Senators are all but certain to leave town next week without passing Sen. Sherrod Brown 's (D-OH) signature rail safety bill, denying him a legislative victory before he faces Ohio voters on Nov. 5.
For a brief moment, it seemed as if the bill, crafted in the wake of the East Palestine trail derailment last year, had real momentum. All Democrats supported the legislation, while Sen. J.D. Vance , Brown’s GOP colleague from Ohio, managed to attract seven Republican votes.
By all appearances, that left Democrats two votes away from overcoming a filibuster when it passed out of the Senate Commerce Committee last May. It also left Brown, one of the most endangered Democrats running for reelection this year, two votes away from a bipartisan vote he could tout in Ohio, where East Palestine residents are still dealing with the environmental consequences of the railway chemical spill.
There has been virtually no movement on the bill since then, according to its GOP co-sponsors, while at least one opponent, Sen. Ted Cruz (R-TX), told the Washington Examiner he has not received any new outreach despite his apparent openness to compromise.
“We've not heard much about it since the committee vote, honestly,” said Sen. Eric Schmitt (R-MO), one of the Republican supporters of the bill.
Earlier this month, Senate Majority Leader Chuck Schumer (D-NY) labeled the legislation a priority before the end of the year in a letter to his Democratic colleagues.
But Schumer's window to schedule a vote before Nov. 5 is closing. Senators will be gone the entire month of October, while next week will be spent passing a short-term extension in government funding.
That could mean the bill won’t get attention until the lame duck session, the time between the election and the start of the new Congress.
“I think it’s going to be hard to do before the election,” said Senate Majority Whip Dick Durbin (D-IL). “I encourage taking it up, but I think it’s going to be difficult.”
A lot has changed since Brown first introduced the legislation 18 months ago. Vance, now the Republican nominee for vice president, is rarely at the Capitol, and much of Washington, D.C., has shifted its attention to the November election.
More importantly, Ohio, a state former President Donald Trump won by 8 points in 2020, is a top pickup opportunity for Senate Republicans, who may be loath to give Brown a bipartisan win.
Brown only leads his Republican opponent, entrepreneur Bernie Moreno, by 2 points in the latest Senate polling.
One Republican strategist, speaking on condition of anonymity, downplayed the electoral importance of the bill.
“Presidential politics is dominating everything,” the strategist said of the Senate race, predicting that Trump’s outspokenness on the derailment — he visited East Palestine last year — helps Moreno.
“I don’t think voters up there think this is a Brown issue,” the strategist added. “Trump has been there. He is aligned with Bernie.”
Still, others were willing to acknowledge a vote on rail safety had electoral considerations.
“Wouldn't you think that might have something to do with it?” Sen. Mike Braun (R-IN), a co-sponsor of the bill, said of the legislation languishing.
Brown, for his part, declined to speculate on whether election season could be having a chilling effect.
“I try not to think in those terms,” he told the Washington Examiner in a brief interview.
In September, Vance said he “privately” had the GOP votes needed to pass the bill. He managed to grow GOP co-sponsors from three to seven with a series of changes to the legislative text.
But Vance has apparently kept Brown in the dark as to how the Senate gets to a filibuster-proof 60.
“I mean, J.D. just doesn't give us the names, so we're still trying,” Brown said.
All 51 senators who caucus with the Democrats are on board with the legislation, according to a source familiar with the whip count. But Schumer is running into resistance from Republicans who fear the bill, which raises rail safety standards and hikes the fines for infractions, would harm the transport of U.S. energy and raise costs for consumers.
Both Vance and Brown acknowledge getting the bill through the Republican-led House poses an even greater challenge.
When asked if there were nine GOP votes for Schumer to bring the bill to the Senate floor, Minority Whip John Thune (R-SD), the chief vote-counter for Senate Republicans, said, “We’ll see.”
“I don't think they're there at the moment,” Thune added.
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Sen. Josh Hawley (R-MO), one of Vance’s populist allies in the Senate, was more blunt.
“It's going nowhere,” he said. “If you don’t publicly have 60, you don’t have 60.”
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