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Happy Tuesday morning.

The Senate returns today after a month-long recess to vote on an appeals court nominee. Election Day is only nine weeks away.

We’re going to talk this morning about political dynamics confronting the Senate’s leaders. But first, we have some news on same sex marriage and a possible Senate vote later this month.

We’re hearing that Democratic congressional leaders are considering attaching a provision codifying same sex marriage protections onto a must-pass spending bill to keep the federal government open past Sept. 30.

This would dramatically raise the political stakes surrounding the vote on the continuing resolution, which will take place at some point in the next couple weeks. The federal government’s fiscal year ends Sept. 30, and Congress must pass a CR to keep departments and agencies open beyond that date. As we reported yesterday, Democratic leaders are considering a CR that extends funding until either Dec. 9 or Dec. 16, but they haven’t picked an end date yet.

The White House has already sought to attach as much as $47 billion in emergency funding for Ukraine, Covid-19, monkeypox and disaster relief to the CR. There’s also talk about adding Sen. Joe Manchin’s (D-W.Va.) permitting reform proposal to the package as well (we have more on this issue below). Senate Majority Leader Chuck Schumer promised Manchin a vote on that proposal before Sept. 30 as part of the Inflation Reduction Act agreement.

If Democratic leaders include a same sex marriage provision too, the CR vote becomes a pretty significant political moment with broader ramifications. That could make the same sex marriage proposal – which passed the House with solid GOP support – an easier vote for Senate Republicans on the fence over the issue. Or it could cut the other way, giving GOP senators political cover to vote no. Schumer suggested he’d hold a vote on same sex marriage this month, although that’s not set in stone. We’ll get a better sense later this week.

Now let’s talk about the political landscape for Schumer and Senate Minority Leader Mitch McConnell.

Schumer – who is up for reelection in November – continues to hold a strong political hand. He’s coming off some big legislative wins before the August break, including passage of the Inflation Reduction Act, the CHIPS bill, a gun control package, NATO expansion and the PACT Act, a major veterans’ health bill.

President Joe Biden also announced that he’d cancel $10,000 in student loan debt per borrower, a move Schumer strongly backed. And the party’s chances of holding the Senate look better and better as they out-raise and out-maneuver GOP candidates in key races.

In fact, Senate Democrats are returning from a recess for the first time in a long time without a huge legislative to-do list hanging around their neck.

Yes, Congress must fund the government. Lawmakers must reauthorize FDA user fees by the end of the month as well. And no, neither of these things may be easy to do. But both parties have a vested interest in keeping the federal government open and reauthorizing FDA programs, particularly so they can get back to the campaign trail.

Schumer plans to focus heavily on judicial nominations this month, especially circuit court judges. A Senate Judiciary Committee aide noted that there are eight circuit nominees pending on the chamber’s Executive Calendar, plus another four who need discharge votes to get them out of the evenly divided committee.

The Senate will vote today on whether to invoke cloture on John Lee’s nomination for the Seventh Circuit Court of Appeals, which covers Illinois, Indiana and Wisconsin. If he’s confirmed, Lee would be the first Asian American judge to serve on this panel.

Schumer has also filed cloture on Andre Mathis’ nomination for the Sixth Circuit Court of Appeals, although no vote has been scheduled yet. Circuit court nominations take more time to complete than district court nominations, with up to 30 hours post-cloture debate for the circuit court judges versus two hours for district court judges.

The overriding political question for Schumer and the Democrats is how much does former President Donald Trump factor into their closing midterm message? Do Democrats focus on selling their legislative achievements or shift to bashing Trump? How much attention do they pay to the classified document drama engulfing Trump and the “MAGA Republicans” defending him? We’re hearing more and more from Democrats about threats to democracy – so clearly some of this message is seeping through.

As we’ve seen before, making the election a referendum on Trump has had mixed results for Democrats. And it’s particularly tricky this cycle with the former president not on the ballot. Of course, all bets are off if Trump announces he’s running for president before the midterms. Then Trump becomes the focus for both parties, whether they want him to be or not.

Now let’s turn to McConnell. The GOP leader and Florida GOP Sen. Rick Scott, chair of the National Republican Senatorial Committee, have clashed over candidates, money and the Republican agenda for the better part of this year. This is unusual territory for McConnell, who prefers to handle disputes with his GOP colleagues in private.

But with the NRSC facing a cash crunch at a critical point in the cycle, the Senate Leadership Fund, which is aligned with McConnell, will spend tens of millions of dollars in key battleground races before Election Day in a bid to win the Senate majority. Republicans privately believe this SLF effort will pay dividends, and they remain hopeful that they can pick up seats in November.

Despite his recent improvement, Biden’s polling is still significantly underwater. Democrats remain hugely vulnerable on economic issues, especially on sky-high food and housing prices. Crime is a major problem, especially in Pennsylvania, which has one of the nation’s biggest Senate races.

→	Let’s go back to permitting reform for a moment. Manchin has repeatedly talked about how his plan will benefit fossil fuel projects, including the Mountain Valley Pipeline, a long-stalled natural gas project in his home state.

But a summary document circulating among Senate Democrats in recent days highlights how the proposal could be a boost for clean energy projects as well. Schumer, in fact, noted that “there are a lot of red states that won’t build transmission lines” for wind and solar projects during an Aug. 7 presser.

The Democratic document points out the package would “strengthen the federal government’s permitting authority for interstate electric transmission lines that are determined by the Secretary of Energy to be of national interest.” FERC – the Federal Energy Regulatory Committee – would be given more authority to push through “national interest transmission projects.”

Democrats estimate there are 20 such projects “that would deliver 20-40 gigawatts (or 20,000 to 40,000 megawatts) of clean power to parts of our country that need it.”

Also: We wanted to flag one more thing for you. There’s talk that the “Gang of Eight” – the four party leaders and the top Republicans and Democrats on the House and Senate intelligence committees – may get a briefing about the FBI’s raid of Trump’s residence at Mar-a-Lago. Specifically, the potential damage to U.S. intelligence from Trump’s possession of highly classified documents. This is still under discussion, it’s not certain that a briefing will actually happen. But it’s under consideration, according to multiple sources.

– John Bresnahan, Jake Sherman and Heather Caygle

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