Senate Debates FY20 DOT Appropriations: Highway Rescission Fix Offered

This week, the U.S. Senate took up a $209 billion package of four appropriations bills for fiscal year 2020, including the Transportation-HUD appropriations bill. Passage of the bill could be possible next week but is contingent on bipartisan, behind-the-scenes negotiations on which amendments will get votes and which amendments won’t get votes.

The Senate voted, 92 to 2 on October 22 on a procedural motion to take up the bill (the only “no” votes were Marsha Blackburn (R-TN) and Rand Paul (R-KY), which then became the pending business. But it was a bit of a desultory debate – the Senate diverted to consider nominations or other business several times, and aside from Appropriations subcommittee chairmen and ranking members, few Senators have actually spoken on the bill to this point.

About 200 amendments have been filed (submitted to the Secretary, assigned a number, and printed in the Record). But only one has been formally offered on the floor, and it hasn’t been voted on. The Senate reached agreement yesterday (before adjourning for the week) that three amendments will get roll call votes starting at 5:30 p.m. on Monday, but none of those three are related to transportation.

ETW is maintaining a list of all transportation-related amendments that have been filed in relation to this appropriations legislation, which will be updated each day the Senate is in session.

The most interesting amendment filed so far has to be one from Environment and Public Works chairman John Barrasso (R-WY) to repeal the $7.6 billion rescission of highway funding that is scheduled to take place on July 1, 2020 under the FAST Act. Previous attempts to repeal this scheduled rescission via an appropriations bill have foundered because, to budget scorekeepers, repealing a scheduled cut of $7.6 billion is the same thing as making a new appropriation of $7.6 billion, and repealing the rescission in an appropriations bill would put that appropriations bill $7.6 billion over its budget ceiling and possibly trigger a new round of government-wide budget sequestration.

Barrasso’s amendment (#1034) is trying to fudge the definition of what, exactly, is an appropriations bill?

The ongoing Senate gridlock in recent years has meant that the Senate passes fewer and fewer important bills, so more and more items keep getting stuffed into fewer and fewer packages. When packaging multiple bills together, the recent convention has been to group them into separate “divisions” for jurisdictional reasons. For a particularly ugly example, look at the FY 2018 omnibus appropriations package. That law had no less than 22 divisions. The first 12 (Divisions A through L) were the 12 annual appropriations bills. Division M contained six short-term extensions of non-appropriations programs. Division N was a Superfund bill, Division O was a wildfire suppression and federal lands bill, Division P was a FCC reauthorization law, Division Q was a bill about tracking Alzheimer’s patients, Division R was a human trafficking prevention bill, Division S was a package of 13 miscellaneous bills (including a minimum wage guarantee for minor league baseball players), Division T was a couple of new tax provisions, Division U was a package of technical corrections to the 2017 tax reform law, and Division V was a bill about cloud computing storage overseas.

But that was all crammed into a single piece of legislation. Was that package, in its entirety, an “appropriations bill”?

The Congressional Budget Office, in its cost estimate on the 2018 omnibus, wound up giving the package two different scores using two different scorekeeping systems. Divisions A through L were scored as an appropriations bill, using discretionary budget authority for FY 2018 only ($1.421 trillion of it). Divisions M through V were collectively scored using the PAYGO system, which only counts changes in outlays and revenues over a 10-year period. (CBO says those divisions collectively cut outlays by $1.4 billion and cut tax receipts by $4.2 billion, for a total deficit increase of $2.8 billion over 10 years.)

The Barrasso amendment would create a new division in the pending bill (Division E), which would consist solely of the rescission repeal and some “directed scoring” provisions ordering the Office of Management and Budget, and the Senate Budget Committee, not to record the budgetary impacts of Division E. Those directed scoring provisions, of course, can’t take effect until after the bill is signed into law, and CBO would have to score it before that could happen, but Team Barrasso hopes that they (along with the Budget Committee and the Parliamentarian) accept the precedent of those recent omnibus bills and declare a non-appropriations division of an appropriations bill not to be an appropriations bill.

The difference is crucial – if rescission repeal is included in an appropriations bill, it is scored as costing $7.6 billion. Due to a loophole in the budget process, if rescission repeal is scored using the PAYGO process for non-appropriations bills (outlays only), it costs nothing. Zero. (Seriously. See the CBO cost estimate for Barrasso’s free-standing rescission repeal bill (S. 1992) here.)

It’s still not clear if the Appropriations Committee leadership, the Budget Committee, and Senate Republican party leaders will agree to include Barrasso’s amendment in the appropriations package. (If accepted, it would be a precedent for loading up appropriations bills with non-approprations measures early in the process, which could make it harder to pass those bills.) Rescission repeal is also a possibility for inclusion in the ongoing House-Senate conference negotiations on the annual defense authorization bill.

Other transportation-related amendments filed to the package so far tend to be either general, policy-related provisions, or else reflect local concerns.

Policy amendments. Richard Blumenthal (D-CT) filed an amendment ordering the FAA to use a formal rulemaking process to carry out the regulation on minimum aircraft seat sizes required under section 577 of the FAA Reauthorization Act of 2018, including “outcomes of human factors and health research and engineering and testing through the use of human volunteers representative of the flying public, and computer model simulations of evacuations in normal to extreme scenarios.” Jeanne Shaheen (D-NH) has an amendment expressing the sense of Congress that the FAA should ensure the inclusion of opioid antagonists in emergency medical kits carried on board aircraft. Mike Crapo (R-ID) has an amendment requiring FHWA to approve purchases of patented or proprietary devides that are intended to deter wrong-way intrusions or wrong-way collisions. And Doug Jones (D-AL) has an amendment to suspend the application of the mass transit funding cuts required under the “Rostenkowski Test” throughout FY 2020.

Special attention must be paid to Joni Ernst’s (R-IA) amendment to prohibit any federal appropriations from being used to “(1) purchase, acquire, or distribute extraneous promotional items, including blankets, buttons, clothing, coloring books, cups, fidget spinners, hats, holiday ornaments, jar grip openers, keychains, koozies, magnets, neckties, novelties, snuggies, stickers, stress balls, stuffed animals, tchotchkes, thermoses, tote bags, trading cards, or writing utensils; or (2) manufacture or use a mascot or costumed character to promote an agency, program, or agenda.” First of all, it doesn’t apply to cufflinks, and the cufflinks with the DOT seal that I got from Secretary Mineta’s desk once upon a time are among my favorite. Second, this amendment poses an existential threat to PHMSA’s cartoon mascot, Hazardous Matt.

Local issues. Dianne Feinstein (D-CA) has an amendment preventing the Trump Administration from taking previously awarded funding back from her state’s high-speed rail project. Ben Cardin (D-MD) and Jon Tester (D-MT) have amendments that seem clearly targeted to certain airports in their home states. Cory Gardner (R-CO) has an amendment about RRIF loan credit subsidy repayment that, while general, applies first and foremost to the loan made for the Denver Union Station project. Catherine Cortez Masto (D-NV) has an amendment to order Amtrak to study whether to add more stops to its California Zephyr train (currently, the only stops in the Silver State are Elko, Reno, and Winnemucca). Chuck Schumer (D-NY) has an amendment to repeal some NYC-specific tolling statutes. And Martin Heinrich (D-NM) has an amendment directing USDOT to give priority in INFRA grant awards to states like his that have not yet received a grant.


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