Comparing the House and Senate versions of the Tax Cuts

The Joint Committee on Taxation released a report Thursday comparing the House and Senate versions of the Tax Cuts and Jobs Act, highlighting differences that include where tax brackets begin, the standard deduction, maximum rate on business income of individuals and the child tax credit.

For personal income tax, the House version of the tax bill consolidates the current seven income tax bracket rates to four but keeps the top marginal rate at 39.6 percent. The Senate version, on the other hand, keeps the seven brackets but reduces the top marginal rate to 38.5 percent. The House and Senate also both have slightly different rates for the standard deduction.

The House and Senate bills also treat pass-through income differently. The House bill introduces a top rate of 25 percent for members of pass-through entities while individual tax rates can go as high as 39.6 percent. The lower rate would apply to only 30 percent of income that can be categorized as qualified business income. The remaining 70 percent would be attributable to wages or labor income and be taxed at individual rates — a mechanism put in place to prevent tax avoidance maneuvers to characterize personal wages as business income. The Senate’s tax bill introduces a 23 percent deduction for pass-through income, bringing the top effective rate to 29.6 percent.

Both the Senate and House increase the child tax credit, but while the House increases it to $1,600, the Senate increases it to $2,000. The phase-out amount for joint filers comes at $230,000 for joint filers in the House version and at $500,000 in the Senate version. The House version creates a $300 per-person nonrefundable family tax credit for those not eligible for the child tax credit that would expire by 2023, whereas the Senate version would create a $500 nonrefundable tax credit for non-child dependents.

The House also repeals the alternative minimum tax for corporations and individuals, while the Senate retains both alternative minimum taxes but increases the exemption rate for individuals.

For homeowners, the House lowers the limitation on qualifying indebtedness for the mortgage interest deduction to $500,000, grandfathering in indebtedness incurred on or before Nov. 2, 2017, at $1 million. The Senate version keeps the mortgage interest deduction for new debt but eliminates the deduction for home equity interest indebtedness.

On the health care side, the House bill repeals medical expense deductions while the Senate retains them and decreases the floor for the medical expense deduction to 7.5 percent from 10 percent for taxable years 2017 and 2018. The Senate also reduces the penalty for failure to obtain health coverage under the Affordable Care Act to $0, while the House version doesn’t touch the penalty under the individual mandate.

The House version increases the estate tax exemption from $5 million to $10 million, reduces the gift tax rate from 40 percent to 35 percent for gifts made after Dec. 31, 2024, and repeals the estate and generation-skipping transfer taxes for estates of decedents dying, gifts made, and generation-skipping transfers made after Dec. 31, 2024. The Senate version doubles the basic exclusion amount for estate and gift tax purposes from $5 million to $10 million.

Martin J. Milita

What GOP Plan For Health Care Reform May Mean For You?

The House GOP Health Care Reform Plan provides a blueprint for eliminating important elements of the ACA and replacing them with a more market-oriented approach.

On Wednesday key Capitol Hill committees started debate on the controversial new Health Care legislation

Both President Trump and the House GOP plan contemplate using tax credits to subsidize the purchase of health insurance.

Hearings on the “American Health Care Act” (AHCA) stretched overnight at the House Ways and Means Committee and Energy and Commerce Committee. Ways and Means approved its portion of the AHCA at around 4 a.m. on Thursday, while discussion continued at Energy and Commerce

While partial details on the AHCA’s costs are available, the Congressional Budget Office hasn’t yet estimated how the AHCA would affect the uninsured rate or how much it would cost overall. CBO would not have a “score” — a report on the effects of the bill — before next week, when the measure could go to the Budget Committee.

The Plan has not yet been analyzed by the Congressional Budget Office, so it is unknown how much the plan will cost and what its impact will be on the number of people who are insured. Additionally, despite the Republican majority in the Senate, it is unclear whether all the Republican senators will support the bill.

It is far from clear, however, whether the Medicaid provisions of the House GOP plan have sufficient support to pass the Senate. Four GOP senators recently warned that they would not support any plan that does not protect the Medicaid expansion population. Moreover, in his speech last week, President Trump argued that Congress should give governors the “resources and flexibility with Medicaid to make sure no one is left out.” It is not clear what Trump meant by this statement and whether he supports the House GOP plan’s Medicaid changes could very well cause some people to lose coverage.

One way of shedding light on what a final law may look like is to look at its putative winners and losers. Although it is hard to assess the ultimate impact of health care reform until more details emerge, what’s now known suggests that particular subsectors of the industry could be winners or losers:

1. Hospitals:

To the extent health care reform results in significantly more uninsured patients, hospitals will likely bear increased costs. Because hospitals often treat patients regardless of ability to pay, more uninsured patients means increased charity care and bad debt write-offs. This burden would fall heavily on disproportionate share hospitals (DSH) — hospitals that treat a large percentage of the indigent population. The ACA had reduced government funding to DSH hospitals under the theory that they would offer less uncompensated care as the number of uninsured people drops. The House GOP plan would benefit DSH hospitals by repealing the ACA’s funding cuts.

2. Pharmaceutical Industry:

The plans contemplated by the Trump administration and House GOP will have a mixed impact on the pharmaceutical industry.

