What Congress is Doing (Or Not Doing) Julia Martin, Esq. [email protected] Brustein & Manasevit, PLLC Spring Forum 2015

What Congress is Doing

(Or Not Doing)

Julia Martin, [email protected]

Brustein & Manasevit, PLLCSpring Forum 2015

mailto:[email protected]

Agenda

•1965 vs. 2015•The 114th Congress•FY 2016 Appropriations• Is Congress Broken?•Bending the Rules

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1965vs. 2015•1965: Passage of Elementary and Secondary Education Act (and other President Lyndon Johnson’s Great Society programs)•2015: Reauthorization of ESEA is eight years overdue


1965

• Bob Dylan causes controversy among folk purists by "going electric" at the Newport Folk Festival

2015• Katy Perry causes

controversy at the Super Bowl for her performance with two dancing sharks

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1965

• Baker the space monkey flies 1,500 miles in the nose cone of a Jupiter rocket

2015• 20 “mousetronauts”

currently living on the International Space Station to test the effect of microgravity on small mammals

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1965

• Popular movie releases include:• Beach Blanket Bingo• The Sound of Music• Dr. Zhivago

2015• Popular movie releases

include:• Fifty Shades of Grey• The Fast and the Furious 7• SpongeBob: Sponge Out of

Water

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1965

• Hillary Rodham graduates from high school

2015• Hillary Clinton runs for

President

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1965• Senate Majority

Leader: Everett Dirksen• John Dingell is a

freshman Congressman from Michigan• Claiborne Pell decides

to run for reelection as Senator from Rhode Island

2015• Dirksen Senate Office

building houses 18 Senators’ offices and 10 Congressional Committees, including HELP• Debbie Dingell replaces

her husband the year after he retires• Pell Grants provide more

than $30 billion in college aid to 8 million students

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1965

• President Lyndon Johnson has 70% approval rating

2015• President Barack

Obama has 47% approval rating

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1965• Civil Rights Act begins

implementation after 1964 passage plagued by 54-day filibuster (including a 14-hour speech by Strom Thurmond)• Congress in session for

173 days• 7 Presidential vetoes• Of 5,098 nominations

received, 4,191 confirmed (82%)

2015• Historic levels of

partisanship in Congress mean continued use of filibuster• Scheduled for 132 days

in session• 2 Presidential vetoes (so

far)• 337 nominations

received so far, 134 confirmed (39.8%)

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The 114th Congress

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This Congress in a Nutshell•With Republicans in control of both

chambers, stronger negotiating position against President• But high levels of partisanship in both

chambers makes passing even non-controversial legislation difficult• Conservative members launching Presidential

campaigns means drive to pull debate to right• …while leadership hopes that a moderate

Congress can help win them the White House in 2016


What’s Next?

• Joint op-ed from Boehner/McConnell in November lists priorities as:• Simplify tax code• Reduce spending by revising entitlement programs and

other drivers of debt• Legal reforms, including medical malpractice• Regulatory Reforms• Education reform


What are education priorities?

•Reform federal involvement in education through:•Expanding charter school access•Reducing college costs•FAST Act reintroduced on 2nd day of new Congress

•Reforming K-12 education by: (mostly part of H.R. 5)•Revamping teacher evaluations •Giving States/districts more control over use of federal funds• Increasing school choice options


What’s really on the agenda?

•Policy-based priorities:•Approve the Keystone XL Pipeline • Changes to health care law• Immigration reform

•Deadline-based priorities:•Medicare “doc fix” (March) •Highway trust fund (May)• Child nutrition (September)•Debt Ceiling (fall)


The ultimate deadline-based priority

• FY 2016 appropriations• Current appropriations bill expires September

30, 2015


FY 2016 Appropriations


SEQUEST

RATION

FY 2016 Appropriations Overall

•Sequestration returns!•End of Murray-Ryan spending caps

agreement means more wrangling on whether to keep existing sequester or change it

•Republican-controlled Congress looks to flex muscles•Pressure to trim federal spending overall


House Budget• Creates “reserve fund” for 2016 to keep realized

cuts down to $0•Would decrease total budget authority through

2025 by $372 billion through:• $387 billion in defense spending increases and • $759 billion of non-defense spending cuts

•Makes $5.5 trillion in cuts over the next decade in an attempt to balance budget• Asks each House Committee (including

Education and the Workforce) to identify at least $1 billion in additional cuts• Includes plan to use special “budget

reconciliation” procedures to repeal portions of Affordable Care Act


Senate Budget•Creates “reserve fund” for 2016 to keep sequestration cuts down to $0•Existing obligations would require overall 1% spending cut keep outlays below the maximum set by sequestration•Maintains sequestration on both defense and non-defense spending through 2021 •But reserve fund would keep realized cuts to $0 for defense spending throughout

