July 27, 2018

A deal on amendments to the four-bill “minibus” appropriations package that includes the Transportation-HUD bill proved elusive yesterday, and Senators left town for the weekend pledging to finish consideration of the bill next week.

Senate Majority Leader Mitch McConnell (R-KY) has filed cloture petitions on the minibus bill itself (H.R. 6147, which came over from the House as a two-bill package, Interior/Environment and Financial Services/General Government) and on Appropriations chairman Richard Shelby’s (R-AL) substitute amendment #3399 (which adds the Agriculture bill and the Transportation-HUD bill). If no agreement on amendments can be reached, the vote on invoking cloture on the Shelby substitute could be as early as Tuesday (there is a judicial nomination that has to be dealt with before the appropriations bill can come back up).

All of the transportation-related amendments that have been filed to the bill are listed here in our amendment log.

A side effect of the cloture process is that, aside from limiting debate to no more than 30 hours, invoking cloture also causes all non-germane amendments to a measure to be automatically rejected. This would take care of one of the two biggest problem amendments – Richard Burr’s (R-NC) reauthorization of the expiring Land and Water Conservation Fund. (Burr is so determined on this issue that he single-handedly killed the President’s budget rescission bill over it, and CQ’s Jacob Fischler found out this week that Burr also has a hold on the water resources (WRDA) bill unless he can get a vote on his amendment.)

But the other big problem amendment is from Appropriations ranking minority member Patrick Leahy (D-VT) and will be germane after cloture. Leahy wants to add an extra $250 million for additional grants to states for election security (with an offsetting cut from the Treasury Forfeiture Fund).

The appropriations process has been speeded along in the Senate this year for two reasons. The February 2018 bipartisan budget agreement set in stone the total defense and non-defense spending levels, to which the Senate spending plan adheres. And at the start of the process, new chairman Shelby gave his subcommittee chairmen an ironclad edict – no legislative provisions or controversially policy riders if they weren’t repeats of provisions enacted into law in the 2018 omnibus appropriations bill.

This has allowed the Senate Appropriations Committee to report all twelve 2019 spending bills unanimously, and to move a three-bill package of bills to a House-Senate conference committee last month. (That first “minibus” is almost ready but there was a last-minute holdup because Shelby could not agree with his House counterpart, Rodney Frelinghuysen (R-NJ), on the total dollar amounts for each bill. Locking those bill totals (Energy and Water, Legislative Branch, and Military Construction/Veterans) will have downstream effects on how much money is left for the rest of the bills. (As the table below shows, the House-Senate differences on how to divvy up the $1.244 trillion in the budget agreement center around the Homeland Security bill and the House inclusion of $5 billion for the US-Mexico border wall.)

There is evidence that a bipartisan “manager’s package” of amendments was close to inclusion in the bill. Several Senators introduced new versions of their earlier amendments yesterday, redrafted in such a way that they could plausibly be called restrictions on funding (permissible) instead of legislation (verboten). Blumenthal (D-CT) #3663 (discounted Amtrak fares for veterans), Coons (D-DE) #3649 (extension of the spendout deadline for old TIGER projects, presumably in Delaware), and Moran (R-KS) #3665 (Amtrak Southwest Chief) are examples of this.

But Shelby’s directive will be tested by several Senators who want to add provisions to the Senate bill mirroring those in the House bill. Most of these revolve around trucking – Daines (R-MT) #3580 (electronic logging devices on livestock haulers), Heller (R-NV) #3427 (weight exemption for battery-powered trucks), McConnell (R-KY) #3645 (Kentucky truck weight exemption) and Wyden (D-OR) #3471 (Oregon sugar beet trucks), for example. There is also the Cornyn (R-TX) amendment (#3496) that would add language prohibiting any federal mass transit funding from being used to buy any equipment from a company owned or subsidized by the Chinese government (the Senate language is a little different than the House language – Cornyn’s ban would only apply to new contracts moving forward, exempting the ongoing procurements by Chicago, Boston and Los Angeles from the state-owned CRRC company).

(The Chinese railcar issue was also dealt with in the defense authorization bill that passed the House this week – see here for details.)

Transportation-HUD subcommittee ranking minority member Jack Reed (D-RI) also pushed back this week against the Federal Transit Administration’s new policies on the Capital Investment Grant program outlined in a June 29 “Dear Colleague” letter to transit agencies. Reed filed three different amendments on the subject:

• Reed #3608 – prevents any funding in the bill from being used for the “implementation and furtherance of new policies” outlined in the Federal Transit Administration’s June 29, 2018 “Dear Colleague” letter on the Capital Investment Grants program.
• Reed #3609 – requires that the FTA treat the face value of federal direct loans for a CIG project as non-federal funding, that FTA not consider contingency funds as part of the project cost, and that FTA not perform a CIG risk assessment until the engineering phase unless requested by the sponsor.
• Reed #3610 – prevents any funding in the bill from being used to alter or rescind existing CIG program guidance.

So long as cloture can be invoked next Tuesday (and unless Leahy is willing to tank the entire FY19 process over the election security issue, the motion certainly will get the necessary 60 votes), the package will pass the Senate by the end of next week. At that point, the staffs of of the four Appropriations subcommittees will begin “pre-conferencing” their bills. The House won’t come back to make a formal vote on going to conference with the Senate on H.R. 6147 until after Labor Day, but the decision appears to have been made to dispense with taking the Agriculture and Transportation-HUD bills to the House floor and just going straight to conference.

(For the last decade or so, it has usually been the Senate that dispenses with floor action on a bill and goes straight to conference.)

And with the staff having disposed of all of the low-hanging fruit during the recess, a conference agreement on the four-bill package could conceivably be signed into law by the start of the fiscal year on October 1. With the first minibus presumably ready for floor action on the final conference report the week that the House comes back in September, that could mean seven of the twelve bills for 2019 enacted on time. And that total has an outside chance of rising to nine bills – McConnell hopes to combine the Defense bill and the Labor-HHS-Education bill into a third package and debate it on the floor in mid-August.

However, the other three bills look to be orphaned, and Republican leaders indicated this week that the Homeland Security bill in particular won’t go to the House floor in any form until after the November elections because of the border wall and immigration debates that go along with that bill.