The ACA reflected a complex bargain between the Obama administration and the pharmaceutical industry. The pharmaceutical industry benefited from more insured people who could afford to purchase more drugs. It also benefited from the closing of the “doughnut hole,” the coverage gap between an initial threshold of drug costs that would be covered by Medicare Part D and a much higher catastrophic maximum after which Part D coverage would resume. In return, the branded pharmaceutical industry agreed to an annual tax of about $3 billion (allocated among branded pharmaceutical companies based on their share of the branded pharmaceutical market) and cutbacks on Medicaid reimbursements for prescription drugs.

The House GOP plan partially unwinds this bargain. The plan benefits the pharmaceutical industry by repealing the $3 billion annual tax and maintaining the closure of the doughnut hole. Additionally, repealing the “medicine cabinet tax” may boost the sale of over the counter drugs. But the pharmaceutical industry will lose to the extent that people reduce purchases of prescription drugs because they lose their health insurance or are covered by plans that provide only limited coverage for expensive drugs, even while the ACA’s cutbacks on Medicaid rebates are left intact.

3. Medical Device Manufacturers:

Health care reform will likely be a major boon to device manufacturers because there is strong GOP support for lifting the excise tax on devices. Device manufacturers may also benefit from greater flexibility in patients’ ability to use HSA money on devices that would not typically be covered by insurance. That being said, device manufacturers may suffer lost sales to the extent people lose insurance coverage or purchase only thin coverage that leads them unable to afford certain devices.

While the House GOP plan reflects the bill that the House GOP leadership would like to pass, it is likely to be just the start of a heated health care reform debate. Different health care industry subsectors may yet have a significant role in shaping whatever bill, if any, ultimately passes in Congress and is signed by the President.

Republican leaders have emphasized that the objective of the law is to lower the cost of coverage and reduce government mandates, not necessarily to increase or even maintain the number of people covered.

One thing remains clear: the changes contemplated by the Trump administration and congressional Republicans are likely to have significant implications for just about every sector of the health care industry.

Republicans hope to send the AHCA to the full House within the next month.

This week in Congress.

The Senate will consider resolutions of disapproval under the Congressional Review Act (CRA) and confirmation of the president’s appointees to federal agencies. The House will be taking up litigation reform legislation and appropriations legislation to fund the Defense Department through the remainder of fiscal year 2017. The highest profile activity in Congress this week, though, is expected to take place in the House which plans to mark up the legislation to begin to repeal and replace the Affordable Care Act.

The Senate will return on Monday afternoon, when votes are expected on two resolutions of disapproval of federal regulations issued in the final months of the Obama administration under the CRA. The first vote will be on H.J. Res. 37 to disapprove a rule from the Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration revising provisions of the Federal Acquisition Regulation to require federal contractors to disclose findings of noncompliance with labor laws. The Senate is then scheduled to vote on the motion to proceed to H.J.Res 44, a resolution of disapproval of the Bureau of Land Management’s Resource Management Planning rule, finalized in December 2016. The regulation establishes the procedures used to prepare, revise or amend land use plans pursuant to the Federal Land Policy and Management Act of 1976, but congressional Republicans, state and local governments, and affected property owners have argued that the new process creates more confusion and greater uncertainty. The White House has announced support for both resolutions of disapproval, indicating the president would sign them into law upon Senate passage (both resolutions have already been approved by the House).

Senate floor activity for the remainder of the week is uncertain. It is possible the majority leader will initiate action on the nomination of Seema Verma to serve as Administrator of the Centers for Medicare and Medicaid Services. The nomination was advanced by the Senate Finance Committee last Thursday on a straight party-line vote.

On the other side of the Capitol, the House will return to legislative business on Tuesday, when members will consider seven bills, including five measures under the jurisdiction of the Transportation and Infrastructure Committee, under suspension of the rules.

On Wednesday, House members will consider three additional bills under suspension of the rules, all reported by the Natural Resources Committee.

The House will then take up H.R. 1301, the Department of Defense Appropriations Act for FY 2017, subject to a rule. The funding bill would replace the Department of Defense provisions of the current continuing resolution for FY 2017, which is set to expire on April 28, and provide funding through the end of this fiscal year, which ends on Sept. 30. The legislation meets the overall defense spending limits set by law for FY 2017, providing $516.1 billion for base budget needs. The bill also provides $61.8 billion in Overseas Contingency Operations funding, which is the level allowed under current law. These amounts are also in line with the National Defense Authorization Act signed into law by President Obama in December. Unlike the Defense Appropriations bill that passed the House on a party-line vote last summer, this version of the defense spending bill maintains statutory budget limits. As a result, it is likely to garner more bipartisan support for House passage in this session of Congress. Press reports indicate the Trump administration is preparing to request an additional $30 billion in supplemental funding for the Department of Defense in FY 2017, largely for readiness spending, but it remains unclear how Congress will respond to any supplemental appropriations request. It also remains unclear how or when Congress will deal with funding for the 10 remaining FY 2017 spending bills before the continuing resolution expires on April 28.

During the remainder of the week, House members will consider three pieces of litigation reform legislation reported out of the House Judiciary Committee. Each will come to the floor under a rule.

