This Week in Congress – December 5, 2016

This should be the final week of legislative activity for the 114th Congress, with the House and Senate expected to work through the outstanding items that remain on their to-do list for 2016.  Lawmakers are scheduled to be in session until December 16, but resolution and passage of a spending measure to keep the government funded into 2017, the annual national defense authorization act, and the biomedical innovation bill, among a handful of other final legislative items should be wrapped up, enabling members to depart Washington, D.C. at the end of this week.  Republican leaders appear determined to wrap up a week early to allow more time at the start of the 115th Congress in January 2017 for consideration of resolutions of disapproval of “midnight” regulations issued by the outgoing Obama Administration under the Congressional Review Act.

Negotiations over a continuing resolution (CR) have been ongoing and press reports indicate congressional leaders are close to a deal that should be ready for a vote this week.  Current government funding expires on December 9.  Although initial discussions on the CR were focused on a three-month extension of current spending authority into March 2017, leadership now seems to be agreed on extending that authority into April after acknowledging the reality of the congressional calendar.  Both chambers are anticipating an active legislative agenda in the first few months of the 115th Congress, and the Senate will be particularly busy with the confirmation process for appointees to the new Administration.  Republican leadership recognizes that it would be challenging to add an appropriations deadline to the agenda in the first 100 days of the new session.  Legislative text has not yet been released, but House leadership indicated on Friday that the text of the spending bill would be ready to permit a vote this week.  Although the funding portion is easily crafted, many funding anomalies and various legislative provisions that can be agreed upon must be crafted, making the final drafting of the CR a laborious and time-consuming task.

In addition to the expected consideration of a CR this week, the Senate is set to take up two additional lame duck priorities.  Following the successful passage of both the biomedical innovation bill (H.R. 34, the 21st Century Cures Act) and a $619 billion conference report to the National Defense Authorization Act (S. 2943) through the House of Representatives last week, the Senate is now poised to take action on these measures.  Senators are scheduled to return on Monday for a procedural vote on the 21st Century Cures Act, legislation that will invest greater resources in medical innovation and speed up the process by which the Food and Drug Administration (FDA) approves new drugs and devices.  The legislation also includes additional provisions to address the opioid epidemic and to bolster the country’s mental health systems.  There is widespread, bipartisan support for the measure, and even though several Senate Democrats have criticized the final version of the bill and announced their opposition, the legislation is expected to see Senate approval this week and be signed into law by the President.

Once the 21st Century Cures Act has been dispensed with, the Senate will begin consideration of the conference report to the National Defense Authorization Act, which passed the House last Friday by a vote of 375-34.  This legislation provides an additional $8 billion in funding for overseas contingency operations and readiness shortfalls and covers the $5.8 billion supplemental request sent by the President to Congress in November.  It also includes a 2.1 percent pay raise for U.S. troops.  The funding in the bill is simply an authorization, and defense hawks have been critical of the CR strategy that congressional leaders have been pursuing because a CR will not provide the military with all of the funds authorized by this bill.

Among other potential items that could come up for consideration in the House and Senate before the close of this legislative session is the conference report to the Water Resources Development Act (WRDA), which House and Senate leaders indicate is close to being finalized; if completed, WRDA is likely to hitch a ride to passage on the CR.  Also in the mix is a bill proposed by Senators John McCain (R-AZ) and Lindsey Graham (R-SC) intended to “fix” the Justice Against Sponsors of Terrorism Act (JASTA).  The new law, which allows the families of 9/11 victims to sue the government of Saudi Arabia and other countries over alleged ties to the terrorists who carried out the attacks, survived a presidential veto earlier this year, but members of both parties have agreed there could be unintended, negative consequences.  The legislative “fix” would narrow the scope of the initial language.

The House is scheduled to convene again on Monday when it will take up six bills under suspension of the rules, including S. 1635, legislation authorizing the activities of the Department of State for FY 2017.

On Tuesday, members will consider a suspension package consisting of 21 bills, reported out of the Energy and Commerce, the Natural Resources, or the Veterans Affairs Committees.

