April 14, 2016

The U.S. Senate failed to reach agreement earlier today on legislation reauthorizing Federal Aviation Administration programs for fiscal years 2016 and 2017 (H.R. 636), and Senators have left town for the weekend. The Majority Leader did get the Senate to agree to a unanimous consent request that at 5:30 Monday, the pending amendments (the underlying substitute bill and a Thune (R-SD) amending on ADS-B navigation equipment) be agreed to and that the Senate then vote immediately on invoking cloture on the underlying bill, H.R. 636.

Senator Thune, the chairman of the Commerce, Science and Transportation Committee, then said that after having spent all day yesterday and all day today trying to negotiate a path forward, that he and his colleagues had agreed on a large package of non-controversial amendments but that a handful of objections had been raised by Senators who wanted roll call votes on individual amendments. He said that he expects that the final passage vote on H.R. 636 as amended will occur shortly after the cloture vote Monday evening. (Under the rules, up to 30 hours of post-cloture debate are allowed after a cloture vote, but there really would be no purpose in allowing that debate, since the amending process will be over once the substitute is agreed to.)

The House and Senate have until July 15 to reach agreement on a FAA reauthorization bill or else pass another short-term extension of Airport and Airway Trust Fund taxes and expenditure authority.

The underlying problem relating to the amendments is that it is a laborious process to get a roll call vote on a controversial amendment on the Senate floor if the amendment is offered to a regular bill. Such bills often bog down over amendment standoffs – Senator A wants a vote on his/her controversial amendment, Senator B does not want that amendment to come up for a vote and objects to letting Senator A have a vote, then Senator C wants a different controversial amendment to have a vote, so Senator A then objects to giving Senator C a vote, and on and on it goes.

In this case, there were five controversial amendments (three Republican and two Democratic) caught up in this kind of standoff, which in turn delayed consideration of another package of 30 or so noncontroversial amendments which Thune and his Democratic counterpart, Bill Nelson (D-FL), said had already been worked out.

The five controversial amendments which could not get votes were:

• Sessions (R-AL) #3591 prohibiting any federal funding for “the physical modification of any existing air navigation facility that is a port of entry, or for the construction of a new air navigation facility intended to be a port of entry, unless the Secretary of Homeland Security certifies that the owner or sponsor of the facility has entered into an agreement that guarantees the installation and implementation of the automated entry and exit system”.
• Paul (R-AL) #3693 adding the “Arm All Pilots Act”.
• Rubio (R-FL) #3722 adding the “Cuban Immigrant Work Opportunity Act”.
• Boxer (D-CA) #3489 directing DOT to modify the final January 2012 flight crew duty and rest requirements rule so that the rules also apply to flight crews of all-cargo airlines.
• Markey (D-CA) #3467 adding a new section requiring that all airline change/cancelation fees, baggage fees, or other fees must be “reasonable and proportional to the costs incurred by the air carrier”.

The Senate voted this morning by the overwhelming margin of 94 to 4 to invoke cloture on the FAA legislation (technically, it was the substitute amendment #3679 to H.R. 636 upon which cloture was invoked). After that vote, Senate Commerce, Science and Transportation chairman John Thune (R-SD) asked the unanimous consent of the Senate to bring up the three controversial GOP amendment, give them a total of 45 minutes of debate, and then give each a roll call vote subject to a 60-vote threshold for passage. (60 being the number of votes required to invoke cloture and shut off debate, a process which takes several days – so it often saves time to deem a 60-vote threshold for a filibuster-bait amendment beforehand). Senator Boxer objected. Then Nelson made a similar “UC” request for the two controversial Democratic amendments, and then Thune objected.

(Ed. Note: Since cloture was invoked on the substitute this morning, that means that not only is debate time on the substitute now limited, but that non-germane amendments are no longer in order. This is an additional hurdle for Rubio’s amendment in particular, which is not germane to a FAA reauthorization bill. This is also why using the number of cloture votes as proxy for estimating the number of filibusters is fundamentally inaccurate – because, quite often, cloture is invoked not because anyone is filibustering the bill, but because leaders are trying to avoid the non-germane amendments on hot-button topics that are normally allowed under Senate rules.)

At that point, Senators Boxer and Rubio and Sessions gave speeches in favor of their amendments anyway. (Rubio’s speech delved into the Bay of Pigs invasion as well.) All three expressed frustration at their inability to get votes on their amendments. Boxer referred to the press conference she held earlier in the week with pilot Chesley “Sully” Sullenberger (soon to be played by Tom Hanks in a major motion picture) in support of her amendment.

Sessions said “The amendment I submitted will ensure the implementation of the statutorily required biometric exit system. …In 2002, we required the government to install biometric readers and scanners at all ports of entry of the United States. And in fact we have a biometric entry system when you come and put your fingerprints on a screen, but oddly we don’t have the exit system. How is it so much harder to have a system that allows you do document your exit than it is to document your entry?”

(Markey did not take the floor to speak on his amendment on airline fees, but he did not need to – his amendment only failed by a 12 to 12 tie vote in committee, which means that a lot of Republican members might have a hard time voting “no” on that amendment, especially in an election year. Hence the objections to allowing the amendment to get a vote.)

It now seems likely that none of the five amendments listed above will be allowed to get a vote at all. However, this does not necessarily mean that the other package of 30-ish non-controversial amendments will be blocked, because the Senate can do anything (well, anything not subject to judicial review by federal courts) by unanimous consent, so if the package of amendments truly has been cleared by all 100 Senate offices, then those amendments can be adopted despite any other Senate rules to the contrary.

A list of amendments adopted to the bill thus far is here.