Congress Still Has Work to Do Before November
Congress adjourned on July 14 for a seven week District Work Period and will return on September 6. The House will gavel back into session next week for a lightning four week session, and the Senate for a five week session. Both chambers will return to Washington after the November elections for a lame duck session. They are both scheduled to adjourn again on December 16, but could do so earlier depending on the election results.
Congress’ Fall To Do List
The biggest item on Congress’ agenda is completion of the12 annual appropriations bills, which often are rolled into a large spending package or “omnibus.” The fiscal year ends on September 30, so Members will have to pass a government funding bill before then. If not, the government will shut down at 12 a.m. on October 1.
The prospects, however, look grim that an omnibus can make it to the President’s desk by September 30. The annual appropriations process has stalled in both the House and the Senate. Neither chamber has passed a budget, nor have they passed even half of the 12 annual appropriations bills. Therefore, when Congress returns in September, Republican leadership will most likely move a continuing resolution (CR)—a provision that simply extends the current spending levels, programs and restrictions without change—either through the election or into 2017. The Freedom Caucus, the more conservative wing of the Republican Party, will oppose the CR because it is not regular order and, in order to pass the Senate,the CR will have to be written to the higher Bipartisan Budget Act numbers (rather than the original sequester levels that the Freedom Caucus wants). Speaker Ryan and Majority Leader McConnell will have to work with Democrats to get enough votes for passage. Accordingly, Democrats will have important buy-ins on the length of the CR (whether it just goes through the election or into 2017) and any additional riders, like Zika funding.
If the CR expires before 2017, then Members will have to return during the lame duck session to pass a longer-term funding bill. The election will most certainly determine the outcome. If Donald Trump wins the election and Republicans maintain control of the Senate, Republicans will want the new Congress to determine spending levels for the remainder of FY2017. If the Democrats win the Senate and the White House, however, Republicans will most likely settle for a CR for the rest of the fiscal year (through September 30, 2017) as they won’t get better policies under a Democrat White House and Senate.
In February, the White House requested more than $1 billion in additional funding to combat the spread of Zika; however, Congress has so far been unable to pass a Zika funding package. House Republicans passed a package in June that would have provided $1.1 billion to fight Zika, but it was offset with unused Ebola funds, cuts to the Department of Health and Human Services, and unspent Affordable Care Act funds. It also repealed a measure that would have banned the display of the Confederate flag at cemeteries run by the Department of Veterans Affairs. President Obama threatened to veto the bill, and Senate Democrats blocked it.
The Senate tried again to pass additional funding for Zika in July, but failed over political disagreements. Zika funding will most likely return again in the fall in the context of a possible CR. It could be one of the provisions Democrats will try to negotiate in exchange for their votes on the CR.
Last December, Congress passed the Protecting Americans against Tax Hikes (PATH) Act, which made permanent most of the “tax extenders”—routinely expiring tax provisions that have to be renewed every year or every other year. These include provisions like the Research and Development Tax Credit, the State and Local Sales Tax Deduction, and bonus depreciation.
Only 36 tax extenders are set to expire at the end of 2016, compared to the 52 at the end of 2014, and those 36 are low cost and low priority. The remaining tax extenders fall into three categories: renewable energy incentives, like the tax credits for electric vehicles and biodiesel; provisions for homeowners, like one that allows homeowners to count mortgage insurance premiums toward their mortgage interest deductions; and lastly a mixed bag of provisions targeted at everything from railroad companies to rum producers.
None of these provisions are considered must-pass by House Republicans, and Ways and Means Chairman Kevin Brady already said that he does not intend to move an extenders bill this year. That said, political pressures in the Senate before or after the election could force a small package of tax provisions, including those mentioned above, through Congress before Christmas.
In 2014, the President signed a comprehensive reauthorization of the Water Resources Development Act (WRDA)—the policies that authorize the U.S. Army Corps of Engineers to develop, maintain and support the Nation’s vital waterway infrastructure. With that reauthorization, Congressional leaders promised a renewed commitment to a biannual WRDA cycle.
Following up on that promise, both the House and Senate have begun the process of reauthorizing WRDA for the next two years. The Senate Environment and Public Works Committee marked up and reported out its WRDA reauthorization on April 28, 2016. The House Transportation and Infrastructure Committee marked-up and reported out its WRDA reauthorization on May 25, 2016. Both chambers of Congress left for the summer District Work Period without having voted on a reauthorization. A House- and Senate-negotiated WRDA reauthorization will be one of the bills that could be considered during the lame duck session.
