Yesterday, Senate Majority Leader Mitch McConnell (R-KY) decided to stop keeping the Senate technically in session in the increasingly unlikely event that Democratic and Republican leaders could agree on another round of coronavirus funding.

McConnell, with the acquiescence of Democratic leaders, got the unanimous consent of the Senate to lock in an agreement to convene in 30-second pro forma sessions every Tuesday and Friday, from now to September 4, “with no business being conducted” on those dates. The earliest that the Senate could consider legislative business under the agreement would be Tuesday, September 8.

The House left town two weeks ago and is also holding pro forma sessions (the House has given the Speaker authority to hold pro forma sessions through September 20). Both McConnell and House leaders have said that, if an agreement can be reached on another COVID aid bill before Labor Day, members might be called back to vote on the agreement, and be given 24 hours notice.

But yesterday’s actions by McConnell make this much more difficult than it sounds. The House, being a majoritarian institution, could certainly do this, with the Speaker holding the discretion on whether a session is pro forma or not. But in the Senate, what is done by unanimous consent can only be undone by unanimous consent (usually). In order to conduct any legislative business at all between now and September 8, all 100 Senators would have to agree to set aside the current order and agree that new business could be conducted.

Democratic negotiators have already rejected repeated offers by the White House for a “skinny” COVID bill extending unemployment insurance, the eviction moratorium, and PPP loans for another few months while negotiations on a larger bill continue. But such a “skinny” bill is probably the only kind of bill that could get the support of all 100 Senators. Any bill that went beyond that, and added things like hundreds of billions in aid for state and local governments, would almost certainly see Rand Paul (R-KY) or Mike Lee (R-UT) or someone like that objecting to even taking up the bill.

Once the Senate moratorium on conducting business expires on September 8, Leader McConnell could move to take up a COVID bill that could be passed by the 60-vote cloture process. But under the current agreement, until September 8, no one, including McConnell, is allowed to make any motions to take up any legislation, unless all 100 Senators agree.

In all likelihood, this means no floor votes on additional COVID aid until September 8. And it also means that the earliest that a surface transportation reauthorization bill could come to the Senate floor would be even later in September (since committees would have to meet, at least informally, to approve their portions of the bill before it could go to the floor).

And that means that we once again have to talk about extending Highway Trust Fund expenditure authority and new contract authority for surface transportation programs, and how long that extension will last.

In terms of timing, here is how the last three reauthorization extensions worked out:

• Extension of TEA21 – that authorization law expired on September 30, 2003. The first short-term extension (H.R. 3087, 108th Congress) was introduced in House on September 16 and on the floor for a vote September 24.
• Extension of SAFETEA-LU – that authorization law expired on September 30, 2009, and the issue was complicated by the fact that a back-ended rescission of billions of dollars of highway contract authority was scheduled to take effect on that date. Repealing the scheduled rescission posed budget problems.  The Senate had reported an extension bill (S. 1498, 111th Congress)  on July 22 that would have repealed the rescission, but they never got unanimous consent to bring that bill to the floor. The House then acted on its own extension (H.R. 3617, 111th Congress) – it was introduced in House September 22, and on the floor September 23 but the Senate could never get unanimous consent to bring up that bill, either. So no extension was passed on its own, the rescission took place, and an extension was included in the appropriations continuing resolution (P.L. 111-68)
• Extension of MAP-21 – that authorization law expired September 30, 2014. The first short-term extension (H.R. 5021, 113th Congress) was introduced in the House on July 8, marked up in the Ways and Means Committee July 10, and on the House floor July 15.

Because of the timing, the issues relating to coronavirus relief for transportation and transit agencies may be mixed with the short-term transportation extension. In a way, the House has already voted in favor of a one-year extension of FAST Act policies and program structure, plus significant spending increases and COVID aid, as Division A of the big infrastructure bill (H.R. 2). It would be very little work for the House to just cut and paste Division A into a new bill, make a few conforming changes, and pass that – if House Democrats did not want to pre-negotiate a bill with the Senate and the White House.

Sen. John Thune (R-SD) is reportedly working on a provision to add a temporary increase in the federal share of all federal-aid highway projects to 100 percent (as was done in Division A of the House bill, and which has been done several times by Congress in the last 75 years as economic stimulus) to add to any extension being drafted in the Senate. This increase in the cost share would relive some (but by no means all) of the financial burden inflicted on state DOTs by the coronavirus.

As reported elsewhere in this issue, the Highway Account of the Highway Trust Fund appears likely to end fiscal year 2020 on September 30 with a positive balance of between $8-10 billion. Normally, this would be enough to get through Christmas, and if you can get through Christmas, then the spending rate of state highway programs drops drastically during the winter months, so you can get through April.

But with coronavirus depleting revenues by 10-15 percent, any wiggle room is gone, and the enactment of any provision increasing the federal share of ongoing projects would immediately boost highway outlays by somewhere between 10 and 20 percent, raising the possibility that a short-term extension into next year would also require additional transfers of money into the Trust Fund (on top of the $144 billion transferred into the Trust Fund from outside sources over the 2008-2015 period).

And then, the question becomes – do you only transfer enough money into the Trust Fund in September 2008 to get you through the expiration date of the extension, or take that time to transfer enough money to make it easier to write a long-term reauthorization bill?