1965 vs What Congress is Doing (Or Not Doing) Agenda. The 114 th Congress FY 2016 Appropriations Is Congress Broken?

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1 What Congress is Doing (Or Not Doing) Julia Martin, Esq. Spring Forum Agenda 1965 vs. The 114 th Congress FY 2016 Appropriations Is Congress Broken? Bending the Rules vs. 1965: Passage of Elementary and Secondary Education Act (and other President Lyndon Johnson s Great Society programs) : Reauthorization of ESEA is eight years overdue 3 1

2 1965 Katy Perry causes controversy at the Super Bowl for her performance with two dancing sharks Bob Dylan causes controversy among folk purists by "going electric" at the Newport Folk Festival mousetronauts currently living on the International Space Station to test the effect of microgravity on small mammals Baker the space monkey flies 1,500 miles in the nose cone of a Jupiter rocket Popular movie releases include: Fifty Shades of Grey The Fast and the Furious 7 SpongeBob: Sponge Out of Water Popular movie releases include: Beach Blanket Bingo The Sound of Music Dr. Zhivago 6 2

3 1965 Hillary Clinton runs for President Hillary Rodham graduates from high school 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 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 President Barack Obama has 47% approval rating President Lyndon Johnson has 70% approval rating 9 3

4 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%) 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%) 10 The 114 th Congress 11 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 noncontroversial 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

5 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 13 What are education priorities? Reform federal involvement in education through: Expanding charter school access Reducing college costs FAST Act reintroduced on 2 nd 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 14 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) 15 5

6 FY 2016 appropriations Current appropriations bill expires September 30, The ultimate deadlinebased priority 16 FY 2016 Appropriations 17 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 18 6

7 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 19 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

8 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 Resolution 22 Likely Outcomes Debate pushes toward (or through!) end of FY 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 23 Is Congress Broken? 24 8

9 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 preconference committees 25 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 extralegislative process 26 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 27 9

10 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? 28 Bending the Rules 29 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 30 10

11 Bending the Rules Dynamic scoring in House In January, 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. 31 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 32 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 33 11

12 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 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 does not create an attorney client relationship with. You should not take any action based upon any information in this presentation without first consulting legal counsel familiar with your particular circumstances