•Includes plan to use special “budget reconciliation” procedures to repeal portions of Affordable Care Act



Next Steps•House and Senate staff working to come up with

single budget resolution• If passed, resolution will be sent to House and Senate

Appropriations Committees with instructions to begin determining program-level spending• If no joint resolution, each Committee will work off its

chamber’s resolution•Appropriations committees must draft bills in each

of 12 spending categories•Bills must be approved in Committee and full

chamber and reconciled before sending to President• ...or, take “shortcut” of Omnibus bill• …and, if all else fails, go with a short-term “Continuing

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Likely Outcomes

•Debate pushes toward (or through!) end of FY 2015•No more discretionary grant programs that offer “blank checks” to ED •Almost certain to have small cuts to spending “caps”•Which means lower appropriations across the board

•Possible there will be larger cuts to non-defense spending•Need to look for additional money within Labor-HHS-ED appropriations to cover new costs•Possibly leading to increased cuts


Is Congress Broken?

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Signs of Life•WIOA and CCDBG• In both cases, reauthorization of legislation was: •relatively uncontroversial•modest in scope, requiring no additional funds•but had been stalled for years (WIA: 1998, CCDBG: 1996)

•House and Senate each released text of reauthorization bills •But bills were highly partisan, passed only one chamber

•Compromise legislation announced after little-publicized meetings of “pre-conference committees”


The Alternative Process

•Pre-Conference committees allow bills to bypass normal legislative process• Pro: bypasses potential pitfalls of

Committee/amendment, meaning legislation actually moves

•Final compromise bills pass with broad bipartisan support after limited debate• Cons: less opportunity for input, only

works with some legislation• Lesson: substantive legislation is now

most effectively passed through extra-legislative process


The Alternative Process

•How far can Congress take this?•IDEA reform - NO•Focus is on funding, and that makes a bill more contentious

•ESEA Reauthorization - NO•Depends on building consensus between Democrats, Republicans•Will changes be significant/structural?•Will there be changes to funding formula?

•HEA - Maybe•Depends on consensus, scope of changes

•Perkins - Maybe•Depends on consensus, scope of changes


The Medicare “Doc Fix”•Law passed in 1997 would cut Medicare provider payments by approximately 25% in order to curb costs•But concerns about whether providers would continue to offer

Medicare services when they’re getting paid 25% less

•Congress passes “Doc Fix” each year since 2003 to temporarily undo the scheduled cut•But keep scheduled cut on books to ease budgeting

•House passes bill in late March that would do away with cut entirely, end need for Doc Fix•Would cost $141 billion over next decade – cost not offset by

other cuts or tax increases

•Precursor to a “Grand Bargain” on entitlement and tax reform?


Bending the Rules


Bending the Rules

•Republican majority may make some rule changes to make it easier for them to pass legislation – especially in Senate•Follows on heels of “nuclear option”

rule change by Sen. Harry Reid (D-NV) in November 2013•Changed Senate rules so executive

branch nominations only require 50-vote threshold


Bending the Rules• “Dynamic scoring” in House• In January 2015, House voted to require

that cost of bills be estimated by “dynamic scoring”• Requires CBO to base cost estimates on

predicted reactions of market•Regulatory Review• E.g., REINS Act: Requires a joint resolution

of approval before major rules may take effect. Congressional “pocket veto” after 70 days. Permits a 90-day trial period for health/safety/national security reasons.


Bending the Rules

•Reconciliation•Special legislative procedure•Used on legislation that makes adjustments to

budget bills and incidental changes to other programs•But recently used for larger legislation, including

Health Care and Education Reconciliation Act of 2010•Both House and Senate Budget bills contain

provisions that would allow them to use reconciliation to repeal Affordable Care Act


What it all means for you

•Budget strings continue to tighten• Little substantive legislation moves through

Congressional process•But leadership tries alternative tactics to move

forward•Administration continues to push priorities through

regulation and non-regulatory guidance•Focus is on new rulemaking/ technical compliance


Disclaimer

This presentation is intended solely to provide general information and does not constitute legal advice or a legal service. This presentation does not create a client-lawyer relationship with Brustein & Manasevit, PLLC and, therefore, carries none of the protections under the D.C. Rules of Professional Conduct. Attendance at this presentation, a later review of any printed or electronic materials, or any follow-up questions or communications arising out of this presentation with any attorney at Brustein & Manasevit, PLLC does not create an attorney-client relationship with Brustein & Manasevit, PLLC. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances.


Documents

What Congress is Doing (Or Not Doing) Julia Martin, Esq. [email protected] Brustein & Manasevit, PLLC Spring Forum 2015