Lame-Duck Agenda is Short, but Time May Be Shorter

November 16, 2018

This week was the first week of the final lame-duck session of the 115th Congress. Congress is taking next week off for the Thanksgiving holiday and will return on Monday, November 26 for a further session of between three weeks (ideally ending on Thursday, December 13) and four-and-half-weeks (right up to the maximum endurance point of December 22-23, since Christmas is on a Tuesday this year).

Progress was made on one of the remaining pieces of the 2017-2018 transportation agenda – the Senate passed a pre-negotiated Coast Guard and maritime authorization bill, which the House will then take up and pass after Thanksgiving (see article elsewhere in this issue). But the remaining lame-duck action items will have to wait until after Turkey Day.

FY 2019 Appropriations. Of the 12 fiscal 2019 general; appropriations bills, five have been enacted (Defense, Energy and Water, Labor-HHS-Education, Legislative Branch, and Military Construction/Veterans). A “minibus” package of four more is very, very close: Agriculture, Financial Services, Interior/Environment, and Transportation-HUD. That package could probably be finalized in a day if the chairmen and ranking members and party leaders put the pressure on and directed that it be finished, or else.

But three most politically difficult bills are nowhere: Commerce-Justice-Science, Homeland Security, and State Department/Foreign Aid. The leadership of both parties in both chambers have given indications that they would rather finish FY19 this year instead of hold any of the bills over in a CR and finish up in January/February, but that requires tactical and strategic agreement – and the President’s signature. Do you send the four-bill minibus to the White House before the big issues (border wall funding, especially) in the three orphan bills are solved? White House Legislative Affairs Director Shahira Knight (who basically wrote the tax title of SAFETEA-LU back in the day, when she was a Ways and Means staffer) went to Capitol Hill this week and reportedly told Republicans that the White House wanted them to package all seven remaining bills together so that they would have the most leverage on funding for the border wall.

Senate Majority Leader Mitch McConnell (R-KY) and Senate Appropriations chairman Richard Shelby (R-AL) went to the White House yesterday afternoon to meet personally with President Trump, but both men were circumspect as they emerged, saying only that it was a “good meeting.”

Funding under the stopgap continuing resolution expires at midnight on December 7, so if a full appropriations package or another CR is not signed into law by then, a partial shutdown of federal agencies (including Transportation) will take place.

The wild card is the possible need for additional emergency appropriations to deal with the consequences of Hurricanes Florence and Michael and the ongoing wildfires in the Western U.S. Although the FEMA Disaster Relief Fund had over $30 billion available as of the October 31 report, not all disaster response goes through FEMA, and federal wildfire response in particular often has to flow through the Forrest Service (USDA) or the Park Service (Interior).

Tax Extenders. The mammoth tax reform bill enacted in December 2017 was supposed to reform the tax code and eliminate the need for recurring extensions of expiring tax provisions. Nevertheless, momentum is building for another package of extensions of some or all of the targeted tax breaks that expired December 31, 2017 and which were not extended or made permanent in the tax reform bill. (A list of those expired tax breaks is here).

Even though the provisions expired almost a year ago, since companies haven’t filed their taxes for the tax year yet, retroactive extensions are still possible.

The main transportation-related provision that may be in the extenders bill is the section 45G tax credit for Class II and Class III railroads maintaining their tracks, but tax breaks for plug-in electric vehicles and fuel cell vehicles are also part of the discussion.

Autonomous Vehicles. Hopes remain that the Senate can negotiate an agreement limiting amendments to the autonomous vehicles regulation bill (S. 1885) to allow it to come to the Senate floor in a way that does not occupy more than a day or so of floor time. The legislation was approved by the Senate Commerce Committee unanimously, but after the bill was reported, the trial lawyers lobby reportedly fired its legislative staffers who had acquiesced to the bill and mounted a fierce campaign to demand that the bill be amended to prevent AV owners/occupants from being forced into arbitration agreements.

Farm Bill. The big farm bill (H.R. 2) has made it all the way to a House-Senate conference committee, but a personal dispute between the House and Senate Agriculture Committee chairmen has slowed things down (see article here). Nonetheless, this is a top priority for party leaders.

Biennial Budgeting. The Joint Select Committee on Budget and Appropriations Process Reform is set to vote on November 27 on a modest budget reform bill that would change the length of Congressional budget resolutions from one year to two years (enacted in the even-numbered year). This reflect the recent practice of Congress enacting two-year fixes of the Budget Control Act spending caps. If the Joint Select Committee reports a bill by November 30, it gets somewhat privileged consideration in the House and Senate.

Criminal Justice Reform. Outgoing Senate Judiciary chairman Chuck Grassley (R-IA) is trying to shepherd a criminal justice reform bill through the Senate, which has broad support in the House and with Senate Democrats, through Congress this year. President Trump announced his support for a modified version of the bill this week, but it may not be enough to get a majority of Senate Republicans actively in favor of the bill.

Nominations. Yesterday, Senate Majority Leader McConnell filed cloture motions to the effect that the entire week of November 26 will be filled with Senate floor debate on certain nominations, in the following order:

  1. Stephen Vaden, to be General Counsel of the Department of Agriculture;
  2. Karen Kelley, to be Deputy Secretary of Commerce;
  3. Thomas Farr, to be United States District Judge for the Eastern District of North Carolina;
  4. Jonathan A. Kobes, to be United States Circuit Judge for the Eighth Circuit; and
  5. Kathleen Kraninger, to be Director, Bureau of Consumer Financial Protection for a term of five years.

You may notice that none of the above are transportation-related – there are 11 transportation-related nominations that have been reported from committee in the Senate and placed on the Executive Calendar (see list here). However, it does not appear that any of the remaining transportation nominees rise to the level of importance for the Administration so that McConnell would spend two business days of the Senate’s time (roll call vote to invoke cloture, wait 30 hours during which no other business can be conducted, roll call vote on confirmation), especially in the last month of a session.

So the confirmation of any of these nomination is contingent on extensive behind-the-scenes negotiations that traditionally result in scores of nominees being confirmed as part of one big unanimous consent package in the waning days of the session. (Much horse-trading.) (For an example, see the long list starting on the second page of the Congressional Record Daily Digest for December 16, 2014).

Hopes are highest for a balanced package (2 R, 1 D) of Surface Transportation Board nominees and for the nomination of Joel Szabat to be Assistant Secretary of Transportation for Aviation and International Affairs, all of whom got bipartisan support in committee.

Any pending nominees not confirmed by noon on January 3 will be returned to the President when Congress expires. He can then choose to renominate any or all of them (or decline to renominate some).

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