Congress returns on September 6 with only 17 days (House) and 23 days (Senate) of session scheduled before they adjourn for the November elections. While their “to do” list is long, they’re unlikely to accomplish much in September leaving it all until a lame-duck session after the November elections. And the election results in November will dictate much of the lame-duck agenda and strategy. Here are some of the key items on their “to do” list: 

1. FY17 Appropriations Bills

The House and Senate Appropriations Committees have reported out all of their FY17 spending bills, but the House has only passed five while the Senate has passed three. One bill, the FY17 Military Construction-Veterans Affairs appropriations bill was conferenced and passed the House, but failed to get cloture in the Senate stalling the process. While Senate Majority Leader Mitch McConnell (R-KY) and House Speaker Paul D. Ryan (R-WI) made passing individual spending bills a top priority this year, the looming September 30 end of fiscal year deadline will require Congress to pass a continuing resolution (CR) until they can agree on an omnibus spending bill. Emergency funding for the Zika virus could be included in a CR. Fights over funding levels for certain agencies and the use of Overseas Contingency Operations (OCO) funding will push any omnibus agreement until after the election. While conservatives members of the House (Freedom Caucus) have been pushing for a year-long CR for FY17 (or a CR through March/April 2017) that is unlikely at this point. Most likely scenario is a CR through early December (December 9?) leaving time for Congress to cut a deal before the end of the 114^th Congress.

Subcommittee                   House                                       Senate

2. Supreme Court Confirmation

Justice Antonin Scalia’s death in February left a vacancy on the Supreme Court that has not yet been filled. On March 16, President Obama nominated Merrick Garland, Chief Judge of the United States Court of Appeals for the District of Columbia Circuit, to fill the vacancy. The Senate has not held confirmation hearings on Garland’s nomination to date and is not expected to do so during the September session. Whether or not the results of the November election will change the Senate’s posture on holding hearings and voting on his nomination before they adjourn for the 114^th Congress remains unclear.  

3. FY17 National Defense Authorization Act (NDAA)

The House passed their FY17 NDAA (HR 4909) on May 18 by a vote of 277 to 147. The Senate passed their bill (S 2943) on June 14 by a vote of 85 to 13. The House agreed to conference by voice vote on July 8 and the Senate followed on July 14 (vote of 90 to 7). The NDAA is considered must-pass legislation and has been enacted the past 54 years. The current authorization expires on September 30. Conferees need to work out differences over funding (House shifts $18B in OCO funds to the base budget), military health programs, LGBT provisions, requiring women to register for the draft, and restructuring acquisition management within the Department of Defense, among other things. While HASC and SASC staff have spent the summer recess hashing out the differences in the bill, a final conference package is not expected until after the election as conferees are unlikely to be able to work out funding level differences for the NDAA without a deal for the top-line budget.  

4. Energy Authorization

The Senate passed S 2012, the North American Energy Security and Infrastructure Act of 2016, on April 20 by voice vote. The House passed a modified S 2012 on May 25 by a vote of 241 to 178. The House had previously passed HR 8, the North American Energy Security and Infrastructure Act of 2015, last December by a vote of 249 to 174. Both the House and Senate have agreed to go to conference, but Senate Democrats held out until they received assurances that the provisions the President threatened to veto would be left out of the bill. Conferees are working out key points of contention including funding levels, length of the authorization, and issues such as language allowing FERC to impose deadlines on energy project-related environmental reviews. Several major provisions may require negotiations that could not be resolved after the election.

5. Veterans Authorization

The Senate Veterans Affairs Committee has reported out S 2921 the Veterans First Act (voice vote May 12) while the House has passed similar provisions as stand-alone measures (HR 677, HR 1338, HR 2256, HR 2915, HR 3016, and HR 4063). Senate Veterans Affairs Committee Chairman Johnny Isakson (R-GA) and Ranking Member Richard Blumenthal (D-CT) have sought a floor vote for their bill. While the Senate bill has widespread support, Sen. Marco Rubio (R-FL) and House Veterans Affairs Committee Chairman Jeff Miller (R-FL) told Isakson that the Senate bill does not do enough to discipline VA employees.

6. Commodity Futures Trading Commission Reauthorization

The Commodity Futures Trading Commission (CFTC) has operated without formal authorization since September 2013. The House passed HR 2289, the Commodity End-User Relief Act in June 2015 by a vote of 246 to 171. The Senate Agriculture Committee marked up and reported out of committee a similar bill, S 2917, in May of this year. But efforts to provide the CFTC with a new authorization appear to have stalled in the 114^th Congress.

7. Trade Agreements

At the top of the trade agenda is the TransPacific Partnership (TPP), which requires a vote in Congress to ratify. Both presidential candidates oppose TPP and House Speaker Ryan has said that there isn’t sufficient support for a vote. However, President Obama plans to mount a final push toward approval of TPP when Congress reconvenes in September and a vote could take place after the election. As for the TransAtlantic Trade and Investment Partnership (T-TIP) agreement, the 14^th round of negotiations took place in July 2016 in Brussels and negotiators are hoping to conclude their work by the end of 2016.

