Last night, Democrats claimed the majority in the House of Representatives, and Republicans were able to keep a stronghold over the Senate, making some minor gains. The new Congress is still taking shape, with leadership elections to be held next week and a few more months before the next congressional term truly begins.
All bills introduced this past Congress will be killed once January rolls around, so the new Congress will be starting from a blank slate. With power divided in Congress, lawmakers will be forced to compromise in order to pass anything. Legislation that would regulate automated cars, set rules regarding data privacy, or even fund President Donald Trump’s Space Force would require members to reach across the aisle, forging new alliances with new priorities. It’s hard to say exactly how those priorities will shake out, but here’s our best guess about how the results of the 2018 midterm elections might change the key policies we’ve got our eye on.
You may have heard that President Trump wants a Space Force. He called for the creation of the new military branch in June during a meeting of the National Space Council, and it’s become a popular topic of his rallies ever since. But the president can’t just make a Space Force materialize on his own. Creating a new branch of the military ultimately requires an act of Congress, and even before the midterms, the future of the Space Force was uncertain.
Lawmakers have been debating for a while the idea of creating a new organization focused solely on military space. Right now, the military’s space activities — such as operating surveillance and communications satellites — are spread across multiple different branches and agencies, ranging from the Air Force to the National Reconnaissance Office. But in 2017, the lawmakers in the House Armed Services Committee drafted language in the National Defense Authorization Act that would create a Space Corps, an organization within the Air Force that would be responsible for all US national security space matters. The Space Corps idea had many critics and was ultimately shot down — and that was before Trump called for a Space Force.
A Space Force would be quite different than a Space Corps, though, as it would create a sixth branch of the military separate from the Air Force. It’s not yet clear how the White House plans to do that. Vice President Mike Pence, who is in charge of the US space agenda, has outlined a few ways the administration plans to prepare for a Space Force by creating new organizations within the military. But the exact budget and structure of the Space Force have yet to be determined. And such a bureaucratic shuffle could come with a hefty price tag. Air Force Secretary Heather Wilson estimated that creating a Space Force might cost $12.9 billion over five years.
With the House controlled by Democrats, it might be even trickier to get lawmakers on board. The current chairman of the House Armed Services Committee (HASC), Rep. Mac Thornberry (R-TX), has tried to remain neutral, suggesting that he is waiting to see what the White House proposes in the president’s budget request next year before he passes judgment. The HASC leadership will now shift to Democrats, and the next head of the committee may not be on board with Space Force — either for political or practical reasons.
Above all, lawmakers need to see what the administration proposes in the budget request next year. Without knowing what the Space Force will look like, it’s difficult for lawmakers to have a firm stance one way or the other.
The Future of Data Privacy Regulations
One of the Republicans’ greatest achievements this Congress was their successful deregulation effort. With all of that effort to remove regulations, it’s no surprise that drafting new industry rules wasn’t a priority this term, even after all of the privacy disasters that platforms like Facebook weathered over the past two years.
With Democrats taking back the House, data privacy could be one of their foremost regulatory initiatives. Rep. Ro Khanna (D-CA) positioned himself as a leader on privacy after he partnered with Tim Berners-Lee, the creator of the World Wide Web, to unveil an “Internet Bill of Rights” over the summer. The draft bill lays out 10 different rights citizens should have when it comes to consenting to the collection and dissemination of their personal data.
The bill was never formally introduced into Congress, suggesting that Khanna, who won his re-election bid last night, has plans to push it harder in the coming session. “There is going to be an appetite” among Democrats “to do something,” Khanna said when he first introduced the measure.
But something like Khanna’s bill would need to move through the Senate before landing on the president’s desk. Republicans still have the majority in that chamber, so any tough Democratic privacy bills from the House will be met with the GOP’s general skepticism regarding regulation. Leadership elections will also shake up the members on important commerce committees. Rep. Marsha Blackburn (R-TN) won her bid for the Senate last night, and after chairing the House Energy and Commerce subcommittee on tech this past term, her new energy will likely be brought to the corresponding body in the Senate. Last year, Blackburn put forth her own light-touch privacy legislation, and any bill that passes through the House will likely be brought in front of her before it passes the Senate.
Over a year ago, the House unanimously passed the SELF DRIVE Act, which would create a regulatory framework for self-driving cars. But the companion bill — the AV START Act — has been stalled in the Senate since November.
Of course, self-driving technology continues to advance. But without federal standards, automakers and tech companies have to deal with a patchwork of state laws. The AV START Act would preempt those state rules and authorize automakers and tech companies to deploy (and possibly sell) thousands of vehicles without traditional controls like steering wheels and foot pedals.
Senators on both sides of the aisle have legitimate concerns — not just about safety after recent accidents involving self-driving cars, but also about cybersecurity and the impact on jobs. Advocates want strong consumer privacy rules and to ensure disabled populations also get access to AVs.
There’s a small chance the bill could be revived in a lame-duck session. According to Axios, now that Democrats have House control, some industry lobbyists think the logjam could be broken by Senate Republicans who may be more inclined to move ahead with a compromise bill than to start over with the new House.
