With Democrats facing economic and electoral headwinds, the work period that starts this week is in danger of digressing into a political street fight as the midterm elections loom.
The prospects for major legislative items are dim, although the to-do list is extensive: tax cuts that expire at the end of the year; funding for the government; a defense authorization bill; a reauthorization of the FAA; a food safety bill; and longer shots like bills to address climate change, immigration and telecommunications.
Congress will be hard pressed to pass any appropriations bills this month.
The deciding factor for action is whether Senate Republicans will cooperate and not use the filibuster -- which requires 60 votes to break -- to slow consideration of the FY11 spending measures, according to a Democratic Senate leadership aide.
"We could consider a couple of appropriations bills this upcoming work period if we have Republican cooperation to do so," the aide said.
The House has passed the FY11 Transportation-HUD Appropriations bill and the FY11 Military Construction-Veterans Affairs Appropriations bill in July and the Senate could try to take up one of the measures and send it to the president before the next fiscal year begins Oct. 1.
But with Congress focused on helping the flagging economy and extending expiring tax cuts, action on any of the spending bills is not likely to come until after voters cast their ballots in November, House and Senate Democratic and Republican aides agree.
"My impression is that [Senate Majority Leader Reid] does not think he's going to have much floor time for appropriations bills, so I think they are pretty much dead in the water," said Scott Lilly, a former Democratic clerk and House Appropriations staff director who is a senior fellow at the Center for American Progress.
Congress in the next two-and-a-half weeks is expected to pass a continuing resolution to maintain funding for federal programs beyond the end of the fiscal year until the 12 FY11 spending bills are enacted.
"We do expect to consider a CR before the end of the work period," the Senate Democratic aide said.
A House Democratic leadership aide said, "We expect to do the usual kind of short-term CR while we continue to work through the appropriations process for the remainder of the year."
Appropriators are now working on the CR, which could run until the middle of next month or after Thanksgiving. A second CR may also be needed to buy time as lawmakers work to clear the spending package before the end of the year.
While the timing and content of the CR are still being decided, OMB has given to Democratic appropriators a list of expiring programs that it wants extended and funded in the CR.
"In the event that authorizing legislation is not enacted in a timely manner, these items will allow either for the continuation of programs that will be funded in the CR or for other legislative fixes," the OMB document said.
Among the items are provisions associated with USDA child nutrition programs and the Homeland Security Department's national flood insurance program.
OMB said it wants the programs authorized through Dec. 24. "A broader discussion will be required if a CR remains in effect beyond this timeframe," it said.
After passing the CR, Democrats are expected to assemble an omnibus package, which would include all the outstanding spending bills.
Lawmakers typically say they don't like finishing the appropriations process with omnibus packages, which are large and attract all sorts of questionable spending provisions, but Democratic leaders see no other alternative given the late date and Republican opposition.
"I don't think anybody likes it or thinks it's the right way to go," Lilly said. "The real culprits here are the senators that have chosen to filibuster these bills, withhold unanimous consent and offer extraneous amendments that tie the Senate up and keep it from getting other work done."
Lilly pointed to Sens. Tom Coburn, R-Okla., and Jim DeMint, R-S.C., who have spent much of their Senate careers fighting earmarks and pointing out what they see as wasteful programs and spending.
Lilly said he thinks that partisan gridlock in the Senate has put pressure on appropriators to fund useful programs that have expired because authorizing committees have had such difficulty getting their legislation to the floor.
"Appropriations is the last leg of the [governing] process that is still standing and it's wobbling right now," Lilly said. "Last year, over half of the money for non-defense discretionary spending was appropriated for programs that are no longer authorized because the authorization committees have been unable to get to the floor for years now."
If Republicans win the majority in either chamber in the November election then chances for finishing the FY11 appropriations process this year will diminish significantly. GOP lawmakers would prefer to wait until the next Congress begins in January to put their stamp on the spending bills.
