Congress' Revised Laundry List
Updated June 14, 2022
Last month, we created a “laundry list” for the 117th Congress and provided our analysis on which legislative vehicles are most likely to see action in the coming months. Because it feels like the political environment is changing daily, we wanted to share Congress’ revised to-do list. With seven weeks to go until August recess, Congress has a packed summer schedule. The President's agenda – and the legacies of many Democrats, including one retiring Senate committee chair and four retiring House committee chairs – are on the line this summer.
Midterm season is threatening to swallow priorities. Democrats are trying to push through a critical China competitiveness package and a reconciliation measure that echoes the long-lost Build Back Better (BBB) plan. Additional aid for Ukraine and COVID response efforts, not to mention regularly scheduled negotiations of fiscal year 2023 (FY23) appropriations and routine authorizations, fill out the to-do list. With elections approaching, Americans are focused heavily on the issues where they see day-to-day impacts on their lives, most notably inflation. Nationwide crises are also reaching potentially pivotal points, including on gun control reform, immigration, privacy, and antitrust.
With such a full docket and a narrow legislative window, it is unclear how much, if anything, can get done. Given the season, it is high politics and Democrats will likely face growing obstacles to advancing their agenda. Hurdles might include Republican obstructionism and House Speaker Nancy Pelosi’s (D-CA) waning influence over her diverse Democratic Caucus as a flip in the chamber’s control now seems all but inevitable. That said, here is an updated overview of the major issues Congress is focused on.
Must-Pass Legislation
FY23 Appropriations: While the House and Senate Appropriations Committees are wrapping up hearings on the Biden Administration's FY23 budget request, competing priorities have impacted the pace of the FY23 process. The House Appropriations Committee has scheduled June 15-22 subcommittee markups and June 22-30 full committee markups, with the idea of moving as many FY23 bills as possible on the floor in July. Last week, the House passed a deeming resolution that will allow it to markup bills to a $1.6 trillion discretionary topline. Meanwhile, the Senate Appropriations Committee is reserving July for considering its bills. However, despite any progress moving bills through committee, efforts to eventually reconcile difference between the House and Senate bills could be delayed in the absence of an agreement between House and Senate Appropriations Committee leadership on topline numbers for defense and non-defense spending. Senate Republicans have indicated they need assurances for a boost in the defense topline before they agree to a final deal. While Chairman Patrick Leahy (D-VT) and Ranking Member Richard Shelby (R-AL) have both said they want to enact funding before the end of the 117th Congress when they retire, Sen. Shelby has also said he will not support spending bills without an increase for defense. Several other factors could impact appropriations negotiations, including a long-term Congressional Budget Office (CBO) analysis of the president’s FY23 budget request, which is expected in July, as well as a series of amendments to the FY23 budget request recently submitted by the Biden Administration. Regardless of the endgame on FY23 appropriations, there will still be at least a short-term continuing resolution (CR) to fund the government past September 30.
U.S. Food and Drug Administration (FDA) User Fee Reauthorization: While the FDA receives a separate appropriation from Congress every year, the user fees are a supplement to that appropriation. The current authorization is set to expire on September 30, and this reauthorization – which reauthorizes user fees for prescription drugs, medical devices, generic drugs, and biosimilar products from FY23-FY27– would also address clinical trial diversity, accelerated approval pathways, generic drug approvals, and other FDA processes. The House passed its user fee reauthorization legislation in early June. The Senate is not far behind, as the Health, Education, Labor, and Pensions (HELP) Committee marked up its version today. The Senate's proposal is very similar to the House bill. However, one notable addition is the creation of a 10-member interagency Accelerated Approval Council. Leaders in both committees have said they do not want delays in the reauthorization, which has historically been a bipartisan process. The hyper-partisan nature of the 117th Congress could make it more difficult, but it is possible that both chambers could reconcile their versions before the August recess.
