THE LOOK AHEAD – MAY 2026

Produced By:

Bret Manley (bret@elevatega.com) and David Marten (david@elevatega.com)

Balance of Power

Senate: 53 Republicans, 45 Democrats, 2 Independents Caucusing with Democrats
House: 217 Republicans, 212 Democrats, 1 “Independent”, 5 Vacancies

• CA-01: Rep. Doug LaMalfa (R) passed away unexpectedly on January 6th. The special election is set for August 4th but if a candidate receives 50%+1 in the June 2nd primary they will automatically win the seat. This is a safe Republican seat and the only Republican (currently) running is a personal friend/fraternity brother of one of your hosts, outgoing California House Republican Leader James Gallagher.
• CA-14: Rep. Eric Swalwell (D) resigned April 14th. Governor Newsom set the special election for August 18th. This is a safe Democratic seat.
• GA-13: Rep. David Scott (D) passed away on April 22nd. A special election will be held on July 28th. Under Georgia state law, all candidates will run on one ballot, with a runoff election scheduled for the two top candidates if none receive over 50% of the vote. As of this writing, two candidates, State Senator Emanuel Jones and Scott’s daughter Marcye Scott, have declared their intention to run. This is a safe Democratic seat.
• TX-23: Rep. Tony Gonzales (R) resigned April 14th. Texas Governor Greg Abbott has not yet called a special election date. Texas law requires at least 36 days after the announcement of the special election and on the first “uniform” election day (a day where there is already a regular election). There is nothing requiring Abbott to schedule a special election before November’s election. The old TX-23 was a “swing” seat, but the newly drawn 23rd was carried by Trump by 14 points. Gonzales was likely headed to defeat in a primary run-off against gun rights activist Brandon Herrera. The new 23rd is a safe Republican seat, but it’s possible Abbott leaves it vacant until the regularly scheduled November election just in case.
• FL-20: Rep. Sheila Cherfilus-McCormick (D) resigned April 21st after the House Ethics Committee found her guilty of violating 25 House rules related to allegations that she stole and laundered $5 million in COVID aid that was sent to her nonprofit organization. Governor Desantis (R) has yet to announce a special election, but Florida’s regular primary election date is on the later side (August 18th), and Florida just approved a new district map after the Supreme Court ruling in Louisiana v Callais. So, DeSantis may wait until then. The current FL-20 is a safe Democratic seat, and it will be a safe Democratic seat under the new map as well.

Driving the Month Ahead

• Lookout for a Changing Calendar: You heard it here first…or maybe you didn’t because we had to hear it somewhere so maybe you heard it from there too…but we expect House Leadership to pare back the calendar for the remainder of the year. Why? Well, last week was…um…not great for Leadership. Do you think it gets better from here, as we get closer to an election? This was the first time you saw Members publicly suggesting that Speaker Johnson/Leadership made promises they didn’t keep (usually referred to as “lying”). Now, we weren’t in the room (and neither was Politico/Punchbowl/etc.), but those were the complaints that ultimately sunk Speaker McCarthy, and it’s something Speaker Johnson has worked hard to avoid by preferring instead to let things play out instead of making commitments he couldn’t meet.
• FISA is for Fighting: Attaching a digital currency bill the Senate won’t pass to the FISA reauthorization is probably a decision House Leadership wants to take back. The FISA fight was the centerpiece of last week’s drama that exacerbated the Farm Bill E15 issues. House Leadership finally gets a breakthrough and instead of taking a victory lap they attach a bill nobody is asking for ($10 if you can tell me what a “stablecoin” is without looking it up), which the Senate will clearly reject. Which means we get to do this whole thing again! Only now, everyone is double secret probation mad.
• Iran…Iran So Far Away: So far, Congressional Republicans are backing Trump on Iran. Regardless of your opinions on the conflict, the electorate is extremely polarized. So polarized that opinions on what the Administration is doing (military or otherwise) track almost identically with what you think about Donald Trump. That said, no matter how much a Congressional Republican agrees with what is happening in Iran, or how much they love Donald Trump, none of them want the national price of gasoline to be above $4 by Memorial Day. At the end of the day, voters care about the things that are in front of them more than countries they (probably) can’t find on a map.
• Reconciliation 2.0 and 3.0: Coming soon…Reconciliation: Tokyo Drift. Members have told us that the House Freedom Caucus has been holding up the package to fund ICE and CBP to guarantee a third round of reconciliation. Moderate GOPers have been dragged into the Speaker’s office to get pressed on a September package. Our view here is there is no chance of a third bill before the election. All of the low-hanging fruit was handled in OBBB and Members in tough seats are in no mood for more Medicaid/Medicare/health care votes. We believe if the Republicans lose the House majority in November, there could be a third bill; if they keep the majority, there won’t be a need to rush it.