On Thursday, the House will take up two of these measures. H.R. 725, the Innocent Party Protection Act, limits the ability of federal courts to remand cases to state court under certain circumstances. Members will also consider H.R. 985, the Fairness in Class Action Litigation Act of 2017. The bill includes language from a previous class action reform proposal, which passed the House in 2016, to prohibit federal courts from certifying any proposed class under Rule 23 of the Federal Rules of Civil Procedure unless the party seeking to maintain a class action demonstrates that each member of the proposed class suffered an injury of the same type and scope. This version of the legislation also includes some additional provisions related to class action litigation, including disclosure requirements on third-party litigation financing.

The third litigation reform bill will be considered on Friday. H.R. 720, the Lawsuit Abuse Reduction Act of 2017, would amend Rule 11 of the Federal Rules of Civil Procedure to make the imposition of sanctions for violations of the rule mandatory, not discretionary as under current law.

Also this week, House Republican leaders are expected to release their proposal to repeal and replace the Affordable Care Act.  Once the bill is released, committee action is on tap, with markups this week, and prompt floor action can be expected as early as next week.

With all committees now organized, both chambers are facing busy hearing schedules.

 

In Congress: Votes on several Cabinet nominees Expected

Today the Senate is scheduled to resume legislative business with an afternoon vote scheduled on the nomination of Rex Tillerson to serve as the Secretary of State under President Trump. On Tuesday, the Senate will take up the nomination of Elaine Chao, wife of Senate Majority Leader Mitch McConnell, R-Ky., to serve as the Secretary of Transportation.

Votes on several other Cabinet nominees can be expected throughout the week as the nominations are reported by their respective Senate committees. On Monday, the Small Business and Entrepreneurship Committee is scheduled to vote on the nomination of Linda McMahon to serve as the Administrator of the Small Business Administration, and the Finance Committee is scheduled to consider the nomination of Steven Mnuchin to be Treasury Secretary. The nomination of Senator Jeff Sessions, R-Ala., to serve as attorney general is expected to be considered by the Judiciary Committee on Tuesday. That same day the Committee on Energy and Natural Resources is scheduled to vote on the nominations of Rep. Ryan Zinke, R-Mont., to serve as Interior Secretary and former Texas Governor Rick Perry to serve as the Secretary of Energy. The Homeland Security and Governmental Affairs Committee plans to meet on Wednesday to consider the nomination of Rep. Mick Mulvaney, R-S.C., to be Director of the Office of Management and Budget. Also on Wednesday, David Shulkin is scheduled to appear before the Veterans’ Affairs Committee regarding his nomination to head the Department of Veterans Affairs.

In Congress this Week.

The Senate this week will continue to move forward on the consideration of the New and 45th president’s cabinet picks while committees on both sides of the Capitol begin to conduct their formal organizational proceedings for the 115th Congress.

On Monday members will take up 11 legislative measures under suspension of the rules, all within the jurisdiction of the Energy and Commerce Committee, which had reported them in the last Congress.

On Tuesday, the House will consider three additional bills under suspension of the rules before considering H.R. 7, the No Taxpayer Funding for Abortion and Abortion Insurance Full Disclosure Act of 2017. Identical to a bill passed by the House early in the 114th Congress, the legislation would broaden the existing language of the Hyde Amendment and ban the use of any federal funds to pay for abortions. Consideration of H.R. 7 will be subject to a rule.

The Senate will resume legislative business on Monday when members will debate and vote on the nomination of Rep. Mike Pompeo, R-Kan., a member of the House Intelligence Committee, to be director of the Central Intelligence Agency.

The Senate floor schedule for the remainder of the week is unclear, but look for Majority Leader Mitch McConnell to schedule votes on other cabinet nominees as they are reported by their respective Senate committees. Several committees have scheduled votes throughout the week. On Monday afternoon, the Foreign Relations Committee will vote on the nomination of Rex Tillerson to serve as Secretary of State. On Tuesday, the Banking Committee will meet to consider the nomination of Dr. Ben Carson to be Secretary of Housing and Urban Development. That same morning the Judiciary Committee will consider the nomination of Senator Jeff Sessions, R-Ala., to serve as attorney general. A meeting of the Committee on Health, Education, Labor and Pensions to consider the nomination of Betsy DeVos scheduled for this week has been postponed.

Other Senate committees will continue to review the qualifications of President Trump’s cabinet appointees. The Finance Committee is scheduled to resume its consideration of Rep. Tom Price, R-Ga., to serve as the Secretary of Health and Human Services. Much of the first day of the Price hearing was given over to questions about the nominee’s stock trading. Rep. Mick Mulvaney, R-S.C., whom the president has tapped to serve as the director of the Office of Management and Budget, is scheduled to appear before two Senate committees on Tuesday; in the morning, he will provide testimony to the Budget Committee before an afternoon appearance before the Committee on Homeland Security and Governmental Affairs. Rep. Mulvaney is dogged by questions over his failure to pay requisite taxes for a household employee from before he was elected to Congress, and some Democrats have called for his nomination to be withdrawn. The Committee on Small Business and Entrepreneurship will hear testimony from Linda McMahon of Connecticut on her nomination to serve as the administrator of the Small Business Administration.