National Defense Authorization Act (NDAA): With inflation, Russia's war in Ukraine, and the pacing threat of China weighing heavily on Congressional defense committees, Republicans have already made known their intent to fight to increase President Joe Biden’s $813 billion military spending proposal, which already represents a $30 billion boost over 2022 enacted levels. Senate Armed Services Committee (SASC) Ranking Member Jim Inhofe (R-OK) and House Armed Services Committee (HASC) Ranking Member Mike Rogers (R-AL) have called for a five percent increase in defense spending above inflation. The House Armed Services Committee marked up pieces of the NDAA at the subcommittee level last week. However, bigger issues, like the topline number, will not be addressed until the chairman’s mark is released ahead of the full committee markup scheduled for June 22. The Senate Armed Services Committee will begin marking up its NDAA on June 13 in closed sessions. While it remains possible that both chambers will clear their respective NDAAs before the August recess, the final compromise bill may not move until the lame duck. The NDAA has passed for 61 consecutive years, so it is nearly certain this vehicle moves before the end of this Congress.
Priorities with High-Possibility of Action
U.S. Innovation and Competition Act (USICA)/America COMPETES Act: It is now three weeks into conference negotiations, and to the relief of many, there seems to be consensus that a China competitiveness package will get done. Generally, the more expansive House version is expected to be scaled back to align with the Senate-passed version. The timeline remains in question. The conference committee already missed the May 25 deadline to "close out" all legislative items. According to the calendar, committee chairs and ranking members are set to meet with conference chairs and ranking members this week and file the finished report by June 21. However, several points of contention remain, namely the topline number and the desire of some Members to include new tax proposals. For example, Finance Committee Chairman Ron Wyden (D-OR) and Ranking Member Mike Crapo (R-ID) have been pushing to airdrop the FABS Act into the conference report – a move that House Ways and Means Committee Ranking Member Kevin Brady (R-TX), among others, has vocally opposed. Both Speaker Pelosi and Senate Majority Leader Chuck Schumer (D-NY) have been applying pressure on conferees to wrap things up before the July 4 recess. However, Sen. Todd Young (R-IN), one of the original authors of USICA, has said the bill could slip to just before the August recess. Some staffers have even suggested the conference report could be in play during the lame duck.
Water Resources Development Act (WRDA): The Senate Environment and Public Works (EPW) Committee unanimously approved the new WRDA bill on May 4. The legislation awaits floor action. In the House, the Transportation and Infrastructure Committee approved its version of a 2022 WRDA bill on May 18. The bill passed the floor on a bipartisan basis on June 8. The Senate bill is slightly larger than the House version. Lawmakers in both chambers want to see Congress complete work on WRDA by the end of the year. This would continue the recent practice of approving WRDA bills on a biennial schedule. They have been enacted every other year since 2014.
Behavioral Health: Even before recent mass shootings elevated mental health, Congress had been working on reauthorizing and expanding behavioral health programs. In late May, the House Energy and Commerce unanimously advanced the Restoring Hope for Mental Health and Wellbeing Act, which would reauthorize more than 30 mental health and substance abuse programs set to expire this fall. The full House vote and Senate HELP Committee markup have not yet been scheduled. The House Ways and Means Committee is in the planning stages for moving a Medicare-focused piece of legislation. In early June, the Senate Finance Committee released a draft telehealth proposal. This bill will be a portion of its mental health package, which is currently being drafted. Reports are circulating that the FDA User Fee Authorization could be a vehicle for both mental health and pandemic preparedness. However, there is a fear in the Senate Finance Committee that using the user fee bill as a vehicle for HELP's reauthorization package would take the wind of the sails for the Finance Committee's more expansive effort. Nonetheless, the process outlined by the Finance Committee has been working on a bipartisan basis so far, as there has been noticeable increased engagement from down-dais Republicans. A package will likely get passed this year, but questions remain regarding how comprehensive it will be and on what vehicle it will move.
