July 27, 2015 11:09 a.m. – The HTF Saga Continues (On A Sunday)

The Senate held a three-hour session on Sunday afternoon to advance consideration of the surface transportation reauthorization bill (McConnell amendment 2266 to H.R. 22, a.k.a. the DRIVE Act).

First, the Senate failed, by a vote of 49 yeas to 43 nays, to muster 60 votes to invoke cloture on the Obamacare repeal amendment. Then, the Senate immediately votedto invoke cloture on the Ex-Im reauthorization amendment by a vote of 67 to 26. That vote ended at 4:11 p.m., and the 30 hour clock on post-cloture debate on the Ex-Im amendment started to run at that time.

The Senate convenes at 2 p.m. today to burn through more of the 30 post-cloture hours (time spent in adjournment last night and this morning counts as well). So the vote on adopting the Ex-Im amendment will take place at 10:11 p.m. tonight unless someone gets unanimous consent to move the vote (either to a more convenient time earlier Monday evening or else to first thing Tuesday morning).

It is possible that other amendments could be offered to the Ex-Im amendment today (which will, presumably, then become a part of the base DRIVE Act (SA 2266) later on tonight) –but only if Majority Leader Mitch McConnell (R-KY) allows that to happen by first withdrawing his Obamacare repeal amendment, which is still pending. McConnell is not expected to do that unless he can establish an “orderly” (his word) process for considering amendments.

But an orderly process may be hard to find in the Senate. Two frustrated GOP Senators, Ted Cruz (R-TX) and Mike Lee (R-UT), tried to put their colleagues on the spot yesterday by forcing votes on motions that would essentially repeal the Senate rules, through which McConnell is controlling the amendment process (rules set down by Thomas Jefferson in his Manual on Senate Procedure in 1802). But Cruz and Lee overlooked one of the few Senate rules that is actually written into the Constitution itself – you can’t get a roll call vote without the support of one-fifth of those Senators present, and neither Cruz nor Lee could get the support of nine other Senators besides themselves (eleven is one-fifth of the presumed operating quorum of 51) in demanding a roll call vote, so their motions failed by voice vote.

Once the Ex-Im amendment itself is adopted (and if it got 67 votes on a procedural motion, it will get well over the 51 votes needed to be adopted), the very next step will be to invoke cloture on the McConnell substitute for H.R. 22, the DRIVE Act itself (amendment 2266). Invoking cloture accomplishes two very important but very different things. It provides the hard 30-hour limit on further debate, mentioned above. But it also automatically kills all amendments that are not germane to the matter at hand. So once cloture is invoked on amendment 2266 (if 60 Senators decide to do so), then all of the Obamacare, Planned Parenthood, Iran sanctions, immigration, gun control and other amendments proposed to SA 2266 are precluded and can only be adopted by unanimous consent.

(Ed. Note: This is why the number of cloture votes is a poor proxy for estimating the number of filibusters. Sometimes, no one is actually filibustering a bill but the Majority Leader wants to preclude non-germane amendments, so he files cloture anyway.)

Once that happens, amendments to SA 2266 will theoretically be in order during the next 30 hours of debate, but McConnell and the bill managers will probably take steps to limit those and perhaps preclude them entirely. It is possible that the only amendment that will be adopted to SA 2266 will be a “manager’s package” offered at the very end of debate. Senators filed 202 additional amendments to the DRIVE Act yesterday, the text of which is here (we will have a summary of those amendments online later today on our HTF reference page, here – keep checking back for more information).

Once SA 2266 is adopted (30 hours after whenever the cloture vote takes place, either tonight or first thing tomorrow), there will be another cloture vote on H.R. 22 itself, then 30 more hours of debate, and then a final vote on passage of H.R. 22, as amended. ETW readers who can do math can see that 60 hours from 11 p.m. tonight would be mid-day Thursday, and House Majority Leader Kevin McCarthy (R-CA) told House members last week that the House is expected to leave town at 3 p.m. Thursday for a five-week recess.

CBO. Just after 5 p.m. last Friday, the Congressional Budget Office released its long-awaited cost estimate of the latest full version of the DRIVE Act. CBO found that H.R. 22 itself (the base bill H.R. 22 being considered by the Senate, which has to do with veterans benefits) would increase federal deficits by $818 million over 10 years. (This did not stop the House from passing it by a vote of 412 to 0.) Once that money is subtracted from DRIVE, the funding offsets, or “pay-fors,” total $45.7 billion over ten years and two months (assuming enactment July 31, the scoring period covers the last two months of FY 2015 and the 2016-2025 period). This covers the $45.615 billion in general fund transfers to the Highway Trust Fund that would take place on the date of enactment, leaving $85 million in ten-year deficit reduction.

(The latest version of DRIVE also transfers $300 million from the Leaking Underground Storage Tank Trust Fund to the HTF. This money does not need to be offset – LUST receipts come from the one-tenth of a cent federal excise tax on gasoline and diesel fuel that does not already get deposited in the HTF. If Congress had been willing to go farther than one decimal point on the HTF-to-LUST-split years ago, that money would already be in the HTF.)

As predicted, the pay-fors in the DRIVE Act are “back-loaded” (most of the offsets are not booked by the Treasury until very late in the ten-year budget window). The $45.6 billion in GF to HTF transfers is supposed to keep the HTF solvent until the end of FY 2018, and section 80002 of the bill is predicted to shut new HTF spending down on October 1, 2018 until Congress makes more special transfers to the HTF. But CBO says that only 9.2 percent of the $45.7 billion in funding offsets in the bill will be recorded by the Treasury in the first three years, and only 31.5 percent in the first six years. 68.5 percent of the offsets occur in the last four years (2022-2025).

Believe it or not, this is actually better than MAP-21 or the 2014 HTF bailout. Both those laws relied on “pension smoothing” as the primary offset, which reduces deficits in the short term but actually increases deficits later on, including after the ten-year budget scoring window expires. This is why Sen. Bob Corker (R-TN) got an amendment added to the 2016 Congressional budget resolution that requires CBO to score the offsets of GF to HTF transfers past ten years.

CBO answered the Corker requirement by stating that, “Section 3107(b) of the Concurrent Resolution on the Budget for Fiscal Year 2016 requires CBO to provide estimates of changes in budget authority, outlays, and revenues over the 2016-2045 period for legislation that transfers amounts from the general fund of the Treasury to the Highway Trust Fund. CBO estimates that those changes would amount to a reduction in budget authority and outlays, an increase in revenues, and a reduction in projected budget deficits, each of which would be equivalent to much less than one-quarter of one percent of the gross domestic product in any year over that period.”

Congress loves to back-load painful spending cuts. The 2013 Ryan-Murray law increased discretionary appropriations ceilings for two years (2014 and 2015) but offset it with cuts over ten years, 56 percent of which are to take place in 2022 and 2023.

ETW has updated its funding tables for the DRIVE Act to include two tables showing the CBO estimate of the bill’s effect on the HTF and the year-by-year offsets, as well as new tables from the Federal Highway Administration estimating annual contract authority apportionments to states from highway formula programs. Those tables can be viewed here.

CBO also issued a score of the Ex-Im amendment and found that the Ex-Im amendment would reduce federal discretionary spending by $2.3 billion over ten years.

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