On Wednesday and during the remainder of the week it is possible for the House to take up additional measures under suspension of the rules.  Also expected for floor consideration is H.R. 5143, the Transparent Insurance Standards Act of 2016.  The legislation would require the Treasury Department and Federal Reserve to provide additional reports to Congress on international negotiations regarding regulatory standards in the insurance industry.  Chief sponsor of the bill, Rep. Blaine Luetkemeyer (R-MO), chairman of the House Financial Service Committee’s Housing and Insurance Subcommittee, stated the bill is intended to “increase transparency and strengthen Congress’ role in supervising foreign standards setting organizations.” Consideration of H.R. 5143 will be subject to a rule.  Finally, the House will tackle the CR when it becomes available.

The hearing schedule for congressional committees remains light, but the high-profile event of the week will be a hearing before the Senate Judiciary Subcommittee on Antitrust, Competition Policy, and Consumer Rights to examine the impact of AT&T’s proposed acquisition of Time Warner Inc.  AT&T CEO Randall Stephenson and Time Warner CEO Jeffrey Bewkes are scheduled to appear before the subcommittee, alongside investor Mark Cuban and Gene Kimmelman of Public Knowledge, a consumer advocacy group.

Autonomous vehicle technology continues to be the subject of committee interest on Capitol Hill.  The House Transportation and Infrastructure Subcommittee on Highways and Transit will host a roundtable on Tuesday morning regarding the impact of integrating this technology on America’s transportation systems.  Roundtable participants include the United States Department of Transportation Under Secretary for Policy Blair Anderson, American Trucking Association President and CEO Chris Spear, and the Insurance Institute for Highway Safety Executive Vice President and Chief Research Officer David Zuby.

Relatedly, the Senate Commerce, Science, and Transportation Subcommittee on Surface Transportation and Merchant Marine is hosting a hearing Wednesday afternoon regarding the security of America’s critical transportation infrastructure.  American Trucking Association CEO and President Chris Spear will also be providing testimony to this  subcommittee (in addition to his appearance on the House side), alongside U.S. Department of Homeland Security Inspector General John Roth, Port Authority of New York and New Jersey Chief Security Officer Tom Belfiore, and Amtrak’s Interim Chief of Police Neil Trugman.

Several other events this week are focused on foreign affairs.  The Senate Armed Services Committee is hosting a hearing on Tuesday morning regarding U.S. defense challenges and worldwide threats.  On Wednesday afternoon the House Foreign Affairs Subcommittee on Asia and the Pacific will hold a hearing on whether President Obama’s “pivot to Asia” has been a “step or stumble.”  In addition, the full Senate Foreign Relations Committee will meet on Tuesday for a hearing to examine Iranian support for terrorism.

The full details for these events and other congressional hearings scheduled throughout the week ahead are included below:

 
Tuesday, December 6, 2016

House Committees

Volkswagen’s Emissions Cheating Settlement: Questions Concerning ZEV Program Implementation
House Energy and Commerce – Subcommittee on Oversight and Investigations
Subcommittee Hearing
10 a.m., 2322 Rayburn HOB

American Compassion in India: Government Obstacles
House Foreign Affairs
Full Committee Hearing
10 a.m., 2172 Rayburn HOB

Examining Decades of Data Manipulation at the United States Geological Survey
House Natural Resources – Subcommittee on Oversight & Investigations
Subcommittee Hearing
10 a.m., 1324 Longworth HOB

Roundtable on the Impact of Autonomous Vehicle Technology on America’s Transportation Systems
House Transportation and Infrastructure – Subcommittee on Highways and Transit
Subcommittee Hearing
10 a.m., 2167 Rayburn HOB

Step or Stumble: The Obama Administration’s Pivot to Asia
House Foreign Affairs – Subcommittee on Asia and the Pacific
Subcommittee Hearing
2 p.m., 2172 Rayburn HOB

