Monthly Archives: February 2017

Weekly Legislative Report Feb 17, 2017

J.R. Reskovac
Sarah Strup Herbert

Appropriations

Senior GOP House appropriators have been directed by leadership to commence spending negotiations with their Senate counterparts over final government funding for the current fiscal year. 

The tentative plan is to complete the 11 remaining appropriations bills for FY17 and attempt to pass them either individually or in small groups.  Given the limited floor time available for appropriations and higher-profile legislative items on the early agenda, it would be very difficult to pass spending bills individually.  Most federal agencies are currently operating under a short-term continuing resolution that expires April 28.

Budget

House and Senate Republicans are still working to complete action on the FY17 Budget Reconciliation bill that would “repeal and replace” the Affordable Care Act (ACA).  In particular, the Senate is working closely with the House to ensure that provisions included in the final reconciliation bill would not be considered “fatal flaws” by the Senate Parliamentarian under reconciliation (e.g. provisions under the jurisdiction of a Committee that was not given reconciliation instructions).  While the exact timing of bringing the legislation to a vote is not clear, it must be completed before the FY18 Budget Resolution is passed, which Congress hopes to do in May. 

The expectation is that the FY18 Budget Resolution will contain reconciliation instructions related to tax reform – although no clear guidance has been given from the Administration on what they would like tax reform to look like.  One of the biggest questions is whether tax reform will be revenue neutral or if it will be a net tax cut.  Some Republicans argue that to actually be revenue neutral, the final bill would have to cut taxes by $800 billion to offset the cost of the ACA. 


The FY18 Budget Resolution will also provide the Appropriations Committees with their top line numbers to begin the FY18 process.  The Committee believes they can still complete the FY18 process by the end of the fiscal year, even with a later than normal start.

Looking ahead, assuming the FY17 appropriations process is completed by the end of April, with either an omnibus or a continuing resolution, the next major action forcing event will likely come in the late summer when the start of the new fiscal year looms, and Treasury exhausts its “extraordinary measures” used to extend the debt ceiling.  This could also coincide with the budget reconciliation bill addressing tax reform. 

Cabinet Nominations

Department of Commerce

President Donald Trump’s pick for Secretary of the Commerce Department, billionaire Wilbur Ross, cleared a procedural hurdle Friday that sets up a confirmation vote for after lawmakers return from the week-long recess.  The Senate agreed, 66-31, on a procedural motion to limit debate to 30 hours before a final vote, which could be held as early as Monday, February 27.

Department of Labor

President Donald Trump announced Thursday that he will nominate R. Alexander Acosta as Labor secretary, one day after the president’s first choice, fast-food CEO Andrew Puzder, withdrew from consideration.

Acosta is a former member of the National Labor Relations Board and is currently dean of Florida International University’s law school.  Acosta would be, if confirmed, the first Hispanic Cabinet member under Trump.  He also has served as assistant attorney general for the Civil Rights Division of the Justice Department under President George W. Bush.  In 2006, the Senate confirmed him by a voice vote as the U.S. Attorney for the Southern District of Florida.

Puzder backed out Wednesday after intense opposition from Democrats but also concern from some Republican senators over his flexible views on immigration, his revelation that he had employed an undocumented worker as a housekeeper and that he had not paid state and federal taxes for her until his nomination.

Department of the Treasury

The Senate confirmed Steven Mnuchin, a former Goldman Sachs banker and Hollywood film financier, to be Treasury secretary on Monday by a vote of 53 to 47.  During a long debate over Mnuchin’s credentials, Democrats argued that his experience on Wall Street exemplified corporate malpractice that led to the 2008 financial crisis.

Department of Veterans Affairs

The Senate unanimously confirmed David Shulkin to head the Department of Veterans Affairs Monday evening.  Shulkin sailed through his confirmation hearing, where he touched on the department’s backlog of benefits appeals and holding VA employee accountable.

Environmental Protection Agency

Oklahoma Attorney General Scott Pruitt was confirmed 52-46 by the Senate on Friday to lead the Environmental Protection Agency.

