FAA Reauthorization In “Pre-Conference” – But What Does That Really Mean?

September 6, 2018

The leaders of the House and Senate transportation committees told reporters this week that they are working to “pre-conference” their disagreements on the Federal Aviation Administration reauthorization bill (H.R. 4/S. 1405). The House passed its bill on April 27 but the Senate has been unable to bring its own version of the bill to the floor.

The goal, ideally, is to get a permanent authorization enacted into law before a sixth short-term extension of the authorization that expired in September 2015 becomes necessary, to wit:

Short-Term Extensions of the “FAA Modernization and Reform Act of 2012”
1 114th HR 3614 10/1/2015 – 3/31/2016 6 months 9/29/15 9/29/15 9/30/15 114-55
2 114th HR 4721 4/1/2016 – 7/15/2016 3.5 months 3/21/16 3/17/16 3/30/16 114-141
3 114th HR 636 7/16/16 – 9/30/2017 14.5 months 7/11/16 7/13/16 7/15/16 114-190
4 115th HR 3823 10/1/2017 – 3/31/2018 6 months 9/28/17 9/28/17 9/29/17 115-63
5 115th HR 1625 4/1/2018 – 9/30/18 6 months 3/22/18 3/23/18 3/23/18 115-141

Given the number of days left in the calendar, ETW readers would not be advised to bet that the FAA bill gets signed into law before September 30, so another extension in some form will probably be necessary, at least for a few weeks. A “must-pass” continuing appropriations resolution will also be considered by Congress prior to September 30. There is precedent for a FAA extension hitching a ride on the annual CR, and there is precedent for a FAA extension being enacted on its own. (During the period from September 2007 to January 2012, there were 23 different FAA extensions enacted, so there is plenty of precedent to go around.)

So far, the pre-conferencing process has been bipartisan – the Democratic leaders of the House Transportation and Infrastructure Committee and the Senate Commerce, Science and Transportation Committee have been fully involved. This bodes well for a final work product being agreed to in principle soon (though maybe not in time to get signed into law by September 30).

One of the issues holding up the bill in the Senate, however, is the “F4A” provision preempting a California law relating to meal and rest breaks for truckers. This is clearly not an aviation issue, but the issue is called “F4A” for a reason – because the preemption issue was first added to the FAA Authorization Act of 1994, back when the Democrats controlled both chambers of Congress. Senate Commerce ranking member Bill Nelson (D-FL) and other Senate Commerce Democrats agreed to the F4A preemption provision in the Senate bill as part of a larger agreement with chairman John Thune (R-SD) on the whole package. The House bill’s F4A provision (sec. 599G of H.R. 4) was adopted on the House floor as an amendment by a mostly party-line vote of 222-193. The Senate’s provision (sec. 5017 of S. 1405) is much less broad.

A pre-conferenced bipartisan bill that could get a significant number of Senate Democrats on board, not just for final passage but for a preliminary cloture vote, would make life easier for the Senate Majority Leader.

Leader McConnell’s problem is this: given that there are only so many hours in a week, and that Senators are willing to be in the District of Columbia for far fewer hours than that per week, he must prioritize the use of floor time in the Senate. Aside from the appropriations needed to prevent a government shutdown, his top priority is confirming as many Article III judges as possible between now and January 3, 2019. This is very logical – Article III judges (a) serve for life, (b) are one of the few things left that unite all sides of the Republican coalition, (c) are perhaps the only thing that everyone agrees this White House has done extremely efficiently, and (d) their confirmation will absolutely, positively come to a screeching halt on January 3 if Democrats take control of the Senate.

In order for Senator McConnell to bring up the pending FAA bill in the Senate, if even one of the 100 Senators objects to a unanimous consent agreement and really wants to slow things down, McConnell’s only option is this cumbersome process:

  1. Move to proceed to H.R. 4, the House-passed FAA bill.
  2. File cloture on the motion to proceed.
  3. Wait one intervening day. (If the cloture motion on the MTP is co-signed by Democratic Leader Schumer and is signed by an equal number of Senators from each party, this intervening day is waived.)
  4. Invoke cloture on the motion to proceed assuming there are 60 votes to do so.
  5. Wait up to 30 hours during which no other business can be conducted.
  6. Take up H.R. 4 and offer the Senate version of the bill as a substitute. Other amendments to the substitute may or may not be offered or adopted.
  7. File cloture on the substitute and on H.R. 4 itself.
  8. Wait one intervening day.
  9. Invoke cloture on the substitute assuming there are 60 votes to do so.
  10. Wait up to 30 hours during which no other business can be conducted.
  11. Pass the substitute.
  12. Invoke cloture on H.R. 4 assuming there are 60 votes to do so.
  13. Wait up to 30 hours during which no other business can be conducted.
  14. Pass H.R. 4 as amended and request a conference with the House.

McConnell is not going to spend Senate floor time on multiple cloture processes on the FAA bill (the tax reform bill, yes, or an omnibus appropriations bill, yes, but not a lower-tier bill). But if a pre-confernced product that has the committed support of well over 60 Senators can be negotiated, in a bipartisan way, then another option is open for McConnell.

Under this scenario, House leaders would pick a random bill with an H.R. bill number that has already passed the House, been amended by the Senate, and sent back to the House. Then the House would take up that H.R. bill and its Senate amendment, substitute the text of the pre-conferenced FAA bill for the Senate amendment, and then pass the amended bill again, sending it back to the Senate once more.

At that point, McConnell’s path would be much more simple:

  1. Move to proceed to consider the House amendment to the Senate amendment to the H.R. bill (a privileged motion that is not debatable and which is normally adopted by voice vote).
  2. Move that the Senate concur in the House amendment.
  3. File cloture on the motion to concur.
  4. Wait one intervening day.
  5. Invoke cloture on the motion to concur, assuming there are 60 votes to do so.
  6. Wait up to 30 hours during which no other business can be conducted.
  7. Vote on the motion to concur which, if agreed to, clears the H.R. bill for the President’s desk.

A pre-conferenced work product handled as an amendment between the Houses in this manner would cut down the amount of floor time needed from 60+hours spread over up to four days to no more than 30 hours spread over as few as two days (11 a.m. Tuesday cloture vote, 5 p.m. Wednesday final vote).

It is also standard procedure to prevent any other amendments from being offered to a House amendment to a Senate amendment at this point, so anyone trying to make changes in the pre-conference package would be frozen out.

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