Also on the schedule this week, and in keeping with the Republican initiative currently underway to repeal and replace the Affordable Care Act, the House Budget Committee is set to host a Tuesday hearing regarding the “Failures of Obamacare.” The hearing will be the first under its new chairman, Diane Black, R-Tenn., who was named to succeed Rep. Price following his nomination to serve as the Secretary of Health and Human Services.

On both sides of the Capitol, a number of committees are meeting for the first time this week to organize for the 115th Congress and adopt the rules for official proceedings. The full schedule of events for the week ahead is detailed below.

Final Week for the 114th Congress.

This is the final week of legislative activity for the 114th Congress, with the House and Senate expected to work through the outstanding items that remain for 2016.

Lawmakers are scheduled to be in session until Dec. 16, but resolution and passage of a spending measure to keep the government funded into 2017, the annual national defense authorization act, and the biomedical innovation bill, among a handful of other final legislative items should be finished this week, enabling members to depart Washington, D.C., at the end of this week.

Negotiations over a continuing resolution have been ongoing and press reports indicate congressional leaders are close to a deal that should be ready for a vote this week. Current government funding expires on Dec. 9. Although initial discussions on the CR were focused on a three-month extension of current spending authority into March 2017, leadership now seems to be agreed on extending that authority into April after acknowledging the reality of the congressional calendar. Both chambers are anticipating an active legislative agenda in the first few months of the 115th Congress, and the Senate will be particularly busy with the confirmation process for appointees to the new administration. Republican leadership recognizes that it would be challenging to add an appropriations deadline to the agenda in the first 100 days of the new session. Legislative text has not yet been released, but House leadership indicated on Friday that the text of the spending bill would be ready to permit a vote this week. Although the funding portion is easily crafted, many funding anomalies and various legislative provisions that can be agreed upon must be crafted, making the final drafting of the CR a laborious and time-consuming task.

In addition to the expected consideration of a CR this week, the Senate is set to take up two additional lame duck priorities. Following the successful passage of both the biomedical innovation bill (H.R. 34, the 21st Century Cures Act) and a $619 billion conference report to the National Defense Authorization Act (S. 2943) through the House of Representatives last week, the Senate is now poised to take action on these measures. Senators are scheduled to return on Monday for a procedural vote on the 21st Century Cures Act, legislation that will invest greater resources in medical innovation and speed up the process by which the U.S. Food and Drug Administration approves new drugs and devices. The legislation also includes additional provisions to address the opioid epidemic and to bolster the country’s mental health systems. There is widespread, bipartisan support for the measure, and even though several Senate Democrats have criticized the final version of the bill and announced their opposition, the legislation is expected to see Senate approval this week and be signed into law by the president.

Once the 21st Century Cures Act has been dispensed with, the Senate will begin consideration of the conference report to the National Defense Authorization Act, which passed the House last Friday by a vote of 375-34. This legislation provides an additional $8 billion in funding for overseas contingency operations and readiness shortfalls and covers the $5.8 billion supplemental request sent by the president to Congress in November. It also includes a 2.1 percent pay raise for U.S. troops. The funding in the bill is simply an authorization, and defense hawks have been critical of the CR strategy that congressional leaders have been pursuing because a CR will not provide the military with all of the funds authorized by this bill

The House is scheduled to convene again on Monday when it will take up six bills under suspension of the rules, including S. 1635, legislation authorizing the activities of the Department of State for FY 2017.

On Tuesday, members will consider a suspension package consisting of 21 bills, reported out of the Energy and Commerce, the Natural Resources, or the Veterans Affairs Committees.

On Wednesday and during the remainder of the week it is possible for the House to take up additional measures under suspension of the rules. Also expected for floor consideration is H.R. 5143, the Transparent Insurance Standards Act of 2016. The legislation would require the Treasury Department and Federal Reserve to provide additional reports to Congress on international negotiations regarding regulatory standards in the insurance industry. Chief sponsor of the bill, Rep. Blaine Luetkemeyer, R-Mo., chairman of the House Financial Service Committee’s Housing and Insurance Subcommittee, stated the bill is intended to “increase transparency and strengthen Congress’ role in supervising foreign standards setting organizations.” Consideration of H.R. 5143 will be subject to a rule. Finally, the House will tackle the CR when it becomes available.

114th Congress: Lame Duck.

Following a six-week recess for the campaign season members of the 114th Congress returns this week to begin the lame duck session. It will be a brief return to legislative business, as both chambers are scheduled to adjourn again at the end of the week through the Thanksgiving holiday weekend. Although floor activity and hearings are expected on both sides of the Capitol, the focus this week will be on organizational and administrative meetings behind the scenes in preparation for the December work period and in advance of the start of the 115th Congress in January.

Beyond the politics and organizing for next year, the lame duck session will be dominated by two “must-pass” items of legislation: a funding mechanism to keep the government running beyond the current Dec. 9 expiration of the current continuing resolution and the annual defense authorization bill. Legislatively, the House and Senate this week will continue efforts to negotiate a path forward on those two items when Congress returns to complete its work following Thanksgiving.

