House Passes 30-Day Surface Extension as Infrastructure Bill Shelved Temporarily

After a day-long lapse in Highway Trust Fund spending authority and the furlough of some 3,700 U.S. Department of Transportation employees, the House of Representatives at 8:13 p.m. this evening passed legislation (H.R. 5434) providing a one-month extension of the Trust Fund that will, if approved by the Senate, allow those employees to return to work on time next Monday. The House vote was 365 to 51 (easily clearing the two-thirds threshold required by the expedited procedure used by the House), with 149 Republicans joining all 216 Democrats present in support of the bill. However, the Senate was unable to get unanimous consent to approve the House bill tonight (multiple GOP holds), and adjourned at around the time the House vote ended. The Senate will come back into session at 1:30 p.m. tomorrow (Saturday) to see if they can find out if the various GOP objectors can be moved before Monday.

The short-term extension was necessitated because the bipartisan infrastructure bill, or BIB (Senate amendment to H.R. 3684) has not yet passed the House. Just after the short-term extension passed, the Speaker pro tem announced that the question of agreeing to the BIB, as demanded back on September 27, was being postponed indefinitely pursuant to the chair’s emergency authority in clause 1(c) of House rule XIX (added to House rules in 2009, which is why I forgot it was there when I wrote on this subject a few months ago – 2009 was after I stopped paying as close attention).

The one-year extension of the FAST Act lapsed at midnight last night, as did Highway Trust Fund expenditure authority and new contract authority. This morning, right after the furlough notices went out to Trust Fund-supported employees, a USDOT spokesperson said “The Administration is continuing to work closely with Congress to swiftly reauthorize surface transportation programs and bring back the approximately 3,700 hard working employees who are temporarily furloughed right now. We are also taking every step we can to mitigate the impacts of this temporary lapse in authorization. Payments to reimburse State DOTs, transit agencies and other grantees for existing grants can continue, allowing ongoing projects to proceed without interruption.”

House members spent all day yesterday and today waiting around for the White House’s shuttle diplomacy between Senators Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), House progressives, and House moderates. The goal was to get an agreed-upon outline of a budget reconciliation bill full of social and climate spending so that the progressives would agree to provide the missing votes to pass the infrastructure bill. But an ill-timed leak last night to Burgess Everett (former POLITICO transportation reporter) showed that all the way back on July 28, Manchin had signed a piece of paper saying that he would not commit to voting for a reconciliation bill with gross spending exceeding $1.5 trillion, and that Majority Leader Chuck Schumer (D-NY) had signed the paper to say he understood. House Speaker Nancy Pelosi (D-CA) later said she was unaware of the existence of that document, which emboldened progressives to hold fast and get as close to a $3.5 trillion budget reconciliation bill as they possibly could.

Democrats had two closed-door caucuses today, the first as a general gripe-fest at 10:30 a.m., the second with a visit from POTUS himself at 3:30 p.m.

President Biden emerged from the House caucus chamber after about 40 minutes of closed-door session. When passing the throng of reporters, he told the assembled press, “It doesn’t matter if it’s in six minutes, six days, or six weeks, we’re gonna get it done.” This provoked two interesting reactions on Twitter.

First, University of Virginia professor and elections maven Larry Sabato: “President Biden just said it doesn’t matter whether the big bills are passed in 6 minutes or 6 days or 6 weeks. 6 minutes or 6 days? I guess so. 6 weeks? That’s after Nov. 2. Do Dems realize what’s going to happen to their fundraising and expectations for 2022 if Dems lose VA?”

Second, and more specific to infrastructure, from Neil Bradley, the Chief Policy Officer at the U.S. Chamber of Commerce: “There is no bigger supporter of the bipartisan infrastructure bill than @USChamber. Respectfully, @POTUS is wrong. This bill should have been enacted 6 years ago. There was a chance to enact it 6 weeks ago. Delay has consequences & none of them are good for the American people. We urge the House of Representatives to pass the Infrastructure bill as soon as possible.”

Democratic leaders had gotten so fed up with their members live-leaking the morning caucus proceedings to reporters as they happened that for the Biden caucus, they confiscated member cell phones before allowing entry into the caucus chamber. So here were the media takes from members as they exited the chamber after Biden:

  • Erik Wasson, Bloomberg News: “BIDEN took all urgency out of voting on infrastructure now moderate Democrats say”
  • Heather Caygle, POLITICO: “Dems leaving tell us Biden didn’t make a specific push to vote for BIF tonight, which is backed up by his public comments to us as he left.”
  • Mike DeBonis, Washington Post: “Mood coming out of room is Biden clearly came down on the side of Team Progressive. In other words: No call for immediate passage of infra. Both bills needs to pass. No rush. Moderates seems peeved. @RepJimCosta said he was “disappointed.’”
  • Scott Wong, The Hill: “When Biden announced no infra vote, mods like Blue Dog @RepStephMurphy sitting in back were having a ‘conniption fit,’ one House Dem says”

So now, after Speaker Pelosi tried to disentangle the infrastructure bill from the reconciliation bill last week, they are tied together more tightly than ever. Republicans may have made their argument (that the two were tied together more closely than they actually were) self-fulfilling by withholding votes from the infrastructure bill last week and earlier this week, when they could have made a difference. Indeed, one House Republican who had publicly stated last week that they would vote for the BIB told POLITICO’s Melanie Zanona that, now that Biden had so publicly linked the two bills together, he was rethinking his position.