Meanwhile, the Senate Defense Appropriations Subcommittee is expected to mark up the FY11 bill Tuesday with a full committee markup likely Thursday, according to sources.
Action on the measure will leave only the FY11 Interior and Legislative Branch Appropriations bills for the panel to clear. By comparison, the House Appropriations Committee has passed only the Military Construction spending bill and the Transportation-HUD bill.
Passing the small-business lending bill will be one of the Senate's first priorities in its return this week, after Sen. George Voinovich, R-Ohio, announced he would support the bill, giving the Democrats 60 votes.
Majority Leader Hoyer has said the House will take up the bill after the Senate passes it.
Voinovich and Sen. George LeMieux, R-Fla., withheld their votes on a cloture motion before the recess over Senate Majority Leader Reid's refusal to allow votes on amendments. But a deal was struck leading to votes on an amendment from Sen. Mike Johanns, R-Neb., dealing with a section of the healthcare reform law, as well as an alternative from Sen. Bill Nelson, D-Fla.
LeMieux has said he would support the bill if amendment votes were allowed. Small Business ranking member Olympia Snowe, who had previously supported the bill, said she could not support the inclusion of a $30 billion lending fund, which she said too closely resembles the Troubled Asset Relief Program.
The Johanns amendment would repeal a section of the healthcare law requiring businesses to use 1099 tax forms to report payments of more than $600 to corporations and payments for goods and property.
Republicans have used opposition to the provision from small businesses and the National Federation of Independent Business as part of their attacks on the Democrats' handling of the economy.
Senate Agriculture Chairwoman Blanche Lincoln is the only Democrat to declare her support for the Johanns amendment, showing chances of reaching 60 votes are slim. The Nelson amendment would exempt businesses with fewer than 25 employees and raises the reporting threshold to $5,000. It is paid for by repealing a tax break for the five largest oil companies.
Johanns called the pay-for "another tax hike that could increase prices at the pump."
Reid has said he wants to move on extending the 2001 and 2003 tax cuts for the middle class before the Senate adjourns for October. But it remains to be seen how, with a growing chorus calling for all rates to be extended.
House Speaker Pelosi and Ways and Means Chairman Sander Levin have repeatedly said they will let the Senate act first on the tax cuts, which would prevent House Democrats from going out on a limb before the election in case the Senate does not act.
President Obama remained steadfast in a Friday press conference in his proposal to allow the tax cuts for individuals making more than $200,000 and families making more than $250,000 a year to expire.
Obama accused the GOP of "holding hostage" the extension of the rates for the middle class to extend all the rates, adding that extending the top brackets for 10 years would add an additional $700 billion to the deficit.
Obama and liberals' insistence that the top brackets be allowed to expire could push the debate past the election. Democratic Sens. Evan Bayh of Indiana and Kent Conrad of North Dakota have said all the rates should at least be extended temporarily so the economic recovery is not imperiled, and Republican leaders have said the tax cuts should not be paid for by raising other taxes.
Obama's former OMB director, Peter Orszag, said last week all rates should be extended for two years and then expire to help close the budget deficit.
Senate Finance Chairman Max Baucus has continued to be coy about how the legislation will look. He has held informal, bipartisan talks with committee members but has said little about how the talks have progressed. He has also left open the possibility of tax cuts legislation including other tax issues such as the long-stalled extenders bill and an estate tax fix.
With little time left on the calendar, that might present the best option for tackling all the tax issues before they expire at the end of the year.
A spokeswoman for Reid said last week the Senate could work on the $30 billion extenders bill after the small business bill is completed, but that would require cooperation from the GOP.
Although the House passed its version of the FY11 defense authorization bill over three months ago, the outlook for Senate action on the measure remains murky as leaders weigh other priorities and determine if there will be enough time to approve it before the election break.
Debate on the bill, which sets Pentagon policy and prescribes military spending levels, usually takes more than a week of floor time. Complicating efforts to schedule that debate is bill language strongly opposed by Republicans that would repeal the 1993 "don't ask, don't tell" law banning openly gay individuals from serving in the military.
