Weekly Legislative Update
 Week of November 28, 2016
  
Congressional Outlook

Week of November 28th

The House and Senate are in session this week. On Tuesday and Wednesday, the House will consider 29 bills under suspension of the rules, including the Justice for All Reauthorization Act of 2016 (S. 2577), which would modify and reauthorize a variety of programs to aid crime victims, process and preserve evidence, test post-conviction DNA evidence, support crime laboratories and enhance training. For the remainder of the week, the House may consider the 21st Century Cures Act (H.R. 6), which would promote new medical treatments by increasing research money for the National Institutes of Health, streamline the Food and Drug Administration's review of new drugs and medical devices, address opioid addiction, mental health and adoption programs, along with Medicare changes, and would extend authorization for the Temporary Assistance for Needy Families program. Also included in the bill is House-passed language that would allow employers with less than 50 employees to offer pre-tax health reimbursement arrangements (HRAs), which is currently not allowed under the Affordable Care Act. The House may also consider an as-yet agreed to conference report to accompany the $602 billion FY 2017 National Defense Authorization Act (S. 2943), which sets Pentagon policy and funding levels. On Tuesday, the Senate will vote on the Expanding Capacity for Health Outcomes (ECHO) Act (S. 2873), which would require the U.S. Department of Health and Human Services to study the possible use of distance-education technologies to provide health care, particularly in underserved areas.      
 
The current stopgap funding law expires on Friday, December 9, so Congress has two weeks remaining to negotiate and pass another short-term Continuing Resolution (CR) that will likely run through March 31, 2017 and maintain current FY 2016 levels of funding. No final decisions have been made, as of November 28, and the text of the legislation is unlikely to be filed until next week. The outgoing Obama Administration last week submitted a list of spending anomalies, or specific program changes to a CR, for consideration by the negotiators, in addition to a list of expiring authorizations. The sooner one chamber can adjourn for the session, or sine die, the more regulations issued by federal agencies during the last year of Obama's presidency would be subject possible repeal under the Congressional Review Act. If the House departs by December 9, the next Congress would be able to revisit the U.S. Department of Labor's rule that would require employers to pay overtime to 4 million workers who perform administrative and professional duties; a federal judge has barred the implementation of the rule, which was scheduled to take effect December 1.
 
House Democrats are debating how best to improve their political prospects during a Trump presidency and in the 115th Congress that remains in bicameral Republican control. House Democratic Leader Nancy Pelosi (D-CA) faces the first challenge to her leadership since 2010 when her party lost its House majority. Rep. Tim Ryan (D-OH) announced his challenge to Pelosi after House Democrats only picked up six seats in the November election. The House Democratic Caucus will hold their leadership elections on Wednesday.
Week in Review

Federal Judge Blocks Implementation of DOL Overtime Rule
 
On November 22, federal judge Amos L. Mazzant III, of the U.S. District Court for the Eastern District of Texas, issued a 20-page temporary injunction halting the U.S. Department of Labor's (DOL) final overtime rule, which was set to become effective on December 1st. The rule would have extended overtime pay to more than 4 million workers and would have required employers to pay overtime to most salaried workers who earn less than $47,476 annually, a much higher threshold than the current annual salary limit of $23,660. Judge Mazzant ruled that the Obama administration had exceeded its authority by raising the overtime salary limit so significantly. While the injunction is only a temporary measure that suspends the regulation until the judge can issue a ruling on the merits, many said the judge's language indicated he was likely to strike down the regulation. The ruling arose from a case filed by a coalition of 21 states, who argued that the Obama Administration had exceeded its statutory authority in raising the overtime salary limit so significantly. A large number of business groups filed a similar lawsuit, and the suits were later consolidated. The Labor Department said it "strongly disagreed" with the decision and was "considering all of our legal options," raising the possibility of an appeal in the waning days of the Obama administration. The fate of the overtime rule had already been thrown into question by the election of  Donald Trump  as president two weeks ago. Mr. Trump has promised to reverse many Obama Administration regulations and the Republican Congress has threatened to utilize the Congressional Review Act to nullify the rule in January, once Trump takes office. Read more...
House Democratic Leader Pelosi Announces Caucus Leadership Reforms and Nominations
 
