Upcoming Congressional action for the duration of March appears likely to resolve the budget and appropriations impasse of the last several months. House and Senate leaders and the White House were able to reach an agreement last month on topline spending numbers for Fiscal Year (FY) 2018, which began last October 1, and FY 2019.  This two-year spending deal will likely put an end to the months of partisan debate over defense and domestic spending caps following five short-term spending bills that led to two government shutdowns. The current stopgap spending measure (P.L. 115-123) expires on March 23, giving members just three short weeks to complete work on a $1.2 trillion omnibus bill.

The budget compromise provides for almost $300 billion in additional federal spending over the limits established by the 2011 Budget Control Act (BCA). House and Senate appropriators are now working to allocate the funds into the 12 annual appropriations bills and draft the legislation that meets the parameters of the agreement.  Lawmakers hope to roll these 12 bills into a single legislative vehicle, an omnibus bill, that can pass both chambers before the March 23 deadline. It remains to be seen whether the spending bill could carry a number of controversial policy issues that remain unresolved, including gun control, immigration and border security, and health care, among other topics.

There have been discussions among the White House and congressional leaders about potential gun safety or other related legislation following Florida’s recent disheartening mass school shooting, but Republicans and Democrats are divided on what should and can be done.  President Trump has indicated openness to an increase in the age requirement for buying rifles from age 18 to 21, a proposal to extend mandatory background checks to include sales at gun shows and over the internet, incentives encouraging the arming of teachers, and a ban on bump stocks or assault weapons. At least some of these measures would require departures from prevailing Republican orthodoxy. Under application of Senate rules, action there would require some bipartisan cooperation in order to achieve 60 vote thresholds on any of these measures. The Senate could also attempt to strengthen the National Instant Criminal Background Check System (NICS) to prevent criminals from purchasing firearms. Democrats support NICS legislation, although some conservative Senate Republicans have expressed due process concerns.  A version of this legislation passed the House in December, but was paired with a provision providing concealed carry reciprocity to legal gun owners.  It is unclear whether the House would take up the NICS legislation on its own.  It is possible that less controversial gun or school safety measures could be incorporated into the omnibus spending package.

A resolution to the ongoing immigration debate over the Deferred Action for Childhood Arrivals (DACA) program, which has been intertwined in the FY 2018 budget discussions since last fall, could also be tucked into the omnibus bill.  The Trump Administration announced in September that it will end the popular DACA program on March 5, 2018 because it lacked congressional authorization.  Since then, congressional supporters have worked against the March 5 deadline to develop a legislative fix, but major divisions remain over how to authorize the program by law and whether to include border security and various enhanced immigration enforcement authorities in a DACA legislative package.  The issue became a lightning rod during budget negotiations, as Democrats demanded protections for DACA recipients to be included in any spending bill, and went so far as to initiate a government shutdown over the issue in January.  However, the March 5 deadline is now less pressing after two federal court rulings blocked the Administration from ending the DACA program and, more recently, as the Supreme Court declined a request from the Justice Department to bypass the appeals process currently underway and quickly weigh in on the issue.  Even as this litigation plays out, the lack of a hard deadline may not stop DACA advocates from attempting to install a short-term authorization for the program coupled with smaller border security provisions into the FY 2018 omnibus bill.  Senators Jeff Flake (R-AZ) and Heidi Heitkamp (D-ND) have proposed legislation that would provide for a three-year extension of DACA authorization and $7.6 billion in border security measures.

Additionally, there may be an attempt to resolve some health care issues through the spending bill.  Two bipartisan proposals to stabilize the health care exchanges established by the Affordable Care Act are reportedly being considered.  The first measure, sponsored by Sen. Lamar Alexander (R-TN) and Sen. Patty Murray (D-WA), would resume the “cost-sharing reduction payments” discontinued by the Trump Administration in October. These payments reduced the out-of-pocket insurance costs for low-income individuals acquiring health insurance under the Affordable Care Act. The second measure, sponsored by Sen. Susan Collins (R-ME) and Sen. Bill Nelson (D-FL), would create a reinsurance mechanism for federal funding to assist companies with backup coverage when policyholders have catastrophic medical costs.

