House Panel Completes Epic 24-Hour Markup of Surface Transportation Bill

The House Transportation and Infrastructure Committee last night completed an epic markup session of the surface transportation reauthorization bill that comprised two 12-hour marathon sessions.

Chairman Peter DeFazio (D-OR) said “I’m immensely grateful to my Committee colleagues who spent months doing the hard work on behalf of the American people to get us to this point, and I urge the rest of my colleagues in Congress to now join us in fighting for a new vision to rebuild our country. The time is now to fix our crumbling infrastructure, cut carbon pollution from the transportation sector, and create millions of good-paying jobs in urban, suburban and rural communities.”

Committee ranking minority member Sam Graves (R-MO) issued a post-markup statement advocating the rival measure that he and committee Republicans introduced yesterday as H.R. 7248: “The Senate has worked in a bipartisan manner so far, and House Republicans remain ready to work constructively if this process moves forward in a meaningful way.  The Majority’s bill that was approved in committee today isn’t going to get signed into law, and the only path to improving our infrastructure and putting America’s back to work is through partnership, not partisanship.”

The text of the bill (H.R. 2) as introduced is here, the slightly modified substitute version of the bill that was used as original text at the markup is here, and a list of all amendments that were adopted to the substitute at the markup (with links to the text of each) is here.

What happens next? Before we get into what happened at the markup, the path forward for the legislation is becoming more clear.

  • At a press conference yesterday, House Democratic leaders announced the broader outlines of the Democratic infrastructure bill, which will be using H.R. 2 as its legislative vehicle. In addition to the $494 billion in funding authorizations over five years from H.R. 2 as approved by the T&I Committee, Democrats will be adding hundreds of billions of dollars in additional funding – $100 billion for broadband infrastructure, $70 billion for public housing capital backlog, another $70 billion for clean energy grants, $35 billion for health care infrastructure, $25 billion for Safe Drinking Water Act programs, plus various infrastructure bonding provisions from the Ways and Means Committee. This is not expected to include the biennial Corps of Engineers water projects authorization bill, even though the infrastructure framework released by Democrats five months ago counted spending from that bill towards its overall total. (T&I will be moving their water bill separately, later on.) A provision from DeFazio increasing airport infrastructure funding and possibly increasing the airport passenger facility charge is also expected to be added, as will be the NHTSA vehicle safety program reauthorization from the Energy and Commerce Committee.
  • The mechanism for adding these provisions to the bill will come through the House Rules Committee, which will package H.R. 2 and all of the amendments approved in the T&I markup, and the legislative contributions from other House committees, as a clean “Rules Committee Print” and post it on the Internet at This could happen as early as today. The release of the committee print will be accompanied by an announcement from the Rules chairman on an amendment process for the bill – any House member wishing to offer an amendment will have to draft it to the page and line numbers in the Rules print and submit it to the Rules Committee by a deadline sometime next week.
  • We are not yet sure if the Rules Committee Print will include the Highway Trust Fund reauthorization title from the Ways and Means Committee, which must also transfer $140 billion or so from the general fund of the Treasury to the Trust Fund (with or without any “pay-fors”), or whether that will come in a subsequent amendment offered by Ways and Means chairman Richard Neal (D-MA). (There is precedent both ways.)
  • At the same time, after the amendment filing deadline, DeFazio’s staff will work with Rules Committee and leadership staff to winnow down the amendments that are filed to the T&I portions of the package. DeFazio will accept some amendments in a manager’s package (together with other changes in the bill that may be forced on him by the Speaker), and will work with leadership and Rules to ensure that Rules only makes in order a fairly small list of other amendments, avoiding votes that could be tough for Democrats in an election year wherever possible.
  • The Rules Committee would then hold a hearing on the bill, either late next week or on Monday, June 29, and issue a special rule setting up a structure for the amendment process on H.R. 2. The bill would then go to the House floor on Tuesday, June 30, the Ways and Means title (if offered separately) would be automatically “self-executed” into the bill, DeFazio would offer the manager’s amendment, and the rest of the debate would proceed. A final up-or-down vote on the bill would follow by the end of the week (Friday the 3rd is a federal holiday, so the work week ends on Thursday July 2.)