Pandemic Preparedness: The Senate HELP Committee passed Chairwoman Patty Murray (D-WA) and Ranking Member Richard Burr's (R-NC) PREVENT Pandemics Act back in March. Some anticipate this bill – along with mental health provisions – will ultimately be attached to the FDA user fee reauthorization. Part of that package includes the authorization of ARPA-H. The House Energy and Commerce passed Rep. Anna Eshoo's (D-CA) ARPA-H Act and portions of DEPICT Act in mid-May, but Congress is working to pass additional legislation that focuses on more prescriptive authorizing language. Reps. Diana DeGette (D-CO) and Fred Upton (R-MI) proposed CURES 2.0, which would establish ARPA-H within the National Institutes of Health (NIH), but outside of Washington, DC. Several states, including California, Maryland, Massachusetts, and Texas, are vying for the opportunity to house the agency. Adam Russell began as acting Deputy Director of the newly established ARPA-H within NIH earlier this month.
Federal Communications Commission (FCC) Spectrum Auction Authority Extension: The FCC’s spectrum auction authority will lapse on September 30 in the absence of an extension or long-term reauthorization. There is some urgency to address the issue to avoid disruptions in the 2.5 GHz auction commencing this summer. Last month, the House held a legislative hearing on the Extending America’s Spectrum Auction Leadership Act, an 18-month extension of the FCC’s spectrum auction authority. A markup is scheduled for June 15. Meanwhile, there are some in the Senate who prefer a longer-term reauthorization bill, which might be used to direct spectrum auction revenue to other priorities, such as Next Generation 911 (NG911), closing the digital divide, and “rip and replace” efforts. To make such designations, legislation would have to identify specific airwaves for auction. Reaching consensus on a spectrum auction pipeline is a tall order, not to mention that the GOP is hesitant to commit to a long-term bill when they appear poised to flip one or both chambers in the midterms. These factors make it more likely that a short-term extension moves this year. The extension will likely need to ride on some other vehicle that moves before the end of the fiscal year, such as the China competitiveness package or the CR.
Retirement Security: Once again, retirement security is back on the Congressional agenda. In early June, HELP Committee Chairwoman Murray and Ranking Member Burr introduced the Rise and Shine Act, which allows employers to offer emergency savings accounts, increases transparency around pension plans, includes provisions on automatic enrollment and contribution arrangements, and updates the dollar limit for mandatory distributions from individual retirement accounts (IRAs). The bill is intended to be incorporated into the larger SECURE Act 2.0 Senate package. This retirement savings expansion package passed the House on March 29. Sen. Ben Cardin (D-MD) recently asked Treasury Secretary Janet Yellen for assistance in determining what should and should not be included in the larger retirement security package. The committees have largely worked on a bipartisan basis, but while pensions are always relevant, it is likely any action will get pushed to after the midterms.
Gun Control Reform: On June 8, the House passed an eight-bill package of gun measures that would raise the lawful age for purchasing weapons, ban high-capacity magazines, increase penalties for gun trafficking and straw purchases, create criminal penalties for failure to store firearms safely at home, outlaw bump stocks, and prohibit ghost guns. The House bill is all but certain to fail in the Senate, which is why a bipartisan group of senators, led by Sens. Chris Murphy (D-CT) and John Cornyn (R-TX), has focused on negotiating a narrower proposal. A bipartisan framework was announced on June 12. It includes enhanced background checks for gun purchasers under the age of 21, grant funding to incentivize states to implement red flag laws, resources for mental health and school safety, new barriers on straw purchases, and a provision to prevent individuals convicted of domestic violence against a partner they were dating from buying firearms. Notably lacking from the plan are the overarching expansion of background checks, assault weapons ban, and increase in age eligibility to purchase guns sought by Democrats. Regardless, the handshake on principles represents a step forward towards the most significant gun control legislation considered in decades. The tricky task now at hand is to translate the principals supported by the bipartisan group into bill text. Potential hurdles remain, including the need to strike a deal on funding levels for the agreed upon programs and offsets. Bipartisan cooperation will be necessary to maintain the support of the 10 Republicans who have publicly backed the framework. Republican support reflects the pressure to take the spotlight off gun control heading into the midterms so they can focus their messaging on other topics like inflation. There is a small window to push the compromise through both chambers. Democratic leadership is aiming to get the bill to the president’s desk before the July 4 recess, as there is some skepticism legislation will pass at all if negotiations drag out any further.
