Congress returns after the week-long Thanksgiving break looking to complete its business for the year and adjourn by December 11. Much work still needs to be done in order to allow members to achieve that goal.
The December 11 date is when the current short-term funding for the federal government expires thereby requiring that a new appropriations bill be enacted by that date. The bipartisan budget agreement reached in the waning days of John Boehner’s Speakership in October has made the resolution of an appropriations package much easier, but many obstacles stand in the way of success. Republicans in both the Senate and the House are demanding that the funding bill include a number of legislative riders, and the Democratic minority in both chambers, backed by the threat of a presidential veto, is resisting those efforts. Appropriations Committee staff have been meeting to resolve the spending portions of what will be a single omnibus appropriations bill. They aim to wrap up their portion of the bill this week, allowing leaders in both chambers to negotiate the terms of what riders will get included. The goal is to have the bill ready for consideration by both chambers at the beginning of next week, allowing one legislative week to resolve the legislation and send it to the President for signature. Much of the most significant work on Capitol Hill this week will therefore take place, as it often does, behind closed doors, as key members work on resolving the issue of policy riders.
Even as the appropriations process continues largely behind closed doors, the floor activities in each chamber will advance key legislative accomplishments while also giving each party a chance to score rhetorical political points.
The House returns on Monday and is scheduled to tackle nine bills under suspension of the rules. One of these bills, H.R. 3279 sponsored by Rep. Doug Collins (R-GA), may be of some interest to the legal community, because it would require enhanced disclosure by the federal government of the amounts federal agencies are paying to successful litigants against the government under the Equal Access to Justice Act. On Tuesday, and for the balance of the week, the House plans to take up its comprehensive energy bill, developed by Energy and Commerce Committee Chairman Fred Upton (R-MI).The bill pursues an “all-of-the-above” approach to promoting U.S. energy security and independence, but many Democrats see it as titled too heavily towards carbon-based, non-renewal energy.
That theme is likely to carry over to the next two items on the House’s legislative schedule for the week, because once the House completes its action on the comprehensive energy bill, it plans to take up two Senate-passed resolutions of disapproval under the Congressional Review Act, the law under which Congress can reject proposed agency regulations. The two rules at issue are the U.S. Environmental Protection Agency’s proposed rules limiting greenhouse gas and carbon emissions from electric-power-generation stations. These resolutions of disapproval each passed the Senate on a largely party-line vote and the same is likely in the House. The administration has already made clear that the president will veto each resolution and neither chamber has the votes to override the vetoes, meaning the entire debate is a rhetorical one intended to highlight the disparate positions each party takes on energy security and prices and the environment, in particular the urgency of addressing climate change.
In addition to these measures scheduled for House floor consideration, the House may turn to consideration of the conference reports on two signal legislative achievements if they are concluded successfully during the week: the school reform bill and the highway bill, both of which we have discussed at length in previous columns. The education bill conference has concluded and that measure is a likely prospect for floor action this week. The bill would reauthorize the Elementary and Secondary Education Act by reforming President Bush’s No Child Left Behind law and returning increased authority to the states at the expense of federal control. The highway bill is encountering a number of issues as conferees aim to reconcile the Senate and House versions of the bill, but it too may see resolution and floor consideration this week as both chambers aim to clear the decks for the final week’s focus on appropriations.
The Senate also returns to work on Monday, with debate and a vote scheduled on the nomination of Gayle Smith to serve as Administrator of the Agency for International Development, the country’s leading foreign-aid agency. The real legislative fireworks begin on Tuesday, when the Senate is likely to turn its attention to the budget reconciliation bill. Because of special rules established in the Budget Control Act, a budget reconciliation is not subject to a filibuster and therefore only needs 51 votes to pass the Senate, not the typical 60 needed to overcome a filibuster. The House passed its version of budget reconciliation and used the legislation to repeal portions of the Affordable Care Act (“Obamacare” to its critics) and to defund Planned Parenthood in the wake of the disclosure of under-cover videos possibly showing Planned Parenthood employees talking about harvesting and selling fetal body parts). The House bill has been criticized by conservative senators for not repealing all of Obamacare; Republican leaders have been seeking a parliamentary solution to overcome technical challenges to moving forward with a broader health-care-law repeal, and press reports suggest they have succeeded, likely securing conservative support for the reconciliation bill. Other Republican senators of a more moderate cast may not support the defunding of Planned Parenthood, and the post-Thanksgiving attack on the Planned Parenthood facility in Colorado Springs is likely to embolden Planned Parenthood supporters. Senate Majority Leader McConnell has to walk a very fine line in aiming to secure 51 votes needed to pass the reconciliation bill. A failure to do so will embarrass Republicans and is likely to agitate the Republican base even further, but passing a bill and sending it to the President, while a rhetorical achievement, will result in a presidential veto and ultimate legislative failure as well. Because the stakes surrounding the debate are, at least for the immediate future, small because the bill cannot become law, the debate is likely to be especially impassioned, with fireworks emanating from both sides of the aisle as senators play to their respective party’s base and stake out ground for their parties for the upcoming 2016 elections, when control of the Senate will be a key electoral goal for both parties. Aside from reconciliation, the Senate too will aim to dispose of the education and highway conference reports when they become available.
