Julia Martin Brustein & Manasevit, PLLC

Julia Martin Brustein & Manasevit, PLLC

Senate: 114 th Congress Democrats Republicans Independents 3

With Republicans in control of both chambers, stronger negotiating position against President on: Repeal/replacement of health care law Immigration Federal funding generally Education Including: gainful employment/for-profit colleges, student loans/aid, ESEA, charters, etc. BUT Senate already a highly contentious body where some procedures require 60+ votes 54 votes is not a filibuster-proof majority The pizza party rule

Democrats Republicans Vacant

Increased Republican majority represents less of a change here Republicans already in majority Straight majority still most important in House (but some efforts require 2/3) Partisan fights between and within parties (especially between Republicans) continue

Senate Committee on Health, Education, Labor, and Pensions New Chairman: Lamar Alexander (R-TN) New Ranking Member: Patty Murray (D-WA) House Committee on Education and the Workforce Rep. John Kline (R-MN) remains Chairman New Ranking Member: Rep. Bobby Scott (D- VA)

Voted in overwhelmingly conservative House and Senate Many governorships/state legislatures changed hands to Republicans BUT Voters in CO, TN, and ND rejected fetal personhood amendments AK,OR, and DC legalized recreational marijuana possession/use AK, AR, IL, NE, and SD increased minimum wage Voters in WA passed gun background check bill

What will it mean for this Congress? Lack of conservative mandate? Some more mainstream/moderate legislation Desire to re-make Republican party as party of education But also confusion about what voters want/find important

I don t want the American people to think that if they add a Republican president to a Republican Congress, that s going to be a scary outcome. I want the American people to be comfortable with the fact that the Republican House and Senate is a responsible, right-of-center, governing majority.

Joint op-ed from 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

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. 10) Revamping teacher evaluations Giving States/districts more control over use of federal funds Increasing school choice options

Policy-based: Approve the Keystone XL Pipeline Changes to health care law Immigration reform Deadline-based Medicare doc fix (March) Highway trust fund (May) FY 2016 Appropriations (September) Child nutrition (September) Debt Ceiling (fall)

Current appropriations bill expires September 30, 2015

What to look for in negotiations: Republican-controlled Congress looks to flex muscles Pressure to trim federal spending overall Sequestration returns! End of Murray-Ryan spending caps agreement means more wrangling on whether to keep existing sequester or change it Republican push to eliminate sequestration on Defense spending, which would push more cuts to non-defense side

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 And need to look for additional money within Labor-HHS- ED appropriations to cover new costs Possibly leading to increased cuts

Overall in Congress, education not top priority Instead, focus is on: must-pass legislation Vote-generating legislation Emergent crises How to determine what is a priority? Time Legislation Bill number

For House/Senate Committees, ESEA is reauthorization priority #1 Senate Committee on Health, Education, Labor, and Pensions Discussion draft released, hearings began mid-january Starting from scratch not Harkin bill Promises to craft bipartisan Alexander-Murray bill for introduction House Committee on Education and the Workforce Student Success Act (H.R. 5) introduced early February, approved by Committee February 11 th No hearings building on debate in 113 th Congress

Set for vote last week of February, but bill was pulled from schedule before final vote Scheduling bill on same day as Homeland Security funding vote meant it was lower priority Objections from conservative Republican groups: Not enough of a departure from NCLB Not enough flexibility for States/districts too prescriptive Keeps support for Common Core House bill did not allow Title I portability funds to be used at private schools

What s Definitely Out AYP Instead: States design and implement plans for intervention and improvement Requirement to adopt specific college- and career-ready standards Instead: leaves standards and assessments up to States Race to the Top (and i3) Instead: focus on formula funding (and budget-cutting) Teacher evaluations Instead: focus on State licensure/training/pd Also: no more HQT Maintenance of Effort

What s Definitely In Title I structure, formula Supplement, not supplant Charter school grants And focus on States with laws more open to charters Limitation on Secretarial waiver, decision-making authority Funding flexibility between Titles II and IV Consolidation of some programs/titles Limitation on appropriations through 2021

