacist groups cost Republicans an otherwise easy-to-defend seat in 2022. Republicans prefer Camas City Councilor Leslie Lewallen to take on Gluesenkamp Perez, but she’ll have to prove she can raise the funds to compete with Kent. Even with Kent as the nominee, the makeup of the district renders it highly competitive—Trump carried it by 4 points.

5. New York’s 17th: Rep. Mike Lawler (R)

Lawler might be Biden’s favorite Republican, and he’ll need plenty of Biden/Lawler voters to get him across the line this year. Last year Lawler defeated Democratic Congressional Campaign Committee Chairman Sean Patrick Maloney, delivering Republicans a major symbolic victory. Biden carried the Hudson Valley district by 10 points, and Democratic outside groups have committed millions to oust Lawler and his fellow blue-state Republicans. Lawler’s best bet is a pricey Democratic primary between former Rep. Mondaire Jones and Katonah-Lewisboro School District trustee Liz Gereghty, which drains their resources.

6. New York’s 22nd: Rep. Brandon Williams (R)

The most publicly conservative among the vulnerable New York Republicans, Williams notched a 1-point victory over Francis Conole last year. Williams skates under the radar, but Democratic operatives see a prime opportunity in the Biden-won, Syracuse-area seat. There’s not a clear Democratic front-runner yet, but it’ll likely come down to state Sen. John Mannion and 2022 candidate Sarah Klee Hood. Factoring in huge investments from outside groups and a potential abortion-rights initiative, expect fireworks in central New York.

7. California’s 27th: Rep. Mike Garcia (R)

This district has vexed Democrats since former Rep. Katie Hill resigned in 2019 after flipping the Republican seat in 2018. Garcia won the special election, a full term outright, and his reelection against the same opponent: former Democratic state legislator Christy Smith. With Smith stepping aside this cycle, former Virgin Galactic CEO George Whitesides has largely consolidated the field. Strategists in both parties say that Whitesides is a strong recruit and would give Democrats their best chance of flipping this Biden seat.

8. Colorado’s 8th: Rep. Yadira Caraveo (D)

In the first race for this new district last year, Caraveo defeated Republican Barbara Kirkmeyer by under 2,000 votes, while a Libertarian Party candidate received a little more than 9,000 votes. State Republicans believe the third-party candidate cost them the election, and they reached an agreement with the Libertarians not to field a candidate as long as the GOP changes parts of its platform. In a straight head-to-head race, Caraveo could face some steep challenges—especially if Republican state Rep. Gabe Evans is the nominee.

9. New York’s 19th: Rep. Marc Molinaro (R)

Razor-thin margins separated Molinaro from Democrat Josh Riley last year. Democratic operatives are optimistic that presidential turnout—Biden carried the seat by 5 points in 2020—will be the deciding factor. Riley, a journeyman who jumped from a few districts and special elections last cycle thanks to the chaotic court-mandated redistricting shuffle, is back again. This time he has the field to himself and is squirreling away resources for the general election.

10. New Mexico’s 2nd: Rep. Gabe Vasquez (D)

Returning former Rep. Yvette Herrell to Congress is a top priority for Republicans after she lost by under a point last year. There are still some unknowns in the district—including what these district lines will look like in 2024. A challenge to the Democratic-drawn maps is playing out in court this week, and any change could hurt Vasquez, who has very little room for error in this rural seat.

11. Arizona’s 6th: Rep. Juan Ciscomani (R)

Democrats see Ciscomani among their top targets. He narrowly defeated former state Sen. Kirsten Engel last year in a race where the Democrat got hammered by outside spending. Democrats won’t let that happen this time, especially as the primary field has cleared for round two. Engel won’t outraise Ciscomani—she doesn’t expect to—but all money will go toward the general election. An abortion-rights initiative could find itself on the ballot next year, too, which would put even more pressure on the Republican.

12. Oregon’s 5th: Rep. Lori Chavez-DeRemer (R)

Many political observers said national Democrats abandonedthis race down the stretch last year because of Jamie McLeod-Skinner’s progressive bona fides. True or not, Democrats lost a seat Biden carried by 9 points that was formerly held by Blue Dog Democrat Kurt Schrader. McLeod-Skinner is running again, but so is state Rep. Janelle Bynum, who twice bested Chavez-DeRemer in state races. It’s likely to be a competitive primary and an even more competitive general election, but the math puts Chavez-DeRemer at a disadvantage.