The Federal Information Technology Acquisition Reform Act (FITARA) Scorecard 3.0: Measuring Agencies’ Implementation
House Oversight and Government Reform – Subcommittee on Information Technology; House Oversight and Government Reform – Subcommittee on Government Operations
Subcommittees Joint Hearing
2 p.m., 2154 Rayburn HOB

Senate Committees

Emerging U.S. Defense Challenges and Worldwide Threats
Senate Armed Services
Full Committee Hearing
9:30 a.m., 216 Hart SOB

Defeating the Iranian Threat Network: Options for Countering Iranian Proxies
Senate Foreign Relations
Full Committee Hearing
2:30 p.m., 419 Dirksen SOB

Intelligence Matters
Senate Select Intelligence
Full Committee Hearing (CLOSED)
2:30 p.m., 219 Hart SOB

Ensuring Independence: Are Additional Firewalls Needed to Protect Congressional Oversight Staff from Retaliatory Criminal Referrals?
Senate Judiciary – Subcommittee on Crime and Terrorism
Subcommittee Hearing
2:30 p.m., 226 Dirksen SOB

Wednesday, December 7, 2016

House Committees

1890 Land-Grant Institutions: Recruitment Challenges and Scholarship Opportunities
House Agriculture
Full Committee Hearing
10 a.m., 1300 Longworth HOB

Waste and Duplication in the USDA Catfish Inspection Program
House Energy and Commerce – Subcommittee on Health
Subcommittee Hearing
10 a.m., 2322 Rayburn HOB

Unconventional Monetary Policy
House Financial Services – Subcommittee on Monetary Policy and Trade
Subcommittee Hearing
10 a.m., 2128 Rayburn HOB

Corruption: A Danger to Democracy in Europe and Eurasia
House Foreign Affairs – Subcommittee on Europe, Eurasia and Emerging Threats
Subcommittee Hearing
10 a.m., 2172 Rayburn HOB

Examining the Costs of Overclassification on Transparency and Security
House Oversight and Government Reform
Full Committee Hearing
9 a.m., 2154 Rayburn HOB

California National Guard Bonus Repayment
House Armed Services – Subcommittee on Military Personnel
Subcommittee Hearing
2 p.m., 2118 Rayburn HOB

Time and Attendance Abuse at the U.S. Patent and Trademark Office
House Oversight and Government Reform – Subcommittee on Government Operations
Subcommittee Hearing
2 p.m., 2154 Rayburn HOB

Senate Committees

Examining the Competitive Impact of the AT&T-Time Warner Transaction
Senate Judiciary – Subcommittee on Antitrust, Competition Policy and Consumer Rights
Subcommittee Hearing
10 a.m.

Assessing the Security of Our Critical Transportation Infrastructure
Senate Commerce, Science and Transportation – Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety and Security
Subcommittee Hearing
2:30 p.m., 253 Russell SOB

Examining the Department of the Interior’s Land Buy-Back Program for Tribal Nations, Four Years Later
Senate Indian Affairs
Full Committee Hearing
2:15 p.m., 628 Dirksen SOB

Intelligence Matters
Senate Select Intelligence
Full Committee Briefing (CLOSED)
2:30 p.m.

Thursday, December 8, 2016

House Committees

Navy Littoral Combat Ship Program
House Armed Services – Subcommittee on Oversight and Investigations
Subcommittee Hearing
9 a.m.

Mixed Martial Arts Issues and Perspectives
House Energy and Commerce – Subcommittee on Commerce, Manufacturing and Trade
Subcommittee Hearing
10 a.m., 2322 Rayburn HOB

The Impact of Regulations on Short-Term Financing
House Financial Services – Subcommittee on Capital Markets and Government Sponsored Enterprises
Subcommittee Hearing
9:30 a.m., 2128 Rayburn HOB

Government Spending Data Transparency
House Oversight and Government Reform – Subcommittee on Government Operations
Subcommittee Hearing
10 a.m., 2154 Rayburn HOB

Senate Committees

State Department/USAID Management Challenges
Senate Foreign Relations – Subcommittee on State Department and USAID Management, International Operations, and Bilateral International Development
Subcommittee Hearing
10 a.m.