The primary order of business this week is the election of next year’s leadership teams. No major leadership changes expected for House and Senate Republicans, who maintained the majority in both chambers in the election on Nov. 8. House Republicans are scheduled to hold their leadership vote on Tuesday, while House Democrats will hold their leadership vote on Thursday. Senate Democrats are scheduled to vote on Wednesday for their new party leaders. Sen. Chuck Schumer, D-N.Y., has long been the presumed successor to retiring Sen. Harry Reid, D-Nev., to the post of minority leader. The only unknown among the Democratic conference is whether Sen. Patty Murray, D-Wash., will challenge current Minority Whip Dick Durbin, D-Ill., for the number two spot in leadership. Press reports indicate Sen. Murray has not publicly disclosed whether she will challenge Sen. Durbin, but reports are that she has been conferring with colleagues on whether she would enjoy their support if she sought the position.

Other than the leadership elections taking place, it is unclear what the Senate will pursue in terms of floor activity this week.

The House is scheduled to return on Monday when it will take up under suspension of the rules eight bills reported out of the Energy and Commerce Committee. Members will meet again on Tuesday to consider four additional bills, reported out of the Foreign Affairs Committee, under suspension of the rules. One of these bills is the Iran Sanctions Extension Act (ISA). The current Iran Sanctions Act, which authorizes sanctions over Iran’s nuclear program and ballistic missile tests, is scheduled to expire at the end of this year. There is considerable support in Congress to maintain the authority for sanctions on Iran. House Foreign Affairs Committee Chairman Ed Royce, R-Calif., is set to introduce the text of a 10-year extension bill this week. It remains to be seen whether the text will be a clean extension of the current law, or if Republicans will attempt to add additional sanctions, which could prompt Democratic opposition and perhaps a veto threat from the president, should any newly added provisions undermine the Joint Comprehensive Plan of Action (JCPOA) on Iran’s nuclear program adopted last year. Ranking member of the Senate Foreign Relations Committee Sen. Ben Cardin, D-Md., indicated earlier this year that the Senate could perhaps pass a clean extension of the sanctions act by unanimous consent, but adding new sanctions would prompt a Democratic filibuster.

On Wednesday, the House is scheduled to begin considering additional legislation regarding Iran, H.R. 5711. This bill would prohibit U.S. financial institutions from facilitating the sale of commercial aircraft to Iran. Introduced by Rep. Bill Huizenga, R-Mich., the legislation is aimed at preventing Boeing’s sale of passenger jets to Iran after the company announced in June it had signed an agreement to sell 80 airliners worth $17.6 billion to Iran Air, with deliveries scheduled to begin in 2017. Boeing is also expected to lease a number of 737s to Iran Air. The transaction is permissible following the adoption of the JCPOA and the subsequent easing of sanctions in accordance with that agreement. Many members of Congress remain concerned about American companies conducting business with nations identified by the State Department as sponsors of terrorism. Consideration of H.R. 5711 will be subject to a rule.

No votes are expected in the House on Friday.

Congress: CR Saga goes on.

Yesterday, Majority Leader Mitch McConnell, R-Ky., offered up what he called a “clean” continuing resolution to keep the government funded through Dec. 9, saying it was the result of bipartisan negotiations, including funds to fight the spread of the Zika virus, money for the Department of Veterans Affairs and military construction, and aid for flooded communities in Maryland, Louisiana and others. The bill also includes some funds for an anti-opioid bill and the Toxic Substances Control Act passed earlier this year.

McConnell’s measure backed off provisions that would have prohibited transition of the Internet Assigned Numbers Authority to a multinational entity, as well as restrictions on the Puerto Rican affiliate of Planned Parenthood accessing federal funds.

Some Democrats however zoomed in on the lack of aid for Flint, Michigan, with Sen. Barbara Mikulski, D-Md., saying her caucus could not support the “Republican only” bill. Mikulski said that although communities like those in Louisiana desperately need aid, Flint should not be put to the back of the line.

Mikulski said that the Senate should take up Flint aid in the stopgap bill, rather than wait for the House to possibly take up the $200 million in Flint aid included in the Water Resources Development Act the Senate passed last week.

The $9.4 billion bill, which includes Flint aid, authorizations for Army Corps of Engineers projects and grants for local communities’ water projects, has to be reconciled with the $5 billion House bill that focuses mostly on Army Corps projects.

McConnell set a procedural vote on his version of the continuing resolution for Tuesday, and said he intends for the Senate to pass the stopgap funding measure before the government would have to shut down at the end of the week.

Although all 12 bills normally used to fund the government have been cleared by the House and Senate appropriations committees, partisan fights over gun control measures, funding to fight the spread of the Zika virus, and protections for LGBT contractors have derailed efforts in both chambers. Several of the bills have passed one or the other chamber, but none have been sent to President Barack Obama’s desk.

Previous efforts to pass legislation funding anti-Zika efforts in the Senate have been blocked by Democrats who objected to the levels of funding — previous efforts have been either completely or partially offset by cuts elsewhere — or riders reducing funding for Planned Parenthood or federal disbursements to Puerto Rico.