• • As far as 2.0 goes the President is continuing to push for the bill by June 1. We hear the Senate will likely unveil its bill and hold a vote-a-rama the second week back after recess. Will it be a real vote-a-rama this time? In the opinion of your hosts, it’s not a bona fide vote-a-rama unless you see the sun come up during votes.

• A Post Section 2 World: The Supreme Court finally released its decision in Louisiana v Callais, which was widely expected to rule that Section 2 of the Voting Rights Act was unconstitutional. The decision stopped short of striking the entirety of Section 2, instead ruling it cannot constitutionally require the drawing of districts along racial lines. This means states can do so, but the racial makeup of the district must be explainable by something other than race (so like partisan affiliation). The practical effect of this is that VRA districts in red states are all likely to be gone by 2032, and those in blue states will have to be redrawn in a way that can’t be explained exclusively by race (present voting trends make this fairly easy; only 12% of black voters are registered/identify as Republican). The full effect of this will not be felt until 2030 or 2032. So far, Louisiana and Alabama have announced they’ll redraw their maps in the wake of Callais, with Mississippi dipping its feet into the shallow end and redrawing judicial districts. South Carolina and Tennessee may join them. Texas cannot because they already had their primaries, likewise Georgia where voting is currently underway. Blue state maps will also be challenged, likely resulting in redraws that make minimal difference because of partisan affiliations and the grouping of Democratic voters in major metropolitan areas.
• Will Virginia’s Map Hold?: After the Democrats narrowly won a referendum to redraw the VA map from a 6-5 Dem map to 10-1, the party was feeling bullish on retaking the majority. Those results have yet to be certified, as a state court ruled the referendum violated the State Constitution. The state Supreme Court declined to stay that ruling while the case plays out on the merits. If the map is struck by the courts, it would be a double whammy in the wake of the VRA decision by SCOTUS leaving a lot of long faces at the DCCC.
• Data Centers: House Democrats are preparing to make data centers a campaign issue. Despite the fact that data centers are a major driver of local tax revenue (almost $1 billion in Loudon County alone!), there is a lot of voter angst around the cost of electricity….and frankly they’re pretty ugly. Republicans are well aware of the political risk but are miles away from calls for a moratorium on data centers, as some blue states and jurisdictions are moving forward with. The Admin is using the angst to drive nuclear development. The Nuclear Regulatory Commission rolled out a proposal to streamline licensing for microreactors, advanced technology that the NRC, White House and developers of artificial intelligence say could help meet surging power demand. The question is, will it happen fast enough to make a difference? The answer of course is…no…but it won’t stop them from trying!
• DHS Finally Gets Done: After much hemming and hawing in relation to the reconciliation dynamics covered above, House Republicans finally accepted the inevitable—they’ll always get rolled by the Senate (Bret rolling his eyes in disgust). With the House passing DHS Appropriations minus CBP and ICE on April 30th, the longest (partial) government shutdown in history came to a close. A lot of clients ask us if this is the “new normal,” and all we can say is…dear God we hope not. With basically no one on any side getting anything out of the shutdown, maybe we can all take a break and realize they’re not always the leverage some Members on both sides of the aisle seem to always believe they can be.