Possible, But Less-Likely Candidates for Movement
BBB, Reconciliation, and Bipartisan Energy Bill: A month ago, several Senate Democrats cited Memorial Day recess as a loose deadline for reaching an agreement on a reconciliation framework, but no notable progress has been made, and there is very little time for the Senate to pass a bill before the reconciliation vehicle expires on September 30. In recent weeks, Sen. Joe Manchin (D-WV), who has noted he would like a reconciliation bill to combat inflation, reform drug pricing, and provide funding for climate provisions, indicated that his negotiations with Leader Schumer will continue throughout the month. It is likely that a reconciliation bill will also have to restore Affordable Care Act (ACA) subsidies, which are due to expire at the end of the year with notices of premium increases slated to be sent out just before the midterm elections. Assuming there is a deal that Sen. Manchin can agree to, it will still need to go through CBO scoring and a Byrd bath, creating the possibility it could be swallowed by midterm madness. Sen. Manchin has also been working on separate energy legislation with Senate Republicans, including Sens. Lisa Murkowski (R-AK) and Kevin Cramer (R-ND). These discussions have focused on tax credits for wind, solar, carbon capture, and batteries. Additional areas of interest include reform of federal and oil gas leasing and reducing American dependence on foreign energy. While Sen. Manchin continues to express interest in bipartisan solutions, it does not seem Republicans are taking this effort seriously and we remain skeptical a bipartisan energy bill can move during an election year.
Additional Ukraine Aid: Last month, President Biden approved a sizeable $40 billion aid package for Ukraine, although lawmakers are already discussing the potential that even more funding will be needed to support what is increasingly looking like a war of attrition. Securing votes for a third tranche of Ukraine aid will undoubtedly be difficult, especially as there are Members on both sides of the aisle – including Sens. Rand Paul (R-KY) and Elizabeth Warren (D-MA) – who are demanding enhanced oversight of the funding already appropriated for Ukraine. Even if the Pentagon provides Congress with the transparency it is seeking, it is unclear if the coalition that passed the May package will remain unified if the Biden Administration makes another supplemental request before the end of the fiscal year. Aside from oversight worries, persistent concerns about inflation could make other factions reluctant to support another package.
COVID Relief: President Biden's appeal for more resources for COVID vaccines, testing, and treatments is in stalemate as offsets have evaporated and Republicans continue to fuse the fight with immigration politics. A major obstacle to the COVID proposal moving forward is the fact that rescissions of previously appropriated stimulus funds that had been agreed to as offsets have now been spent. With pay-fors an essential component of the package, it now seems that a COVID proposal would have to be renegotiated. However, the White House and senior Congressional leadership are now juggling other pressing priorities within a narrow legislative window. The White House has also started reprograming funding from other healthcare programs to set aside resources for vaccines and therapeutics that will likely be needed this fall. Even if there was consensus on a new COVID package, moving it could be procedurally difficult. Despite a court decision delaying administrative action and a pending appeal of the decision, Republicans continue to demand a vote on this package on the Biden Administration’s decision to lift Trump-era Title 42 immigration restrictions. It now feels like a vote on COVID relief could be slipping to the lame duck, if it happens at all.
Agenda Items Seeing Lots of Talk, But Less Likely Action
Privacy: Earlier this month, Senate Commerce Committee Ranking Member Roger Wicker (R-MS) and House Energy and Commerce Committee Chairman Frank Pallone (D-NJ) and Ranking Member Cathy McMorris Rodgers (R-WA) released a bipartisan discussion draft of a data privacy bill. Our analysis finds that the bill does not resemble existing state laws, like those in California and Virginia, but shares similar definitions, such as those for "covered data" and "covered entities." Under the bill, users would be able to opt out of targeted advertisements and sue companies that improperly sell their data. Additional protections for children and requirements for large data holders are also part of the proposal. The legislation would also authorize the Federal Trade Commission (FTC) to issue guidance and promulgate rules. While the proposal is gaining attention following months of disagreement over issues like preemption and private right of action, it must be emphasized that only three of the four leaders of the committees of jurisdiction support the proposal. Senate Commerce Committee Chairwoman Maria Cantwell (D-CA) is circulating her own discussion draft, lowering the prospects that comprehensive privacy legislation gets done this year. Further, Sen. Brian Schatz (D-HI) who was initially a leader in privacy talks, criticized the proposal, instead promoting his own bill. This issue will continue to receive attention following a June 14 hearing in the House Energy and Commerce Committee. Sen. Cantwell has previously indicated the Commerce Committee could markup a bipartisan privacy bill later this month, although her plate is full as chair of the USICA/America COMPETES Act conference. While the odds for a comprehensive federal privacy law to be enacted this year are low, it remains possible that legislation targeting children’s privacy, such as Sen. Ed Markey’s (D-MA) Children and Teens Online Privacy Protection Act, or kids’ safety online, such as Sens. Richard Blumenthal (D-CT) and Marsha Blackburn’s (R-TN) Kids Online Safety Act, move during the lame duck. We anticipate privacy will continue to be a focus in the 118th Congress.