"Defense authorization is on a list of possible items we could consider in the upcoming work period," a spokeswoman for Senate Majority Leader Reid said when asked about the schedule last week. "We have many important issues to consider, and we will need Republican support to do so."
Her answer was far less definitive than the one her boss gave just before the start of the summer recess in early August. "We have to work on the defense authorization bill," Reid said then. "We're trying to see a path forward on that so debate can start on that as soon as we get back in September."
Gaining GOP backing for the defense bill is proving difficult because of the proposed repeal of the ban although senators for and against the repeal may feel compelled to deal with the issue because of Thursday's federal court ruling that the 17-year-old law is unconstitutional.
U.S. District Court Judge Virginia Phillips, presiding over a case filed in 2004 by the Log Cabin Republicans, a gay rights advocacy group, said the law violates the First and Fifth Amendment rights of gays and lesbians and announced that she plans to issue an order to stop enforcement of the policy.
The Justice Department can appeal the ruling, but officials have not announced whether they will do so.
Gay rights advocates immediately seized on the ruling and urged the Senate to pass the defense bill.
"With House passage already secured, the Senate can and should vote in the next few weeks to repeal 'don't ask, don't tell' and allow every qualified man and woman the chance to serve with honor," the Human Rights Campaign said in a statement.
The defense bill would not lift the ban until after the Pentagon completes its review on how to implement the repeal and certifies that a change in policy will not harm military readiness or hurt unit cohesion. The House-passed version includes an identical provision, using language crafted by Democratic lawmakers and the White House.
But Senate Republicans, led by Armed Services ranking member John McCain, have repeatedly argued that Congress should not take any steps to repeal the law until the Pentagon wraps up its in-depth review.
Republicans also oppose a provision in the bill authorizing military hospitals to perform elective abortions if the procedure is paid for by private funds. Current law allows abortions at military hospitals only to save the life of the mother or in instances of rape or incest.
"It's a terrible piece of legislation ramrodded through," McCain said on the floor Aug. 6. He then accused Armed Services Chairman Carl Levin of "moving forward with a social agenda on a national security bill."
Because of his concerns, McCain, who voted against the bill during the committee's markup in May, vigorously objected to a unanimous consent request to bring the bill up after the August recess. A McCain spokeswoman said last week that the senator's position on the bill remains the same.
Levin has said he is confident that he has enough Republican votes to overcome a filibuster, perhaps mindful that Republican Sens. Susan Collins of Maine and Scott Brown of Massachusetts voted for the bill in committee.
"It's the matter of time; it's not the matter of votes," Levin said last month. "It's a matter of how much time it would take. That's what the leader has to grapple with."
Congress has passed a defense authorization bill every year since at least 1961. But there have been years when the measure's fate looked dire until wrangling by Senate and committee leaders turned it around.
On Thursday, Pentagon spokesman Geoff Morrell said defense officials are already discussing with the Armed Services and Appropriations committees how to minimize the effects on the department if neither defense bill is approved before the start of the fiscal year on Oct. 1.
The Pentagon is "not unfamiliar with this territory," Morrell said. He also acknowledged that passage of the spending bill is a bigger priority. "The authorization bill is of secondary concern, but it clearly provides us with authorities that we need, and so ... without it we are somewhat hamstrung," Morrell said.
Climate Change And Energy
Senate Majority Leader Reid will not consider energy or climate legislation before November. And if the midterm elections favor Republicans the way they're expected to, the GOP will probably not cooperate with Democrats on much of anything during the lame-duck session, especially on a topic that faces challenges on partisan and geographic grounds.
Without energy legislation headed to the floor anytime soon, utility industry lobbyists are eyeing other bills -- such as the Interior Department and EPA FY11 spending bill -- that could be legislative vehicles to move hot-button energy measures, namely ones that strip EPA's power to regulate greenhouse gas emissions. The Appropriations Committee has nothing scheduled to mark up that bill. Nonetheless, environmentalists have redirected their lobbying strategy from pushing a climate bill to defending EPA's ability to regulate carbon emissions.