With a challenge to her position as House Democratic Leader from Rep. Tim Ryan (D-OH) underway this week, Rep. Nancy Pelosi (D-CA) last Monday announced four changes to House Democratic Caucus Rules she hopes to implement if she is re-elected leader, including:
  • Requiring each committee to create a Vice Chair or Vice Ranking Member Position to be filled by individuals who have been a Member of the committee for four terms or less;
  • Upon the next vacancy, make the Assistant Democratic Leader position, currently held by Rep. Jim Clyburn (D-SC), an elected position to be filled by a Member who has served fewer than three terms;
  • Making the Democratic Policy and Communications Chairmanship an elected position reserved for a Member who has served less than five terms. Upon discussion across the Caucus, Pelosi proposes to expand it to three co-chairs to cover more fully the priorities of Members; and
  • Creating five regional Vice Chairs, elected by the Members of their region, to serve at the Democratic Congressional Campaign Committee (DCCC) and support the work of the Chair.
On November 25, Leader Pelosi also announced that she had nominated seven members for positions in Democratic leadership, four of whom would be new to leadership. These nominations include Rep. Ben Ray Lujánas Chairman of the DCCC; Reps. Cheri Bustos (D-IL), Hakeem Jeffries (D-NY), and Matt Cartwright (D-PA) as co-chairs of the Democratic Policy and Communications Committee; Reps. Rosa DeLauro (D-CT) and Eric Swalwell (D-CA) as co-chairs of the Steering and Policy Committee; and Rep. John Yarmuth (D-KY) as the new Ranking Member of the House Budget Committee, to replace Senator-elect Chris Van Hollen (D-MD). Read more...
Trump Transition Team Announces Agency Landing Team Members, and other nominees
 
Last week, the Trump transition team announced, on three separate days (see here, here, and here), 77 agency landing team members whose job will be to report to each assigned federal agency, work with the personnel there, and help the incoming Trump Administration take over responsibilities. Thus far, Trump agency landing team members have been announced for the following 36 federal Departments/agencies: Commodity Futures Trading Commission, Consumer Financial Protection Bureau, the Departments of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Interior, Justice, Labor, State, Transportation, Treasury, Veterans Affairs, Environmental Protection Agency, Export-Import Bank, Farm Credit Administration, Federal Communications Commission, Federal Deposit Insurance Corporation, Federal Housing Finance Agency, Federal Reserve Board, Federal Trade Commission, Financial Stability Oversight Council, General Services Administration, National Credit Union Administration, National Security Council, Office of the Director of National Intelligence, Office of the Comptroller of the Currency, Office of Management and Budget, Office of Personnel Management, Securities and Exchange Commission, Small Business Administration, Social Security Administration, and the Office of the U.S. Trade Representative.
 
The Trump Transition team has also announced several executive nominations and White House senior staff over the past two weeks, including:  
  • Fox News national security analyst Kathleen Troia "KT" McFarland to serve as Deputy National Security Advisor;
  • Attorney and former FEC Commissioner Donald F. McGahn to serve as Assistant to the President and White House Counsel;
  • Michigan businesswoman Betsy DeVos to serve as U.S. Secretary of Education (she will need to be confirmed by the Senate);
  • South Carolina Governor Nikki Haley to serve as U.S. Ambassador to the United Nations (she will need to be confirmed by the Senate);
  • Alabama Senator Jeff Sessions to serve as U.S. Attorney General (he will need to be confirmed by the Senate);
  • Kansas Congressman Mike Pompeo to serve as Director of the Central Intelligence Agency (he will need to be confirmed by the Senate);
  • Former Lieutenant General Michael Flynn to serve as Assistant to the President for National Security Affairs;
  • Republican National Committee Chairman Reince Priebus to serve as White House Chief of Staff; and
  • Former Breitbart News CEO Steve Bannon to serve as Chief Strategist and Senior Counselor to the President.
More nominations and staff announcements are expected to be made this week by the Trump transition team.
House Passes Midnight Rules Relief Act of 2016
 