Assessment Frequency Background Senate draft bill contains two options on assessments: Option 1: allow State-designed schedule Option 2: maintain current testing frequency House Bill would require current testing frequency Input Parents: reduce testing Advocacy groups: maintain accountability through current testing Administration, Speaker Boehner: maintain current testing Likely outcome: current requirements remain

Title I Portability Background: both House and Senate bills allow States to set up systems where Title I funding follows low-income student to school of their choice In Senate, includes private schools Input: White House, left-leaning advocacy groups highly critical Right-leaning groups, lawmakers see as extension of school choice Likely outcome: unclear (private school funding unlikely, but portability option may remain)

Busy House/Senate schedule Democratic opposition From Democrats in Congress Lack of bipartisan cooperation in drafting? Disagreements over assessments/accountability From President/administration Concerns about walking back accountability/ civil rights President has no fears of issuing veto threat Republican opposition Sen. Tim Scott (R-SC): won t vote for a bill if they ve given up too much to Democrats Opposition from conservative Reps., action groups

Two choices (assuming Senate Passes bill): House passes Senate bill (or vice versa) Then Senate passes revised version with any House amendments, sends to President for signature House and Senate meet in conference to work out differences between bills Final compromise legislation must be passed by House and Senate, then sent to President for signature BUT if House rejects its own bill: reauthorization is DOA

If ESEA reauthorization is not passed: ESEA waivers continue into next Congress Congress may pass smaller stand-alone bills, including: Success and Opportunity through Quality Charter Schools Act (H.R. 10) Passed House with strong bipartisan support in 2014 Revamps federal charter school programs, drives funding to States with laws more open to charters and with stronger charter accountability Strengthening Education Through Research Act (H.R. 4366) Reauthorizes Education Sciences Reform Act Easily passed House in February Due for Senate floor action

WIA Reauthorization: DONE Workforce Investment and Opportunity Act (WIOA) passed July 2014 Child Care and Development Block Grant: DONE

Administration plan announced in President s 2014 State of the Union address $77 billion in subsidized universal pre-k for low/middle-income families over next decade Federal share drops from 90% to 25% over 10-year period States receive funding for adopting certain quality standards Senate 2014: Strong Start for America s Children Act Similar to President s proposal Sen. Murray wants to roll into ESEA reauthorization? Preschool Development Fund Appropriations special project in FY 2015, part of President s request for FY 2016

No action to date Some technical tweaks to MOE penalty in appropriations bills Focus is on full funding of existing federal obligation Full funding = 40% of excess cost of educating students with disabilities Various bills to bring federal commitment up to that level But these initiatives stall because of cost Extremely unlikely to move before ESEA

Carl D. Perkins Career and Technical Education Act originally due for reauthorization in 2012 Bill introduced in Senate in June 2014 Sen. Tim Kaine (D-VA) and Sen. Rob Portman (R-OH) Would reauthorize, promote alignment with other programs, workforce needs Some information sessions, one field hearing by House CTE caucus in October 2014 No significant action to date

Healthy, Hunger-Free Kids Act Expires September 30, 2015 Law and regulations continue to be controversial because of new nutrition standards for school meals School Nutrition Association lobbying hard for weakened standards/restrictions Administration vowed to veto appropriations bills that weakened standards in FY 2015 Congressional Republicans say standards are costly, wasteful Will be big fight in summer 2015!

Conflicts between parties Conflicts within parties Veto threats from President Short-term fixes on big problems mean constant crisis situation Result: non-critical legislation gets no air time

Case study bills: 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 littlepublicized meetings of pre-conference committees

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

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

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

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.

Congress controlled by one party means legislation moves through with more frequency and speed in theory Strong commitment from everyone (House, Senate, administration) to reauthorize ESEA Republican party eager to reclaim mantle as party of education

Lots of other must-pass items on the calendar ahead of education bills Education not a top priority for House or Senate Administration content to continue with ESEA waivers no urgent desire for reauthorization

Continued partisanship makes it difficult to find common ground Splits within parties cause problems Controversial issues and legislation will slow down legislative process Filibuster and veto threats continue to make it difficult to find common ground

Budget strings continue to tighten Little substantive legislation moves through Congressional process Administration continues to push priorities through regulation and non-regulatory guidance Focus is on new rulemaking/ technical compliance

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