How US Election Will Impact ICPI Advocacy Issues

Given the country’s current election situation and the unprecedented transition dynamics, this report will be comprised mostly of prognostication, but based upon the public statements of key figures in DC as well as the political, parliamentary and historical currents that tend to guide action inside the Beltway.

November 20, 2020
Randall Pence, Capitol Advocates

Vice-President Biden appears to have won the election.  President Trump has declined to concede and continues legal objections though they are unlikely to change the outcome of the election.  President-Elect Biden is forming his government, or at least attempting to do so, announcing some staffing choices and working to the extent possible on transition. 

As a result of the election, the House will remain in Democratic control with Speaker Nancy Pelosi continuing in that role.  The Democratic margin of control will be smaller in the 117th Congress than in the current 116th Congress, but in the House the most important factor by far is the party majority, by any margin.  This gives control of the House agenda, committee chairmanships and nearly every leadership prerogative.  The closeness of the margin is not nearly as important in moving legislation as it is in the Senate.

In the Senate, majority control will remain unknown until January when Georgia will conduct two run-off elections for both of its Senators.  If both current GOP Senators win re-election, or even if only one of them wins, the GOP will retain control of the Senate by either a margin of 52-48 or 51-49. 

A GOP win would result in divided government.  The Democrats would control the White House and the House while the GOP would control the Senate. 

Divided government is not a derogative term; it can yield moderate results that are acceptable to many.  But it has a decisive parliamentary impact in determining the type of legislation that can pass in both Houses of Congress on the way to becoming law. 

If, however, both current GOP Senators lose to their Democratic opponents, that would generate a 50-50 tie in the Senate.  In this case, Vice President-Elect Harris would break the tie, voting for the Democrats, giving the Democrats majority control of the Senate by the smallest possible margin. 

Such a result would have a tremendous impact on the Senate agenda, chairmanships of all the committees, and more. 

However, given the filibuster rule in the Senate and its requirement to obtain 60 votes rather than 51 to move most controversial legislation, the absolute impact on passage of legislation to become law is less possible to predict. Given any of the possible party ratios in the Senate, a bipartisan vote will be required to vote cloture on any filibuster. 

So, even if the Democratic-control scenario occurs and it appears that unified government prevails, the Senate filibuster rule will require more deal-making than we have seen recently in order to move legislation sought by the Biden Administration.   

[Despite campaign trial balloons calling for an end to the filibuster rule, it now seems clear that the votes do not exist, in either party, to end the rule.  Thus, the filibuster will continue to be a major factor in 2021.]  

If the GOP retains control of the Senate, Sen. Mitch McConnell will continue as the Senate Majority Leader and in control of the Senate floor.  If the Democrats eek out control, Sen. Chuck Schumer will control the Senate floor. 

Both parties face intra-caucus differences that will loom large in the pursuit of legislation. 

Thus, the amount and types of legislation that can become law in the next two years will depend on how these various factions can strike bargains and compromise, or either faction can simply out-compete the other. 

President-Elect Biden has spent most of his public career in the House and the Senate.  He has good personal relationships on both sides of the aisle.  This may be helpful, perhaps decisive, in moving legislation. 

With this background, we will ponder the outlook for key issues of importance to ICPI members, both for the near-term lame duck session, and for the incoming 117th Congress. 

Lame Duck:  at this time, the newly elected Members of the House and Senate have arrived on Capitol Hill and are engaged in orientation.  Committees are being organized for the 117th Congress.  But the lame duck session is the remaining work of the 116th Congress.

The first top priority is for the House and Senate to agree on a federal funding bill to take effect when the current Continuing Resolution expires on December 11. 

At press time, the Senate has released its draft bills.  One of the bills, the Senate THUD Appropriations draft, contains permeable pavements language supported earlier in 2020 by ICPI:

Permeable Pavements.—The Committee encourages the Secretary to continue to conduct structural evaluations of flood-damaged pavements, with an emphasis on local roads and highways subject to flooding and extended periods of inundation, in order to better understand the mechanisms of flood damage and how permeable pavements and other technologies might be used to prevent or reduce damage from future flooding. The Committee also encourages the Secretary to accelerate further the ongoing research, demonstration, and deployment of permeable pavements to achieve other potential benefits, including flood mitigation, pollutant reduction, stormwater runoff reduction, environmental conservation, and resilience for both new road construction and re-reconstruction of existing roads.