Before Reid pulled the plug on the climate bill this summer, he had promised floor time to an amendment sponsored by Sen. John (Jay) Rockefeller, D-W.Va., that delays EPA regulation of carbon emissions for two years. Rockefeller's staff said he still expects floor time, and updates will be available this week.
Aside from the congressional efforts to override EPA, a host of other energy and environment issues have piled up, including oil spill legislation, measures to shift the transportation sector away from oil-based fuel and a renewable electricity standard.
Reid's office says he hopes to take up in the lame-duck session either all or a portion of an oil spill and energy bill. But he will only be able to do so if "Republicans cooperate," according to a spokeswoman.
That bill includes controversial language authored by Sen. Robert Menendez, D-N.J., that removes the liability cap oil companies face in the wake of an oil spill. It also includes Home Star, a measure that would give homeowners rebates to make their homes more energy efficient, a bill incentivizing the use of natural gas in vehicles that is backed by oil tycoon T. Boone Pickens, and an electric vehicle bill sponsored by retiring Sen. Byron Dorgan, D-N.D.
The staffs of Democratic Sens. Mary Landrieu of Louisiana and Mark Begich of Alaska met over the recess to try to find common ground on an alternative to what Menendez has authored on the oil spill liability issue. Landrieu's and Begich's concern along with all Republicans is that unlimited liability would push small and independent producers out of the Gulf of Mexico. The staffs anticipate picking up the speed of those negotiations when Congress resumes, a spokesman for Begich said.
Neither Begich's nor Landrieu's office would confirm that they have garnered support from Republicans, which is essential for Reid's consideration. Energy and Natural Resources ranking member Lisa Murkowski has expressed initial support for both proposals. But after losing her primary battle to Joe Miller, her support will not help next session. Indeed, oil industry lobbyists are pushing for the liability issue to be tabled until next year when more of the investigations into what caused this year's well explosion in the Gulf are complete.
Speaking at a clean energy summit last week and on a recent conference call, Reid threw a bone to clean-energy lobbyists who are pushing hard for a renewable electricity standard. Advocacy groups such as the American Wind Energy Association have maintained they have the necessary 60 votes for passage. The official word from Reid's office is that there is still a chance for a renewable electricity standard if there are the votes for it. But Senate aides and lobbyists on both sides of the aisle dismiss the chances the Senate will consider any energy legislation before next year, let alone something as complicated and controversial as a RES.
The House is again left out on the plank after passing its oil spill bill 209-193 before adjourning for the August recess. Its members also took an even harder vote passing a cap-and-trade bill last summer, which many observers have said is coming back to haunt vulnerable Democrats up for re-election this cycle given that the Senate never acted.
The nation's largest egg recall for salmonella contamination in August highlighted the FDA's limited ability to investigate and remove tainted products from the nation's food supply. It may also provide the impetus for the Senate to consider food safety legislation that has been on a list of possible bills for floor action for months.
"There's a renewed sense of urgency to give the FDA the tools they need," after the egg recall, said Grocery Manufacturers Association's Scott Faber. "It's hard to identify a bill like the food safety legislation that has support of both Democrats and Republicans, interest groups and the industry. It's hard to find anyone who opposes [it]."
Senate Health, Education, Labor and Pensions Chairman Tom Harkin, the bill's sponsor, released a manager's amendment just before the egg recall with bipartisan support from ranking member Mike Enzi, and Sens. Dick Durbin, D-Ill.; Judd Gregg, R-N.H.; Christopher Dodd, D-Conn.; and Richard Burr, R-N.C.
But there are a few controversial Democratic amendments to contend with, most notably proposals from Sen. Dianne Feinstein of California to ban the use of bisphenol-A, a common plastic additive known as BPA, in baby products, and Sen. Jon Tester of Montana to exempt from new regulations food producers who generate less than $500,000 in sales a year or sell food directly in a farmer's market.
