How Will 2021 Resemble 2009?

How Will 2021 Resemble 2009?

November 20, 2020  | Jeff Davis

America is in the midst of a major, ongoing crisis, and the American people have voted to switch party control of the White House. The new Democratic president will have to hit the ground running when he is sworn in to replace his Republican predecessor on January 20, with the previous Congress leaving many urgent priorities unmet. The new President must quickly submit a budget request to Congress. He must name his nominees to senior positions as quickly as possible so as to implement his policies through the bureaucracy and take advantage of the immense resources and expertise available from the career civil service. And, not far away on the horizon, looms the deadline for reauthorizing Highway Trust Fund programs and rewriting surface transportation policy and funding levels, on September 30 of the new President’s first year.

This describes the situation facing President-elect Joe Biden today – but it also describes the situation faced by President-elect Barack Obama in late 2008 and early 2009. The immediate crisis in 2008-2009 was a financial one that was causing a Great Recession instead of a pandemic disease that was causing a shorter recession, but the sense of urgency is very similar.

How might what will happen in 2021 resemble what happened in 2009?

Stimulus. The most likely resemblance between 2009 and 2021 will be that the new session of Congress will start off with some kind of economic stimulus bill to meet the ongoing crisis, as unfinished business from the previous Congress.

In September 2008, as the financial crisis was beginning, the House passed a $60.8 billion stimulus bill, of which infrastructure comprised about 61 percent. Senate Democratic leaders introduced their own stimulus bill just before Thanksgiving, which would have provided $100 billion, of which $24 billion was for infrastructure, but it never made it to the floor. None of those bills got anywhere, and by mid-December, Democrats in Congress were discussing moving a $500+ billion stimulus bill early in 2021, to be signed by the next President. That had grown to an $850 billion package being discussed by Congressional Democrats just before Christmas 2008, of which Transportation and Infrastructure Committee Democrats wanted 10 percent ($85 billion) for infrastructure.

Once the new Congress got going on January 3, things moved quickly. The chairman of the House Appropriations Committee introduced a $550 billion stimulus package on January 15, to which a $275 billion tax stimulus tax package would be added, for a total of $825 billion. (The T&I infrastructure portion was only $63 billion, not $85 billion.) The bill was marked up in House Appropriations the day after Obama’s inauguration, passed the House on January 28, and was downsized by the Senate and sent to conference on February 10. A conference report version of the bill, scored at $787 billion, was signed by Obama on February 17, 2009.

What will 2021 bring? There is a general consensus in Congress that at least one more round of coronavirus aid and further economic stimulus is necessary, but there is no consensus between House Democrats and Senate Republicans on the scope of the bill, and the outgoing Administration is, for the time being, not participating in talks. House Democrats, at least, can be expected to start drafting and passing additional stimulus legislation fairly early in 2021, with the new President using the bully pulpit to urge Senate action on the bill as well. The expiration of various loan and loan forgiveness programs on December 31, as well as the probable economic consequences of a coming round of lockdowns due to rising COVID rates, will both call for more response funding. And the prospect of vaccine availability in early 2021 will call for more money for vaccine production and distribution.

In 2009, the House wrote its stimulus bill before Barack Obama took office, so the input from Team Obama was informal. (Then, on the last night of House-Senate conference, the White House came bigfooting in with a major list of required changes, which is where the mostly ill-fated high-speed rail money came from.) In 2021, the House may begin stimulus discussions with the Biden team before the inauguration, or it may wait until the new President has control over the Office of Management and Budget and has more resources to develop a bill. Regardless, in 2021, as in 2009, we can expect a stimulus bill to be the first major item of business for Congress and the new Administration.

Carryover appropriations. In December 2008, Congressional Democrats decided to give up on enacting a ten-bill omnibus appropriations bill for the fiscal year that had begun on October 1, 2009 and instead allowed things to be carried over until March 2009. Because of that, the new Obama Administration got to negotiate its own omnibus appropriations bill in its opening months, which spent a good deal more money than either the House or Senate versions of the bills abandoned in 2008. The new bill was passed by the House on February 25, 2009, and was passed by the Senate without amendment on March 10, 2009.