13. California’s 41st: Rep. Ken Calvert (R)

The 2021 redraw brought Palm Springs’ sizable LGBTQ population into Calvert’s safe Republican seat. Democrats are excited about Will Rollins, the 2022 nominee who lost to Calvert by under 5 points last year, running again this year. The district is trending in Democrats’ favor: Trump won by a point under the current lines, and Rollins has posted impressive fundraising hauls so far. Calvert can raise money, too, and his seat on the Appropriations Committee helps him deliver for his district, but this will be the toughest fight of his 30-year career.

14. Michigan’s 7th: Open (D)

The only open seat on the list, this Lansing-area district would be well outside the top 20 if Rep. Elissa Slotkin were running for reelection. Instead, Slotkin is taking her fundraising prowess to the race to replace retiring Sen. Debbie Stabenow, leaving this pure toss-up seat open. The general election is basically set, with Democratic former state Sen. Curtis Hertel set to face off against 2022 GOP nominee Tom Barrett. This was the most expensive House race in the country last year, and while it’s not expected to top the list this cycle, it will still be difficult for Democrats to hold on.

15. Arizona’s 1st: Rep. David Schweikert (R)

Schweikert is Democrats’ white whale out West. They have targeted him in several recent cycles to no avail, but a perfect storm might be brewing to finally knock him off. Last year’s redraw left Schweikert in a district Biden carried by 2 points, and the Phoenix suburbs he represents are rapidly getting more blue. With Kari Lake, a MAGA election conspiracy theorist, set to walk away with the GOP Senate nomination, and abortion on the ballot as we previously mentioned, the six-term incumbent might be in for the campaign of his life.

16. Colorado’s 3rd: Rep. Lauren Boebert (R)

A rematch of the closest race in the country last year, this election will come down to whether Boebert can limit her unforced errors. This is one of the few districts where Trump at the top of the ticket likely helps the incumbent. Trump won the seat by nearly 9 points, and Boebert is one of Trump’s staunchest defenders. She was caught sleeping at the wheel last year by Adam Frisch, who’s back again and smashing fundraising records, but Boebert has a strong war chest of her own. She will also get the outside help she didn’t get last year. If she can stay out of messy headlines, she’ll be fine, but Frisch’s cash stash will keep it close.

17. Alaska At-Large: Rep. Mary Peltola (D)

It’s a tough job to succeed Don Young, a political icon who represented Alaska for most of its time as a state. But Peltola has risen to the challenge in her short time in Congress, winning the lone seat in a state Trump carried by 10 points thanks to a mix of grassroots campaigning and consolidating support from more moderate Republicans. She’s followed the same path as Sen. Lisa Murkowski, a big Peltola fan, in creating her own unique brand. But she still faces some headwinds, and if the Republican field consolidates, she will be in trouble.

18. California’s 22nd: Rep. David Valadao (R)

Valadao is a tough out any way this Biden district is sliced. One of only two House Republicans who won reelection after voting to impeach Trump following the insurrection, Valadao survived a primary challenge from his right and has largely flown under the radar of the mercurial former president. He beat a top Democratic recruit, former state Assemblyman Rudy Salas, by 3 points last cycle. But Salas is back again, and GOP operatives worry Valadao’s moderate credentials won’t be enough to help him this time.

19. New Jersey’s 7th: Rep. Tom Kean Jr. (R)

New Jersey Democrats opted to shore up other seats last cycle, leaving former Rep. Tom Malinowski out to dry. Kean seized the opportunity, but it will be a tall order to defend. The Democratic primary field is still unsettled. New Jersey Working Families Party Director Sue Altman has raised over $500,000, but strategists worry about her progressive bona fides. Former State Department official Jason Blazakis and Roselle Park Mayor Joseph Signorello III have to prove they can fundraise if they want to deny Altman the nomination. That said, Democrats are confident they can win with anyone, and Trump atop the ticket harms Kean.

20. Pennsylvania’s 8th: Rep. Matt Cartwright (D)

Good news for Republicans: Jim Bognet isn’t walking through that door. Cartwright, one of the five Democrats in a Trump-won seat, defeated Bognet by narrow margins in 2020 and 2022. Democrats say Cartwright is battle-tested and can withstand a challenge, but he’ll have to prove he can do it again in another presidential year. Businessman Rob Bresnahan is expected to jump into the race soon, and national Republicans view him as a formidable contender to Cartwright.

Thanks,

Mike Gilliland
Hogan Lovells US LLP