Outlook: A Pre-Christmas Shutdown?

Negotiators are scrambling to strike a spending deal before Friday's deadline, while a bipartisan criminal-justice-reform bill is also on tap.

AP Photo/Manuel Balce Ceneta
Dec. 16, 2018, 8 p.m.

Lawmakers are clearing the decks as they eye the exits, but a partial government shutdown may stand in the way of a speedy getaway home for Christmas and the new year.

For the second time this month, Congress enters the final week before a Friday deadline with no long-term agreement on crucial funding questions. The current continuing resolution funding the Homeland Security Department and other agencies lasts only until Dec. 21. And with the House out until late Wednesday, that leaves precious little time for a vote, let alone negotiations between President Trump and congressional Democrats.

Trump is insisting on $5 billion to build a border wall, and Democrats are holding the line at no more than $1.6 billion for other forms of border security. House Minority Leader Nancy Pelosi and Senate Minority Leader Chuck Schumer have proposed passing most of the spending bills that have already been negotiated and passing a yearlong continuing resolution for DHS. It is not clear where the negotiation will land, or if it can be settled before the deadline, but in the past Democrats have settled for more funding as long as it is spent on more detention beds rather than physical infrastructure or agents.

The Hill ticked off a number of to-do items last week, including bicameral passage of a multibillion-dollar farm bill and overhaul of internal rules governing sexual-harassment allegations and settlements, as well as Senate condemnation of Saudi Arabian Crown Prince Mohammad bin Salman for the murder of columnist Jamal Khashoggi and American involvement in Yemen. Senate Majority Leader Mitch McConnell also hopes to schedule votes on more of Trump’s nominees before the end of the year.

The penultimate big-ticket to-do item is sweeping criminal-justice reform, which is expected to pass the Senate early in the week after a consideration of amendments from opponents like Sens. Tom Cotton and John Kennedy. Soon after, it will make its way back to the House, where a version already passed earlier this year. “Have you heard anything negative about it passing?” Senate Judiciary Chairman Chuck Grassley asked reporters rhetorically Thursday.

Here’s what else is on tap:

DEFENSE AND FOREIGN POLICY

Senators last week delivered a symbolic rebuke to the Trump administration on Saudi Arabia, voting first to end U.S. military support for the war in Yemen and then to blame the Saudi crown prince for the murder of Khashoggi. The resolution calling to withdraw U.S. support for Saudi-backed forces at war in Yemen won’t be coming up for a vote in the House this Congress, but Rep. Ro Khanna has said he’ll reintroduce his measure once Democrats take back the lower chamber next year.

Senate Democrats, meanwhile, have announced that Sens. Tammy Duckworth, Joe Manchin, and Doug Jones will fill the open spots on the Armed Services Committee next year. They’ll replace Sens. Bill Nelson, Claire McCaskill, and Joe Donnelly, who all lost their reelection bids in November.

ENERGY AND ENVIRONMENT

Lawmakers are jockeying this week to tack a lands package that would permanently reauthorize the Land and Water Conservation Fund onto a year-end spending bill—assuming there is one.

But lawmakers and other sources say some sticking points remain in the negotiations on a lands package, which would also include a range of sportsmen-access and parochial-land conveyance bills. Fights over Endangered Species Act authorities, among other things, surfaced last week.

An energy-heavy tax-extenders package is also looking for a ride on the spending vehicle. That package could retroactively extend production tax credits for biomass, geothermal, hydropower, and other renewable-energy development for 2018.

Meanwhile, a coalition of lawmakers representing coal-producing states is now pushing a new tax credit for carbon capture and sequestration. Trump signed a similar tax provision into law as part of the Bipartisan Budget Act of 2018, and many heralded that move as a big step toward limiting coal-linked carbon emissions. The new credit would slightly decrease the amount of carbon captured that is necessary to access another related credit that has been in law since 2005.

HEALTH

A court decision out of Texas Friday evening knocked down the Affordable Care Act after finding it cannot be separated from the individual mandate, which the court deemed unconstitutional.

“In the face of overwhelming textual and Supreme Court clarity, the Court finds it is ‘unthinkable’ and ‘impossible’ that the Congress would have created the ACA’s delicately balanced regulatory scheme without the Individual Mandate,” wrote District Judge Reed O’Connor.

The decision came out the night before Obamacare open enrollment ended. Centers for Medicare and Medicaid Services Administrator Seema Verma tweeted that the decision is still moving through the courts and does not affect the upcoming plan year.

“[T]he exchanges are still open for business and we will continue with open enrollment. There is no impact to current coverage or coverage in a 2019 plan,” she said.