In the current situation, high-level meetings between Congressional leadership staff were held as late as yesterday to attempt to negotiate the parameters of an omnibus appropriations package for fiscal 2021, which could hopefully be enacted before the December 11, 2020 stopgap expiration. But again, we have no public input from the White House as to what kind of appropriations finish will or will not be acceptable, which makes it difficult to determine now if things will be completed this year or not. But if fiscal 2021 appropriations wind up being extended into next year, this is another thing that the new Biden Administration will have to clear up before it gets into its own priorities.

The next year’s budget. One of Barack Obama’s first tasks as President was to work through his Office of Management and Budget to assemble a new budget request on behalf of all federal agencies for the next fiscal year. Every new first-term President since Bill Clinton in 1993 has submitted a new budget a few months after taking office. (Barack Obama submitted a bare-bones outline on February 26, 2009 and then submitted all the fine print on May 11.)

But before the law was changed in 1990, it was the outgoing President who submitted the full budget request before leaving office, and then the new President submitted a package of budget amendments a few months after leaving office. There were news reports last week that the Trump Administration was still going through the motions of making federal departments and agencies go through the motions of submitting a budget request on time in late January, and the text of the current law seems to allow an outgoing Administration to submit a budget “On or after the first Monday in January but not later than the first Monday in February of each year,” so if the outgoing Trump Administration really wants to submit a full budget, there doesn’t seem to be much in current law to stop them.

But in either case, one of Team Biden’s first priorities has to be preparation and submission of either a package of budget amendments or a full budget by late April or early May.

Nominees. In 2009, Barack Obama was aided by what is widely regarded as the smoothest transition in history (George W. Bush made sure of it), so Obama’s team had the full resources of the federal transition office since the day after the 2008 elections, which helped speed up the background checks for potential presidential appointees. Beyond that, Obama had a solid Democratic majority in the Senate (57 seats at the start of the session, then up to 58 by late January, then 59 in April, then up to 60 in July before dipping back to 59 in August). The Democratic chairmen of the Senate committees were, by and large, eager to move Obama’s nominees through committee as quickly as possible. And, in those days, filibustering a new President’s nominees on the Senate floor was extremely rare.

President Biden will face a very different situation in January. He does not have access to federal transition resources (so far), and this could conceivably slow the pace of his decision-making on sub-Cabinet nominees if not Cabinet nominees themselves. The Senate will either be controlled by Republicans, with Republicans holding majorities on all committees and GOP chairmen in charge of scheduling hearings, or else a 50-50 Democratic tie which would require GOP assent to avoid a separate Senate floor vote on discharging each nominee from committee. And, as of 2017, the Senate no longer routinely assents to most Presidential non-judicial nominees – Senate Democrats have routinely held up President Trump’s nominees on the floor by demanding cloture votes, even after the threshold was lowered from 60 votes to a simple majority, which makes the cloture vote nothing more than a delaying tactic.

Here is the pace at which Barack Obama announced, and the Senate Democratic majority confirmed, his major Department of Transportation nominees in 2009. (The initial choice for NHTSA was nominated in April but then withdrawn, which threw that timetable off, and the timetable below shows the second, successful nominee. And it did indeed take the White House eleven months to figure out what to do with MARAD.)

Pace of Senior Obama USDOT Nominees in 2009
Nominated Confirmed
Secretary Ray LaHood 1/20/09 1/22/09
Deputy Secretary John Porcari 4/27/09 5/21/09
Under Secretary for Policy Roy Kienitz 3/16/09 4/29/09
Assistant Sec//Trans. Policy Polly Trottenberg 6/8/09 7/24/09
Assistant Sec./Aviation-Inter. Susan Kurland 7/7/09 8/7/09
Assistant Sec./Budget Chris Bertram 7/9/09 8/7/09
Assistant Sec./Govt. Affairs Dana Gresham 3/10/09 4/29/09
FHWA Administrator Victor Mendez 4/23/09 7/10/09
FTA Administrator Peter Rogoff 4/29/09 5/21/09
FRA Administrator Joe Szabo 3/26/09 4/29/09
NHTSA Administrator David Strickland 12/4/09 12/24/09
FMCSA Administrator Anne Ferro 7/16/09 11/5/09
MARAD Administrator David Matsuda 12/17/09 6/22/10

For the reasons mentioned above, the pace at which President Biden gets senior USDOT nominees installed is very likely to be slower than this, perhaps much slower. This leads to another problem.

