Construction Legislative Week in Review October 14, 2010
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Post Election Lame Duck May Prove Uneventful
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Post Election Lame Duck May Prove Uneventful

There are  19 days until the November 2 election. Congress has left a number of must pass bills undone.  They made time for Health Care, Financial Regulation Reform and Cap and Trade, but they failed to pass a budget or bills to fund the operation of the government for a full year.  They failed to settle on the best way to address expiring tax cuts and passed a number of short term extensions of significant infrastructure programs like Highways, Transit and the FAA construction program.  

Members of Congress will reassemble in the Capitol after the election to deal with two kinds of legislation: “Must Pass Bills” (bills that would cause a shutdown of government programs or other significant disruption if they were not passed) and “other” policy bills. 

The rules for legislation will not change in the lame duck.  Bills will continue to be written largely by the Senate. If the Senate can pass a bill the House will likely follow suit.  In addition to the three new senators, four Democrats and at least seven Republicans are retiring (not all voluntarily).  It is not clear that any of the retiring senators will significantly change their positions on legislation after Election Day. The Senate will likely remain significantly divided on big issues and make it very difficult to pass anything other than must pass measures.

There will be immediate personnel changes in the House and Senate.  The House will fill two vacancies (New York 29 and Indiana 3). Both are likely to go to Republicans.  These will have little impact on the operations of the House. The Senate will add three new senators with special elections in Illinois, Delaware and West Virgnia.  All three of these seats are currently held by Democrats. A Republican pick up in any of these three could effectively shut the door on issues like card check or new OSHA rules.

One big unknown is how President Obama will respond to the election.  The president’s posture could have a significant impact on the productivity of the lame duck session. Below is a list of  legislative issues that impact the construction  industry that could be addressed during the lame duck; they are divided between “must pass,” “almost must pass”  and “other.”


FY11 Appropriations Bill: The Continuing Resolution (CR) that provides funds to continue the operation of the federal government expires December 3.  The CR is necessary because Congress has failed to enact any of the 12 appropriations bills for FY 2011. Under the terms of the CR most government programs will continue to be funded at FY 2010 levels.  Congress intends to wrap up the 12 unfinished appropriations bills in a large omnibus during the lame-duck session. AGC continues to monitor discussions of limiting discretionary spending and its effect on construction programs. 

Bush Tax Cuts of 2001 & 2003: Without Congressional action, income tax rates, capital gains, dividend, and estate tax rates will increase on January 1, 2011.  Congress is contemplating three key scenarios: 1) a short-term compromise in which all tax cuts are extended for all taxpayers; 2) extend lower rates for individuals making $200,000 a year or less or couples making $250,000 a year or less; or 3) allow all taxes to go up next year, then consider a retroactive, permanent extension for all tax payers.  Congress also has to reach a consensus on rates for capital gains, dividends, and the estate tax.

Highway Extension: This is not a six year bill or any additional funding, this is just keeping the federal program operating after December 31.  Since SAFETEA-LU expired on September 30, 2009, the highway and transit program has been operating under short term extensions. The latest extension expires on December 31, 2010. Congress must take action during the lame duck session to at least extend authorization into next year. The Congressional Budget Office has projected that between the revenue coming in and the general fund reimbursement last March, the Highway Trust Fund is able to support current funding levels through 2011. Although the administration has made two high profile announcements about the need for a six-year bill and suggested that it be front-loaded with an additional $50 billion, the long-term reauthorization is unlikely to be considered until the new Congress convenes.

Aviation Extension: Not a multiyear bill, again, just keeping the program operating. The Federal Aviation Administration bill has been operating under short-term extensions since it expired in 2007. It remains unclear if Congress will be able to resolve a number of contentious issues in the legislation before it expires again. AGC is pushing for appropriate increases to the aviation user fee structure to meet airport capital investment needs while also providing for air traffic control modernization.


Debt Commission Recommendations: The National Commission on Fiscal Responsibility and Reform is a presidentially mandated Commission charged with identifying policies to improve the fiscal situation in the medium term and to achieve fiscal sustainability over the long run. The Commission must vote on recommendations by December 1.  If and only if 14 of the 18 members of the Commission vote in favor of the recommendations, it will go to the Senate where Majority Leader Harry Reid has agreed to give the recommendations an up-or-down vote by end of 2010. House Speaker Nancy Pelosi has agreed that, if the Senate passes the recommendations, the House will then vote on them.

It is unclear if the Commission, which has been meeting since April, can get 14 of their members to support a package of recommendations.  They are still working out details on how it will present recommendations and whether members will vote on the package as a whole or hold separate votes on individual items.

DOD Authorization Bill: Congress is at substantial risk of failing to approve a Defense Authorization bill, which sets the priorities and directives of the Department of Defense, for the first time in 42 years. Since matters of national defense are often non-partisan in nature, this authorization bill typically receives bipartisan support and is regularly approved. However, Senate Democrats have sought to use the defense bill as a vehicle to address some controversial social issues in this legislation. In particular, one provision would remove the restrictions on abortions in military hospitals and another would repeal the "Don’t Ask Don’t Tell Policy.” Senate Democrats also attempted to attach an immigration reform measure known as the "DREAM Act" in an attempt to address concerns that this Congress has not acted on immigration reform. Delays over these issues derailed multiple opportunities to pass this bill before Congress adjourned and have now pushed consideration into the lame duck session.


Renewable Energy Bill: One of the first votes in the Senate in November will be a procedural vote on legislation to create incentives for natural gas vehicles and plug-in electric vehicle infrastructure.  Attempts may be made to enact a renewable energy standard (RES) that would require U.S. electricity to be produced by renewable energy sources.

Tax Extenders: Congress has yet to enact an extension of roughly $30 billion in tax incentives that expired at the end of 2009.  AGC is concerned that “extenders” legislation would be paid for, in part, by a tax hike on real estate partnership “carried interest.”

Federal Unemployment Benefits: Two deadlines for individuals to file applications for Federal Emergency Unemployment Compensation and to qualify for the Federal Additional Compensation, the extra $25 weekly benefit amount on state and federal unemployment compensation, are set to expire on November 30 and December 7, respectively. 

Dream Act: The immigration bill, known as the Development, Relief, and Education for Alien Minors ACT (DREAM Act), could potentially be considered in the Senate but passage of any comprehensive bill is unlikely. The DREAM Act would give conditional permanent resident status to undocumented people who entered the U.S. before their 16th birthday and are pursuing higher education or are part of the military. 

EPA Carbon Classification Delay: Congress may consider legislation that would delay pending U.S. Environmental Protection Agency regulation over greenhouse gas emissions from stationary sources for two years.  The first EPA greenhouse gas regulations are scheduled to take effect in 2011.

Mine Safety Bill: The Miner Safety and Health Act would make significant changes to both MSHA and OSHA. AGC opposes the legislation because it turns the clock back on well over 10 years of progress in improved workplace safety while creating a more adversarial relationship between employers and OSHA.  Negotiations are expected to resume on the bill that passed a House Committee earlier this year.   

Paycheck Fairness: The Paycheck Fairness Act is on the Senate calendar after the mid-term election. The bill limits defenses to Equal Pay Act claims and permits unlimited punitive and compensatory damages. This bill would limit employers to base pay decisions on factors like professional experience and local labor market rates.  Employees would have to specifically opt-out of class action lawsuits which would likely dramatically increase the size and penalties of class actions.  AGC has expressed our opposition to the bill to Congress.  

For more information, contact Jim Young at
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