On Deck – House and Senate Rumblings

Planes, Trains, and Automobiles: House T&I was originally planning on marking up a Highway reauthorization in April, but that (obviously) didn’t happen. We are told they’re still committed to marking a bill up and will hold a markup in May. We hear Labor is pushing on the Democratic side to not strike a deal since they’re confident of a Dem majority in 2027 and want to wait for Democrats to have the pen. Whether that will make a difference or not ignores the reality that the surface reauthorization hasn’t been passed “on time” in over 30 years, so we’re expecting an extension. Complicating matters is the White House’s push to add a rail title focused on the Railway Safety Act. There are lots of reasons this won’t happen, but a big one is Chairman Graves would like to avoid a lot of Labor votes a rail title would bring in committee that the GOP would likely lose (shoutout Don Young and the two-person crew fight). Getting away from terrestrial matters, the House and Senate still need to reconcile ROTOR/ALERT Act, the legislative responses to the Washington D.C. plane crash. One thing to watch: how much GA pilot and Chairman Sam Graves insists on sticking with a little-discussed provision in ALERT on using ADS-B to track aircraft which has strong opposition from airports.

Online Safety is Still Offline: Chairman Guthrie told us something interesting…legislation addressing the need to keep children safe online would serve as a vehicle for AI regulation, not the other way around. Additionally, kids’ privacy will remain separate from larger data privacy efforts. The most promising bill remains a rewrite of COPPA. House E&C pulled their Republican-only bill from its markup when the Senate UC’d its COPPA reform during the House markup (quite the powerplay). Guthrie told us this was because they like a lot of what’s in the Senate bill so this is a bright spot in the kids’ safety debate. All of that said, in this environment, getting any legislation across the floor of either chamber dealing with big tech is going to be a herculean effort by leadership in both chambers. We remain skeptical that any major reforms reaching the President’s desk this year.

AI(n’t) Gonna Happen, Right?: House Leadership told us that the House can’t pass AI legislation under a rule. Because rule votes are considered procedural, it’s always partisan (unless you’re the Freedom Caucus that is so conservative they sometimes vote with the Democrats, fulfilling the horseshoe theory of American politics). What that means then is AI legislation will not reach the floor unless 2/3rds of the House will support it. The two main issues holding up AI are federal pre-emption and private right of action, a/k/a the same holdups for pretty much any tech issue in Congress over the past decade. There are not 286 Members of the House and 60 Members of the Senate that agree on both of these issues independently, let alone together. House Republicans (ghost)wrote the WH AI framework, so they have the ball in the debate. Leader Schumer, for his part has made the Dem ask, which House Republicans say is excessive (hey…shooters shoot). We understand Leader Jefferies has not made asks for the House Dems. HOWEVER, Senate Commerce is rumored to be considering an AI markup in May on a package of smaller bills that could eventually wind up in a more comprehensive package.

Fed Up: Much like the House having to accept that the Senate always wins, DOJ and the WH finally came to the same realization and dropped the investigation of Federal Reserve Chairman Jay Powell’s handling of the Fed’s massive renovation project. This cleared the way for Senate Banking to advance Kevin Warsh’s nomination to be the next Chairman, with the full Senate set to take up his nomination when they’re back from recess. Despite lingering questions about Warsh’s commitment to the Fed’s independence from the Administration, we expect the President’s most consequential nominee of this term to date to easily get through the Senate.

Coast Guard: Always the bridesmaid, never the bride. The Coasties will finally get paid now that the DHS shutdown ended just shy of its 3rd month. Senate Commerce is preparing the next authorization with stakeholder language requests due May 15th. There will be a big push to treat the Coast Guard like the rest of the uniformed services during shutdowns (so…pay them). The big impediment to this is of course the Appropriations Committee, who won’t publicly oppose but privately hates any spending that doesn’t have to go through the Committee first.

Get Smart – How Come Congress Can Keep Repealing Rules Under the Congressional Review Act?