On November 17, the House passed, by a vote of 240-179, the Midnight Rules Relief Act of 2016 (H.R. 5982), which would amend the Congressional Review Act (CRA) to allow the incoming 115th Congress to disapprove, en masse, every rule and regulation submitted under the CRA during the final sixty legislative days of the 114th Congress, or the end of President Obama's Administration. Under current law, Congress has to disapprove of one regulation at a time. Should H.R. 5982 be enacted, it would allow the GOP-controlled Congress and President-elect Trump to overturn numerous regulations finalized in 2016 by the Obama Administration. Additionally, H.R. 5982 would prevent any invalidated regulation from being issued again by the same agency, absent any Congressional action. In a Statement of Administration Policy, President Obama's senior advisors stated that they would recommend he veto this bill, stating that "H.R. 5982 would create tremendous regulatory uncertainty, potentially impose additional costs on businesses, and represent a step backwards for applying sound regulatory principles to protect public health, safety, the environment, and other critical aspects of society." Read more...
House Passes Two Health Care-Related Bills
 
On November 14, the House passed, by voice vote, two health care-related bills that would strengthen the nursing workforce and improve access to maternity care. The Title VIII Nursing Workforce Reauthorization Act (H.R. 2713) reauthorizes, through FY 2021, federal nursing workforce programs that help to train and maintain America's highly skilled nurses. The programs were first authorized 50 years ago to bolster nursing education and the nursing workforce by supporting nursing education at all levels, including both entry-level and graduate study, providing loan repayment and incentives for nurses to work in underserved areas or to serve as nursing faculty, thereby increasing the number of slots for new students, and providing support for nurses who focus on caring for the aging population.
 
The Improving Access to Maternity Care Act (H.R. 1209) supports improved data collection on maternity care shortages so that maternity care professionals in the National Health Service Corps are better allocated to communities in need. The National Health Service Corps provides loan repayment and scholarships in exchange for health care providers' willingness to work in underserved areas, typically rural or urban locals. Currently, maternity care professionals in the National Health Service Corps, including OBGYNs and Nurse Midwives, are placed based on a shortage of primary care services, without regard to the level of maternity care available in those locations. This bill would better target these professionals based on maternity care need. Both bills now go to the Senate for consideration. Read more...
Senate Democrats Block American Energy and Conservation Act of 2016
 
On November 17, the Senate fell nine votes short of the 60 votes necessary to advance consideration of the American Energy and Conservation Act of 2016 (S. 3110), voting 51-47 to do so. Democratic Senators Heidi Heitkamp (D-ND) and Joe Manchin (D-WV) voted for the motion to proceed to the bill, while Republican Senators Kelly Ayotte (R-NH), Richard Burr (R-NC), Susan Collins (R-ME), and Rand Paul (R-KY) voted against the motion to proceed. S. 3110 would give states 37.5% of the revenue that the federal government collects from oil and gas production and wind power in the outer continental shelf off their shores and would have expanded the limited revenue-sharing that is in place for some areas of the Gulf of Mexico. The bill would not have expanded offshore drilling, which is only happening in federal waters at a large scale in the Gulf of Mexico. But Senate Democrats said it would have incentivized states to seek offshore drilling in areas like the Atlantic and Arctic oceans, while taking billions of dollars out of the federal coffers. In a Statement of Administration Policy, President Obama's senior advisors stated that they would recommend he veto this bill, stating that "the bill would, among other things, change existing revenue sharing laws to increase the amount that certain States and counties would receive from energy production on Federal lands and waters, thereby reducing the fair return on the development of these minerals to taxpayers across the country for their shared resources." Read more...  
Senate Passes National Forest System Trails Stewardship Act, Sending Bill to President Obama For His Signature
 