Surface transportation reauthorization timetable. The one-year extension of the FAST Act, including all Highway Trust Fund funding as well as the rest of federal surface transportation policy, expires on September 30, 2021 – just as the SAFETEA-LU law was set to expire on September 30, 2009, in Barack Obama’s first  year. State governments and other stakeholder groups insist that Congress try its best to reauthorize highway and transit funding for several years in advance – usually five or six years in advance.

If this were somehow to happen on schedule in 2021, this would require the committees in the House and Senate drafting a bill in the spring, marking it up in committee in early summer, and then getting the bill passed through both the House and Senate by the time the August recess starts. This would allow a House-Senate conference committee to, hopefully, reconcile the bills (which are guaranteed to be very different if the Senate stays Republican) and get a conference agreement through both chambers (again) and to the President’s desk by September 30.

This kind of schedule does not square with the pace of a President getting his initial nominees confirmed and at work at DOT. The Secretary is likely to be “home alone” for several months waiting for other appointments to be made and confirmed, and while Schedule C and other appointees can do some things, there’s a lot they can’t do. If Congress tries to draft a reauthorization bill in time to meet the September 30 deadline, it will have to be done without much input from Biden’s DOT. And, if the effort to get a bill enacted by September 30 (or not long thereafter is successful, President Biden will have to serve his entire first term under a transportation authorization law that was written largely without any detailed input from his Administration.

In 2009, this inherent tension blew up quite spectacularly. The chairman of the House Transportation and Infrastructure Committee was Jim Oberstar (D-MN), who had served on the committee since he day he came to Congress in January 1975 and who had worked for the committee or an earlier chairman as a staffer for a dozen years before that. Oberstar had dreamed of writing his own highway-transit bill for 25 years, and this reauthorization cycle was his opportunity.

Oberstar spent the first months of 2009 preparing an ambitious six-year, $450 billion highway-transit reauthorization bill (which would have been a 57 percent increase over SAFETEA-LU). He scheduled a press conference with transportation beat reporters for 11 a.m., Wednesday, June 17, 2009 to brief them on the outlines of the bill, which he hoped to move through committee later that month.

As I and the other reporters sat in the second-floor hearing room in the Rayburn Building that morning, Oberstar was running late. In fact, he was next door in the chairman’s private office, giving an audience to Transportation Secretary Ray LaHood, who was bearing a message from the President. The White House wanted Oberstar to give up his plans to move a reauthorization bill in 2009 and instead pass an 18-month extension of SAFETEA-LU policies and funding levels, through March 2011, while providing an additional bailout with enough money to keep the Highway Trust Fund solvent until then. This would give the Obama Administration time to write its own bill and submit it to the following Congress, and make certain that transportation was a key issue in the news during Obama’s 2012 reelection campaign.

By all accounts, Oberstar did not take this well. A lot of yelling was involved, and Oberstar then walked next door, noticeably red-faced, and proceeded to explain his bill to reporters and told us that a short-term extension was “unacceptable” and that it would be marked up in committee on schedule. Secretary LaHood followed up with a public blog post entitled “Let’s face reality on the Highway Trust Fund, not rush comprehensive legislation” that made the case for punting for 18 months. Oberstar’s Senate counterpart, Barbara Boxer (D-CA), backed the White House with a statement that “The White House proposal to replenish the Trust Fund until 2011 will keep the recovery and job creation moving forward and give us the necessary time to pass a more comprehensive multi-year transportation authorization bill with stable and reliable funding sources.” And House Speaker Nancy Pelosi (D-CA) refused to allow Oberstar to move his bill out of the T&I Committee (along with the Ways and Means Committee refusing to give Oberstar his needed highway user tax increase).

Team Biden remembers. The press of other business, the almost-certain delay in getting nominees in place, and the understandable reluctance of a new President to have his surface transportation legacy defined before his team is ready all argue for something like this (a long surface transportation extension) happening again. But there is one thing mitigating this – Joe Biden, and the members of his team, remember what happened in 2010-2012.

There is a reason no one talks about all the success that the Obama Administration had getting its surface bill through Congress after the 18-month extension. Republicans captured the House of Representatives in the 2010 midterm elections, losing 62 seats (including Oberstar’s). Obama’s DOT was unable to get Obama’s White House to approve its long-awaited reauthorization bill in 2011, which was never submitted to Congress (officially) and instead had to settle for a two-year MAP-21 law in 2012 and then a five-year FAST Act, drafted by a Republican majority in the House and Senate, in 2015. The chance for a transformative shift in surface transportation priorities was lost.

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