OK…you surely remember way back at the beginning of the 119th Congress seven years (feels like) ago we ran through the workings of the Congressional Review Act (CRA) and how Congress had effectively until May/June 2025 until they ran out of runway to repeal Biden era rulemakings. Well…you may have asked yourself then how it is that President Trump last week signed a repeal of BLM Public Land Order No. 7917 which banned mining in Northern Minnesota way back in January of 2023. You didn’t notice that? Oh…well we promise it’s a big deal in Minnesota.

Doesn’t the CRA provide a 60 legislative day window to look back for rule makings? Yes…it does. BUT (yes there’s always a “but”), there are some loopholes. Big ones as it turns out, and it all rests on the fact that under the CRA, the 60-day clock doesn’t start running until the rulemaking is submitted to Congress. We’ll explain…

OK, Give Me a Quick Refresher on the CRA: Basically, the CRA imposes a set of requirements on Agency/Administration actions (similar, but different, to the Administrative Procedures Act). The CRA adopts the APA’s definition of “rule” and requires what is in effect a cooling off period before these rules go into effect so Congress can…um…review them and decide if they’d like to repeal it. The CRA process avoids the Senate 60 vote threshold and if an agency ruled is repealed in this way it permanently bars future rules that are substantially similar.

Right, I Remember, But What Does That Have To Do With Mining?: Well…the CRA on the Minnesota mining ban repealed a Public Land Order by the Bureau of Land Management…

And?: BLM public land orders aren’t considered rulemakings…

So?: So it was never “submitted to Congress”…

What Changed?: Rep. Pete Stauber successfully convinced the Department of the Interior to submit the order to Congress as a rule, which then triggered the CRA process. DOI has now effectively told Congress that all BLM Public Land Orders are considered rulemakings so it’s possible we’re going to see quite a few more CRAs on this topic in the coming months.

I Feel Like This Is Where You Tell Me There’s More: There is! In addition to agencies like DOI elevating previous actions that weren’t rulemakings and submitting them to Congress, GAO can issue legal opinions and reports on rules triggering the CRA.

How Does GAO Do This?: Two ways, by issuing a report saying an agency action is subject to the CRA, or issuing a legal opinion of the same effect.  Here’s a report on a major rule, the IRS 45Z production credit. The 45Z credit was revised but the first reconciliation bill, so new rules related to the credit were promulgated to an already existing rule from 2022, so GAO concluded that this triggers the CRA. Here’s a legal opinion saying the BLM Grand Staircase RMP should be considered a rulemaking and thus triggers the CRA. Members can simply ask GAO for these and you can see what’s top of mind here.

But the GAO Isn’t Notifying Congress of the Rule So How Does That Work?: According to CRS, it is up to the Senator/Member to submit the GAO opinion for publication in the Congressional Record.

Simplify It For Me: An Agency can tell Congress we goofed, we should have submitted this action as a rule, which triggers the CRA. Or GAO can issue an official opinion/report that an Agency action is subject to the CRA, and a Member submits that for the record, triggering the CRA.

So This Effectively Makes the CRA Limitless: Well, not really. Any rulemaking that complied with the notification requirements of the APA, and hasn’t been subsequently modified via legislation, is safe…probably. The fall of Chevron in the Loper Bright decision could create openings to amend existing rules. But any agency action that didn’t follow the Congressional notification requirements when promulgated is at risk, and that is the majority of Agency actions.

Isn’t Anyone Suing to Stop This?: Funny that…the CRA explicitly prohibits judicial review of CRA actions.

What Is the Long Term Practical Effect of This?: Well…we should note the obvious that none of this is relevant if one party doesn’t have the trifecta and control the House/Senate/White House. George W. Bush was the last President who had a trifecta that lasted more than one Congress. What Administrations will likely do in the future is submit more and more things to Congress, even if it isn’t a rule under the APA to spend the 60 day clock, thus inoculating the action from a future Congress.

So the CRAs Will Continue Until Morale Improves?: It seems that way.

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