As if all that weren’t enough, the Trump Administration may release the text of its ten-year, $810 billion surface transportation reauthorization bill as early as next week (but it could slip to the week after). The bill is expected to be consistent with the broad parameters announced in the budget in early February, but we don’t know if the bill next week will also fully flesh out the $180 billion in one-time fiscal 2021 infrastructure funding announced by the Office of Management and Budget that was not drafted by the Department of Transportation.

The T&I markup. The T&I markup of H.R. 2 was supposed to be the first test of how committee business meetings could function in the virtual coronavirus world. But the GOP is largely against the whole “working remotely” thing for legislative business, with the result that most of their members showed up in person and were in the chamber for most of the markup, while DeFazio and Rep. Stephen Lynch (D-MA) were the only Democrats to show up in person. After a failed attempt to preside from his chairman’s office upstairs from the committee room, DeFazio and Lynch took turns occupying the chair in the hearing room.

We did learn a few things:

  • The House of Representatives did not have enough Internet bandwidth to hold a high-profile (and hastily scheduled) Judiciary Committee markup of a police reform bill and a T&I surface bill markup at the same time, so the signal of the webcast was unwatchable/unlistenable for a couple of hours at mid-day until the House technical staff apparently figured it out. (The Judiciary markup only lasted one day, so day two of the T&I markup had no streaming problems, though the staff did inadvertently shut the video feed off during the final series of votes and not turn it back on.)
  • A voice vote on a proposition is about getting the “sense of the room,” and when not everyone is in the same room, a voice vote really isn’t the same, as one member yelling into their microphone at home can drown out another member who was sitting farther from their computer.
  • Holding a roll call vote takes a lot longer over videoconference, as expected – every remote member must turn their camera and mic on, say their name and how they vote, then turn their camera and mic off.
  • Some T&I members have nicer home office setups than others. (We were particularly struck by Rep. Mike Gallagher’s (R-WI) basement setup – lots of books, a Betsy Ross flag, a Bart Starr jersey, and what looked from a distance like a photo of Muddy Waters.)
  • Members of Congress are just as bad at forgetting to mute themselves after they talk on a videoconference as your average person is, and an atypically serene chairman DeFazio had to repeatedly remind his members to mute themselves so everyone else could hear the person talking. (DeFazio displayed more patience during the trying two-day ordeal than we would have believed possible from him.)
  • Republicans really are refusing to wear masks most of the time and had to be chastised repeatedly, though more of them started wearing masks on day two.

Over 300 amendments to the substitute for H.R. 2 were filed by T&I members before (and during) the markup. Most of the drama was over once DeFazio introduced his 99-page manager’s amendment to the substitute early on the morning of June 17, which collected several dozen (mostly Democratic) amendments as well as some other changes to the bill by DeFazio staff (most notably an increase in the percentage of Surface Transportation Program funding that gets suballocated within a state by population, rising from the current 55 percent to 60 percent). That amendment was the first to be offered, and it passed on a party-line vote of 36-27.

Beyond that, the numerous amendments offered in the hearing generally fell into one of three types:

  • Innocuous amendments from either party, which DeFazio (at staff recommendation) had no problem accepting, which he would usually offer to accept by unanimous consent.
  • Substantive amendments that DeFazio would not accept and that went quietly. DeFazio opposed some amendments for policy reasons but he also refused to accept any amendment changing the total amount of contract authority provided by the bill or moving contract authority from one program to another. (That restriction wound up precluding more Democratic amendments then Republican amendments, especially Chuy Garcia’s (D-IL) bonkers amendment to increase total mass transit contract authority from $66.3 billion to $257.4 billion.) If a Democratic member had an amendment that DeFazio would accept, they usually always withdrawn after the sponsor had explained it and made his or her point (a few Republicans did so as well). Often, DeFazio and his staff opposed the way an amendment was drafted, but not the underlying goal, and the sponsoring member exacted a promise from DeFazio to work with them in the coming days to possibly address the issue in the future.
  • Substantive amendments that were obviously not going to pass which went to a roll call vote. These generally came from Republicans – there were lots of amendments to knock various new programs out of the bill, and lots of amendments to amend the National Environmental Policy Act in ways that Democrats view as non-starters.