Pruitt is expected to implement President Donald Trump’s promises to limit business regulation.  Democrats railed against his nomination in an overnight debate and sought to delay a vote until after his office complies with a state judge’s order to release thousands of emails related to his correspondence with coal, oil and gas companies regarding his EPA suits.  A motion offered by Sen. Jeff Merkley (D-OR) to extend debate until February 27 was defeated, 47-51, before the confirmation vote began.

Office of Management and Budget

Rep. Mick Mulvaney (R-SC) was confirmed 51-49 Thursday by the Senate as director of the OMB.  Mulvaney was criticized by Democrats as too conservative for the position, but defended by Republicans as crucial for implementation of President Trump’s fiscal agenda.  Republican Sen. John McCain of Arizona spoke out against Mulvaney, saying he has not demonstrated enough support for military spending in his votes in the House.

Small Business Administration

Linda McMahon, a co-founder of World Wrestling Entertainment, was confirmed by the Senate Tuesday to lead the Small Business Administration.  Her confirmation moved smoothly through the Senate and she had the backing of Connecticut’s two Democratic senators, Richard Blumenthal and Christopher Murphy.  Blumenthal defeated McMahon in a 2010 Senate race and Murphy defeated her in 2012.

Earmarks


House Republicans appear to be pushing ahead with plans to consider lifting the ban on earmarks.  Late last year Speaker Paul Ryan promised the Republican Caucus they would explore restoring earmarks after he put a halt to consideration of rolling back the ban on earmarks during a closed-door House Republican Conference meeting in November.

Republicans banned earmarks under former Speaker John Boehner (R-OH) in 2010, but pressure has grown to lift the ban, partly to ease passage of spending bills and give lawmakers more power over executive branch agencies.  Fiscal conservatives, however, support the ban as a way to control wasteful spending.  

On Tuesday, House Rules Committee Chairman Pete Sessions (R-TX) said the Rules Committee will hold hearings on allowing for the return of “congressionally directed spending” in coming months and make a recommendation on the matter before the Fourth of July recess.  A final decision would then be up to the entire Republican conference.

According to Sessions, “The process will include testimony before Rules from members of Congress, what Sessions called “guests,” constitutional experts, members of the Trump administration, and representatives of the Army Corps of Engineers and law enforcement.”

Energy/Environment

Dept. of Energy Loan Guarantee Program

The House Committee on Science, Space and Technology held a hearing Wednesday to discuss the Department of Energy’s Loan Guarantee Program.

Committee members aimed to assess market impact and risk associated with federal direct loans and loan guarantees for energy innovation, and to consider options to reform the program.  For more information on this hearing, including witness testimony and opening statements, see here.

Endangered Species

The Senate Environment and Public Works Committee held a hearing on Wednesday to discuss a possible update to the Endangered Species Act (ESA) to protect business interests as well as threatened plants and animals. 

EPW Committee Chairman John Barrasso (R-WY) said the act (PL 93-205) has not been updated since the 1970s; and of 1,652 species of animals and plants in the United States listed as endangered or threatened since the law took effect, only 47 have been delisted by the Fish and Wildlife Service, which enforces the act.  Other GOP lawmakers on the committee said the listings can impede economic development, are costly for businesses, are often dismissive of state and local preservation efforts, and it can often take too long to delist species that have been revived.

Democrats on the Committee agreed an update may be in order as long as it does not compromise the on the successes achieved with the bill.  For more details on the hearing, see here.

Environmental Law

The House Energy and Commerce Committee’s Subcommittee on Energy and Subcommittee on Oversight held a joint hearing Thursday, entitled, “Modernizing Environmental Laws: Challenges and Opportunities for Expanding Infrastructure and Promoting Development and Manufacturing.”

During the hearing, members and witnesses examined challenges and opportunities for expanding infrastructure, economic redevelopment, and manufacturing by modernizing certain environmental statutes in the Subcommittee’s jurisdiction, including the Clean Air Act (CAA), and the Brownfields provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  For more information on this hearing, see here.