Antitrust: · Senate Judiciary Antitrust Subcommittee Chairwoman Amy Klobuchar (D-MN) unveiled a revised version of the American Innovation and Choice Online Act in late May, specifying subscription services are not included and seeking to address some cybersecurity concerns. As a reminder, the bill would prohibit leading tech companies from preferencing their own services and products. Leader Schumer has expressed interest in bringing the bill to the floor this summer, but only if Sen. Klobuchar can demonstrate there are 60 votes for passage. With new legislative language and talk about floor time giving the bill the appearance of having legs, Senators on both sides of the aisle are increasingly coming forward with concerns. There remains division among Democrats, with some members concerned about how the bill could hinder companies' ability to regulate harmful online content. There is also concern about a carveout for the telecom industry that Democratic critics say was added to secure Republican votes. We anticipate Sen. Klobuchar’s most recent draft will continue to be tweaked, although it is unlikely to be enough to get the bill across the finish line. Last summer, the House Judiciary Committee advanced its own package of antitrust measures. House Judiciary Antitrust Subcommittee Chairman David Cicilline (D-RI) is trying to secure a similar commitment for floor time from Speaker Pelosi, but the House has its own challenges in whipping enough votes for passage. Despite chatter that antitrust and privacy could be packaged for action this year, Sen. Klobuchar and Rep Cicilline insist that antirust will remain on its own track. Assuming antitrust efforts stall this year and Republicans control one or both chambers in the next Congress, GOP leaders have indicated that antitrust legislation will not be one of their top priorities.
Immigration: Labor Secretary Marty Walsh appeared before House Appropriations in mid-May to discuss the urgency of passing immigration reform to add needed workers to the U.S. economy. House lawmakers continue to point to worker shortages and inflation to push the Senate to act on some narrow immigration bills. They see an opening ahead of the midterms to revise guest-worker visa problems — including H-2A seasonal agricultural visas and H-2B visas for non-agricultural labor. Rep. Dan Newhouse (R-WA) co-sponsored the Farm Workforce Modernization Act with Rep. Zoe Lofgren (D-CA), which passed the House in March 2021 with 30 Republican votes, yet the measure has stalled for more than a year as Sens. Michael Bennet (D-CO) and Crapo negotiate a Senate version. The call for action on the migrant farmworker bill comes as a small, bipartisan group of senators has embarked on efforts to identify leaner immigration bills that could possibly win 60 votes in the Senate. Sen. Bennet has said the group is still talking, but talks have not come far. He suggested the group is still focused on introducing a bill in time for a vote this summer, but our instincts say any big immigration action is unlikely this year.
Plotting out Congress’ agenda is always a difficult task, especially as there are many unknowns between now and January 3 that could, on one hand, throw more obstacles into processes or, on the other, open doors for legislative opportunities. The months ahead are sure to be stormy, both figuratively and literally. The country awaits a decision that is likely to mean the overturning of Roe v. Wade, NOAA has forecasted an above-normal season of storms and inclement weather, and COVID cases are on once again on the rise in many parts of the country. While 57 members of Congress have announced they will not be returning in the 118th Congress and are seeking to secure their legacies, there could also be more retirements to come, which could further shift the probability of legislative action and overall dynamics this summer and fall.