WHAT THE MIDTERMS MIGHT MEAN FOR MAGNUSON-STEVENS

The long-awaited midterm elections are over.  Although final results are not in as I write this, it’s certain that the Democrats have taken control of the House, and that the Republicans have increased their control in the Senate.

The big question now is how that will impact federal fisheries management.

The immediate reaction might be that the shifting control of the House will be a good thing, and in the longer term, that’s probably true.  In the short term, though, it may goad those who want to weaken the Magnuson-Stevens Fishery Conservation Act, or at least to carve loopholes into the law to protect their particular fisheries, into a spurt of desperate activity, before their champions in the House lose their control of key committees, and much of their legislative clout.

The desperation is most likely to manifest itself in the actions of the various industry and anglers’ rights groups that are pushing the so-called “Modern Fish Act.”

It appears that those in the commercial fishing sector that are trying to weaken Magnuson-Stevens are resigning themselves to the fact that H.R. 200, the conservation-hostile Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act, is not going to be taken up by the Senate this year.  Undercurrent News, a news service for the commercial fishing community, noted that

“the lame duck session between now and the end of the year is the bill’s best shot.  It needs a Senate companion, something something that was hoped to come from Senator Dan Sullivan, another Alaskan Republican, though his office has not said anything about the measure for some time…

“But did we mention that time is short?  Now that the 2018 election is over, Congress will likely resume in a week and work about 20-25 days before ending on or around December 20.  They’ll likely prioritize ahead of any fishing-related legislation the funding of the government after Dec. 7, passing a new farm bill and handling pending appointments.

“One Republican House staffer that talked to Undercurrent was skeptical.

“’The Senate has been on the fence on introducing their own version for the past year and a half,’ the staffer said, just days before the election.  ‘I don’t imagine they have a whole lot of appetite in moving HR 200 at this point in the year.’”

While that is probably true, Magnuson-Stevens supporters shouldn’t let down their guard.  Although it isn’t likely that an H.R. 200-like bill would be able to garner the needed 60 votes in the Senate, particularly in the limited time left in the lame-duck session, “unlikely” is very different from “impossible.”  Even the “Trojan Horse” scenario, in which H.R. 200 is conferenced with the Senate version of the Modern Fish Act, is now much less of a threat due to the limited time left in the session.  Again, “much less of a threat” isn’t “no threat at all,” but the odds are strongly against it happening.

On the other hand, don’t be surprised if the pressure to pass S. 1520, the Senate version of the Modern Fish Act, ramps up in the Senate, even if there is no longer much of a chance to successfully conference it with H.R. 200. 

Given the money, effort and prestige that the Center for Sportfishing Policy, as well as its constituent groups such as the American Sportfishing Association, National Marine Manufacturers Association and Coastal Conservation Association have expended in their efforts to get the Modern Fish Act passed, such organizations will be badly embarrassed if, despite having majority-party support in both houses of Congress for the past two years, they come up empty at the end of the session.  In such event, they would probably have to do quite a bit of explaining to disgruntled members who were encouraged to expend their own resources in support of the failed effort.

S. 1520, as it exists today, is a very different bill compared to the legislation originally introduced in 2017, thanks to bipartisan negotiations that occurred during the committee mark-up process.  It would not be at all surprising to see the bill modified even more, so that it becomes little more than symbolic legislation that will allow its proponents to be able to pass it in the House, as well as the Senate, and claim a victory—provided that identical legislation can be introduced and passed in the House—rather than exit the battle in abject defeat.

But even if that happens, don’t expect the fight over Magnuson-Stevens reauthorization to be over; it will certainly resume in the next session of Congress.  The good news is that, if it does the battle will be fought on ground that is substantially more favorable to conservation interests than the field on which it was fought over the past two years.

Then, the new majority party in the House will make a big difference.

Congressman Rob Bishop (R-Utah), who probably never saw a conservation law that he didn’t want to weaken or repeal (which still didn’t stop the Center for Sportfishing Policy from naming him “Conservationist of the Year” in 2016, something that speaks volumes about its views on conservation issues), will no longer chair the House Committee on Natural Resources.  Also, Rep. Don Young (R-Alaska) will not be the primary sponsor of whatever Magnuson-Stevens reauthorization bill is ultimately voted out of that committee.

While that doesn’t mean that the legislation called the “Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act” is completely dead—that bill has more lives than a B-movie monster, and has been haunting the halls of Congress since former Congressman Doc Hastings (R-Washington) introduced it in 2014—it does mean that any such bill, if introduced, is going to be a minority effort that will likely lead an appropriately zombie-like existence, languishing in whatever twilight world serves as home to bills that are introduced, but never make it out of committee.

Speculation in the fishing industry is that Rajul Grijalva (D-Arizona) will take over the chair of the Natural Resources Committee.  Rep. Grijalva, who is currently the Ranking Member on the Natural Resources Committee, has a good record on fisheries issues, and believes that both parties in Congress should work together to craft a reauthorization bill, rather than trying to try to force a bill through the House on a party-line vote.

Many in the industry also believe that the House Magnuson-Stevens reauthorization bill will be written by Rep. Jared Huffman (D-California), who is currently the Ranking Member on the Natural Resources Subcommittee on Water, Power and Oceans.  Rep. Huffman has already presented a discussion draft of a Magnuson-Stevens reauthorization bill to the current session of Congress, which provides a clear and conservation-oriented blueprint for the future of federal fisheries law.  It is likely that he will introduce something similar in the next session of Congress.

However, there will be obstacles to any new effort to produce a Magnuson-Stevens reauthorization bill.

One will be the simple fact that Magnuson-Stevens is already a very good law.  While those seeking to weaken protections for federal fish stocks were eager to see the law changed, those who want to assure the long-term health of U.S. fish populations need do nothing right now; the current law is already working well.  Thus, in the House, there is no assurance that a majority reauthorization bill will be introduced quickly, once the new session begins.

Another obstacle will be the increase in majority seats in the Senate.

It is likely that if an H.R. 200-like bill was introduced in the Seanate, such bill would be dead on arrival, unable to win the 9 minority votes it would need to avoid a filibuster.  At the same time, a more conservation-oriented bill, which one might expect from the Senate, would have had little chance to pass in the House.  That situation may now be reversed, with hard-liners in the Senate majority, emboldened by wins in the midterms, possibly trying to add H.R. 200-like amendments to any Senate bill that ultimately emerges, which would be completely unacceptable in the House.

That sets the scene for a compromise bill, the sort of bipartisan compromise that has been a highlight of Magnuson-Stevens legislation for more than forty years.

Hopefully, there will be adults in both chambers of Congress who will be willing to sit down and talk, in good faith, with each other.

Maybe that won’t happen, and there will be stalemate.

But even stalemate would be OK.  Magnuson-Stevens remains a good law.  Given the events of the past couple of years, keeping it intact and unchanged would, in itself, be a win.