Supreme Court

Senator Judiciary Committee Chairman Chuck Grassley (R-IA) has expressed his desire to complete the confirmation process of Neil Gorsuch to be Associate Justice of the Supreme Court before the Easter recess.  Judge Gorsuch’s nomination hearing is scheduled to begin on March 20 and is expected to last three or four days. 

Washington Outlook

Both the House and Senate will be in recess next week for the President’s Day holiday.  The next Weekly Legislative Update will cover the week of February 27 – March 3 when Congress returns to session.

Weekly Legislative Report Feb 10, 2017

J.R. Reskovac
Sarah Strup Herbert

Appropriations/Budget

Congress

Republicans’ difficulties in coming up with legislation to repeal the Affordable Care Act (ACA) could incite a chain reaction, delaying the FY18 budget resolution, appropriations and a tax overhaul.

The reconciliation measure to partially repeal and replace ACA (PL 111-148, PL 111-152), which House committees are currently working on, has to be passed by Congress before lawmakers can move forward on a FY18 budget resolution.  The repeal bill will use reconciliation instructions in the FY17 budget resolution (S Con Res 3) adopted by Congress in January; so if a FY18 budget resolution were adopted before the repeal bill passed, the new resolution and its reconciliation instructions would eliminate the privilege enjoyed by the repeal bill.  As you know, advancing repeal legislation through the expedited reconciliation process allows it to pass in the Senate with a simple majority rather than the usual 60 votes. 

Initially, GOP lawmakers said the House Ways and Means and Energy and Commerce committees, which are writing the repeal legislation, would likely report to the House Budget Committee by the end of February.  That timetable has been pushed into March as the committees struggle to write a repeal with elements of replacement that will satisfy GOP conservatives and moderates in both chambers and avoid disruptions in health care to Americans.  This would allow the Budget Committee to mark up a FY18 budget resolution in late March, bring it to the House floor later that month or in early April, making it possible for both chambers to adopt a budget resolution by April 15.

Just as a delay on the repeal bill would hold up the FY18 budget resolution, lack of action on the resolution would pose an obstacle to quickly taking up the FY18 appropriations bills and tax overhaul. 

The budget resolution provides an enforceable topline on spending for appropriators to subdivide their spending allocations into individual appropriations bills.  It is possible for the House to consider FY18 spending bills without a budget resolution, but doing so would complicate and slow the process, and it might not succeed. 

White House Budget

White House Press Secretary Sean Spicer said Thursday the Trump administration will release its budget request soon, but provided few additional details.  Spicer said the White House plans to make changes to revenue and spending in the budget request as well as provide a reduction in the annual deficit.  He did not specify if the budget he referred to will be an outline or the full budget request, but most predict that it will be a “skinny budget” – a term used to describe the budget request outline that new administrations often send to Congress their first year in office to get the budget process started.

The administration missed a statutory deadline this week for its budget submission; the statute requires a budget must be submitted the first Monday in February.  However, it is common to miss the deadline among new presidents, the previous three presidents also were unable to meet the deadline in their first year in office.

Also holding things up- Trump’s pick for director of the Office of Management and Budget (OMB), Rep. Mick Mulvaney (R-SC), has not been confirmed by the Senate yet.  The two Senate committees with jurisdiction over the budget, Homeland Security and Governmental Affairs and Budget, voted Feb. 1 along party lines to send Mulvaney’s nomination to the Senate floor.

Education

Tuesday, the Senate confirmed Betsy DeVos as Education secretary, 51-50, with Vice President Mike Pence breaking a tie after a contentious nomination process that divided the Senate’s education committee.

After a flood of calls from constituents opposing DeVos’ confirmation, Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska broke ranks with their party, the first GOP lawmakers to do so during the Cabinet nomination process.

DeVos is an advocate for school choice and voucher programs that allow low-income students to take taxpayer dollars with them to private or charter schools.

Shortly after DeVos was confirmed by the Senate, the House passed two resolutions to overturn regulations crafted by the Obama administration under the Every Student Succeeds Act (ESSA); one to end department regulations dealing with state assessments (H.J. Res. 57) and the other teacher preparation programs (H.J. Res. 58).  The legislation has not yet been taken up in the Senate.

