2020 Legislative Outlook
The onset of the COVID-19 pandemic earlier this year has thrown into disarray many of the legislative priorities Congress was hoping to tackle by year’s end. Since March, Congress has shifted its attention almost entirely to mitigating the impact of the virus, passing a series of packages aimed at bolstering support to those directly dealing with the outbreak, and to aid individuals and businesses experiencing financial hardship. As state economies gradually reopen, Congress has continued negotiations on additional COVID-oriented relief bills. It has also resumed consideration of “must pass” legislative vehicles, such as the annual National Defense Authorization Act (NDAA), Fiscal Year 2021 (FY21) appropriations, and a surface transportation reauthorization bill. Other timely measures, such as police reform, have also received attention.
Congressional Calendar
Even as traditional campaigning has largely fallen by the wayside in favor of virtual events, this fall’s elections, coupled with the relatively limited number of in-session days for the House and Senate, could present challenges for passing new legislation ahead of looming expirations. Following the July 4 recess, there are only fifty-eight days remaining in the year during which one or both of the chambers are in-session. Twenty-four of these days take place after the November election. Depending on which party will control the White House and each chamber next year, we could see either a flurry of activity or a notoriously unproductive lame duck. Regardless, there are not many working days left to pass non-essential legislation.
COVID Relief Package
Congress has already allocated roughly $2.5 trillion in COVID-related relief, including nearly $2 trillion in the Coronavirus Aid, Relief, and Economic Security (CARES) Act. Currently, there are three different ideas about what an additional stimulus bill could look like. House Democrats have passed their $3 trillion Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act, which provides nearly $1 trillion to state and local governments, $200 billion for hazard pay, and a second round of direct payments to individuals, among other provisions. Recently, White House trade advisor Peter Navarro stated the Administration would also like to see a stimulus package in the order of $2 trillion, with a focus on payroll tax cuts and re-shoring manufacturing jobs. Meanwhile, Senate Republicans have indicated they would be open to another bill more in the range of $1 trillion, with liability protection language cited as a necessary inclusion for any bill that is to be passed.
There are a number of variables that could influence the size and scope of future relief package, with public health considerations and unemployment numbers strongly influencing members’ feelings about what ought to be included. Should economic indicators continue to show signs of a recovery, the chances for a wide-ranging bill are diminished; the same could also be said for successful pandemic containment. A possible additional factor that could end up expediting passage is polling that shows the Senate flipping to a Democratic majority. All signs point to the next package being passed before the August recess, but election numbers that spell trouble for Republicans could provide impetus for Majority Leader Mitch McConnell (R-KY) to seek passage of additional legislation in an effort to build support for vulnerable GOP candidates.
FY21 National Defense Authorization Act
The National Defense Authorization Act (NDAA) has been signed into law for fifty-nine consecutive years. The defense policy bill has traditionally topped the list of “must-pass” legislation, and all indications are that the Fiscal Year 2021 (FY21) bill will be signed into law this year.
The Senate Armed Services Committee held subcommittee and full committee markups the week of June 8. All but the Personnel Subcommittee considered their sections in closed sessions. The full committee concluded its work on June 10, reporting the bill on a 25-2 vote, and released an executive summary of the bill on June 11. The legislative text was filed on June 23 and committee report language was released on June 24. Following Democratic efforts to block the GOP-led police reform bill on June 24, Senate Majority Leader Mitch McConnell (R-KY) filed cloture on the NDAA. Votes on amendments and final passage are likely to come next week. In recent years, the Senate NDAA has attracted numerous, often controversial, and sometimes non-germane floor amendments, though few receive floor time. This year is no different, as we will likely see amendments filed on renaming military basses honoring Confederate leaders and discontinuing the transfer of surplus military equipment to local police forces. The Senate is expected to pass the NDAA before the July 4 recess.
The House Armed Services Committee unveiled its subcommittee marks during the week of June 22, with subcommittee markups held June 22-23. Consistent with past NDAA cycles, subcommittee markups went quickly, with all but the Seapower and Projection Forces Subcommittee holding debate and amendments until the full committee markup scheduled for July 1. The chairman’s marks were released June 25. The House Armed Services full committee markup has come to be known as “an all-nighter,” but this year we could see fewer amendments than usual due to the markup using a partially remote format. Unlike last year, where the House Armed Services Committee reported a partisan bill, this year’s markup is expected to return to regular order and result in bipartisan legislation. The full House is expected to vote on the NDAA in mid-late July. Although floor consideration could potentially take place under new House proxy voting procedures, the House remains likely to consider hundreds of amendments, including many as part of en bloc packages.
Prior to the onset of the COVID-19 pandemic, Senate and House Armed Services Committee leadership laid out a fairly aggressive timeline that envisioned the NDAA signed into law prior to the start of the new fiscal year. Social distancing and teleworking have led to some slippage and, at this point, it remains unclear if the NDAA conference committee can finish its work prior to Election Day or if final Congressional action and enactment will have to wait until November or December.
