What's on Tap in Congress in 2016?

This was originally published at the Government Affairs Institute at Georgetown University. The 114th Congress was a whirlwind of activity compared to its predecessors. Accomplishments like trade promotion authority, a Medicare “doc-fix” solution, a two-year budget deal, and the highway funding act were legislative highlights in a productive first session. In all, the 114th Congress passed 115 laws, the most in a first year of Congress since 2009.

Speaker Boehner’s last order of business was the “clean out the barn.” Several hurdles that impeded productive lawmaking in the past were cleared. The debt ceiling is not an issue again until 2017. Congress ensured the budget debate is more symbolic than substantive with a 2-year budget deal. The highway trust fund has finally been resolved. Speaker Boehner’s departing gift for Speaker Ryan was, essentially, a clean legislative sheet.

Yet despite fewer obstacles, significant lawmaking will be hard to come by in the Second Session. Majority Leader McConnell has a strong incentive to protect his moderate colleagues. Seven Senate Republicans up for reelection in 2016 represent states that Obama won in 2012. On the other side of the Capitol, Speaker Ryan is tasked with navigating bills through a three-faction House: Freedom Caucus Republicans (the most conservative), establishment Republicans, and Democrats. He may be forced to find votes from different factions depending on his objective. For messaging purposes the most conservatives Republicans are obvious allies. However, on spending policy he may be forced to appeal to Democrats in order to craft a majority that can pass a bill that can also get through the Senate. If he wants to remain Speaker after the 114thCongress, he can’t lean on Democrats too often. These dynamics do not favor a productive 2nd Session.

The presidential race makes things worse. Presidential campaign politics complicate congressional politics. There is no formal mechanism linking the current Congress to presidential candidates. Nonetheless, Congress tends to reinforce their party’s nominee at the expense of their opposition’s nominee, and worry about down-ticket races. This means potential legislative goals brewing in the 114th Congress will drop by the wayside should it create friction with the nominee’s position or message. We are much more likely to see the Republican majority adapt their policy positions to the Republican nominee while also avoiding success so as to not steal their thunder. This means we are far more likely to see messaging bills than significant policy overhauls.

This does not mean Congress will go dormant. Here are some areas where policy will move forward or at least has the potential to see significant action. Those areas are outlined below with very equivocal certainty.

Most likely will definitely happen:

ACA Repeal

This has been in the works for the better part of a year now. The March budget resolutions in both the House and Senate outlined instructions to repeal Obamacare.  Republicans spent the last 8 months crafting a path to use the powerful reconciliation process (exempt from Senate filibuster) to repeal Obama’s signature accomplishment. For the first time in 5 years and over 50 attempts, Republicans will place a major repeal of the health care law in front of the President. The bill will die there.

Trade

Late in 2015 the administration completed negotiations, which started under the Bush Administration, on a 12 nation trade agreement called the Trans-Pacific Partnership (TPP). This is among the largest trade deals ever struck in terms of the number of countries involved and the size of their economies. Congress authorized trade promotion authority earlier in 2015, giving them the final say in an up or down vote that will occur later this year. This is an issue that divides ideological extremes against the middle. While the left and right have serious critiques of the deal, a sizable bipartisan coalition are at least interested in finding a way to support it. Despite rhetorical equivocation, Congress may enact one of the largest trade deals in history and in doing so, will likely hand President Obama his final legislative accomplishment of his presidency in early 2016.

Appropriations: Defense, Milcon-VA, E&W, Agriculture

One thing is certain, Congress will almost certainly go another year without passing all 12 appropriations bills (last time it was done was 1996). Appropriations is divided up into two camps. Those camps are the individual bills that will almost certainly make it through the process on their own, and those bills that will be lumped into an omnibus package at the end of the year. Of the twelve, Defense, Milcon-VA, Energy & Water, and Agriculture are the most likely to make their way through the process. However, that would be ambitious and we shouldn’t expect such ambition in a presidential year. In all likelihood, only two will actually pass both chambers with an outside chance at passing three.

The reality is appropriations still face a “double reverse filibuster” of sorts. In addition to the filibuster, a sizable portion of the House majority are noncommittal votes when it comes to appropriations. Only 150 of 246 House Republicans supported the omnibus appropriations bill last month. If Speaker Ryan wants to pass appropriations bills, he’ll almost certainly need Democrats. This gives Democrats leverage in negotiating policy riders and funding levels in both chambers, which could further inhibit support among the Speaker’s and Majority Leader’s more conservative wing. In sum, some action on appropriations is likely; just not a lot.

NDAA

The National Defense Authorization Act will likely continue its march as the lone authorizing bill Congress actually completes. There are rumors that acquisition reform and DoD overhaul could be included in the next NDAA, which would present significant roadblocks. However, it’s pure speculation at this point. The NDAA may also include a major overhaul of Tricare, the health care plan for the military. Regardless, there is enough bipartisan momentum pushing the NDAA onward to continue its reauthorization streak of over half a century.

Possible but not likely:

Tax Reform

While comprehensive tax reform will remain elusive, a more focused international tax reform has a better chance this year than most. December’s tax extenders passage made more than a dozen permanent, while giving longer extensions for others. While the Presidential race will complicate negotiations, repatriation of funds from abroad, possibly for infrastructure, is an ongoing item of interest. Republicans have their eye on lowering the top corporate marginal rate of 35%–a higher marginal rate than other nations, though US effective rates are similar, and often less than other OECD countries.  While the top of the GOP’s wish list also includes a move towards territorial taxation (where profits of US multinationals abroad are not subject to US tax), they are far more likely to get a reduction in the corporate rate in exchange for reduced tax expenditures or better enforcement. That said, this would be a heavy lift in a presidential year that still features upwards of 10 Republican candidates with their own tax plans.

Revising USA Freedom Act

The events in San Bernardino revived debate on domestic government surveillance. In 2015, Congress passed the USA Freedom Act, which curtailed some NSA activities in the wake of Edward Snowden’s revelations. Following San Bernardino, many lawmakers, including the Senate Majority Leader, have suggested they may need to re-examine their revisions. This would be a large undertaking full of political complications that are only amplified in a presidential election year. While it’s possible Congress revisits their new policy, it’s firmly in the unlikely category.

Prison reform, energy legislation, revising Dodd-Frank

Each of these areas enjoy significant bipartisan support. Trimming back Dodd-Frank regulations continues to occur, though much more frequently in the House than in the Senate. Energy legislation continues to affect regions of the country differently, lending itself to unusual political coalitions. And finally, prison reform is an area where Republicans and Democrats appear to agree but fail to come together on the solution. Major overhauls in any of these areas are unlikely. These can be hot-button campaign issues and will lose momentum in Congress. Regardless, minor bills that affect these areas could make their way through Congress, giving the institution some low-profile legislative victories as the presidential campaigns heat up.