The Week Ahead in the European Parliament – December 2, 2016

Summary

The coming week is a political group week, i.e., the week during which political parties hold internal meetings to discuss their position and strategy, and also prepare the next plenary to be held on December 12-15, 2016, in Strasbourg.

In view of the Maltese presidency of the Council of the EU that starts in January 2017, the Conference of Presidents (including the Parliament President, Martin Schulz, and the political group leaders) will travel to Malta to meet the Maltese President, Marie-Louise Coleiro Preca, and Prime Minister, Joseph Muscat.

Although legislative activity is limited during political group weeks, a few interesting hearings and votes will take place.

On Monday, the Committee of Inquiry into Emission Measurements in the Automotive Sector (“EMIS”) will hold a presentation of the study on the differences existing between EU and U.S. legislation in the field of car emissions. The study has been prepared by the European Commission at the request of the EMIS Committee. The study draws a comparative analysis between the EU and the U.S. in various fields, such as emission standards (including their implementation and enforcement), and the regime applicable for banning the use of defeat devices. See the full study here. Continue Reading

Re-Opening NAFTA: Consequences for U.S. Businesses

President-elect Donald Trump made trade policy a key issue in his campaign and has declared his interest in either withdrawing from or renegotiating the North American Free Trade Agreement (NAFTA). Government officials from Mexico and Canada have publicly stated that their respective governments are open to renegotiating the treaty. As a result, companies that do business in Mexico or Canada or engage in cross-border transactions with those countries are likely to confront significant new challenges and uncertainty in the next few months.

Any renegotiation could lead to an increase in U.S. tariffs on imports from Mexico and Canada, which could increase to the levels applied to other members of the World Trade Organization (WTO). There may also be parallel increases in Mexican and Canadian tariffs on imports from the United States. Such shifts would threaten Mexico’s maquiladora industry in particular, which depends upon the tariff-free movement of inputs and finished products to and from the United States. Renegotiation also could affect U.S. firms that supply goods and services to the Mexican and Canadian governments and place in doubt bilateral arrangements facilitating the movement of U.S. workers and executives across the Mexico and Canada borders. Such a dramatic move, moreover, might be a precursor to unilateral U.S. trade measures. U.S. presidents, for example, have significant authority to impose tariffs against foreign trade practices.

What the Trump Administration’s policy priorities would be in any renegotiation are not clear, but changes in tariffs and the protection of U.S. jobs may be at the top of that list. It would not be surprising if President-elect Trump were to wield the threat of withdrawal as a source of leverage in any talks, and perhaps also seek to impose punitive tariffs against imports from Mexico and/or Canada. Any unilateral actions, of course, could prompt Mexico and Canada to retaliate in kind, such that these bilateral relationships deteriorate and market uncertainty increases.

If a Trump Administration goes so far as to withdraw unilaterally from the trade pact, that would also have the consequence of removing the protection that NAFTA’s Investment Chapter provides to the investments of U.S. investors in Mexico and Canada.

The Investment Chapter of NAFTA grants U.S. investors with investments in Mexico and Canada several substantive rights. For instance, Mexico and Canada must grant fair and equitable treatment to the investments of U.S. investors, must refrain from adopting arbitrary measures that may affect those investments, and must not expropriate those investments unless certain conditions are met, including the payment of compensation. The Investment Chapter also allows U.S. investors to seek damages in an international arbitration proceeding if any of those rights are violated. These substantive and procedural protections would no longer be available to U.S. investors if the United States were to withdraw from NAFTA. For those investors who believe Mexico or Canada has violated NAFTA, as long as a party notifies its intention to file a claim while NAFTA remains in force, its ability to seek redress in an arbitration related to that dispute will be preserved, even after any U.S. withdrawal has occurred.

Companies with significant investments in Mexico and Canada would be wise to consider how a withdrawal from, or fundamental changes to, NAFTA might impact their businesses going forward. Reopening NAFTA negotiations could present risks as well as opportunities for those on both sides of the border.