A separate bill (H.R. 899) by Rep. Thomas Massie (R-KY) was introduced in the House seeking to terminate the department altogether.  However, the legislation is unlikely to go anywhere due to the complexity of dismantling a department as well as the federally funded programs for low-income students it runs.

Energy/Environment

The Army Corps of Engineers officially granted the final permit needed to finish construction of the controversial Dakota Access pipeline on Wednesday.  The decision follows an executive memo issued by President Donald Trump last month directing the expedited review and completion of the environmental review holding up the project.

A pipeline construction site became the focus of intense protests led by the Standing Rock Sioux throughout 2016.  The group feared that the pipeline, which would need to cross at Corps-managed Lake Oahe in North Dakota, could expose the tribe’s only drinking water supply to contamination.  In response, the Obama administration announced in December it would not grant the easement without conducting another environmental assessment with more input from local and tribal stakeholders, stalling the project.

The corps said Tuesday that the environmental review was not needed to grant the easement, which will allow the pipeline to pass a North Dakota lake from which the Standing Rock Sioux Native American tribe draws most of its drinking water, but that it would continue to ensure the stipulations of the easement are closely followed so as not to contaminate the water.

Transportation/Infrastructure

The Senate Environment and Public Works Committee convened a hearing on Wednesday to discuss the modernization of U.S. infrastructure and get input from transportation leaders from rural areas as lawmakers and the new administration assemble an infrastructure package.

One of Trump’s campaign promises was to pump $1 trillion over 10 years into ailing roads, bridges and airports.  The proposal that has been floated that would offer federal tax credits to private firms that finance transportation projects.  Although the details of the plan have not been released, it seems to favor projects where investors could reliably assess risk and forecast revenue and profit. 

Many conservatives prefer this funding mechanism, as opposed to using a huge amount of federal dollars.  However, most GOP leaders on the Senate transportation committees are from rural states where there may not be profitable projects.  Senate EPW Chairman John Barrasso (R-WY) said, “funding solutions that involve public-private partnerships, as have been discussed by administration officials, may be innovative solutions for crumbling inner cities, but do not work for rural areas.”

During her Senate confirmation hearing, Transportation Secretary Elaine Chao assured Sen. Shelley Moore Capito (R-WV) that the administration would ensure equal access to transportation opportunities among rural and urban areas.

Senate Commerce, Science and Transportation Committee Chairman John Thune (R-SD) suggested direct federal spending could be one way to address rural needs as long as it’s offset elsewhere in the budget.  He said Tuesday that lawmakers still await an administration infrastructure proposal addressing rural areas that lack “the luxury” of denser populations that would provide a return on investment.

Panelists at Wednesday’s EPW hearing advocated for a diverse set of funding tools in an infrastructure bill and also called on lawmakers to stabilize the Highway Trust Fund; strengthen formula programs; and ensure regulations take rural and urban differences into account.

Washington Outlook

Next week in Congress, the Senate will continue marathon votes on President Trump’s cabinet nominations.  The Senate was in session for 57 consecutive hours this week just to confirm Education Secretary Betsy DeVos and Attorney General Jeff Sessions.  Secretary of Health and Human Services Tom Price was also confirmed by the full Senate early this morning. 

Senators will debate the nomination of Steven Mnuchin to be Treasury secretary today, with a confirmation vote set for Monday evening.  Also on the schedule for votes next week is David Shulkin to lead the Department of Veterans Affairs, Andy Puzder for Secretary of Labor, Rep. Ryan Zinke’s (R-MT) for interior secretary, Linda McMahon to lead the Small Business Administration and energy secretary nominee Rick Perry, all who are non-controversial and should be confirmed relatively quickly.  However, nominees Rep. Mick Mulvaney’s (R-SC) to lead the Office of Management and Budget and Scott Pruitt to lead the Environmental Protection Agency could also be voted on next week which may trigger more all-night sessions, given the Democratic opposition to both candidates. 

Weekly Legislative Report Feb 3, 2017

J.R. Reskovac
Sarah Strup Herbert

Appropriations/Budget

Senate Budget Committee members met this week to discuss the best ways to increase government revenue and reduce the deficit and the debt, following testimony from Congressional Budget Office (CBO) Director Keith Hall.