Senate Energy Bill
On July 22, 2015, Senate Energy and Natural Resources Chairman Lisa Murkowski and Ranking Member Maria Cantwell introduced the Energy Policy Modernization Act. It contains key provisions promoting efficiency, modern energy infrastructure, more diverse energy supply, accountability, and conservation. The Committee marked up the bill reported it out on July 30, 2015 after considering 59 amendments and adopting 34. The Senate passed the legislation on April 20, 2016.
The House Energy and Commerce committee began working on their own energy modernization legislation in the fall of 2015. It reported the North American Energy and Infrastructure Act out of Committee on November 19, 2015, and the House passed the bill on December 03, 2015.
The House subsequently passed the Senate’s Energy Policy and Modernization Act on May 25, 2016 with its own North American Energy and Infrastructure Act as an amendment. Both the House and Senate then formed a Conference Committee to resolve the bills’ differences. A conference report on the bills could also be another item on the docket for the lame duck session this fall.
Criminal Justice Reform
In October 2015, a bipartisan group of senators introduced the Sentencing Reform and Corrections Act. This comprehensive criminal justice reform bill includes provisions to reduce mandatory sentences for certain nonviolent drug offenders, allow deserving federal prisoners to shave time off their time behind bars, and give judges greater sentencing discretion. The Senate Judiciary Committee marked up and reported the bill favorably on October 26, 2015. It is still awaiting a vote on the Senate floor.
The House Judiciary Committee also is considering criminal justice reform. On November 18, 2015, House Judiciary Chairman Goodlatte began a series of markups on these bills. Over the next 7 months, the Judiciary Committee marked-up and reported the bills favorably. Currently, Chairman Goodlatte and House Leadership are deciding best how to package the bills for a vote on the House floor.
Both the House and Senate left for the summer District Work Period without having voted on either package. While there is bipartisan support, the packages will most likely not be considered on the floor of either chamber in September or during the lame duck session. It is too big and too new a concept to be pushed through during a lame duck session, and there are other bipartisan bills that will take precedence. Look for the efforts at criminal justice reform to renew next Congress.
National Defense Authorization Act
Anothermajor bill Congress tackles annually is the National Defense Authorization Act (NDAA), which sets Defense Department policy for the year. The House and Senate have each passed their own versions and have now formed a Conference Committee to resolve any differences. During the lame duck session after the election, Congress is expected to pass the Conference Report for the 2017 NDAA, which will formally resolve the differences between the House and Senate bills.
Trans Pacific Partnership
It has been over a year since Congress voted to give the President Trade Promotion Authority so that he could finish negotiating the Trans Pacific Partnership (TPP). Negotiations concluded in February of this year, but neither Ways and Means Chairman Kevin Brady nor Senate Finance Chairman Orrin Hatch have indicated that they will take any action on the agreement before the November elections. The White House has also not given Congress a draft statement about how it plans to implement the agreement, which it is required to do 30 days before submitting a pact for the vote.
The Office of the U.S. Trade Representative says it is currently working on resolving a handful of issues that are jeopardizing support for the deal, but last week both Speaker Paul Ryan and Senate Majority Leader Mitch McConnell indicated that it is very unlikely that Congress will address TPP at all this year.
Supreme Court Nominee
President Obama nominated Judge Merrick Garland on March 16, 2016 to replace deceased Justice Antonin Scalia on the U.S. Supreme Court. Garland, however, must be confirmed by the Senate. Senate Republicans have thus far refused to consider his nomination, maintaining that the next President should nominate Justice Scalia’s replacement. To date, the Senate has not held a single committee hearing on Garland’s nomination.
It is extremely unlikely that Senate Republicans will confirm Garland before the election. If Hillary Clinton wins the Presidential election, then his nomination may be considered during the lame duck session this fall.
With the exception of government funding bills and the NDAA, the remainder of these provisions are not must-pass. They are all projects on which Congress has been workingthat could be considered this fall, but that depends on the appetite for bipartisanship ahead of the election and the results of the election itself. We do not anticipate a very productive fall and lame duck session, but we will monitor the progress on each of these provisions and will continue to keep you informed.
 Conservatives have been demanding a return to regular order for the past two Congresses as a way to move power away from leadership and back to committees and their members. Regular order on appropriations bills is as follows: House and Senate Committees mark-up budgetsHouse and Senate pass budgetsHouse and Senate go to conference on budgetHouse and Senate pass conference report on budgetHouse and Senate Appropriations Committees mark-up the 12 annual appropriations billsHouse and Senate pass the 12 annual appropriations billsHouse and Senate go to conference on 12 annual appropriations billsHouse and Senate pass conference report(s) on 12 annual appropriations billsthe President signs 12 annual appropriations bills.