The extension bill itself is unusual. In the past, when a multi-year transportation reauthorization bill was getting the final touches from Congress prior to being sent to the White House, Congress knew whether or not the bill going to be enacted partway through a fiscal year, and if it was, they put provisions in the multi-year bill automatically reducing funding in the first year by any amounts that were provided in a short-term extension. The pending BIB was written to be enacted two months ago and does not contain any mechanism to reconcile its spending with a part-year extension.

So the extension the House just passed tries to automatically repeal all the money it provides if the BIF is enacted, and does some other weird things relating to the bill’s relationship with the just-enacted short-term appropriations continuing resolution. All of which may be necessary because this is an unusual situation, but it is odd. And then for some reason the extension does not give the state DOTs any new highway formula money until October 15. Normally, an extension gives whatever the pro-rated amount is up front, so in this case states would get 1/12th of the FY 2021 amount of money, but this bill makes them wait two weeks. We are quite sure why they did that – it may be because FHWA did not want to go through the bookkeeping hassle of giving out that kind of money if they were going to have to take it back and recalculate a week or two later.

Our initial summary of the surface transportation extension bill is below.

Section-by-Section Summary of H.R. 5434, Surface Transportation Extension Act of 2021

Sec. 101(a) is a blanket extension of all “requirements, authorities, conditions, eligibilities, limitations, and other provisions authorized under [expiring FAST statutes]” from October 1 to October 31, 2021.

Sec. 101(b) creates new contract authority for each expiring FAST program from the Highway Trust Fund equal to 31/365ths “of the amount authorized for appropriation with respect to the program under the covered laws for fiscal year 2021.” This subsection also extends general fund authorization levels under FAST at 31/365ths of the FY 2021 authorization rate, although general fund authorizations don’t mean much in this instance.

Sec. 101(c) provides that new contract authority created by the extension “shall be distributed, administered, limited, and made available for obligation in the same manner as” the FY 2021 FAST Act contract authority was, except for a major exception in (c)(2). 101(c)(2) says that no highway formula contract authority shall be apportioned to states “before October 15, 2021.” This is not the way it is usually done in a short-term surface extension.

Sec. 101(d) provides that the new contract authority provided by the bill is subject to obligation limitation equal to 31/365ths of the fiscal 2021 enacted limitation, which effectively overrides the CR enacted yesterday. But then it says that if the bipartisan infrastructure bill is enacted, the Secretary can reallocate that obligation limitation around to other allocated programs. But then, strangely, the bill says that “Notwithstanding the enactment of” the BIB, the Secretary shall calculate the ob limit under the rules in the 2021 DOT appropriations act, not the rules in the BIF, which seems to be a violation of legal construction norms.

Sec. 102 temporarily (until enactment of the BIB) increases the aggregate non-highway-freight maximum for the INFRA program from $600 million over six years to $700 million over seven years.

Sec. 103 temporarily (until enactment of the BIB) increases the aggregate set-aside for NHTSA in-car alcohol detection research.

Sec. 104 temporarily (until enactment of the BIB) extends the TOD provisions of the RRIF loan program.

Sec. 105 waives the application of the “Rostenkowski Test” for Mass Transit Account self-sufficiency during fiscal 2022.

Sec. 106 temporarily (until enactment of the BIB) extends expiring Appalachian Development Highway System authorities.

Sec. 107 temporarily (until enactment of the BIB) extends the Dingell-Johnson Sport Fish Restoration Act.

Sec. 108 provides that USDOT employees who were furloughed beginning on October 1, 2021 because of the Highway Trust Fund lapse and ending on the date of enactment of this Act shall be paid for their furlough time.

Sec. 201 extends HTF and other expiring trust fund expenditure authority from making expenditures before October 1, 2021 to making expenditures before November 1, 2021. Provides that, upon enactment of the BIB, the amendments made by this section “shall cease to be effective” and that “the text of the laws amended by this section shall revert back so as to read as the text read on the day before the enactment of this section” and that the amendments made by the BIB “shall be executed as if this section has not been enacted.”

Sec. 301 provides that, upon enactment of the BIB, there is permanently rescinded an amount of contract authority equal to the contract authority provided by this bill that is duplicative of contract authority provided by the BIB. In areas where the contract authority provided by this bill for a program “that is, in the judgment of the Secretary, substantially similar or a successor program” to the program funded by this bill, the Secretary is given authority to implement the rescission in a manner “as determined appropriate by the Secretary.” The rescission must be implemented by September 30, 2022, and the Secretary shall not be required to apportion contract authority that is rescinded pursuant to this section.

Sec. 302 provides that if the BIB is enacted before this bill, this bill shall not take effect.

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