 

Sticking Points for Congressional Energy Conferees.

Thursday revealed major sticking points on Energy legislation during the opening meeting of the conference committee to reconcile the House and Senate versions of the Energy Bill.

Those include: funding for infrastructure, drought and wildfire language, and the Land and Water Conservation Fund.

Senate Energy and Natural Resources Committee Chairwoman Lisa Murkowski (R-Alaska), who co-authored the Senate bill and serves as chair of the conference committee, urged conferees to “prove the skeptics wrong,” adding that her efforts to pass a bill had been “written off by every trade journal three or four times.”

The Senate passed its bill 85-12 in April, and the House passed an amended version 241-178. The House’s more partisan version included much of the House’s own language on energy efficiency, and it added provisions on contentious issues like the California drought and wildfire management.

The drought language would loosen some requirements of the Endangered Species Act, and the wildfire provision would expedite forest management projects. The provision on drought attracted a veto threat from the White House. The Obama administration also criticized the provision on wildfire but stopped short of a veto threat.

The Senate bill avoided those controversial topics because supporters knew that it would threaten their ability to pass the first update to the country’s energy policy since 2007.

Murkowski’s co-author, committee ranking member Sen. Maria Cantwell (D-Wash.), and House Energy and Commerce Committee Chairman Fred Upton (R-Mich.) also gave optimistic opening statements, praising some of the less controversial provisions rather than pushing on the controversial ones.

But the meeting, which allowed most of the 47 conferees to give brief statements, quickly shifted toward a few key issues where members have dug in their heels.

Rep. Frank Pallone (D-N.J.), who had previously expressed his displeasure with both the House and Senate bills, reiterated that he wants to check off three boxes in the final conference report. Pallone wants the final legislation to invest in energy infrastructure, to focus on “direct benefits for consumers,” and to include action on climate change.

Pallone didn’t go into detail on the second and third demands, but he is already dissatisfied with the lack of infrastructure funds in both the House and Senate bills.

After the meeting, Murkowski made no promises, saying conferees would work through the infrastructure issues along with other disagreements.

A few natural resources and land management issues also present challenges. House Natural Resources Committee Chairman Rob Bishop (R-Utah) continued to call for measures addressing the California drought and wildfire management. Cantwell has said that those issues are important, but they should be left out of the energy bill because they’re too contentious to handle now.

The wildfire provision has some bipartisan support on the conference committee. Rep. Peter DeFazio (D-Ore.), who is a conferee, voted for the measure as a standalone bill, and he briefly praised it in his statement on Thursday. Sen. Ron Wyden (D-Ore.) also encouraged members to include language on wildfire management, but he did not mention the House’s measure specifically. Rep. Bruce Westerman (R-Ark.), the bill’s sponsor, is also a conferee.

The Land and Water Conservation Fund is also a sticking point. The Senate bill would permanently reauthorize the fund, but Bishop has said that’s a non-starter without some changes that shift control from the federal government to states. Rep. Cynthia Lummis (R-Wyo.) emphasized her support for similar changes to the conservation fund. Wyden, meanwhile, called permanent reauthorization “a particularly valuable part of the Senate bill.”

Upton has already said he doesn’t think lawmakers will reach a deal before the election. At Thursday’s meeting, Sen. John Barrasso (R-Wy.) accused some House and Senate Democrats, without naming anyone in particular, of dragging their feet.

After the meeting, Murkowski said Barrasso is simply warning members and stakeholders that a new Congress means there will be a full reset on the bill. It would be a waste of the past year’s efforts not to pass something by December.

 

 

In Congress: Post Independence Day Recess

After adjourning abruptly on June 23 due to the Democratic protest on the House floor over gun control, the House returns to legislative business on Tuesday, with votes expected on 16 bills under suspension of the rules. Included in this suspension package is H.R. 5210, the Patient Access to Durable Medical Equipment Act, sponsored by Rep. Tom Price, R-Ga., bipartisan legislation to preserve patient access to durable medical equipment (DME) after severe cuts to Medicare DME payment rates were scheduled to take effect on July 1, 2016. If allowed to take effect, these cuts are expected to have a negative effect on patients’ access to DME, particularly in rural areas. Other measures to be considered under suspension of the rules include seven bills reported by the Natural Resources Committee, three bills reported out of the Financial Services Committee, and three reported out of the Foreign Affairs Committee.

The House:

On Wednesday, the House is expected to turn to consideration of H.R. 2646, the Helping Families in Mental Health Crisis Act. This legislation, proposed by Rep. Tim Murphy, R-Pa., and reported by the Energy and Commerce Committee, would reform the nation’s mental health system by focusing programs and resources on psychiatric care for patients and families most in need of services. The bill when introduced sparked partisan disagreement, but the sponsor and committee leaders worked to bridge those disagreements, and the bill as revised was reported unanimously by the committee last month, demonstrating its broad and bipartisan support. The potential that the bill could provoke further debate over gun rights and gun control during floor consideration (Energy and Commerce Committee Democrats attempted unsuccessfully to attach gun control amendments to the legislation during the committee markup, but H.R. 2646) is likely what led House leaders to bring the bill up under suspension of the rules, which precludes amendments during floor debate. The Senate Health, Education, Labor and Pensions Committee has been working on its own version of mental health legislation. Press reports indicate that key senators involved in the issue are seeking to attach the Senate version of the bill to the conference report on the opioid-abuse legislation, the Comprehensive Addiction and Recovery Act, passed in differing versions by both chambers and scheduled for consideration by a conference committee on Wednesday of this week. Either way, the broad recognition that the nation’s mental health system is in deep crisis could produce a legislative success before Congress adjourns this year, although funding issues may prompt Democrats to oppose a final bill if it does not include increased resources.