We expect that if a new CR is passed, it will likely bring with it the permeable pavements language above.  ICPI strongly supports that result.

If for any reason a House-Senate agreement to continue funding the federal government is not signed into law by midnight on December 11, a government shutdown would ensue. 

The other top lame duck priority is possible passage of a next coronavirus relief bill.  A consensus bill proved impossible to negotiate prior to the election.  Both parties determined to lay over the issue until after the election.  Both parties support a next bill, with key figures in the financial world calling for more assistance to the country.

Within a coronavirus bill, both parties support another round of the Paycheck Protection Program. ICPI supports this as well, along with modifications that would allow trade associations to participate. 

The outlook for a coronavirus bill during the lame duck is murky.  The key points of contention standing in the way of bipartisan agreement are the size of the bill (the Democrats want a multi-$trillion bill whereas the GOP wants a bill under one $trillion) and massive funding for state and local governments. 

At press time, most of the oxygen on the Hill is being consumed by the election and transition; there seems little progress or negotiation toward a coronavirus package.  Further, the recent excellent testing results for vaccine candidates may be taking steam out of the urgency for another bill.  The situation remains fluid but given the greater-than-usual post-election uproar, the chances for a near-term coronavirus bill seem to be declining.   

Another issue that seemed to have some possibility was some iteration of infrastructure bill.  Again, given the transition uproar, we think it unlikely that movement will be seen on this issue for the remainder of 2020. 

However, we think there remain reasonable chances that the Hill could pass a Water Resources Development Act (WRDA) authorization.  ICPI strongly supports the WRDA reauthorization.    

We expect the pace of issue developments to increase, rapidly and broadly, in January. 

Post-Inaugural, and the 117th Congress: as is usually true for a change of party in the White House, we will expect a flurry of activity, both in the White House and on Capitol Hill, when the new Administration takes office on January 20. 

First things first, we expect the Biden Administration to move quickly with a host of regulatory orders intended to quickly make a mark for the new Administration, and reverse or curtail many regulatory actions undertaken in the past four years. 

For Presidents, the allure of regulatory action is that it can be accomplished quickly and unilaterally. 

Some of the expected agenda will be of direct interest to ICPI.

We expect a substantial degree of these early regulatory actions to be in the environmental realm.

One of the most prominent is likely to impact WOTUS, the Waters of the U.S. rule that the Trump Administration redefined.     

WOTUS defines the geographic areas, and sizes and types of waterways, that are subject to the Clean Water Act and how the Act is administered by EPA and the U.S. Army Corps of Engineers.  A key issue is stormwater and stormwater mitigation.  The use of permeable pavements is an effective means for mitigating stormwater runoff. 

The WOTUS regulation has acquired its own character as a bellwether for environmental policy which points favorably toward greater use of permeable pavements for green infrastructure, low-impact development and stormwater mitigation.  PICP is a green construction product, ICPI is a strong supporter of strong environmental policies and sustainable development, and ICPI supports a more expansive WOTUS rule. 

An issue to be watched closely will be any Biden Administration effort, via regulation or legislation, to implement controversial recommendations related to a Green New Deal.  

The term “Green New Deal” took on politically active overtones for many candidates in the recent election.  Whether and how the Biden Administration will address anything akin to a Green New Deal will have an important impact for everyone in politics as well as the affected industries. 

The Biden Administration may treat the Green New Deal as a more aspirational set of concepts for long-term goal-setting.  Or it could make nearer-term, action-oriented proposals now with impacts on taxation and jobs and economic development.  Or something in between.  The politics of Green New Deal are yet developing.  

Meanwhile, we expect a re-elevation of the importance of environmental regulation and legislation under the new Administration, and on issues that might not necessarily include Green New Deal elements.  Terms such as green construction, green infrastructure, stormwater mitigation and similar terms are becoming more mainstream and less controversial.  This may be an opportune position for ICPI and permeable pavements.  Policy makers may find that embracing permeable pavements may be a lesser controversial, more business and economy-friendly means for them to demonstrate their commitment to clean water and the environment.  These technologies are not only feasible and effective, they have supportive business constituencies in organizations like ICPI. 

