November 16, 2016

The election of Donald Trump to replace Barack Obama as President has thrown the planned post-election “lame duck” session of Congress that began this week into an uproar.

In general, for every piece of legislation now moving through Congress, Republicans have to ask themselves, “do we want to negotiate this with the Obama Administration and Senate Democrats, and thus compromise some of what we want, or do we wait and start over next year and negotiate with President Trump?”

In many cases, Republican leaders may have to wait for Trump transition officials to contact them and let them now how the President-elect wants to proceed.

The most important issue hanging over the outgoing Congress is the appropriations process for fiscal year 2017. In September, a law was enacted (Public Law 114-223) that contained one of the twelve annual appropriations bills for 2017 (Military ConstructionVA) and a stopgap continuing resolution that continued the other eleven bills through December 9 at fiscal 2016 spending levels and conditions.

For the last two months, the staffs of the House and Senate Appropriations Committees have been quietly working on negotiating an omnibus appropriations package containing the other eleven bills for 2017 in the hopes of passing it through both chambers before December 9. Some of the ultra-conservative “Freedom Caucus” Republicans in the House opposed such a move and preferred to extend the current CR through late February or early March in order to negotiate spending bills with the next President. (It should be noted that they made this proposal back when many of them thought that Sec. Clinton would win the election – their real concern was that too many “back-room deals” take place when an omnibus is negotiated in a lame-duck session.)

The unexpected election results have given a lot of momentum to those who want to simply extend the current CR – why negotiate FY 2017 funding levels and conditions with President Obama in December when they can negotiate them with President Trump in February instead?

Even though Senate leaders and appropriators in both chambers would strongly prefer an omnibus this month, the writing may be on the wall. House Speaker Paul Ryan (R-WI) told reporters yesterday that “we are now sitting down with the Trump administration and waiting along with our colleagues to come up with our game plan for lame duck, and also, to come up with our game plan for 2017.” And Senator David Perdue (R-GA) told reporters this afternoon that the Trump transition has requested a CR extension until March.

Any CR extension may also contain some supplemental funding for flood relief in Louisiana and elsewhere as well as some of the $11.6 billion in supplemental funding requested by the White House on November 10 for military operations in Afghanistan and against the Islamic State. As the last “must-pass” bill on the way out of town, a CR extension might include other, unrelated items as well.

(Ed. Note: A CR extension to early March raises the distinct possibility of a government shutdown at that time. There are so many policies sought by Republicans in Congress and/or by President-elect Trump that are much easier and less time-consuming to implement as limitation language in an appropriations bill than as separate legislation. If President Trump wants to cut off federal aid to the “sanctuary cities” that refuse to cooperate with deportation orders, which of these sounds easier? Draft a bill making those changes, pass it through the House, then watch as Senate Democrats filibuster it (which also kills time you could have spent on other things)? Or simply add language to the HUD CDBG account and the DOJ law enforcement grant account and other accounts in a pending, must-pass appropriations bill that says “none of these funds can be used to make grants to cities that fail to cooperate with ICE on programs X, Y and Z?” No contest, the appropriations route is quicker and easier. Now multiply that question times dozens of similar issues. The danger is that the number of new policy limitation amendments reaches the critical mass where Senate Democrats decide it is better for them to filibuster the omnibus appropriations bill and shut the government down rather than concede. In other words, the shutdown will be in March instead of October this time.)

Extension of the CR into March also delays all of the Department of Transportation’s discretionary grant programs (TIGER, FASTLANE, buses, etc.) by at least three months, because for most of those programs the application notices can’t even go out until a full-year appropriations bill is signed into law, and for all of them, no grant selections can be made until the final appropriations act is a done deal.

The other big transportation item is the Water Resources Development Act (WRDA). The House and Senate have differing bills (H.R. 5303, S. 2848) before the elections. Staff have been working for weeks to reconcile those two bills into one compromise that could then be passed by the House in lieu of S. 2848 (a formal House-Senate conference would not be held in the interest of time). Staff had ironed out everything except for a few major issues which had to wait until Members of Congress returned to DC this week to meet and make the final decisions.

But in terms of the “few major issues’ left outstanding, one was the Senate-passed bill’s aid package for Flint, Michigan drinking water. (Ed. Note: Other than that, Mrs. Lincoln, how was the play?) The House GOP does not like the price tag or the “pay-for” for the Senate’s aid to Flint, but Senate Democrats have made it clear that any final product that lacks Flint aid will be filibustered to death in their chamber (unless Flint aid is enacted first in some other legislation like an appropriations CR). It may take an intervention by the Trump transition in support of Flint aid to break the logjam, which is possible – Trump’s infrastructure agenda says he wants to “Make clean water a high priority. Develop a long-term water infrastructure plan with city, state and federal leaders to upgrade aging water systems. Triple funding for state revolving loan fund programs to help states and local governments upgrade critical drinking water and wastewater infrastructure.” But that could also mean he would prefer to write his own WRDA bill with his ideas next year.