October 23, 2015

The House Transportation and Infrastructure Committee yesterday approved, by voice vote, a surface transportation reauthorization bill (H.R. 3763) after a five-hour, nineteen-minute markup session that featured a lot of amendments being discussed but only twelve amendments were agreed to. (Our article summarizing all amendments agreed to in the markup and providing links to all amendment text is here.)

There is no fixed schedule yet for bringing the bill to the House floor. Somebody in the House Republican leadership has to find $32 billion in funding offsets to support the FY 2016-2018 spending levels in the bill before the bill comes to the House floor, and there really isn’t anyone in charge in the House right now (and there won’t be until a new Speaker is selected internally by Republicans on October 28 and elected by the House on October 29).

Since the authority to spend money from the Highway Trust Fund runs out at midnight on October 29, Congress will be forced to enact another short-term extension of HTF spending authority by that time. Normally, the House leadership posts the text of bills to be considered in the upcoming week on a central document website by Friday night.

The T&I markup was short on opening statements. With over 160 amendments filed to the bill, even under the committee’s five-minute rule, consideration of the bill could have lasted days. But H.R. 3763 was negotiated on a bipartisan basis by T&I chairman Bill Shuster (R-PA), ranking member Peter DeFazio (D-OR), Highways and Transit subcommittee chairman Sam Graves (R-MO) and subcommittee ranking member Eleanor Holmes Norton (D-DC). The “Big Four” unanimity principle used on bipartisan bills like this means that if any one of the four has a real objection to a proposed amendment, all four negotiators oppose the amendment and urge their colleagues to oppose it as well – making it very difficult for amendments to be adopted.

Under a Big Four system, the best bet for getting your amendment attached to the bill is get it in the “manager’s package” of amendments. In this instance, the manager’s amendment adopted by voice vote at the markup incorporated 27 amendments proposed by T&I members – some in their original form, and some in their altered form – plus some technical changes to the bill.

In addition, a key part of the manager’s amendment was cooperation with the House Science Committee, which shares jurisdiction over some highway and mass transit research programs in an ill-defined way. As it happens, both the chairman and ranking minority member of the Science subcommittee of jurisdiction, Barbara Comstock (R-VA) and Dan Lipinski (D-IL), are also members of T&I (as is the ranking member on the full committee, Eddie Bernice Johnson (D-TX)) so the T&I-Science cooperation could take place in the form of amendments within T&I as opposed to something added later by the Rules Committee (where the Energy and Commerce Committee’s NHTSA vehicle safety provisions will be added to the STRR Act). Several Science Committee amendments were included in the manager’s package.

As far as other amendments offered at the markup session, they fall into three categories:

Amendments that were immediately acceptable. There were eleven of these, many of which dealt with tiny exemptions to trucking hours of service, weight limits, or size limits for types of vehicles that were not geographically specific.

Amendments that may show up again on the House floor in the next manager’s amendment. Most of the amendments offered in the markup fell into this category. They were called up by their sponsors, explained briefly, and then withdrawn after getting a promise from chairman Shuster (sometimes explicit, sometimes vague, sometimes very vague) to work with the sponsor and try to get modified language included in the next manager’s package to be offered on the House floor. Items that could get included in a manager’s amendment include those fixing consequences of the bill that were possibly unintended (Lipinski #65, which would have fixed what may be an inadvertent effect of the bill preventing states from using CMAQ or STP funding to pay the non-new-starts local share of a new fixed guideway system, and Napolitano #16, clarifying state law preemption for oil spill liability, are examples of this).

And there were a number of state- or route-specific truck size and weight amendments that may have to be offered on the House floor as amendments because the committee did not want to get into the business of picking state winners and losers.

(Ed. Note: In the past, the manager’s amendment process on highway bills was rife with abuse. In 2004, the T&I Committee filed its report on the highway bill (H.R. 3550) on March 29 and took it to the Rules Committee on March 31. The Rules Committee did not file the rule on the bill until 8:52 a.m. the next morning and then took it straight to the floor. The text of the T&I manager’s amendment was not posted on the Rules website until just before debate on the rule got underway four hours later, and then the House adopted the rule by 2:15, locking in the text of the T&I manager’s amendment so that it could not be changed by the House. That manager’s amendment, among many other things, added almost a billion dollars of earmarks to the bill. In addition, the bill as reported from T&I had two bridge projects in Alaska for chairman Don Young (R-AK), both with $3 million in funding. The manager’s amendment boosted funding for the Knik Arm bridge from $3 million to $200 million and boosted funding for the Gravina Island “Bridge to Nowhere” from $3 million to $125 million. The manager’s amendment then passed the House by voice vote with less than four minutes of debate and having been available online for only about four hours. See the manager’s amendment text in the Congressional Record of April 1, 2004 starting on page H1969 (no, the whole thing was not an elaborate April Fool’s joke.))

Controversial amendments that might get offered on the House floor. Rep. Scott Perry (R-PA) offered two different amendments to raise the monetary threshold for road projects above which the Davis-Bacon Act applies. Set in 1931 at $2,000, the threshold is still $2,000 today. One of Perry’s amendments would have raised the threshold to $150,000 and the other would have raised it to $1.5 million. In the past, House leaders have allowed Davis-Bacon amendments to be offered on the floor knowing that the votes to make significant cutbacks in Davis-Bacon are not there.

And Rep. Todd Rokita (R-IN) offered an amendment to make all highway funding subject to a 95 percent “rate of return” guarantee based on the percentage shares of state payments of HTF motor fuel and truck excise taxes – even the spending that comes from general fund bailouts. The amendment was defeated by a roll call vote of 11 to 40. In the past, House leaders have allowed amendments like this to come to the floor knowing that the amendment won’t have the votes to pass.

Amendments that had no chance and will never see the light of day again. Rep. John Garamendi (D-CA) had a few of these. He offered an amendment increasing funding levels in the bill (with no offset) to the Administration’s GROW AMERICA levels, which failed by an 11 to 42 vote, and then he had another amendment to tax corporate inversions to pay for the bill, which was killed by chairman Shuster on a point of order since it was not germane to the bill (taxes are not within T&I jurisdiction). And he offered and withdrew an amendment that would have required all new roads to include empty conduit so that fiber broadband cable could be laid there someday.

Lou Barletta (R-PA) offered the text of the Renacci-Ribble bill (H.R. 1846) to index HTF fuel taxes for inflation and create a bipartisan blue-ribbon panel on future HTF revenue sources that has to be adopted lest gas taxes be increased automatically once again. Barletta withdrew the amendment rather than see it defeated on a point of order.

These kind of amendments will not be allowed to be offered on the House floor by the Rules Committee.

The text of amendments offered during yesterday’s markup but not agreed to (either withdrawn or defeated) can be found, in the order in which they were offered, here.