Faber said GMA opposed the modified Feinstein BPA amendment, which originally sought to ban BPA from nearly all food and beverage products, and said he was confident the Senate would not adopt the scaled-back version.
"We will oppose food safety legislation that bans BPA in filled food and beverage containers, including baby formula," said Faber. "But we're confident that most senators believe FDA should decide the fate of BPA."
The House passed food safety legislation in July 2009, that would give HHS Secretary Sebelius the authority to determine if BPA is safe for use in food and beverage containers.
Despite the bill's seemingly easy path to passage, the Senate has a short and busy work period before the midterm elections and the chamber's major focus is likely to be on improving the economy.
"This is an important issue and with Republican cooperation remains a possibility for consideration this upcoming work period," said a spokesperson for Majority Leader Reid.
Harkin is still hopeful the legislation will be considered before the next recess.
"It remains my hope that when the Senate reconvenes, we will consider and pass that bill," Harkin said. "Whether you're a working mom grocery shopping for your kid's lunch or a producer reading the headlines and concerned about costs to your industry, gaps in our nation's current food safety system are taking a toll on our country."
The House Energy and Commerce Committee made its first order of business upon returning from the summer recess a hearing on the egg recall. Food safety advocates hope the continuing attention to contaminated eggs will keep pressure on the Senate to pass Harkin's bill.
The House panel's examination also could highlight how the recall may have been different if food safety legislation had been signed into law, especially with provisions giving the FDA mandatory recall authority on tainted food products and improving the agency's ability to trace product origins.
Even the most ardent of immigrant advocates acknowledge there is almost no chance Congress will act on any legislation to assist the illegal population this year, but congressional aides expect lawmakers to at least talk about the issue over the next several weeks.
Senate Majority Whip Durbin is likely to keep the pressure on for Senate action on a bill that allows children of illegal immigrants who go to college to earn citizenship. Other lawmakers involved in the issue like Sens. Charles Schumer, D-N.Y., and Lindsey Graham, R-S.C., could weigh in.
The administration's battle with Arizona Republican Gov. Jan Brewer over that state's tough enforcement law has brought more attention to immigration than may be comfortable for some lawmakers as voters prepare to go to the polls.
On Thursday, the issue got further attention when a federal appeals court struck down a law from Hazleton, Pa., that punished employers and landlords from employing or "harboring" illegal aliens. The case was four years in the making, and the decision was hailed as a victory by civil rights and immigrant advocates.
The Senate is expected to take the lead on any immigration legislation in the wake of the increased border security funds that passed both houses in August. House members like Rep. Luis Gutierrez, D-Ill., are hoping to keep the issue alive by lobbying the Senate.
"I think we need to get a real bill in the Senate. We need to get the White House to support real legislation," Gutierrez said in a conference call to activists Thursday. "Drafts are good. Outlines are good. Legislation is better," he said, referring to discussions among Senate Democrats for a broader immigration bill.
Still, leaders in the immigrant and faith-based communities are tamping down hopes from their constituents that any real progress will be achieved this year. "Prospects for comprehensive immigration reform for this year look very difficult, impossible," said Juan Hernandez, a conservative political strategist and immigration advocate. "Many of us believe in miracles."
Telecommunications And Technology
It's all but certain that technology and telecommunications legislation will not clear Congress before the midterm elections.
"There is a lot of interest in several issues like spectrum and USF [Universal Service Fund] reform, but the relative priority of telecom is still way below areas like taxes and war spending that will affect the November elections," said Paul Gallant, an industry analyst with Concept Capital. "It's hard to see anything getting finished during this congressional work period."
The Universal Service Fund, which subsidizes telecommunication costs in rural and low-income areas, will receive some of lawmakers' attention, however. House Energy and Commerce Communications Subcommittee Chairman Rick Boucher, D-Va., is holding a hearing Thursday on the USF reform bill he introduced with Rep. Lee Terry, R-Neb., shortly before recess, but a markup remains uncertain.