As the FY 2018 appropriations process wraps up this month, Congress will begin its FY 2019 appropriations work.  Following the release of President Donald Trump’s FY 2019 budget request on February 12, members of the President’s Cabinet will begin appearances on Capitol Hill this week to discuss the requests for their specific departments in greater detail with members of the House and Senate Appropriations Subcommittees and corresponding authorizing committees.

This week will also see the first meeting of the select committee charged with overhauling the federal budget and appropriations process.  The FY18/19 budget compromise between congressional leaders and the White House mandated the establishment of a 16-member committee to provide “recommendations and legislative language that will significantly reform the budget and appropriations process”.  The “Joint Select Committee on Budget and Appropriations Process Reform” is comprised of eight House members and eight Senators, with equal representation from both parties.  House Speaker Paul Ryan named House Budget Chairman Steve Womack (R-AR), House Rules Chairman Pete Sessions (R-TX), and Reps. Rob Woodall (R-GA) and Jodey Arrington (R-TX) to the committee. House Minority Leader Nancy Pelosi selected House Appropriations Ranking Member Nita Lowey (D-NY), Budget Ranking Member John Yarmuth (D-KY) , and Reps.  Lucille Roybal-Allard (D-CA), and Derek Kilmer (D-WA).  Senate Minority Leader Charles Schumer selected Senators Sheldon Whitehouse (D-RI), Michael Bennet (D-CO), and Brian Schatz and Mazie Hirono, both of Hawaii.  Senate Majority Leader Mitch McConnell has tapped Roy Blunt (R-MO), the Vice Chairman of the Senate Republican Conference, and Sens. David Perdue (R-GA), James Lankford (R-OK) and Joni Ernst (R-IA) to the new special panel. The law provides for a committee vote before November 30 on a report that includes its recommendations as well as legislation.

Also pursuant to the budget compromise, congressional leaders named 16 members to a select committee on pension plans, charged with improving “the solvency of multiemployer pensions and the Pension Benefit Guaranty Corporation.”  The eight congressional Democrats who will serve on the pensions panel are Sens. Sherrod Brown (D-OH), Joe Manchin (D-WV), Heidi Heitkamp (D-ND), Tina Smith (D-MN), and Reps. Richard Neal (D-MA), Bobby Scott (D-VA), Donald Norcross (D-NJ), and Debbie Dingell (D-MI).  The eight congressional Republicans selected to serve on this panel are Sens. Orrin Hatch (R-UT), Lamar Alexander (R-TN), Michael Crapo (R-ID), Rob Portman (R-OH), and Reps. Virginia Foxx (R-NC), Phil Roe (R-TN), Vern Buchanan (R-FL), and David Schweikert (R-AZ).  This committee also will vote on recommendations and legislation by November 30.

Congress is facing a deadline at the end of this month to extend Federal Aviation Administration (FAA) authority.  Committees in both chambers have been hard at work on developing legislation over the past year, but their proposals were significantly different in several areas, preventing members from reaching consensus on a multi-year bill.  A six-month extension of authority was signed into law in September, allowing members additional time to negotiate a long-term authorization, but the stopgap measure expires on March 31.  Press reports indicate a long-term authorization may be on the horizon, but another short-term extension may be necessary this month.  One major obstacle is now resolved in that House Transportation Chairman Bill Shuster (R-PA) announced that he is ending his push to sever the nation’s air traffic control (ATC) operations from the FAA.  The controversial proposal to privatize the ATC system was included in Chairman Shuster’s six-year reauthorization bill, which passed out of committee on a party-line vote, but lost momentum with the full House and in negotiations with the Senate.  Now that this provision is off the table, it appears the House may be able to move forward on a long-term bill.  Senate Commerce, Science, and Transportation Committee Chairman John Thune (R-SD) and Ranking Member Bill Nelson (D-FL) introduced a bipartisan four-year reauthorization bill that is now pending action in the full Senate. Chairman Thune and Chairman Shuster have publicly stated their hope to complete a four-year reauthorization bill before the August recess.