Use of the Congressional Review Act in the 115th Congress to Overturn Obama Administration Regulations

In just five short weeks, the 115th Congress will convene in Washington.  Now that Republicans control majorities in both houses and the White House, Republican leaders hope to use the Congressional Review Act (CRA) to overturn regulations issued by the Obama Administration over the past few months.  According to a recent Congressional Research Service review, over 100 regulations are potential targets for Congressional disapproval under the CRA, including:

  • The Department of Labor’s new overtime rule requiring employers to pay overtime to employees making less than $47,000 per year
  • FDA regulations governing serving sizes and nutrition labeling
  • Department of Agriculture regulations on nutrition standards for food served in schools
  •  Department of Health and Human Services regulations setting new performance standards for Head Start
  •  EPA regulations setting standards of performance for municipal landfills
  •  Treasury Department and Commodities Futures Trading Commission regulations governing covered swap entities, including margin and capital requirements
  •  Department of Labor regulations requiring paid sick leave for federal contractors
  •  Securities and Exchange Commission regulations requiring resource extraction issuers to disclose payments made to governments for the commercial development of oil, natural gas, or minerals
  •  Department of Transportation/Federal Aviation Administration regulations regarding the use of small unmanned aircraft (“drones”).

The Congressional Review Act

The CRA provides expedited procedures by which Congress may disapprove an administrative “rule” by enacting a joint resolution of disapproval.  A “rule” is broadly defined by reference to the Administrative Procedure Act and includes regulations issued by both executive branch departments and agencies (such as the Department of Labor), and independent agencies and commissions (such as the Federal Communications Commission or the Federal Trade Commission).  Before a regulation can take effect, the issuing agency must report the regulation to Congress. After the report is made, Congress generally has 60 days to introduce and pass a joint resolution of disapproval under the CRA’s special procedures, but the counting of the 60 days differs depending on whether the joint resolution is being introduced or considered and whether consideration is taking place in the Senate or the House of Representatives.

When rules are submitted to Congress within 60 days of a sine die adjournment of Congress, such as at the end of the second session of a given Congress, then the 60 days clock “resets” at the beginning of the new session.  Thus, for rules reported to Congress within 60 legislative days of the end of the 114th Congress, members of the 115th Congress will have the full 60 days to introduce and consider joint disapproval resolutions.  The “reset” period begins on the 15th day of the new session.  Because the CRA relies on legislative days—which are determined differently in each chamber—rather than calendar days, rules reported to Congress as early as mid-May 2016 may be eligible for congressional disapproval.  The parliamentarian of each house determines the actual cutoff date for CRA disapproval of a given rule.

If a joint resolution of disapproval is timely enacted with respect to a particular regulation, then the regulation will not take effect — or, if the regulation already has gone into effect, it will be treated as if it had never gone into effect. Moreover, the regulation may not be reissued in substantially the same form, nor may a new regulation that is substantially the same be issued, unless it is specifically authorized by subsequently enacted legislation. The CRA may be used only to disapprove a regulation in its entirety, and the rejection of each given rule requires its own resolution of disapproval (although some members of Congress have proposed legislation that would permit Congress to disapprove of regulations in larger blocks).

The primary advantage of using the CRA to invalidate an undesirable regulation is its expedited procedures, particularly in the Senate.  For example, if a joint resolution of disapproval is introduced in the Senate, and the jurisdictional committee fails to report it to the full Senate within a specified period, a petition of 30 senators may place the joint resolution on the Senate’s calendar.  In addition, Senate consideration of the joint resolution is not subject to filibuster, and debate is limited.  Once debate begins, the Senate may not move on to the consideration of other business until the joint resolution is disposed of.  Enactment of a joint resolution of disapproval under the CRA requires a majority vote in each chamber of Congress and signature by the president.

The CRA has been used successfully only once. In November 2000, the outgoing Clinton administration issued final ergonomics regulations.  In that same month, the Republican Party gained control of both chambers of Congress and the presidency.  In March 2001, the Republican Congress used the procedures under the CRA to cancel the ergonomics regulations.  The current political conditions are ripe for further such uses.

What’s Next?