Legislation addressing network neutrality, the most controversial and widely known issue in the telecom world, has yet to be introduced. This week 15 telecom chief executives plan to meet with FCC Chairman Julius Genachowski and members of Congress to advance the debate over whether the FCC should enforce rules ensuring the openness of the Internet.
But such meetings between the industry and public officials are nothing new and have yet to produce consensus on the thorniest issues regarding Internet regulation.
Last month's move by the FCC to collect more comments for its proceeding on whether to exempt wireless broadband and specialized services from open Internet rules and Genachowski's decision not to put on the commission's Sept. 23 meeting agenda his proposed reclassification of broadband as a public utility will likely relieve the pressure for Congress to intervene with legislation.
Reclassification is known within the industry as the "nuclear option" and any FCC moves to obtain greater regulatory authority over broadband would surely spur lawmakers to action.
Legislation pending in the areas of privacy and communications spectrum has little chance of advancing in coming weeks, according to industry analysts and other sources. NetChoice, a coalition of Internet firms including AOL, eBay and industry groups such as the Internet Alliance and the Electronic Retailing Association, put draft privacy bills authored by members of the House on their most recent "iAwful" list, a compilation of the worst Internet laws in America.
Still, legislation on other fronts could affect the telecom and tech industry. The small business bill pending in the Senate, for example, could pass this week now that Sen. George Voinovich, R-Ohio, has announced his support for ending the filibuster. The bill includes a tax write-off in the form of a bonus depreciation that would benefit the tech sector.
A revamped research and development tax credit, proposed by President Obama as a key feature of his economic package, could also see action, which the technology industry would welcome.
And legislation that would require new technologies such as the Internet and smart phones to be accessible to the vision- and hearing-impaired could also advance. The House and Senate have passed competing versions and still need to negotiate a final bill.
The current authorization for the FAA expires on Sept. 30, so it is likely lawmakers will need to at least extend the funding a bit longer to avoid disruptions within the agency. The chances of any substantive or long-term funding provisions becoming law this year are nil.
When senators brokered an FAA extension deal in July, it was news that the measure included stepped-up aviation safety provisions. Pressure has intensified to modernize the airline system since the crash of Continental Flight 3407 in February.
Families of the crash victims have lobbied aggressively for stiffer safety regulations. The FAA Friday answered their calls by proposing new rules on pilot fatigue that would guarantee pilots nine hours of rest time between flights separate from commute time.
The standoff between labor groups and Federal Express over how to treat FedEx truck drivers is one of the trickier issues lawmakers must overcome in a broader FAA bill. With just a few weeks to wrap up business, lawmakers will avoid that kind of controversy.
A House vote on the volatile issue of government funding for embryonic stem cell research might be put off until after the midterm election -- thanks to a federal court's decision last week to temporarily lift a judge's ban on that funding.
"I think the Court of Appeals action [Thursday] means we do not have to take action until later," a House Democratic aide said Friday.
Even so, Rep. Diana DeGette, D-Colo., plans to continue pushing for a vote on the bill in upcoming weeks, her spokeswoman said.
DeGette is lead House sponsor of the legislation that would essentially codify and build upon President Obama's executive order that overturned former President George W. Bush's restrictions on federal funding for embryonic stem cell research.
Juliet Johnson, DeGette's communications director, said that, if anything, the fluidity of the court action underscores the uncertainty researchers and others face on the issue, and DeGette believes it is important "to get this bill passed" this fall.
Johnson also disputed the notion that members might be reluctant to vote on the measure, saying her boss' talks with House freshmen and other members on both sides of the aisle has found significant support and even momentum for the bill.
In issuing his injunction last month, a federal judge found that Obama's order transgressed the Dickey-Wicker law Congress has approved annually since 1996, which prohibits taxpayer funding of research that destroys human embryos.
The Obama administration appealed the decision. The appeals court temporarily lifted the ban on Thursday while it considers the merits of the government's appeal. How long that will take is uncertain.