With the session winding down, committees in both chambers remain very active on the hearing front. Of special note, on Tuesday both the Senate Finance Committee and a subcommittee of the House Ways and Means Committee will hold hearings on the so-called base erosion and profit shifting (BEPS) project of the Organization for Economic Cooperation and Development (OECD). Corporate tax reform is a major legislative priority, although the two parties have not been able to agree on how to achieve it. In the meantime, the OECD has been developing a program to address BEPS, which governments see as a corporate means of perhaps lawful but inopportune corporate tax avoidance. These hearings reflect congressional interest in corporate tax reform and recognition that U.S. tax policy must be considered through the prism of global tax issues given the increasingly globalized nature of business.
With the Paris conference on climate change starting this week, the House Science Committee, under its Chairman Lamar Smith (R-TX), a leading skeptics of anthropogenic climate change, is holding a hearing on Tuesday morning the conference. Chairman Smith is embroiled in a dispute with the Administration over his demands to turn over internal deliberative materials by scientists who were producing the Administration’s climate studies. Partisan fireworks are a certainty at that hearing.
Partisan disputes are also likely as the Judiciary Committees on each side of the Capitol tackle immigration-related issues. On Wednesday, the Senate Judiciary Committee reviews the Administration’s criminal alien removal program; on Thursday, House Judiciary will hold an oversight hearing of the Justice Department’s Executive Office of Immigration Review which oversees the immigration courts.
Both Judiciary Committees are also holding hearings at which bipartisan consensus will be on display. On Tuesday, the House committee will hold a hearing on e-mail privacy issues, focused on legislation with more than 300 cosponsors to reform the Electronic Communications Privacy Act. Despite the bipartisan consensus over the bill, a couple of technical issues have bedeviled efforts to bring it to floor in either chamber. The hearing is likely an effort to stoke a compromise, but in the wake of the Parisian terrorist attacks the dynamic has shifted in Congress towards the protection of law enforcement equities; what impact this changed dynamic will have on this hearing and the underlying bill is unclear. On Wednesday, the Senate committee will review pending, bipartisan legislation to protect trade secrets (author’s disclosure: Covington & Burling and one of the authors of this column represent a coalition advocating for the legislation).
Finally, the situation in the Middle East and its role in the growing global instability gets several reviews this week. On Tuesday, the House Armed Services Committee looks at U.S. strategy in Syria and Iraq; on Wednesday, two subcommittees of the House Foreign Affairs Committee look the role of Iran and its military in Syria and at the role of the Islamic State in the Paris attacks.
A complete listing of the scheduled congressional hearings this week follows:
Tuesday, December 1, 2015
House Committees
U.S. Strategy for Syria and Iraq and its Implications for the Region
House Armed Services
Full Committee Hearing
10 a.m., 2118 Rayburn Bldg.
FERC Oversight
House Energy and Commerce – Subcommittee on Energy and Power
Subcommittee Hearing
10 a.m., 2322 Rayburn Bldg.
The Disrupter Series: Mobile Payments
House Energy and Commerce – Subcommittee on Commerce, Manufacturing and Trade
Subcommittee Hearing
10:15 a.m., 2322 Rayburn Bldg.
H.R. 699, Email Privacy Act
House Judiciary
Full Committee Hearing
10 a.m., 2141 Rayburn Bldg.
Paris Climate Change Conference
House Science, Space and Technology
Full Committee Hearing
10 a.m., 2318 Rayburn Bldg.
OECD Base Erosion and Profit Shifting Project
House Ways and Means – Subcommittee on Tax Policy
Subcommittee Hearing
10 a.m., 1100 Longworth Bldg.
Navy Force Acquisition/Efficiency
House Armed Services – Subcommittee on Seapower and Projection Forces
Subcommittee Hearing
2 p.m., 2212 Rayburn Bldg.
Russian Arms Control Cheating: Violation of the INF Treaty and the Administration’s Responses One Year Later
House Foreign Affairs – Subcommittee on Terrorism, Nonproliferation, and Trade; House Armed Services – Subcommittee on Strategic Forces
Committees Joint Hearing
3:30 p.m., 2118 Rayburn Bldg.
Invasive Species Policy
House Oversight and Government Reform – Subcommittee on the Interior
Subcommittee Hearing
2 p.m., 2154 Rayburn Bldg.
Senate Committees
Acquisition Reform: Next Steps
Senate Armed Services
Full Committee Hearing
9:30 a.m., G-50 Dirksen Bldg.
The Well Control Rule and Other Oil and Gas Production Regulations
Senate Energy & Natural Resources
Full Committee Hearing
10 a.m., 366 Dirksen Bldg.
Puerto Rico’s Fiscal Problems: Examining the Source and Exploring Solutions
Senate Judiciary
Full Committee Hearing
10 a.m., 226 Dirksen Bldg.
