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
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.
ALMOST MUST PASS
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
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
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 email@example.com.
Return to Top