On November 16, the Senate passed, by Unanimous Consent, the National Forest System Trails Stewardship Act (H.R. 845), which the House passed on September 26 by voice vote; the bill now heads to President Obama's desk for his signature. H.R. 845 would make better use of existing resources within the U.S. Forest Service to significantly increase the role of volunteers and partners in maintaining the usability and sustainability of the National Forest's trail system. The U.S. Forest Service currently maintains only one-quarter of the 158,000 miles of National Forest trails that offer hiking, horseback riding, hunting, mountain bicycling, motorized vehicles, and other outdoor activities. H.R. 845 would expand the number of trails that could be maintained by requiring a national strategy to maximize the use of volunteers and partners while addressing liability concerns that restrict outside groups and individuals working on the trails. The bill also directs a study on utilizing fire crews for maintenance work during off-seasons and a study on permits for outfitters and guides to offset some fees through work on trail maintenance. Read more...
Senate Passes Prescribed Burn Approval Act of 2016
 
On November 17, the Senate passed, by Unanimous Consent, the Prescribed Burn Approval Act of 2016 (S. 3395); the bill now heads to the House for consideration. The bill prohibits the U.S. Department of Agriculture (USDA) from authorizing a prescribed burn (i.e., a planned fire intentionally ignited) on Forest Service land if, for the county or contiguous county in which such land is located, the national fire danger rating system is indicating an extreme fire danger level. However, the USDA may authorize a prescribed burn under such a condition if it coordinates with the applicable state government and local fire officials. The bill was introduced in response to the Pautre wildfire in South Dakota in 2013, which began after the Forest Service went ahead with a controlled burn despite vocal concerns from local ranchers about the risk of the fire getting out of hand. The resulting wildfire burned thousands of acres and led to millions of dollars in damage. Read more...
Congressional Schedule

Tuesday, November 29 
  • Full House Rules Committee hearing to consider the Systemic Risk Designation Improvement Act of 2016 (H.R. 6392) and the 21st Century Cures Act (Senate amendment to H.R. 34). 
Wednesday, November 30 
  • Full Senate Special Aging Committee hearing entitled "Trust Betrayed: Financial Abuse of Older Americans by Guardians and Others in Power."
  • Senate Commerce, Science, and Transportation Subcommittee on Space, Science, and Competitiveness hearing entitled "The Dawn of Artificial Intelligence."
  • House Energy and Commerce Subcommittee on Health hearing entitled "Examining the United States Preventative Services Task Force."
  • Full Senate Homeland Security and Governmental Affairs Committee hearing entitled "Initial Observations of the New Leadership at the U.S. Border Patrol."
  • House Natural Resources Subcommittee on Federal Lands legislative hearing on the Guides and Outfitters (GO) Act (H.R. 5129); the North Country National Scenic Trail Route Adjustment Act (H.R. 799); and the African American Civil Rights Network Act of 2015 (H.R. 3683).
  • Full House Oversight and Government Reform Committee hearing entitled "Oversight of DEA's Confidential Source Program."
  • House Oversight and Government Reform Subcommittee on Government Operations hearing entitled "Federal Long-Term Care Insurance Program: Examining Premium Increases."
Thursday, December 1 
  • House Armed Services Subcommittee on Oversight and Investigations hearing entitled "Force Management Levels in Iraq and Afghanistan; Readiness and Strategic Considerations."
  • Full House Oversight and Government Reform Committee hearing entitled "Examining Sexual Harassment and Gender Discrimination at the U.S. Department of Agriculture."
  • House Oversight and Government Reform Subcommittees on Government Operations & Health Care, Benefits, and Administrative Rules joint hearing entitled "Restoring the Power of the Purse: Legislative Options." 
Friday, December 2 
  • House Oversight and Government Reform Subcommittee on Transportation and Public Assets hearing entitled "A Safe Track?: Oversight of WMATA's Safety and Maintenance."