Not all amendments fit that pattern. Many observers were surprised when a Garcia amendment making it even more difficult for states to build new general purpose highway capacity by requiring benefit-cost analysis for the full life-cycle of the road, including all maintenance) got accepted unanimously. And a Fletcher (D-TX) amendment to keep natural gas and propane-powered vehicles on a par with electric and hydrogen vehicles in the new charging/fueling infrastructure program in section 1303 of the bill, was adopted over DeFazio’s objections in a bipartisan 37 to 26 vote.

There was only one nailbiter: an amendment from Pete Stauber (R-MN) failed on a tie vote – 31 yeas, 31 nays, with Dan Lipinski (D-IL) voting “present.” That amendment would have extended FHWA Buy America rules to not just iron and steel products, but also to copper, nickel, cobalt, platinum group elements, and rare earth elements. The clear focus was on lithium-ion batteries, in which those elements are used, and Stauber’s amendment also contained findings about the child labor practices used in the Democratic Republic of the Congo to mine these minerals (especially cobalt).

(Everyone is against child slave labor (we hope), but a lot of Democrats (a.) aren’t willing to delay the mass electrification of vehicle fleets until an alternative to Congo mines and their horrible labor practices can be found, and (b.) aren’t really enthusiastic about opening up lots of new mines for these products in the U.S., either, especially on federal lands.) Stauber did succeed with a subsequent amendment requiring the Secretary of Commerce to certify that no EV charging stations installed under the bill’s new grant program, and no zero emission buses purchased under that grant program, use minerals sourced or processed with child labor. That amendment passed by a 43 to 19 vote, with Lipinski again voting “present.”

One area where there was a lot of bipartisan agreement on amendments was Buy America. The underlying bill makes a lot of changes and clarifications to existing highway and mass transit domestic content requirements. But amendments strengthening Buy America rules had wide, bipartisan support. (Remember when Republicans usually opposed Buy America expansions because they generally supported freer trade? Some Presidential elections make more of a difference than others…)

After DeFazio included, in his manager’s amendment, a Lamb (R-PA) amendment requires transit rolling stock vehicle manufacturers to keep mill certificates to substantiate the origin of the iron and steel used for Buy America compliance, the following amendments strengthening Buy America rules were adopted by the committee on their own, either by unanimous consent or by voice vote:

  • Crawford (R-AR) #048 – amending the new 49 U.S.C. §5320 added by the bill to clarify that any transit agency that accepts “Federal funds” (which seems to imply from any federal source, at any time) must “adhere to the Buy America provisions set forth in this section when procuring rolling stock.”
  • Crawford (R-AR) #055 providing that no article, material, or supply shall be treated as a component of U.S. origin for Buy America compliance if it contains “any material inputs manufactured or supplied by entities” that are subject to trade relief actions, U.S. sanctions, or are owned by a foreign government, or uses certain telecommunications equipment, or is from a manufacturer who has violated U.S. intellectual property laws.
  • Crawford (R-AR) #056 requiring Buy America certifications for buses and other transit rolling stock certify that the procurement does not contain certain kinds of telecommunication devices .
  • Garamendi (D-CA) #124 amending 23 U.S.C. §313(a) to add “construction materials” to the kinds of products that are subject to FHWA Buy America rules.
  • Lamb (D-PA) #039 – in section 2301 of the bill (Buy America for mass transit), requires that labor costs be excluded from rolling stock assembly costs.
  • Crawford (R-AR) #054 – amends 49 U.S.C. §5323(u) to clarify the start date of the grandfather clause of the Chinese rolling stock procurement ban so that CRRC does not have two more years to sign contracts.
  • Perry (R-PA) #110  – requires transit agencies to repay the general fund of the Treasury for their CARES Act funding if any portion of their CARES funding was used to purchase rolling stock from manufacturers owned controlled, or otherwise related legally or financially to a company from the People’s Republic of China.

And a Maloney amendment to prevent any FHWA, FTA or FRA funding from being used to award contracts, subcontracts, grants, or loans to entities owned or controlled by, or subsidiaries or corporate relatives of, Chinese state-owned enterprises was agreed to by a resounding roll call vote of 62 to 1.

ETW will have more summary information on the House bill, as amended by committee, next week, after some nap time.

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