Appropriations
As of June 25, government funding is on track to expire in just ninety-seven days, and neither chamber has started marking up appropriations legislation. Delays have been due, in part, to the fact that staff has been working remotely, making it difficult to work with funding tables and classified information. Additionally, it took Senate appropriators time to build consensus on funding the VA Mission Act using emergency appropriations excluded from budget caps, allowing the committee to proceed in determining top line 302(b) allocations.
Initially, the Senate Appropriations Committee had planned to markup seven of its twelve appropriations measures before the July 4 recess, beating House appropriators to moving legislation. However, these markups have now been postponed due to political disagreements on amendments that might be offered on additional COVID-19 spending, as well as controversial amendments Democrats are drafting on police brutality and other social justice issues. At this point, it is unclear exactly when these Senate Appropriations Committee markups will be back on the calendar, although the expectation is that there will be committee activity in July.
The House Appropriations Committee is on track for a busy July. The committee is expected to conduct business in a way that allows both in-person and remote participation from members. Subcommittee markups will take place on the first week back after the holiday recess. On July 6, subcommittees will consider the State-Foreign Operations, Agriculture, and Military Construction bills; on July 7 subcommittees will markup the Homeland Security, Interior, Legislative Branch, Energy and Water, and Labor-Health and Human Services measures; and on July 8, subcommittees will consider the Commerce-Science, Transportation-HUD, Financial Services, and Defense bills. Full committee markups will begin on July 9 and conclude by July 17. As Democrats hold enough of a majority in the House to pass their bills without Republican support, the House bills will likely include amendments that have derailed the markup process in the Senate. The full House is planning to advance all 12 appropriations bills, perhaps in a series of minibuses, during the last two weeks of July.
Aside from the waning number of legislative days, conventional wisdom suggests that a continuing resolution (CR) is likely during an election year. When the FY21 appropriations cycle is ultimately completed could hinge on the outcome of the elections. With both control of the White House and Senate thought to be in play, members could return for the lame duck with a desire to either to clear the decks for a new Congress, and potentially a new administration, or punt appropriations to early next year.
Infrastructure
Since the beginning of the pandemic, infrastructure has been periodically floated by members of both parties as a way to stimulate the economy. These discussions gained momentum in recent weeks, and culminated with the House Democrats’ Moving Forward Act, a $1.5 trillion bill that combines nearly $500 billion in surface transportation spending with investment in other areas like broadband, clean energy, and hospitals. Senate Republicans have labeled this bill as “dead on arrival.”
In the Senate, the Environment and Public Works (EPW) Committee unanimously voted last year to advance the America’s Transportation Infrastructure Act of 2019, which authorizes just under $300 billion over five years to maintain and repair roads and bridges. With the Fixing America’s Surface Transportation (FAST) Act (the current surface transportation authorization) set to expire at the end of September, the bipartisan EPW bill stands a much better chance of passage than its more expansive House proposal, though the former may broaden to include consensus items like broadband. Of course, in an election year, it is possible we might just see a FAST Act extension and renewed talks on infrastructure next year.
Meanwhile, the Trump Administration has indicated that it is also preparing a nearly $1 trillion infrastructure package. The majority of the funds would be reserved for traditional projects such as roads and bridges, with about a quarter set aside for 5G wireless infrastructure and rural broadband. The proposal is expected to be released in July.
Police Reform
In the weeks since the deaths of George Floyd and Breonna Taylor, nationwide protests have sparked debates about racial inequality and police conduct. Following these demonstrations, both House Democrats and Senate Republicans have released legislation – the Justice in Policing Act and the Just and Unifying Solutions to invigorate Communities Everywhere (JUSTICE) Act, respectively – aiming to curb police use of force. While both bills share common ground on issues such as increasing the use of body cameras, there is are differences in other areas like no-knock warrants and qualified immunity, the latter of which is likely to be a sticking point between the two parties.
Already, Senate Democrats have blocked their counterparts’ bill from advancing to debate, even as they push for more bipartisan negotiations. House Democrats recently passed their own bill, although it is unlikely to be taken up in the Senate. We should continue to expect racial inequality and police reform issues to be debated as Congress moves on to other “must-pass” legislation.
Conclusion
This has been a unique year for lawmakers. A strong economy and record-high stock market gave way to the largest economic contraction in recent memory and burgeoning unemployment numbers. In the span of a few months, pre-election legislative goals were shelved as attention turned to addressing public health and economic concerns. As states reopen, Congress is turning its attention to other bills, including the annual NDAA and appropriations, along with infrastructure, police reform, and another COVID relief bill. With the campaign season picking up steam and a limited number of days left, we’re likely to see an emphasis on priority items, with little chance for other legislation