6.9.2021 Washington Update

Infrastructure – Senate Majority Leader Chuck Schumer (D-NY) has set an ambitious goal of moving a major infrastructure bill through the Senate by July.  To meet that timeline, the next several weeks could see the development of a budget resolution with instructions to committees to begin drafting the reconciliation package.

Earlier this year, it took just 39 days from the time the budget resolution text was announced until the “American Rescue Plan Act” was signed into law.  However, that was a short period of Democratic unity,  which does not exist today.  Don’t be surprised if members begin calling for changes to the summer recess schedule, particularly to accommodate a House-Senate conference that could set up final passage in the fall.  It would be politically awkward for Congressional leadership to start and then pause the reconciliation process for August recess.

President Biden and Sen. Shelly Moore Capito (R-WV) ended their infrastructure talks.  Attention now turns to the bipartisan “gang” of senators that includes Sen. Joe Manchin (D-WV), Sen. Bill Cassidy (R-LA), Sen. Kyrsten Sinema (D-AZ), and Sen. Mitt Romney (R-UT).  Rumors abound about what the group is considering, including paying for new infrastructure spending with a carbon tax.

Notwithstanding these and similar House efforts (see the talks spurred by the House “Problem Solvers” Caucus), we still think it’s likely that all the sound and fury over infrastructure eventually gets channeled into reconciliation.  But note that this will be no easy exercise for Democrats, given the extremely tight margins in both chambers.

Following the unanimous markup of the “Surface Transportation Reauthorization Act” (STRA) in the Senate Environment and Public Works Committee, the Senate Finance, Senate Commerce, and Senate Banking Committees will move their respective pieces of highway reauthorization legislation.  Senate Banking Committee Chairman Sherrod Brown (D-OH) is conferring with Ranking Member Pat Toomey (R-PA) on the transit piece of the legislation, however many issues need to be resolved, including topline spending levels.  The Senate Commerce Committee may hold a markup on their provisions as early as next week.

The key to any package advancing to the Senate floor is the Senate Finance Committee’s agreement on “pay-fors,” which the committee discussed during their highway bill hearing on May 18.  It’s important to note that options here are limited, as the 2015 FAST Act, in rather slapdash fashion, exhausted the list of one-time pay-fors, such as raiding various Federal Reserve funds for private banks.  Given bipartisan opposition to raising the gas tax, and Republicans’ outright rejection of tax increases, the committee will have to get creative in finding common ground.

The House Transportation and Infrastructure Committee today will mark up the “INVEST in America Act.”  Unlike the Senate, this is expected to be a partisan exercise.  The House bill also includes earmarks, which will complicate any future discussions in the Senate, which refused to include them in their package.  This fact will no doubt complicate a House-Senate conference, assuming they even get to that point before the highway program expires on October 1.

Filibuster Reform – Following a month of bipartisan infrastructure talks and processing the U.S. Innovation and Competition Act (USICA), Schumer is setting up a legislative schedule this work period that will surely test the political limits within the Democratic caucus surrounding the filibuster rule.

Senate Democrats started that process this week by attempting to advance H.R. 7, the Paycheck Fairness Act, which Republicans blocked on a 49-50 vote. Schumer may also force votes on gun safety and equality legislation later this work period and could force another vote on the January 6th Commission.

This will all lead up to the week of June 21, when the Senate will consider S.1, the “For the People Act.”  Senate Republicans will unanimously oppose the bill, and Sen. Manchin will join them.  Assuming this happens, debate about ending or revising the filibuster will intensify (watch in particular for the reform proposal that preserves the filibuster for most forms of legislation, but allows a special carve-out for voting and election reform bills). Focus on Senators Manchin and Sinema has thus far dominated the filibuster drama, but it’s possible there are several other Democrats who have reservations about filibuster reform.