Also on Wednesday, the House is expected to take up H.R. 5611, the Homeland Security and Safety Act, sponsored by House Majority Leader Kevin McCarthy. The so-called “anti-terrorism” package would establish within the Department of Homeland Security a new “Office for Partnerships to Prevent Terrorism” to assist with the prevention of violent extremism and radicalization associated with terrorists and terror networks. The new legislation also contains a provision related to gun control. In the wake of the Democrats’ demands and the apparent shift in public opinion on the issue following the San Bernardino and Orlando shootings, the bill includes a provision that would allow the attorney general to delay for three days the sale of a gun to either an individual on the terrorist watch list or an individual who has been investigated for terrorism during the past five years, and prohibit the sale of a firearm if there is sufficient evidence that the purchaser poses a credible threat to homeland security. The language is reportedly based on a proposal authored by Sen. John Cornyn, R-Texas, in the Senate, which would also give the Justice Department 72 hours to delay the sale of a gun to any suspected terrorist on the watch list. The proposal failed to achieve the necessary support for passage in the Senate due to Democratic opposition, and House Democrats have already denounced its inclusion in the House anti-terrorism package as not doing enough to keep guns out of the hands of terrorists. Despite the likely Democratic opposition to the bill, the inclusion of the provision, which is not likely to become law, is a marked step forward for gun control advocates and may portend limited success for them in the next Congress. Consideration of H.R. 5611 will be subject to a rule.

It remains to be seen whether House Democrats will again employ protest tactics on the House floor over gun control as they did during the week of June 23, or how they will attempt to amend the Homeland Security and Safety Act during floor consideration this week. House leadership will be working to maintain order on the House floor in order to continue functioning effectively and proceed on legislative business prior to the summer recess.

Additional items that may be considered in the House this week include H.R. 1270, the Restoring Access to Medication Act, reported out of the Ways and Means Committee. This legislation would allow for disbursements from health savings accounts, medical savings accounts, and health flexible spending arrangements for over-the-counter drugs. Current rules under the Affordable Care Act only allow these disbursements for the purchase of prescription drugs and insulin. Also pending a floor vote this week is H.R. 4361, the Federal Information Systems Safeguards Act of 2016, legislation to restrict federal employee access to personal accounts on platforms such as Facebook and Gmail at work in order to provide greater security for government information technology and systems. The legislation clarifies that federal agencies have the sole and exclusive authority to take appropriate and timely actions to secure their information technology and information systems. Among its provisions is one clearly barring access to pornographic or explicit materials from a government IT system. Consideration of both measures will be subject to a rule.

Finally, the House may also consider H.R. 5845, the FY 2017 Financial Services and General Government Appropriations Act, after postponing its consideration following the Democratic sit-in on the House floor in June. The $21.7 billion funding bill provides appropriations for the Treasury Department, the Judiciary, the Small Business Administration, the Securities and Exchange Commission, and other agencies. As discussed in a previous column, the Financial Services and General Government spending measure is considered one of the more controversial of the 12 annual appropriations bills because of policy riders that are opposed by most Democrats and the administration. Consideration of the Financial Services and General Government Appropriations Act for FY 2017 will be subject to the same structured rule process that governed consideration of the defense spending bill last month in order to avoid votes on controversial amendments.

The Senate:

The Senate resumes legislative business on Wednesday, when a vote is expected on a district court nominee. Senate Majority Leader Mitch McConnell, R-Ky., filed cloture on proceeding to four bills at the end of last week. Votes are expected on these cloture motions this week. Among these four measures are two pieces of legislation related to so-called “sanctuary cities,” which are those communities that have policies in place declining to assist or actively defying federal immigration laws and orders. These communities have been a focus of Republicans for many years and a hot-button issue on the presidential campaign trail, particularly since the fatal shooting of a San Francisco woman over the Fourth of July holiday in 2015 by a person in the country illegally after having been deported from the U.S. five times. The first cloture vote will be on a motion to proceed to S. 3100, the Stop Dangerous Sanctuary Cities Act, sponsored by Sen. Pat Toomey, R-Pa. This bill would limit federal funding to cities that do not comply with federal immigration law. The second vote scheduled in the Senate is cloture on the motion to proceed to S. 2193, a measure sponsored by Sen. Ted Cruz, R-Texas. This bill would increase mandatory minimum prison sentences for undocumented immigrants who repeatedly enter the United States illegally. The Senate voted on similar proposals last October when they were coupled together as a single piece of legislation, but the bill failed to pass. Both measures are subject to a 60-vote threshold for consideration on Wednesday, and neither is expected to garner the necessary support due to Democratic opposition.

