Capitol Connect
CM Services HomeCapitol Connect Archives
January 2016

Congress faces a number of divisive policy battles as election-year politics begin to dominate key decisions in the months ahead...

With both parties looking for ways to improve their chances of winning the White House, Republican leaders must also be careful to protect their vulnerable 54-seat majority in the Senate.  The election map this year favors Democrats, who have only 10 seats up for election—eight of them considered “safe”—compared to 34 GOP seats, only 14 of which are currently considered “safe.”

On top of that, four sitting senators—three Republicans and one Democrat—are seeking their party’s presidential nomination.

That math means that Senate Leader Mitch McConnell, R-KY, will do everything possible to avoid forcing votes which might put vulnerable Republican senators at risk.  And it greatly reduces the chances for the type of major political compromises that marked the end of 2015.

In the House, where the GOP majority is safer, new House Speaker Paul Ryan, R-WI, is determined to unify warring factions of the party behind a platform that the eventual Republican presidential candidate can ride to the White House.  Problem is that even if Ryan is successful in the House, there’s no assurance that whoever wins the GOP nomination will like that agenda.
Here’s a look at some of the major issues facing lawmakers:

Spending:  The two-year budget deal passed by Congress in October set the spending limits for the fiscal year, which will make it easier to restore the regular practice of passing appropriations bills for each major area of government.  That’s what leaders in both the House and Senate have pledged to do, but it remains to be seen whether they can avoid so-called “poison pill” policy riders that can bring that process to a grinding halt.

Obamacare:  Look for Republicans to continue their campaign to repeal the Affordable Care Act even as they continue to lack the votes needed to override President Obama’s vetoes of those efforts.  Buoyed by delays in the so-called Cadillac tax on high-end health insurance plans and the controversial tax on medical devices, GOP lawmakers will continue to chip away at key provisions of Obamacare.

Tax Reform:  Expect lots of talk about far-reaching tax reform—both in the presidential campaigns and on Capitol Hill. But pressure for a comprehensive tax measure was greatly reduced by last month’s passage of a bill to extend or make permanent a package of more than 60 popular business and personal tax provisions, including permanent extensions of the research and development tax credit and Section 179 expensing.  Election-year politics will stifle the possibility of further tax legislation, with Republicans insisting that any changes be revenue-neutral or produce more revenue.

Refugees: The Senate will once again battle over refugees, with Republicans trying to block President Obama’s plan to resettle up to 10,000 from Syrian. The House has passed a bill to restrict Syrian and Iraqi refugees.  Democrats hope to block a refugee bill from getting the 60 votes need to moved forward in the Senate.

Gun control:  Senate Democrats will try to force votes on several gun control proposals, particularly proposals to expand background checks and tightening the rules for gun-show sales.  But any gun-control measure is almost certain to be defeated in the Senate, where there’s bi-partisan opposition to any tightening of gun laws.
Meanwhile, President Obama’s executive order to better enforce existing regulations on gun sales, while relatively narrow in focus, will nonetheless become fodder for strong political rhetoric from all sides on this controversial issue.

Trade:  Prospects are still dim for congressional approval of the Trans-Pacific Partnership (TPP) in the coming year. There’s opposition to the free trade agreement among twelve Pacific Rim countries, and that makes it a very difficult issue in this election year. TPP will be helped by a new push from business organizations, including the National Association of Manufacturers and the U.S. Chamber of Commerce.  But majority leader McConnell has said it won’t come up in the Senate until next year.

ISIS:  President Obama has long sought an Authorization for the Use of Military Force (AUMF) against ISIS.  But, while there’s bipartisan support for such a move, Republicans have also argued that the president already has such authority.  And, they’d rather leave things as they are rather than risk Democrats trying to place restrictions on the president’s use of force.

Criminal justice reform:  A bipartisan effort to modify federal sentencing guidelines and to eliminate mandatory sentencing rules for non-violent crimes faces tough sledding in Congress despite support from many law enforcement groups and prison administrators.  That’s because few political candidates wanted to be branded “soft on crime” in an election year—and this is an election year for the entire House and much of the Senate.  Politicians remember the specter of Willie Horton, the Massachusetts felon whose furlough from prison led to a violent crime spree and big problems for former Massachusetts governor and, then, presidential candidate Michael Dukakis.  This is another issue which may have to wait until next year.

Internet taxes:  A popular proposal to permanently ban taxes on e-mail and internet access is tied up in a larger debate over a proposal to allow the states to collect sales taxes on internet commerce.  It’s complicated, but the bottom line is that a small group of senators who want to permit taxes on e-mail and access have so far been able to block a vote on permitting states to collect sales taxes from out-of-state online merchants.  Stay tuned.

New toxic chemical law will pass early this year...

With Senate passage last month of a long-stalled measure to update the 1976 Toxic Substances Control Act (TSCA), the path is finally clear to enact a new chemical regulation law after more than a decade of trying.