President-Elect Trump campaigned on a promise to roll back countless Obama Administration regulations, and just last week proposed “formulat[ing] a rule that says that for every one new regulation, two old regulations must be eliminated.”  Although repeal of most regulations would require new rounds of notice-and-comment rulemaking, Republicans who support undoing the previous administration’s rules may rush to end the 114th Congress early in order to maximize the number of existing or soon-to-take-effect rules subject to the CRA in the new Congress.

The new Republican Congress and the Trump Administration are also expected to use traditional legislation to rollback a number of Obama initiatives, including the Affordable Care Act (“Obamacare”) and its attendant regulations, dozens of Dodd-Frank Wall Street Reform and Consumer Protection Act regulations, the Department of Labor’s fiduciary rule for retirement plan advisors, and others.  However, unlike regulations subject to the CRA, these rules are subject to filibuster by Senate Democrats.

The Republican leadership in both houses of the incoming 115th Congress are enthusiastic about rolling back Obama Administration rules and regulations, and have promised to use all tools at their disposal to accomplish that goal.

The strong likelihood that Congressional Republicans and President-Elect Trump will use the CRA to undo Obama Administration regulations should be of interest to companies who support or oppose the regulatory initiatives listed above, or any other regulations that may face Congressional scrutiny early in the new Congress.

Electoral volatility – the case of France

The surprising victory of Francois Fillon

Since 27 November, the favorite to become the next French President in the Spring 2017 election is Francois Fillon, someone nobody a month ago would have given any serious chance to get to the limelight. He received more than 2/3 of the votes in the second round of the ‘primary’ organized by the party of the Right, ‘Les Républicains’ to select their candidate for the presidency.

The election of the president of France happens in two rounds with a two weeks interval. In the first round all candidates having raised a basic support can participate; in the second only the two frontrunners compete. The collapse of president Hollande‘s socialist party makes it almost certain now that the two will be Fillon and Marine Le Pen, the candidate of the extreme right ‘Front National’, who is forecast to gain some 30 % of the votes in the first round.

Selecting the leader who could beat Marine Le Pen was thus the main challenge of the Right’s primary. The stakes indeed go well beyond internal French politics. Not only is Marine Le Pen’s party racist, anti-Semitic and ferociously anti-immigrant, she is also aggressively Eurosceptic. She even promised a referendum on the withdrawal of France from the European Union. After the Brexit referendum, she posted: “Victory to liberty! As I have been demanding for many years, we now need the same referendum in France and EU countries.” Continue Reading

The Week Ahead in the European Parliament

Monday, November 28, 2016

Summary

This week is an interesting week in the European Parliament, a Brussels-based “mini-Plenary”, with a mixture of committee meetings and votes in plenary session.

Following the agreement reached between the Parliament and the Council of the EU on November 17, the Parliament will vote on the compromise for the 2017 Budget on Thursday. The Parliament negotiated the Budget up, to pay programs aimed at fostering employment for youngsters, student mobility and SMEs.

The Parliament will also address data privacy, as a vote on the “Umbrella Agreement” will take place in plenary on Thursday December 1. The Umbrella Agreement is a proposal for Council Decision that covers the transfer of personal data between the EU and the US for law enforcement purposes, including in case of criminal prosecutions and terrorism. The Council Decision must be adopted following the consent procedure. Various Members of the European Parliament tabled amendments to refuse the parliamentary consent required to adopt the Council Decision. However, the amendments will have to be subject to a vote on Thursday. See here for the amendments tabled by the Parliament and here for the initial proposal. Continue Reading

Private-Sector Opportunities – and Challenges – in the new $38.8 billion U.S.-Israel Military Assistance Package

Uncertainty surrounding the policies of the new administration is felt across industries. In particular, U.S. and Israeli defense industries are anxious for details of a ten-year, $38.8 billion military assistance package that was signed in Washington this past September. Whether the terms of the aid package are upended entirely or left mostly unchanged by the current incoming administration will have far reaching consequences on future U.S. and Israeli government procurement.