If these first two motions on sanctuary cities are defeated, Leader McConnell has also lined up a cloture vote on a bipartisan bill sponsored by Senate Agriculture Committee Chairman Pat Roberts, R-Kan., and Ranking Member Debbie Stabenow, D-Mich., that would establish a national guideline for the labeling of foods with genetically modified organisms. While the proposal under consideration has bipartisan support and is the product of careful and lengthy negotiations, some strong opposition to the bill remains, including that of Sen. Bernie Sanders, I-Vt., whose home state passed its own strict GMO labeling mandate in 2014 that went into effect on July 1, 2016. Several industry groups, which argue there is no scientific evidence that GMOs are harmful and prefer a single federal labeling standard over a patchwork of state laws, have sued to block the Vermont law and the litigation is currently pending. Should the Roberts-Stabenow measure pass, it would preempt and nullify the Vermont law and create a federal standard for the packaging of GMO foods. The cloture motion must achieve the 60-vote threshold in order to limit debate on the bill. The House has already passed a bill on GMO-labeling, but whether it would accept the Senate bill or insist on its stronger bill is not yet clear. Ultimately, the issue is of such importance to the food industry that if the Senate bill passes, as is likely, the House can be expected to accept it as well, perhaps even before the start of the summer recess.

The final item in the queue is a vote on cloture on the motion to proceed to the FY 2017 Department of Defense appropriations bill, also subject to a 60-vote threshold, which is expected to pass. The funding measure, advanced unanimously by the Senate Appropriations Committee, provides over $515 billion for the Pentagon base budget and $58.6 billion for Overseas Contingency Operations (OCO) for the upcoming fiscal year. The legislation does not shift OCO funding for base budget increases, a procedure the House Appropriations Committee pursued in its bill for FY 2017, which makes the bill more satisfactory for Senate Democrats to provide their support. The Senate is likely to continue its consideration of the Defense Appropriations bill into next week.

Leader McConnell has indicated there will also be another opportunity for Senators to take up the House-passed FY 2017 Military Construction and Veterans Affairs appropriations conference report, which also serves as the vehicle to provide funding to combat the Zika virus. The Senate attempted a vote prior to the Fourth of July recess, but Senate Democrats blocked its consideration over the Zika funding restrictions and offsets, and called for a new negotiation on the legislation. Senate leadership has rejected the demands for a renegotiated proposal, indicating that the current House-passed proposal is the only means of moving forward before the upcoming recess. Leader McConnell has not yet scheduled the vote on the conference report.

Even with the shortened week due to the Independence Day holiday, there is an active hearing schedule on both sides of Capitol complex.

As mentioned above, the conference committee charged with negotiating opioid abuse legislation is scheduled to meet on Wednesday. One of the major remaining hang-ups to the bill involves funding for programs that are authorized in the legislation. Democrats argue that the authorization bill is ineffective without providing the necessary appropriations and that emergency funding should be allocated; Republicans oppose emergency funding that would likely not be offset and argue that funds should be provided through the annual appropriations process.

The House Appropriations Committee is getting closer to completing its work on the 12 annual appropriations bills for FY 2017. The State and Foreign Operations Subcommittee is scheduled to mark up its bill on Wednesday morning while the Labor, Health and Human Services, and Education Subcommittee meets on Thursday morning to mark up its bill. The full committee is likely to consider both bills next week.

Two House hearings scheduled this week will be focused on the Affordable Care Act cost-sharing reduction program. The House Ways and Means Subcommittee on Oversight meets on Thursday morning to discuss the program, while the full Energy and Commerce Committee will meet on Friday morning.

The Senate Homeland Security and Government Affairs Permanent Subcommittee on Investigations will be meeting on Wednesday afternoon to discuss the threat posed by online recruitment by ISIS and other terror networks. Representatives from the FBI, Department of Homeland Security and Department of State are among the witnesses that will provide testimony before the subcommittee.

Also on Wednesday afternoon, the House Judiciary Subcommittee on Regulatory Reform will hold a hearing on President Obama’s regulatory impact on the U.S. economy.

The Joint Committee on Taxation will hear from Treasury Department representatives on Wednesday regarding the administration’s proposed regulations under Internal Revenue Code section 385 to combat inversion transactions, those in which U.S. businesses merge with foreign firms and move their headquarters overseas to lower their tax rate. The Treasury Department issued the proposal in April. The proposal has drawn criticism from many domestic and multinational businesses, and members of both parties have joined in the criticism that the proposal sweeps too broadly and will capture many innocent transactions, thereby depressing domestic economic activity and job creation. Treasury Assistant Secretary for Tax Policy Mark Mazur and Deputy Assistant Secretary for International Tax Affairs Robert Stack are scheduled to appear before the joint committee.

A joint subcommittee hearing by the Committee on Foreign Affairs’ Subcommittee on Asia and the Pacific and the Committee on Armed Services’ Subcommittee on Seapower and Projection Forces is scheduled for Tuesday afternoon regarding maritime disputes in the South China Sea. Representatives from the Departments of Defense and State will provide testimony on the escalating territorial disputes between China and its neighbors in Southeast Asia.