Highway Bill Text May Be Finalized Tonight

Monday, November 30, 2015 – 11:30 a.m.

Congressional staff worked through Thanksgiving week (and its bookended weekends) in hopes of finalizing a conference agreement on the surface transportation reauthorization bill (H.R. 22) by tonight. The transportation-related portions of the agreement appear to be finalized. But in a conference committee, nothing is decided until everything is decided, and concerns over the non-transportation provisions (the “pay-fors,” Export-Import Bank, Strategic Petroleum Reserve, electrical grid, and other unrelated measures, some of which were in the House bill and some of which may be introduced in conference for the first time) have the potential to delay things.

If all goes well, here is how House and Senate leaders would like this week to play out, in chronological order:

Time and place for House conferees to sign the conference report. Clause 12(a)(4) of House rule XXII states that “Managers on the part of the House shall be provided a unitary time and place with access to at least one complete copy of the final conference agreement for the purpose of recording their approval (or not) of the final conference agreement by placing their signatures (or not) on the sheets prepared to accompany the conference report and joint explanatory statement of the managers.” This rule was adopted in 2007 after Republican leaders inserted a controversial vaccine liability provision in an appropriations conference report after members had seen and signed a version of the conference report without the provision. The Senate has no such rule, and Senate conferees still use the old practice of circulating the signature sheets from office to office (or on the floor during a vote), usually before the final text of the conference report is available. House members are not scheduled to be back in DC until the first recorded votes of the week at 6:30 p.m. today, so holding the unitary time and place for review and signature of the conference report around the time of those votes seems a good bet.

“Filing” the conference report in the House. This consists of the lead House conferee standing up on the floor while the chamber is in session and formally handing over the paperwork on the bill, amendments, and the conference report itself to the Clerk of the House. The report is then numbered and sent to GPO for printing in the next day’s Congressional Record (nowadays the text is also placed on the House Rules Committee website and on docs.house.gov as soon after filing as possible). The significance of filing is twofold – it makes the text public, and it also takes custody of the legislation away from the conference committee. Once a conference report is filed, the text of the conference agreement is locked in and cannot be changed unless (a.) the first chamber to act votes to “recommit” the conference report back to the conference committee (rare, but it does happen) or (b.) both the House and Senate vote to adopt a separate correction resolution making a change in the wording of the conference report. Ideally, the conference report will be filed tonight (assuming that a majority of the House conferees and a majority of the Senate conferees elect to sign the conference report).

House Rules Committee action. The House Rules Committee will have to waive points of order against the conference report – possibly on “scope of conference” (depending on what unrelated items may be “airdropped” in the final conference report), and the final legislation will undoubtedly violate several budget rules technically if not substantively as well. If the conference report is filed tonight, Rules will hold a public hearing on Tuesday to discuss the conference report. A special rule reported by the Rules Committee on Tuesday can be considered by the House on Wednesday.

House debate and adoption of conference report. If the schedule holds, the House will debate the rule on the conference report on Wednesday (up to one hour of debate and up to two roll call votes), then debate the conference report itself (also for one hour of debate and up to two roll call votes, one on recommitting the report to conference and one on adopting the conference report). Once the first chamber adopts the conference report, the conference is dissolved and the other chamber either has to accept the conference report or else request a new conference. The action then moves over to the Senate.

Senate floor consideration. Conference reports can only be considered by the chamber with the physical custody of the original paperwork, which means that one chamber has to wait for the other chamber to finish before consideration can begin. (This can be waived in the Senate by unanimous consent, but given that Ex-Im reauthorization is almost certainly going to be in the conference report, we have to assume that no UC will be forthcoming on any question relating to this legislation.) So, if the House adopts the conference report on Wednesday, the paperwork gets walked down the hall and then Senate Majority Leader McConnell will call up the conference report, move to adopt it, and then file cloture on his motion. A cloture vote would then occur one hour after the Senate convenes on Friday morning. There will also probably be votes on Budget Act points of order and possibly other points of order as well. If 60+ Senators vote for cloture, there is then up to 30 hours of post-cloture debate (which could be waived by unanimous consent, but again, UC is not likely to be forthcoming on this legislation). This will likely necessitate…

One last short-term extension. Since spending authority for the Highway Trust Fund expires at midnight on Friday night, even under the absolute best case scenario (Senate passes conference report Friday night), at least one more short-term extension of HTF funding will be necessary to allow the conference agreement to be cleaned up and sent to the President. This is the standard practice. On the day the House and Senate passed the SAFETEA-LU conference report (July 29, 2005), both chambers also passed one final one-week extension (Public Law 109-42) to give the clerk and GPO time to enroll the bill and give the White House time to plan a signing ceremony. And on the day the House and Senate passed the MAP-21 conference report (June 29, 2012), both chambers also passed one last one-week extension (Public Law 112-140) for similar reasons.

The complicating factor this time is that the House is not scheduled to be in session on Friday, so they would have to pass the next extension by Thursday afternoon at the latest, before the cloture vote Friday morning.

We will have more updates as events develop, and please follow @EnoTranspoWkly on Twitter if you want more immediate notification of breaking news.



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