Weekly Legislative Report May 12, 2017

source: Capital Decisions Newsletter
J.R. Reskovac
Sarah Strup Herbert


Congress may have the freedom to make progress on the FY18 budget without endangering the FY17 reconciliation instructions for a Republican health care bill.  The Senate in 2006 adopted its version of a fiscal 2007 budget resolution and later in the year passed a reconciliation tax cut bill based on reconciliation instructions from a fiscal 2006 budget resolution.

The precedent means that the House and Senate Budget committees could mark up a FY18 budget resolution and adopt initial versions of the measure as well as begin the early stages of the FY18 appropriations process without waiting for congressional action on the health care overhaul.

The April 15 statutory deadline for both chambers to adopt a budget resolution, which sets enforceable levels for spending and taxes, passed almost a month ago.  The House and Senate Budget committees have yet to make public or mark up a budget resolution.

Senate Budget Chairman Michael Enzi (R-WY) referenced the precedent this week and says he wants to take up the FY18 budget resolution “as soon as we can.”

The House passed a reconciliation bill (H.R. 1628) based on FY17 reconciliation instructions to partly repeal and replace the Affordable Care Act (PL 111-148, PL 111-152), and the Senate is working on its own version.  But it could take weeks or months for the Senate to write and consider its bill or amendment, and for the House and Senate to attempt to pass a bill that’s been approved by a conference committee.

Still, appropriators in both chambers have begun to hold hearings in preparation for marking up the 12 FY18 spending bills, but are waiting for sub-allocations for each bill from the Appropriations chairmen before they can officially mark-up the bills.  The Appropriations chairs usually divide funds into the sub-allocations after receiving a discretionary spending topline from a budget resolution adopted by Congress.

Without a budget resolution, the House or Senate can bring appropriations bills to the floor after a chamber has passed a resolution to deem enforceable spending limits, which has not happened this year.  The 1974 budget law (PL  93-344) also allows the House to bring appropriations bills to the floor after May 15 even without a budget resolution or deeming resolution.  However, appropriators can’t write bills until they have their sub-allocations.


A few weeks ago, several universities were informed their applications for Upward Bound grants would be denied due to formatting errors.  Late last week, it was reported that in response to backlash, Education Secretary DeVos instructed department officials that she was rescinding the ability for program offices to impose mandatory page length or formatting rules in grant applications.  Furthermore, she stated that non-conforming formats could not be the basis to reject grant applications.  Her memo also states the policy takes effect immediately for FY18 and any FY17 notices that have not been published.  The memo does not provide for the reconsideration of recently reject grant applications.

The Education Department also formally removed Obama proposed regulations that were to become effective this year.  The teacher preparation regulations required Institutions of Higher Education (IHEs) to report on teacher placement and their evaluation ratings once employed.  The goals were to provide better transparency on effective training programs for prospective students to have a measurement to compare teacher preparation programs. 


Climate Change

Thursday, Secretary of State Rex Tillerson signed the Fairbanks Declaration in Fairbanks, Alaska, acknowledging the threat posed by climate change to the Arctic and indicating the need for action to curb its impact on the region.  He met with Arctic Council, a forum made up of indigenous groups and eight countries with territory bordering the Arctic Circle.

The declaration is at odds with the Trump administration officials who have expressed skepticism of climate change and comes at a time when President Trump is weighing a potential withdrawal from the Paris Agreement.  Despite overwhelming agreement among climate scientists to the contrary, Trump has called global warming a “hoax,” and vowed on the campaign trail to pull the U.S. out of the Paris agreement.


Senators on Wednesday voted on a Congressional Review Act resolution (H J Res 36) that would undo an Interior Department regulation limiting the release of methane from oil and gas operations on federal land.

Republicans believed they had enough votes to pass the bill, but a procedural motion to advance the resolution was defeated, 49-51. Three Republicans, including Sen. John McCain (R-AZ), voted “no.” This is the first of 15 CRA resolutions considered by Congress this year that failed.

The other two Republicans that voted no were Sens. Lindsey Graham (R-SC) and Susan Collins (R-ME) who had said publicly they would turn down the motion.  Republicans believed they had 50 votes and Vice President Mike Pence, who was on hand for the morning vote, would break the tie.

McCain said that while he opposed the extensive reach of the regulation, he feared that a clause in the Congressional Review Act that would prevent federal agencies from redoing the rule in a substantially similar form could prevent the Interior Department from making needed improvements to preventing methane waste.



Thursday, the Senate Health, Education, Labor and Pensions Committee advanced a bill (S. 934) to renew the Food and Drug Administration’s ability to collect fees from the drug and medical device industries by a vote of 21-2. 

The panel blocked an attempt from Sen. Bernie Sanders (I-VT) to include language on the importation of lower-cost prescription drugs from Canada, keeping the bill on a smooth path toward the Senate floor, where it is expected to be taken up next month.  The two dissents were from Sanders and Sen. Rand Paul (R-KY) who also supports the concept of drug importation and wants the FDA to accept more clinical trial data for drugs tested in foreign countries.

Most HELP committee members agreed that drug pricing was an issue that needed to be addressed and HELP Chairman Lamar Alexander (R-TN) suggested the issue could come up again when S. 934 reaches the Senate floor.

Repeal & Replace

Senate Republicans are avoiding the regular Senate committees for the development of an alternative to a House-passed measure seeking to repeal and replace the Affordable Care Act.  This week GOP senators formed working groups to explore alternative bill options.  Some Republican senators, taking the lead from House conservatives, are backing an idea of allowing states to adjust essential benefit (EHB) coverage requirements.  The House-passed measure included an amendment that keeps federal coverage requirements but let states seek a waiver to opt out of many of the requirements.

Any action by the Senate on a repeal and replace bill will wait until at least the week of May 22, when the Congressional Budget Office is expected to release its analysis of the bill that narrowly cleared the House last week.

Washington Outlook

Next week in Congress, the Senate Finance Committee will hold a hearing to discuss Medicare policies that improve care for patients with chronic conditions.   

The Senate will also continue to consider nominations in the Administration and plans to hold a cloture vote Monday at 5:30 p.m. on Jeffrey Rosen’s nomination to be deputy secretary of Transportation.

In the House, after returning from a week-long recess break, the House Appropriations Labor, Health and Human Services, Education, and Related Agencies Subcommittee will discuss biomedical research with officials from National Institutes of Health.  The House Ways and Means Committee will hold a hearing examining the status of Medicare payment systems.