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: Action avoids shutdown

Congress put together a compromise measure Wednesday that should avoid a government shutdown at the end of the week.

The continuing resolution that passed both chambers of Congress Wednesday would keep the government funded at current levels through Dec. 9 and includes funding to fight the spread of the Zika virus, provides aid to flood-ravaged areas in Maryland and Louisiana, and delivers funds for the U.S. Department of Veterans Affairs and military construction. Senate Democrats had voted down the same measure Tuesday in protest over the exclusion of funding for the Flint water crisis, which House leaders then added to a water projects bill as a satisfactory alternative.

Leaders on both sides of the Senate cast Wednesday’s vote as a necessary compromise to buy lawmakers enough time to negotiate an omnibus appropriations bill to keep the government funded this year.

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.

Earlier attempts to pass legislation in the Senate funding anti-Zika efforts 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’s affiliate in Puerto Rico.

Wednesday’s vote also put reauthorization of major programs like the EB-5 visa program back on track.

The last time a series of separate spending bills passed on time was 1996.

Congress: one possibility is a short-term CR

After three weeks of negotiations to produce a bipartisan continuing resolution to keep the government running beyond the end of this month and into December, Senate Majority Leader Mitch McConnell, R-Ky., last week took action by offering legislation to fund the government, largely at current levels, through Dec. 9. The bill is generally consistent with Democratic demands for a “clean” CR without policy riders. The majority leader’s bill includes bipartisan provisions that have long been part of CR discussions, such as the $1.1 billion in funding for Zika virus eradication efforts, $37 million for opioid abuse assistance, and $500 million in emergency assistance for communities affected by flooding and other natural disasters. Democrats expressed immediate opposition to the Republican bill, claiming that several issues were unresolved. In particular, Leader McConnell’s bill does not include emergency funding for communities facing drinking water contamination issues, such as the lead pollution in the drinking water in Flint, Michigan, a provision Senate Democrats have actively pursued since the summer.

Nevertheless, McConnell’s bill does not yet appear to have the 60 votes of support necessary to advance on Tuesday, when a procedural vote on the bill is scheduled to occur. Beyond the Democratic opposition, Republican senators are not united behind the bill. Senator Lindsey Graham, R-S.C., told reporters he would vote “no” because the bill does not contain a rider, supported by Democrats, to fix the quorum provisions of the Export-Import Bank so that it may approve loans even in the absence of a board quorum. Other Republicans, led by Sen. Ted Cruz, R-Texas, have been pushing to include in the CR a provision to prevent the transfer of internet governance from the Commerce Department’s National Telecommunications and Information Administration to the ICANN, an international nonprofit organization. That provision is not included in Leader McConnell’s bill.

So, one possibility is a short-term CR into the first week of October if the parties are close to a deal by the end of the week but lack the time to get it fully enacted by midnight 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.

 

House Passes Bill Easing Lawsuits Against New Regulations

The U.S. House of Representatives passed a bill Wednesday to allow lawsuits to delay major rulemaking even though the White House has threatened to veto the measure over its potential impact on environmental, financial and other regulations.

Backers of the bill claim it will give industries a chance to challenge major rules before they go into effect, and before companies have to potentially spend billions of dollars to comply with them. Before the 244-180 vote in favor, Rep. Bob Goodlatte, R-Va., referred to the estimated $10 billion in costs from the Environmental Protection Agency’s power plant emission rules, which were overturned by the 2015 Supreme Court decision in Michigan v. EPA, saying the measure would allow for substantive review of unelected bureaucrats’ actions.

The bill’s main backer, Rep. Tom Marino, R-Pa., said the passage of the bill into law would help businesses and communities avoid the high cost of laws that ultimately fail in the courts.

Marino’s REVIEW Act of 2016 would require the Office of Management and Budget to designate all rules having more than $1 billion as “high impact,” a designation that would be published along with the final rule. Such rules would be subject to an additional 60-day delay before taking effect and stayed from taking effect during the course of any and all litigation challenging them.

Many Democrats objected that the bill would delay serious consideration of necessary rules mandated by statute. Rep. John Conyers, D-Mich., further said that the bill would allow for judicial gamesmanship, where industries could challenge the rule to delay any cost of compliance.