Chairman Michael Enzi (R-WY) said, “we need to look beyond the annual appropriations process,” and suggested entitlement programs may need to be looked at in order to meet budgetary requirements.

Ranking member Bernie Sanders (I-VT) rebuked Enzi for what he believed was a proposition that Congress should overhaul mandatory spending programs, such as Social Security, Medicare and Medicaid.

Hall warned that there would be consequences for allowing the debt to continue increasing during the next decade and noted that if Congress addresses Social Security’s insolvency soon, it could require a 33 percent reduction in benefits, but that number increases by 5 percentage points every six years that lawmakers do not take action.

Defense

Nuclear Arsenal

The Defense Science Board, a panel of outside experts that advises military officials, has recommended via an unpublished report that the U.S expand its nuclear arsenal.  The issue could generate a greater debate as the Pentagon prepares for an up-to-$1 trillion update of the U.S. nuclear arsenal in the next several years.  Currently the update involves primarily building new versions of the same submarines, bombers, missiles, bombs and warheads.  Support for the modernization effort is bipartisan, but expansion for any reason other than deterrence will receive pushback from Democrats.

Federal Hiring Freeze

On February 1, Deputy Defense Secretary Bob Work issued a memo exempting thousands of jobs at shipyards, depots and maintenance facilities from the Trump administration’s hiring freeze.  Without such an exemption, part-time and temporary employees in many, mostly Republican, districts would have lost their jobs.   

Other exemptions include, but are not limited to: positions directly supporting contingency operations, scheduled military operations and deployments and security cooperation exercises and training; positions required for cybersecurity, cyberspace and space operations or planning; positions at medical and dental facilities; first responder and law enforcement positions; positions necessary to carry out treaties and other international obligations; and positions providing operational support to the president, Defense secretary and Joint Chiefs of Staff chairman.

Education

Republican lawmakers who have advocated for a federal school choice voucher system now see a possible opening to push through legislation that once couldn’t garner enough support.  Vouchers can allow families to use federal or state funds to send their children to the school of their choice, whether that is a religious or a charter school.

In 2015, eight Republicans in the Senate and 49 in the House joined Democrats to reject several amendments that would have allowed states to use federal funds to create voucher programs through the Every Student Succeeds Act (PL 114-95).  However, with the White House and Dept. of Education Secretary nominee Betsy DeVos advocating for school choice, lawmakers who have praised voucher and school choice programs, including House Education and the Workforce Chairwoman Virginia Foxx (R-NC) and House Speaker Paul Ryan (R-WI), there could be a push for similar legislation this Congress.

Despite the support for school choice and vouchers, passage of ESSA was less than two years ago, and making changes to the bill could prove difficult.  Senate HELP Chairman Lamar Alexander (R-TN) has also made statements that his committee’s main focus will be reauthorizing the higher education act (PL 110-315).

Energy/Environment

The Senate voted 54-45 on Thursday to pass a Congressional Review Act joint resolution (HJ Res 38) to nullify the Interior Department’s Stream Protection Rule aimed to limit polluted runoff from surface coal mining into nearby water sources.

The resolution passed the House by a vote of 228 – 194 on Wednesday, and now goes to President Trump for signature.  Trump is expected to sign, as helping the coal industry was one of his campaign promises.  The controversial stream rule, also known as the stream buffer rule, was finalized in December.  It was written to update a 1983 federal rule limiting runoff contamination from open pit coal mines.

Congress has used the CRA to nullify a regulation only once before, but Republicans plan use the law in the coming weeks to undo regulations that were finalized in the past 60 legislative days of the Obama administration.  That time frame would allow Congress to act on rules made final on or after June 13, with the Senate only needing a simple majority to pass.

Trump Cabinet

Attorney General

The Senate Judiciary Committee met on February 1st and voted among party lines in favor of Sen. Jeff Sessions (R-AL) for attorney general.  His full Senate vote has not been scheduled.