Regarding other early regulatory action, there are several possibilities that could impact ICPI and its members, at least tangentially.  DACA is such an issue.  It has its own standing but resonates closely with comprehensive immigration.  More on immigration below. 

Trade issues will likely see attention beginning with efforts to quell the trade relationship with China.  But we do not foresee urgent action with the trade relationship between Canada, the U.S. and Mexico. 

Labor issues might coalesce around efforts to re-form the National Labor Relations Board to address various labor union issues which have mostly been dormant for the past four years.    

Of course, the top early issue of all, regulatory or legislative, will be the response to the COVID-19 pandemic.  To the extent that an effective and quick deployment of one or more vaccines may be implemented, this could be one of the most globally impactful early actions for all business associations like ICPI. 

With respect to legislation, a COVID-19 bill will likely be the first bill in 2021 if none is passed in the closing days of 2020.  All matters COVID-19, and particularly the dissemination of vaccines as quickly as possible, will dominate the news cycles and thus the political world.  But the business relief elements of a bill will be important to ICPI.

The legislation is virtually certain to include the Paycheck Protection Program, which would likely include expansions to include 501(c)(6) organizations.  It may allow prior recipients to apply again for a second round. 

Issues such as the size of the bill and cash aid to state and local governments remain.  These other issues may present the first test of the new President’s ability to persuade Senate Republicans to vote with him.

Another issue where we look for early action could be some manner of infrastructure bill.  The allure of an infrastructure bill is that it has broad bipartisan support in both the House and Senate, it is a job-creator, states and local governments can benefit, and it is broadly supportable among the electorate.  Infrastructure bills lead to projects that taxpayers can see. 

There are legislative drafts already in the House Transportation and Infrastructure and Senate Environment and Public Works Committees.  The Chairs and Ranking Members of those committees would like to move a big bill.  Further, it would be an attractive first-out-of-the-blocks normal governance issue (COVID-19 is an emergency, not normal governing) for a new Administration to get a win under its belt early. 

As always, funding remains an issue. 

One of the most impactful issues could be a tax bill.  Many Democrats campaigned against the 2017 Trump-era reduction in corporate rates and other tax cuts that were branded to disproportionately benefit the wealthy.  Vice President Biden campaigned that he would raise the corporate tax rate, increase capital gains taxes, and overturn other changes that some feel are excesses in the 2017 law. 

However, the pandemic-induced fragility of the economy, the political situation in the Senate with the Georgia run-offs, and the overall Democratic underperformance in the House and Senate races, may the White House and Congress away from an early tax bill.  Maybe.

There is the argument that it is simply bad economics to raise taxes during a pandemic, when many jobs have been lost and others are teetering, businesses are on the cusp of bankruptcy or closing their doors, and the country needs a stimulus bill with stimulus payments, extended unemployment and more PPP.    

Further, if the GOP wins at least one of the Georgia Senate run-offs, Sen. McConnell will be the Majority Leader with at least a 51-49 majority, and the gavel, and in a strong position from which to block a tax bill.   

It might turn out that the new Administration will indeed make a tax bill a top early priority, especially if the Democrats win both the Georgia run-offs and control the Senate floor.  But we think there are cogent reasons to focus on other big issues, at least for 2021.

One of the big issues that might legitimately put tax on the back burner would be a comprehensive immigration bill.  Comprehensive immigration reform has been on most candidates’ wish lists for years. 

Candidates in both parties learned in the recent campaign that they have constituencies who want immigration reform and consider it a decisive issue in whom they will support.      

Immigration policy is closely related to workforce development in the highly skilled trades.  It is the issue home for the H-2B program.  ICPI has supported the H-2B program for many years.  ICPI has sought increases in the annual H-2B cap and other issues intended to make the H-2B program more accessible to ICPI members who need paver installers. 

A comprehensive immigration bill has always been the best vehicle to address H-2B on a more permanent, less piecemeal appropriations basis.  But a comprehensive bill has been politically infeasible for various reasons. 

There are signs that leaders in both parties now feel the need to get some of these issues settled and off the table by the next election, and if they fail they will encounter increasing negative political consequences down the road.

Workforce development, workforce training and apprenticeships are important issues to ICPI.  The incoming First Lady is a community college professor.  It would not be surprising to see new energy injected into community college-based education, a mainstream portal for delivering workforce training and apprenticeships.