The House begins the week with two Energy & Commerce Committee bills subject to a rule, and could look to turn its attention to a measure under suspension of its rules relating to a balanced budget amendment to the Constitution.

The Senate is expected to dedicate floor time this week to banking reform legislation, S. 2155, the Economic Growth, Regulatory Relief and Consumer Protection Act.  Leader McConnell filed cloture on a motion to proceed to the bill last week, teeing up a vote on Tuesday, March 6.  The bipartisan legislation, sponsored by Senate Banking Committee Chairman Mike Crapo (R-ID), would make a number of revisions to the Dodd-Frank Wall Street Reform and Consumer Protection Act, signed into law by President Obama in 2010 following the financial crisis.  Several years in the making, the bill is aimed at providing some regulatory relief to regional banks and smaller financial institutions that were included in the Dodd-Frank law.  Among other provisions, the bill would raise the systemically important financial institution (SIFI) asset threshold from $50 billion to $250 billion, reducing the number of banking institutions that would be subject to the highest level of regulatory scrutiny and capital reserve requirements. S. 2155 has the support of at least 13 Senate Democrats, many of whom are up for re-election this year in states won by President Trump in 2016. But many progressive Democrats and consumer groups have indicated their opposition to the measure. If the Senate successfully passes S. 2155, the House and Senate would have to reconcile differences with H.R. 10, the Financial Choice Act, a more drastic rollback of the 2010 Dodd-Frank Act passed by the House on a party-line vote last June.

Leader McConnell has also indicated his intent to bring anti-online sex trafficking legislation, H.R. 1865, the Fight Online Sex Trafficking Act (FOSTA), to the Senate floor during the week of March 12.  The controversial legislation, which passed the House of Representatives on February 27 by a 388-25 vote, has split some members of  the tech and online community.  H.R. 1865 would broaden the coverage of current laws against sex trafficking by amending Section 230 of the Communications Decency Act to allow criminal and civil actions against a website if its conduct violates federal sex trafficking laws.  The legislation authorizes state attorneys general and victims to file suit in federal court against websites that are “knowingly assisting, supporting or facilitating a violation” of  sex trafficking laws.  While the legislation is targeted at websites like Backpage.com, which has been the subject of an extensive Senate investigation due to allegations of hosting content that facilitates the trafficking of minors, some in the Internet industry believe the language is too broad and could open them up to liability for user-generated content.  Additionally, the Department of Justice, which supports the legislation, sent a letter to House Judiciary Committee Chairman Bob Goodlatte (R-VA) identifying a constitutional concern with the bill after it was amended by the House Rules Committee last week.  It is unclear whether the Senate will undertake consideration of any amendments when the legislation comes to the floor.  Last November Senator Ron Wyden (D-OR) publicly placed a legislative hold on the Senate version, S. 1693, the Stop Enabling Sex Traffickers Act (SESTA), over concerns that the bill would make it more difficult to catch criminals and favors big Internet companies. A robust debate can be expected on the Senate floor during the consideration of the legislation.

Additionally during this three-week work period, it is expected the Senate will continue to spend floor time confirming executive and judicial nominees.

This article was originally published in Law360.

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Kaitlyn McClure Kaitlyn McClure

Kaitlyn McClure is a policy advisor in Covington’s Public Policy Practice, leveraging her experience in government and politics to provide strategic advisory services and support to clients with legislative matters before government agencies and Congress.

Before joining the firm, Ms. McClure was the…

Kaitlyn McClure is a policy advisor in Covington’s Public Policy Practice, leveraging her experience in government and politics to provide strategic advisory services and support to clients with legislative matters before government agencies and Congress.

Before joining the firm, Ms. McClure was the Associate Vice President of Client Relations at DDC Advocacy. Prior to working for DDC, Ms. McClure served as the strategy assistant for former presidential candidate Governor Mitt Romney. Her experience also includes working in the U.S. Senate as a legislative assistant for Republican Senators John Hoeven of North Dakota and Judd Gregg of New Hampshire.