Department of Education

The Senate moved one step closer Friday to confirming the nomination of Betsy DeVos for Education secretary after clearing a procedural hurdle, setting up a confirmation vote on Tuesday, February 7.

The procedural cloture vote to limit debate on the nomination came after two Republicans, Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK), said they would vote against DeVos’ confirmation after a flood of phone calls, letters and social media postings by constituents pressured Republican senators to oppose the nominee.  With nays from Collins and Murkowski, it brings the Senate to a 50-50 tie which Vice President Mike Pence can break in what would be an unprecedented move on a Cabinet nominee.

Department of Energy

The Senate Committee on Energy and Natural Resources on Tuesday voted 16-7 to advance Governor Rick Perry (R-TX) as Energy Secretary.  His Senate vote is not yet scheduled.

Department of Health and Human Services

The Senate voted 51-48 yesterday for cloture on the motion to proceed to executive session, which allows consideration of HHS secretary nominee Rep. Tom Price (R-GA).  The action comes a day after the Senate Finance Committee took the unusual step of waiving committee rules to advance the nomination to the Senate floor without the presence or support of a single Democrat. 

Department of the Interior

Rep. Ryan Zinke (R-MT) was approved on Tuesday by the Senate Committee on Energy and Natural Resources and now goes to the full Senate for confirmation to lead the DOI.

Department of State

The Senate on Wednesday confirmed former Exxon Mobil CEO Rex Tillerson as secretary of State with a vote of 56-43.  Senate Democrats were nearly unanimous in their animosity toward the nominee.  Initially, some high-profile Republican Defense hawks, including Armed Services Chairman John McCain (R-AZ), had expressed skepticism about Tillerson’s relationship with Russian President Vladimir Putin.  But following his confirmation hearing, all Senate Republicans threw their support behind the nominee.

Department of Transportation

The Senate on Tuesday voted 93-6 to confirm Elaine Chao as Secretary of Transportation.  The Senators to vote against her confirmation were Cory Booker, Jeff Merkley, Bernie Sanders, Chuck Schumer, Elizabeth Warren, and Kirsten Gillibrand.

Department of the Treasury

The Senate Finance Committee was scheduled to vote Wednesday on the nomination of Treasury secretary Steven Mnuchin, but as the case with Tom Price, Democrats did not show up for the vote, and Republicans moved to suspend the rules and vote without Democrats present.  Mnuchin, a former partner of Goldman Sachs and hedge fund manager, has also been a controversial choice due to his time with OneWest Bank, which has been criticized for cruel and overly aggressive foreclosure practices.

Environmental Protection Agency

Despite a boycott by committee Democrats, the Senate Environment and Public Works Committee advanced Oklahoma Attorney General Scott Pruitt’s nomination to lead the EPA to the full Senate.  Republicans agreed by voice vote to suspend panel rules requiring at least two Democrats to be present for a vote, after the minority party sought for a second day to block Pruitt’s confirmation over questions about potential conflicts of interest and ties to the oil and gas industry.  Nonetheless, Pruitt is expected to be confirmed.

Office of Management and Budget

Mick Mulvaney, Trump’s pick for director of OMB, was approved on Feb. 2nd by the Senate Homeland Security and Governmental Affairs Committee and the Budget Committee.  He now goes to the full Senate for a floor vote.

Small Business Administration

Linda McMahon was approved by the Senate Small Business and Entrepreneurship Committee on January 31st, in an 18-1 vote, to head the SBA.  The only senator to vote against McMahon was Cory Booker.  Her Senate vote has not yet been scheduled.

Washington Outlook

Next week in Congress, the Senate will continue confirmation hearings and floor votes on the remainder of President Trump’s cabinet nominations. 

Currently, the cabinet positions that have been confirmed are Secretary of Homeland Security John Kelly, Secretary of Defense James Mattis, U.S. ambassador to the United Nations Nikki Haley, Secretary of Transportation Elaine Chao, and Secretary of State Rex Tillerson.  Mattis and Kelly were sworn in on Jan. 20th, Haley on Jan. 24th, Chao on Jan. 31st, and Tillerson on Feb. 1st.