Trump took to Twitter to immediately put the pressure on lawmakers to pass a new health care law. “Now Congress must pass a STRONG law that provides GREAT healthcare and protects pre-existing conditions. Mitch and Nancy, get it done!” he wrote.

Leaders of the House Energy and Commerce Committee and Ways and Means Committee encouraged lawmakers to take this as an opportunity to work on bipartisan health care reform.

“Should the courts ultimately uphold this decision both parties should start over, working together to make health care truly affordable, making sure patients can see local doctors and be treated at local hospitals, and ensuring that patient protections like pre-existing conditions, no lifetime limits, and allowing children to stay on their parents plans until age 26 are preserved,” said Ways and Means Chairman Kevin Brady in a statement.

But Energy and Commerce Democrats immediately denounced the decision. “It is an ideological decision in a case that has no legal merit,” they said in a statement. “Last month’s election results showed how important access to health coverage and protections for pre-existing conditions are for American families. We will take immediate action in the new Congress to intervene in this case and appeal this decision.”

The decision comes as Congress is trying to find a path forward to avoid a government shutdown. The rest of the Department of Health and Human Services may have gotten its appropriations in September, but the Food and Drug Administration’s budget is still in limbo.

The House spending proposal would increase FDA funding by $308 million, while the Senate bill increases the base FDA appropriations by $159 million. Both do not continue the separate agency funding for the opioid crisis.

Additionally, grant funding under the Violence Against Women Act is also on the chopping block should the government shut down this week. This includes programs that provide funding for the direct intervention and related assistance for sexual-assault victims and enhance effective law enforcement and prosecution strategies to combat violent crimes against women.

Outside of the funding fight, the Senate and House committees on Veterans’ Affairs will have a joint hearing on Wednesday on the implementation of the VA Mission Act. The law consolidates VA’s community care programs into one program to reduce complexity and use the VA’s resources more efficiently.

TAXES

House Ways and Means Committee Chairman Kevin Brady has only a few days left at the head of the tax-writing committee, but he’s trying to get one last measure through Congress.

House leadership is whipping a revised tax package Brady introduced last week after the first version failed to get enough support among Republicans. The new bill drops renewing temporary tax breaks known as extenders in favor of again delaying implementation of several taxes related to the Affordable Care Act. The $80 billion bill delays a tax on medical-device manufacturers, the tax on high-cost health plans known as the Cadillac tax, and another fee on health insurers. The measure also provides some technical corrections to last year’s tax bill.

The House doesn’t meet to vote until Wednesday, so leadership will have time to gauge interest among members, though early indications show strong support.

In the Senate, however, there is less interest for Brady’s tax package, though tax writers are considering renewing extenders in a possible end-of-year government-funding bill.

With the Dec. 21 funding deadline looming, the lack of clarity over a broad spending deal—which needs to include funding for the Internal Revenue Service—means it’s unclear whether there’s political bandwidth in the Senate to add many tax-related provisions to any deal. The impasse could push major items on Congress’ tax to-do list into next year, when a Democratic-controlled House will change the political calculus for advancing any legislation.

TECHNOLOGY

Congress will spend the week before Christmas tackling two tech-related hearings bumped off the calendar by the funeral of President George H.W. Bush earlier this month. On Wednesday, the Senate Judiciary Antitrust, Competition Policy, and Consumer Rights Subcommittee will hold a hearing on the differences between the monopoly and antitrust laws in the United States and those in the European Union. In recent years, EU regulators have taken a tougher line than their U.S. counterparts against Google, Facebook, and other tech firms with large market shares, and both Congress and the Federal Trade Commission are mulling whether U.S. antitrust rules should be updated for the digital era.

The House Judiciary Committee will also meet Thursday for an oversight hearing on the Homeland Security Department, where ongoing concerns about the cybersecurity of the U.S. energy and telecommunications grids are likely to feature heavily.

WHITE HOUSE

Trump's schedule this week is largely a holiday mystery, with the president waiting to see if Congress is naughty or nice to him before he can make his usual Yuletide rounds. On Tuesday, Trump will hold a roundtable discussion on the report of the Federal Commission on School Safety. He is scheduled to leave on Friday for his 16-day Christmas vacation in Florida. But a potential government shutdown, caused by his demand for funding for his border wall, could throw those plans out of whack. Also unknown is whether he will hold the end-of-the-year press conference that is traditional for most presidents.

Mackenzie Weinger, Brian Dabbs, Erin Durkin, Casey Wooten, Brendan Bordelon and George E. Condon Jr. contributed to this article.
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