As discussed in this post, since 2007, U.S. and Israeli defense contractors have become accustomed to navigating the terms of an FY2009-FY2018 assistance program. The new 10-year package, however, presents new, unchartered challenges, for which industry will have to prepare and adapt. To do so effectively, companies will want to (i) glean more specific details regarding the terms of the new aid package, especially in light of changing administrations (ii) work towards increasing their eligibility for defense funding by adapting structurally, either through approved M&A activity or B2B cooperation between U.S. and Israeli companies, and, finally, (iii) engage with experts, policy makers and regulators, to ensure their plans align with any current or future compliance constraints.

What is clear, the changing landscape presents challenges and opportunities for both U.S. and Israeli defense contractors. Continue Reading

This Week in Congress – November 28, 2016

Three weeks remain on the schedule for the 114th Congress and three unfinished priorities remain on the to-do list. Before the close of the lame duck session, each chamber is expected to take action on a Fiscal Year (FY) 2017 funding mechanism to keep the government funded beyond the December 9 expiration of the current continuing resolution, the annual defense authorization bill, and a bipartisan measure to increase medical innovation and make reforms to the mental health system.

The stopgap funding measure is perhaps the biggest hurdle for members to complete this month, capping off a year-long battle over the annual appropriations process and funding levels for FY 2017. Despite the support of many Republican members to enact an omnibus bill or several smaller, so-called minibus bills to complete the months-long work by appropriators on individual FY 2017 2017 bills, House Republican leadership has indicated, in consultation with the President-elect, to pursue another short-term stopgap bill to continue current funding levels through March 31, 2017. This approach will require Congress to agree on a funding bill in early 2017 through the end of the fiscal year, September 30. The move is designed to leave any new funding decisions to the new session of Republican-controlled Congress and the new administration. Legislative language has not yet been formally introduced, and the outgoing administration has so far abstained from threatening a veto of another short-term funding bill, even though the President has indicated his support for a bill that provides funding through September 30. There appears to be little appetite among members in both parties, however, to stay in Washington, DC for another down-to-the-wire appropriations battle.

While the details for a spending bill are settled, House and Senate leaders are also finalizing the 21st Century Cures Act, legislation to invest greater resources in medical innovation and speed up the process by which the Food and Drug Administration (FDA) approves new drugs and devices. The bipartisan measure had been held up over disputes on how to pay for the initiatives included in the bill. While significantly lower than the initial levels included in the House-passed bill, the compromise legislation is reported to provide an additional $4.8 billion in funding over 10 years to the National Institutes of Health. The bill also authorizes an additional $1 billion over two years beyond the recently enacted Comprehensive Addiction and Recovery Act to address opioid abuse, an epidemic affecting a wide range of constituencies for members in both chambers. Press reports indicate a bipartisan and long-negotiated mental health reform bill sponsored in the House by Rep. Tim Murphy (R-PA) and Senate legislation sponsored by Chris Murphy (D-CT) and Bill Cassidy (R-LA) will also be included in the 21st Century Cures package. As with the innovation measure, the legislation may not be as sweeping as the versions initially drafted, but it provides some much-needed reforms to the nation’s mental health system by focusing programs and resources on psychiatric care for patients and families most in need of services. The measure is also expected to establish a new position of assistant secretary for mental health in the Department of Health and Human Services, along with a chief medical officer. The summary of provisions in the legislation is based on media reports, because legislative text has not yet been released.

The conference report to the FY 2017 National Defense Authorization Act is another item considered a “must do” during the lame duck session, and it may be ready to see action as early as this week. Press reports indicate that leaders from the House and Senate Armed Services Committees have negotiated through several major differences between their two versions of the annual defense spending blueprint. One of the biggest disparities was the gap between funding levels, which reached $18 billion after the House shifted funding for overseas contingency operations (OCO) to boost defense spending above statutory budget caps. The new compromise conference report that was negotiated through the fall is allegedly set to include an additional $9 billion in funding for OCO and readiness shortfalls and covers the $5.8 billion supplemental request sent by the President to Congress in November. Reports indicate that House and Senate leaders have also been able to work out several controversial policy provisions that previously prompted a veto threat from the White House, though it is unclear whether the changes will be enough to assuage the Administration’s concerns.