Senate passage was unanimous once an unrelated procedural roadblock was cleared away. The Senate bill differs in some significant respects from a measure passed by the House last June.  But key lawmakers from both chambers are already working on reconciling the two bills.

Some key differences between the House and Senate bills involve the basic safety standards that form the basis for regulatory actions, the speed with which the Environmental Protection Agency (EPA) must act on reviews of new and existing chemicals, prioritization of EPA reviews, and the extent to which federal regulation of chemicals may preempt state rules.

Some environmental groups are opposed to both versions and are pressing lawmakers to strengthen oversight of new and existing chemicals.  But, industry groups, joined by a coalition of consumer and some environmental groups, are urging prompt passage of a compromise bill.

Employees can't be barred from making videos or recordings at work…

The National Labor Relations Board (NLRB) has ruled that employers can’t ban workers from taking photos, shooting videos or recording conversations in the workplace.

In a 2-1 decision issued on Christmas eve, the NLRB said such a policy violated the National Labor Relations Act (NLRA) because it could prevent workers from documenting unsafe conditions or proving discriminatory statements by managers.

The case involved Whole Foods Market, which required a supervisor’s permission before employees could make recordings or take pictures.  Workers at the upscale grocery chain have been trying to unionize since 2014.

"Smartphone pics and videos in this day and age are particularly 'essential' to proving an employee's rights have been violated," said the NLRB in its decision.

An NLRB administrative law judge had earlier found the Whole Foods policies to be lawful.  But the Board decision reversed that ruling, arguing that photos and recordings must be permitted “if employees are acting in concert for their mutual aid and protection and no overriding employer interest exists.”

The Board decision said “protected conduct may include...recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.”

OSHA can seek to abate violations even where it hasn't inspected a facility…

The U.S. Occupational Safety and Health Administration (OSHA) can require an employer to abate safety hazards at worksites it has not inspected by relying upon “information and belief”.

That is the essence of a ruling by an OSHA administrative law judge, who ordered a Massachusetts shipping company to make changes at all of its 170 shipping terminals after inspecting and finding a violation at only one facility.

Experts say that such “enterprise-wide” abatements often result from a corporate wide settlement that follows multiple OSHA inspections and citations for the same items.  But in this case, there is no such history and the “enterprise-wide” plan was imposed by OSHA after one inspection of one facility.

The company involved is expected to appeal the law judge’s opinion.

GAO says EPA conducted illegal social media lobbying campaign...

The Environmental Protection Agency (EPA) violated federal law by using “covert propaganda” and illegal grassroots lobbying to encourage voters to support its Waters of the United States Rule.

That was the finding of the non-partisan Government Accountability Office (GAO), which determined that the EPA used web-based social media to generate public comments supporting the clean water rule.  While federal agencies are permitted to promote their own policies on the internet, they are barred from “covert” social media activities.  In this case, EPA failed to disclose its role in sponsoring the campaign.

“EPA constructed a message to be shared by others that refers to EPA in the third person and advocates support of the agency’s efforts,” the GAO report concluded.  “In stating ‘clean water is important to me’ and ‘I support EPA’s efforts,’ EPA deliberately disassociates itself as the writer, when the message was in fact written, and its posting solicited, by EPA.”

The House Energy and Commerce Committee is currently investigating whether EPA has also engaged in social media campaigns to lobby Congress on behalf of EPA rules to reduce power plant emissions.

Obama has until mid-May to finalize thousands of new regulations…

It’s President Obama’s last year in office—actually his term runs until Jan. 20, 2017, so he’s got a bit over a year left.  This is his last chance to push through thousands of federal regulations that are either in the works or about to be proposed by various federal agencies.

But, he doesn’t really have that much time.  In fact, any controversial rule that is not now or about to be in the pipeline isn’t likely to become final.  In practical terms, the administration actually only has until mid-May to finalize any new regulations. Here’s why.

Anything controversial that Obama proposes—and that includes just about anything he wants to do based on the strong partisan views of the Republican-led Congress—is subject to a “veto” under the Congressional Review Act, a 19-year-old law that gives Congress 60 legislative days to overrule any regulation.  And, that process isn’t subject to the usual parliamentary thicket that can tie up Congress for months without being able to act.  It calls for a fast and simple up or down vote in both the House and Senate.

So unless a regulation is final by mid-May, the Republican Congress can reject it.  Why mid-May?  Well, the legislation provides 60 “legislative days”—and there are usually only three or fewer of those each week and none in weeks when Congress is in recess.  So 60 legislative days takes the deadline for congressional action well into late January, after Obama is no longer in the White House.

So if the Republican candidate wins the presidency in November, a congressional veto of any regulation not finalized early enough would likely be sustained by the new president.  Of course, a victory by Hillary Clinton, the likely Democratic candidate, would be just as likely to result in her vetoing the congressional action.