International Tax: OECD BEPS & EU State Aid
Senate Finance
Full Committee Hearing
2:45 p.m., 215 Dirksen Bldg.
Nominations
Senate Foreign Relations
Full Committee Hearing
2:30 p.m., 419 Dirksen Bldg.
Wednesday, December 2, 2015
House Committees
Improving Customer Service for Copyright Community
House Administration
Full Committee Hearing
11:15 a.m., 1310 Longworth Bldg.
Farm Credit System Review
House Agriculture
Full Committee Hearing
10 a.m., 1300 Longworth Bldg.
Hearing: Iran’s Islamic Revolutionary Guard Corps: Fueling Middle East Turmoil
House Foreign Affairs
Full Committee Hearing
10 a.m., 2172 Rayburn Bldg.
National Park Service Centennial Act
House Natural Resources – Subcommittee on Federal Lands
Subcommittee Hearing
10 a.m., 1324 Longworth Bldg.
Office of National Drug Control Policy Reauthorization
House Oversight and Government Reform
Full Committee Hearing
10 a.m., 2154 Rayburn Bldg.
The Paris Attacks: A Strategic Shift by ISIS?
House Foreign Affairs – Subcommittee on Terrorism, Nonproliferation, and Trade
Subcommittee Hearing
1 p.m., 2200 Rayburn Bldg.
U.S. Strategic Interests in Asia and the APEC and East Asia Summits
House Foreign Affairs – Subcommittee on Asia and the Pacific
Subcommittee Hearing
2 p.m., 2255 Rayburn Bldg.
Afghanistan Strategy Assessment
House Foreign Affairs – Subcommittee on the Middle East and North Africa
Subcommittee Hearing
2 p.m., 2172 Rayburn Bldg.
Senate Committees
Combating Global Hunger
Senate Agriculture, Nutrition and Forestry
Full Committee Hearing
10 a.m., 328-A Russell Bldg.
Defense Personnel Reform
Senate Armed Services
Full Committee Hearing
9:30 a.m., G-50 Dirksen Bldg.
Protecting Trade Secrets
Senate Judiciary
Full Committee Hearing
10 a.m., 226 Dirksen Bldg.
The Tribal Law and Order Act (TOLA) and Improving Tribal Justice Systems
Senate Indian Affairs
Full Committee Hearing
2:15 p.m., 628 Dirksen Bldg.
Oversight of the Administration’s Criminal Alien Removal Policies
Senate Judiciary
Full Committee Hearing
2:30 p.m., 226 Dirksen Bldg.
Consolidating Non-VA Care Programs
Senate Veterans’ Affairs
Full Committee Hearing
2:30 p.m., 418 Russell Bldg.
Thursday, December 3, 2015
House Committees
Military Readiness
House Armed Services – Subcommittee on Readiness
Subcommittee Hearing
8 a.m., 2118 Rayburn Bldg.
Military Health Care
House Armed Services – Subcommittee on Military Personnel
Subcommittee Hearing
10:30 a.m., 2212 Rayburn Bldg.
Broadcasting Ownership in the 21st Century
House Energy and Commerce – Subcommittee on Communications and Technology
Subcommittee Hearing
10:15 a.m., 2322 Rayburn Bldg.
The Nuclear Waste Fund: Budgetary, Funding, and Scoring Issues
House Energy and Commerce – Subcommittee on Environment and the Economy
Subcommittee Hearing
10 a.m., 1100 Longworth Bldg.
Federal Protective Service Vehicle Fleet
House Homeland Security – Subcommittee on Oversight and Management Efficiency
Subcommittee Hearing
10 a.m., 311 Cannon Bldg.
Oversight of the Executive Office of Immigration Review
House Judiciary – Subcommittee on Immigration and Border Security
Subcommittee Hearing
9 a.m., 2141 Rayburn Bldg.
Nuclear Energy Innovation Capabilities
House Science, Space and Technology – Subcommittee on Energy
Subcommittee Hearing
10 a.m., 2318 Rayburn Bldg.
Senate Committees
Warfighter Support
Senate Armed Services
Full Committee Hearing
9:30 a.m., 106 Dirksen Bldg.
Alaska Land Conservation
Senate Energy and Natural Resources
Full Committee Hearing
10 a.m., 366 Dirksen Bldg.
U.S. Role in Middle East
Senate Foreign Relations
Full Committee Briefing
9 a.m., S-116, U.S. Capitol
S. 247, Expatriate Terrorist Act, and S. 1318, Nuclear Terrorism Conventions Implementation and Safety of Maritime Navigation Act of 2015
Senate Judiciary
Full Committee Markup
10 a.m., 226 Dirksen Bldg.
Joint Committees
Federal Reserve System
Joint Economic Committee
Full Committee Hearing
TBA
Friday, December 4, 2015
Senate Committees
South Carolina Small Business Recovery
Senate Small Business and Entrepreneurship
Full Committee Field Hearing
9 a.m., Columbia City Hall, Council Chambers, 1737 Main Street, Columbia, S.C.