The White House issued a veto threat Tuesday, saying the bill would slow agency processes mandated by law, harm efforts to address public safety hazards and “promote unwarranted litigation, introduce harmful delay, and, in many cases, thwart implementation of statutory mandates and execution of duly enacted laws.”

 

In Congress: A Continuing Resolution dominates.

House and Senate leaders continue to negotiate the details of a continuing resolution (CR) to keep the government running beyond the end of this month and into December, through the November election. The details of the funding deal will dominate any other activity occurring in either chamber this week.

Nevertheless, House members will turn their attention to H.R. 3438, the REVIEW Act, legislation to postpone the effective date of high-impact rules pending judicial review. The legislation would require federal agencies to postpone the implementation of any rule imposing an annual cost on the economy of at least $1 billion if a petition seeking judicial review of that regulation is filed within 60 days of the rule taking effect. Under the bill, implementation would be postponed until any judicial review is resolved. Consideration of H.R. 3438 in the House will be subject to a rule. The bill is another in a series of House Republican bills designed to enhance oversight and transparency of the regulatory process, but the bill stands no prospect of Senate consideration either prior to the recess or in the lame duck session.

The House will then consider two bills related to the Obama administration’s recent admission of $1.7 billion cash payment for a claims settlement to the government of Iran. H.R. 5931, the Prohibiting Future Ransom Payments to Iran Act, would prohibit an administration from making future cash payments to the government of Iran. The House will also consider H.R. 5461, the Iranian Leadership Transparency Act. This legislation would require the U.S. Department of Treasury to provide reports in 2017 and 2018 to the Congress on the financial assets held by specified Iranian political and military leaders. The reports would describe how the assets were acquired and any unclassified portions of those reports would be posted on the Treasury’s website in multiple languages. Consideration of each bill will be subject to a rule.

This week the House also continues its work on the Republican “innovation agenda,” with consideration of H.R. 5719, the Empowering Employees through Stock Ownership Act. This legislation would allow employees at certain startups who own stock in their companies to defer paying taxes on their investments for seven years or until the company stock becomes tradable on an established market. The bill also provides exclusions for specific groups of employees, such as CEOs. Consideration of H.R. 5719, which was favorably reported by the House Ways and Means Committee on a voice vote, will be subject to a rule.

The final item on the floor agenda scheduled for this week, other than potential consideration of a CR, is H.R. 1309, the Systemic Risk Designation Improvement Act of 2015. H.R. 1309 would amend the Dodd-Frank law to alter the process by which federal regulators determine which bank holding companies should be designated as systemically important financial institutions. Under current law, all banks with consolidated assets exceeding $50 billion are automatically designated as SIFIs. H.R. 1309 would repeal the automatic designation for such bank holding companies and establish a process under which such firms would be designated on a case-by-case basis. Consideration of the bill will be pursuant to a rule.

The House also aims to consider the CR in the event agreement is reached on the legislation and the Senate acts on it favorably. Once the House passes the CR, it too plans to adjourn until after the elections.

Senate Could Vote On Stopgap Funding This Week

The Senate could vote on a measure this week to keep the government funded into December, after Majority Leader Mitch McConnell, R-Ky., filed a motion for short-term funding that would keep general funding flat along with measures for veteran care and to combat the spread of the Zika virus.

Monday’s motion would keep the government running after the end of the fiscal year, and follows a meeting between Congressional leaders and President Barack Obama that afternoon. In a statement, McConnell praised the work done at the meeting and expected to reach a deal with the House and the administration to keep the government funded through Dec. 9.

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 the President’s desk.

House Speaker Paul Ryan, R-Wis., has repeatedly pushed for appropriations bills to be passed in normal order, rather than an omnibus federal funding bill. The last time a series of separate spending bills passed on time was 1996.

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.

McConnell used the House-passed legislative funding bill as the vehicle for the continuing resolution introduced Monday, and could see further votes later this week.

In Congress: tax deduction for out-of-pocket medical expenses.

In terms of floor activity, the House of Representatives is scheduled to day, with votes expected on 19 bills that will be considered under suspension of the rules. The suspension package includes legislation reported out of the Foreign Affairs, Veterans Affairs, Natural Resources, and the Energy and Commerce Committees.