In the interim, the Department of Transportation has issued a series of guidelines for autonomous driving systems. The feds are also encouraging companies to file voluntary safety reports, and six companies — Waymo, GM, Ford, Nuro, Nvidia, and Uber — have complied. But because of their voluntary nature, these reports end up looking more like glossy marketing documents than anything else.
—Andrew J. Hawkins
Rep. John Culberson (R-TX) lost his race last night — an upset that could have a big impact on the future of NASA. Culberson has been the chair of the subcommittee in the House that decides appropriations for NASA, and he’s used that role to provide ample funding for the space agency. In fact, NASA’s budget from Congress has increased over the last few years, with the agency receiving $20.7 billion in fiscal year 2018.
Culberson is also a big fan of Jupiter’s moon Europa and has personally advocated for NASA to send a spacecraft and lander to the icy world to search for signs of life. While one of these missions, the Europa Clipper, is quite mature in its design, the lander concept isn’t, and it may not survive without Culberson’s backing.
Another NASA advocate who may have lost his seat is Sen. Bill Nelson (D-FL). Nelson, who flew on the Space Shuttle as a member of the House in 1986, has been active in NASA policy as the ranking member of the Senate Commerce Committee, which oversees the space agency. Along with Sen. Ted Cruz (R-TX), he’s been very vocal against the Trump administration’s plan to end direct funding to the International Space Station by 2025. However, Nelson’s race has been considered too close to call, and his chief of staff said this morning that there will be a recount, according to NBC News.
Funding for Gun Control Research
This year, the government gave the Centers for Disease Control and Prevention (CDC) the go-ahead to restart research into gun violence after a 22-year hiatus. But without federal funds to conduct the research, the outcome is pretty much the same: it’s not going to happen. And the results of the midterm probably won’t change that.
Twenty-two years ago, Congress passed what’s known as the Dickey Amendment, which technically only bans the use of federal funds for advocating gun control, but it has effectively banned studying guns, too. That’s because when Congress passed the Dickey Amendment, it simultaneously yanked the exact amount of money from the CDC that was intended for gun violence research. “So the message was clear,” says John Donohue, a law professor at Stanford University who studies gun violence. “‘If you go down this path, we’re going to punish you.’”
Then in March, Trump signed the massive Omnibus spending bill, clarifying that while federal funds can’t go to advocacy, they can indeed go to research. Even at the time, however, researchers in the field were skeptical because the permission didn’t come with money: “I think that was a smart political ploy because they knew the public was getting angry,” Donohue says. Lifting the de facto ban on gun violence research was an attempt to mollify a country still reeling from the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida, just weeks before. But it was a hollow effort because with no funding, there’s no research. “So it’s a little bit of a charade,” Donohue says.
With Democrats taking back control of the House but not the Senate, Donohue doesn’t expect to see much change; Congress would need to agree to fund gun violence research. With Democrats taking only the House, he suspects that money won’t materialize. Or if it did, it would only be if the Democrats traded something the gun lobby values — like letting people from Alabama carry their guns in New York City, Donohue says. “The Democrats could say, ‘Look, we’ll give you something you like if you give us some funding of research.’ But it seems very unlikely to me.”
Congress’ reckoning with Juul
This year, we’ve watched Juul take over the e-cigarette market and the Food and Drug Administration (FDA) scramble to stop young people from vaping. Now, with the results of the midterm elections in, we can probably expect more of the same — at least at the federal level.
That’s because the FDA, which is in charge of regulating vaping, is an executive agency. That means the president has a lot of control over the agency’s direction and leadership, says Kathleen Hoke, a professor specializing in public health law at the University of Maryland. The FDA is already weighing whether and how to regulate vape flavorings, and it’s cracking down on manufacturers and retailers that market to kids.
So changes to Congress probably won’t make much of a difference. “The commissioner seems to be at the helm right now in a way that his predecessors who were administering the Tobacco Control Act really weren’t,” says Desmond Jenson, an attorney at the Public Health Law Center at the Mitchell Hamline School of Law. (At the state level, it’s a different story: a ballot measure that passed in Florida, for example, bizarrely bans both vaping indoors and offshore drilling.)
Sure, Congress can influence vape regulations, too: it could up the minimum age so you have to be at least 21 years old to buy tobacco and e-cigarette products, for example. It’s a move that multiple vape manufacturers at least claim to support, but the FDA can’t change the federal minimum age on its own. Congress could also ban kid-friendly vape flavors: Sens. Lisa Murkowski (R-AK) and Dick Durbin (D-IL) recently introduced a bipartisan bill that proposes to do just that. So far, the bill hasn’t really gone anywhere. But if it makes it to the House, which is now controlled by Democrats, it might have better odds of success in a more pro-regulatory environment.
Had Democrats taken both houses of Congress, we maybe could have expected a regulatory shake-up. After all, the Tobacco Control Act, which finally gave the FDA the authority to regulate tobacco products in 2009, was passed when Democrats controlled Congress. But Hoke doubts that vaping regulation would have been a priority compared to hot-button issues like health care, anyway. “The Democrats have an abundant number of issues that they would probably address before they address vaping,” she says.