As negotiations continue on the three major priority items discussed above, both the House and Senate will work on moving several other bills this week.

The Senate is scheduled to return to legislative business on Monday, November 28. The next vote is scheduled for Tuesday morning on passage of a bill regarding the use of technology to deliver health care in rural areas (S. 2873).

On the other side of the Capitol, the House is scheduled to return to legislative business on Tuesday, November 29, when members will consider 16 bills under suspension of the rules. The suspension package includes seven bills reported out of the House Veterans Affairs Committee, including H.R. 5458, the Veterans TRICARE Choice Act of 2016, legislation that would allow veterans who participate in the TRICARE benefit program to contribute to health savings accounts.

Members will take up an additional 13 bills under suspension of the rules on Wednesday, including several U.S. Postal Service facility designations and other items reported out of the House Oversight and Government Reform Committee and three measures reported by the Financial Services Committee.

The House is also expected to consider H.R. 6392, the Systemic Risk Designation Improvement Act of 2016. This legislation would amend the Dodd-Frank law to alter the process by which federal regulators determine which bank holding companies should be designated as systemically important financial institutions (SIFIs). The bill would require an assessment based on risk, rather than by asset size. Consideration of H.R. 6392 will be subject to a rule.

One event of note taking place off the floor this week is the Democratic leadership elections in the House of Representatives for the 115th Congress. The elections were scheduled prior to the Thanksgiving holiday, but postponed until this Wednesday. Current House Minority Leader Nancy Pelosi is being challenged by Rep. Tim Ryan (D-OH), who is seeking to inject more youthful leadership into the congressional party that lost many seats between 2010 and 2014 and picked up only six seats in November, a dramatic underperformance from what had been expected. The debate is not just about age, but is also about the direction of the Democratic Party. Leader Pelosi is from San Francisco and has been an aggressive culture warrior for the left; Rep. Ryan is from Ohio, and is seeking to reclaim for the Democratic Party the support of the working class, which has recently become increasingly Republican. Leader Pelosi recently announced she was expanding the ranks of members in the Leadership, and she remains expected to receive substantial support from the conference to maintain her post for the next two years. Nonetheless, the fight for the future of the party will be taking shape in this debate.

The hearing schedule in both chambers remains light due to the winding down of the legislative session. Of note is a Senate Foreign Relations Committee hearing on Tuesday looking at Iranian support for terrorism and a Wednesday Senate Commerce Subcommittee hearing on Artificial Intelligence. The full schedule of hearings for the week ahead is included below:

Continue Reading

Guidelines for Interacting with President-Elect Trump’s Transition Team

Over the next nine weeks, the Trump Presidential Transition team will formulate policy and staffing recommendations for the new administration. This alert gives a broad overview of the Transition and the laws that regulate interactions with Transition team members on issues related to appointments and policy recommendations. Persons interested in this topic may also wish to view our alert on the presidential appointee vetting process.

The Week Ahead in the European Parliament – November 15, 2016

Summary

This week will feature a mixture of Committee meetings, and political group meetings, as parties prepare their positions for Plenary in Strasbourg next week. In terms of the legislative agenda, it is relatively quiet, as much energy will be focused by Parliamentarians on their work in political groups.

In informal talks known as conciliation, the Council and Parliament will seek to negotiate a compromise on the 2017 EU Budget, with the Commission acting as a facilitator. MEPs continue to press for increased funds to tackle the migration crisis, and provide economic stimulus in the Union, whilst the Council will push for savings. One of the major points of contention is over whether money allocated to development can be used to mitigate the current refugee crisis the EU faces. In late October, the Parliament voted a resolution to reverse all of the Council’s proposed cuts in the draft budget and “strongly questioned” whether the funds available for projects in third countries were sufficient given the current refugee crisis. MEPs suggested that an increase of almost half a billion euros to the EU’s external spending, which Continue Reading

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