On Tuesday, members will take up three additional bills under suspension of the rules, including H.R. 3590, the Halt Tax Increases on the Middle Class and Seniors Act, legislation that would roll back changes scheduled to take place in 2017 under the Affordable Care Act to the tax deduction for out-of-pocket medical expenses. Under current law, taxpayers can deduct medical expenses which exceed 7.5 percent of their adjusted gross income for an individual year. Under the Affordable Care Act, this threshold is scheduled to increase to 10 percent of AGI in 2017. H.R. 3590 would amend the Internal Revenue Code to preserve the threshold at 7.5 percent of AGI.

In Congress: Funding Government.

The Senate this week to act first on a continuing resolution (“CR”) to keep the government running beyond the end of this month, when the current fiscal year ends.

But the path forward in the House of Representatives is still not resolved.

Senate leaders are working to draft a CR that will keep the government funded into fiscal year 2017, which begins on Oct. 1. Press reports indicate Senate Majority Leader Mitch McConnell, R-Ky., and Minority Leader Harry Reid, D-Nev., have engaged in discussions on the details of a short-term CR that would run through Dec. 9 and would include supplemental funding to combat the Zika virus outbreak in the United States. The December deadline would allow lawmakers to adjourn and hit the campaign trail, while also giving congressional leaders and administration officials’ time to negotiate a larger spending deal for the remainder of FY 2017 following the election.

The House Republicans remain divided on a strategy for the CR. A conference meeting was held last Friday, but members remain split on setting the scope and length of a CR. While many members support a short-term CR, the more conservative wing of the conference is pushing for a six-month extension that would keep the government running at current levels into the next session of Congress. A six-month CR is unacceptable to the president and Democrats, as well as to some Republicans, so it is unlikely to be able to pass the Senate in any event. In addition, several members want to attach controversial policy riders, including a ban on more Syrian refugees. The House may not have much choice in the matter if the Senate acts first on a short-term CR and leaves town.

Energy issues dominate the hearing schedule in Congress this week.

A House and Senate conference committee on comprehensive energy legislation is scheduled to meet formally for the first time on Thursday. Members will be working out the differences between their two versions of legislation that could be the first update to federal energy policy since 2007. The Senate passed its bill with overwhelming bipartisan support in April, while the House narrowly passed its own version of energy modernization legislation on a party-line vote, meaning there will be significant issues for the conference committee to work through this fall.

The House Energy and Commerce Subcommittee on Energy and Power is scheduled to meet on Wednesday to review the Federal Power Act, particularly the Federal Energy Regulatory Commission and electricity markets over the past 20 years.

There are two House Foreign Affairs hearings scheduled on Thursday afternoon that are focused on energy markets. The Foreign Affairs Subcommittee on the Middle East and North Africa will hold a joint hearing with the Energy Subcommittee of the House Committee on Science, Space and Technology to discuss energy resources in the Eastern Mediterranean. The Foreign Affairs Subcommittee on Asia and the Pacific is also scheduled to meet to discuss opportunities to advance U.S. energy policy in Asia, particularly the region’s dependence on liquefied natural gas from the United States and the economic and security interests involved.

On Friday morning, the House Oversight and Government Reform Subcommittee on Transportation and Public Assets will hold an oversight hearing on the Federal Emergency Management Agency’s response to the devastating flooding that occurred in Louisiana in August. The agency has approved more than $100 million in disaster relief grants for flood victims, but Congress may be asked to provide additional emergency funds to assist with the recovery effort.

While not Energy related per se., on Thursday, the House Financial Services Subcommittee on Oversight and Investigations will meet to discuss the Obama administration’s $400 million cash payment of U.S. taxpayer funds to Iran that has been linked to the release of several U.S. hostages. The payout has come under intense scrutiny, particularly from congressional Republicans. The hearing will focus on the $400 million cash payment and the implications on U.S. efforts to inhibit terrorism financing.

The Iran payout is also the subject of a hearing in the House Judiciary Committee on Wednesday. The Judiciary Subcommittee on the Constitution and Civil Justice is scheduled to hold an oversight hearing on the lack of transparency on money from the Judgment Fund, a permanent Treasury Department account used to pay judgments and claims against the United States.