8. NIH Reauthorization

The House passed HR 6, the 21^st Century Cures Act by a vote of 344 to 77 in July 2015. The Senate HELP Committee took a more piecemeal approach and approved 19 bills this year. House and Senate negotiators could announce a bipartisan agreement on renewing the authorization of the National Institutes of Health soon after Congress returns in September. But it could be put off until next year when the FDA user fee authorization expires.

9. Criminal Sentencing

The Senate Judiciary Committee reported out S 2123, the Sentencing Reforms and Corrections Act at the end of last year, which would reduce or eliminate mandatory minimum prison terms for street-level drug offenses. At the beginning of 2016, members of the Senate Judiciary Committee were negotiating the fine points of the legislation and by early March bill sponsors were confident enough to say they were close to an agreement. However, some key Senators oppose provisions that would reduce mandatory minimum sentences, so pre-election consideration of the bill is unlikely. 

10. EB-5 Investor Visas

The Regional Center Program sets aside EB-5 visas for participants who put either $500,000 or $1 million (depending on the type of investment) in an area of high unemployment. The program allows investors to pool resources and gain visas with less money on the line than otherwise would be required. The authorization for the program is set to expire at the end of this fiscal year, and there is disagreement in the Senate over whether it should be reauthorized. Critics include Senate Judiciary Committee Chairman Charles Grassley (R-IA) and Ranking Member Patrick Leahy (D-VT) who believe that the program is marred by fraud and abuse. They want to overhaul the program rather than reauthorize it. Sen. Charles Schumer (D-NY) and Majority Whip John Cornyn (R-TX) support the program and don’t want to alter it. Grassley and Leahy introduced S 1501, the American Job Creation and Investment Promotion Reform Act of 2015, which would raise the minimum investment in the program from $500,000 to $800,000, and would give the Department of Homeland Security more authority to investigate domestic and international fraud claims. Schumer and Cornyn back S 2415, the EB-5 Integrity Act, which was introduced by Sen. Jeff Flake (R-AZ) on Dec 17, 2015.

11. Zika Funding

In February, President Obama requested $1.9 billion to combat the Zika virus. House Republicans balked at the amount and sought offsets from other programs. House and Senate Republicans worked out an agreement to provide $1.1 billion to fight the Zika virus, which was included in the conference report for the FY17 Military Construction Veterans Affairs spending bill (HR 2577). The House adopted the conference report on June 23 by a vote of 293 to 177. Democrats in the Senate blocked a cloture vote on the conference report by a vote of 52 to 44 on July 14. Democrats prefer the agreement that provided $1.1B without offsets or use restrictions. In the meantime, HHS has said that transferred funds that they have been using to fight the Zika virus now will run out at the end of September.

12. Postal Service Solvency

The U.S. Postal Service lost $5 billion last year, and after it was forced to reduce the price of a first-class stamp to 47 cents from 49 cents, it will likely lose even more this year. The losses are being driven by a requirement to pre-fund future retiree health benefits, and by USPS’s difficulty in transitioning from being a letter-oriented service to a package delivery service. Reps. Jason Chaffetz (R-UT) and Elijah Cummings (D-MD) cosponsored HR 5714, the Postal Service Reform Act, which was introduced in the House on July 11, 2016. And on the Senate side, Sen. Tom Carper (D-DE) introduced S 2051, the Improving Postal Operations, Service, and Transparency Act of 2015, and held hearings on the bill earlier this year. Lawmakers are pushing to aid the postal service before Christmas.

13. School Nutrition Programs

The House Education and Workforce Committee approved HR 5003, the Improving Child Nutrition and Education Act of 2016, by a vote of 20 to 14 on May 18, while the Senate very nearly passed a child nutrition reauthorization bill by unanimous consent just before the recess. The Senate Agriculture, Nutrition, and Forestry Committee approved S 3136, the Improving Child Nutrition Integrity and Access Act of 2016 on January 20 by voice vote. The bills reauthorize nutrition programs with temporary authorizations while changing related programs. The last reauthorization expired at the end of fiscal year 2015, and most programs were continued under the FY16 omnibus spending bill. There are substantial differences between the House and Senate bills, with the Senate bill having broader support. House Education Chairman John Kline (R-MN) is retiring at the end of this Congress and is expected to push for finishing this bill before he leaves. 

14. Temporary Assistance for Needy Families (TANF) Program

The Temporary Assistance for Needy Families program, which provides $16.5 billion in annual federal block grant funding to states, will expire at the end of this fiscal year. But it has been routinely extended in previous fiscal years. The House passed HR 5170, the Social Impact Partnerships to Pay for Results Act, on June 21 by voice vote on the suspension calendar. Senate timing is unclear at this point. The goals of the program are providing assistance to families so that childcare can be provided in their own homes; reducing families’ need for government benefits; preventing out-of-wedlock pregnancy; and encouraging the maintenance of two-parent families. The base block grant amount hasn’t been increased since the program’s inception in 1996. 

15. Water Resources Reform and Development Act

Legislation authorizing Army Corps of Engineers water projects has bipartisan support in both chambers and could be considered this fall. The House Transportation and Infrastructure Committee reported HR 5303, the Water Resources Development Act of 2016 out of committee on May 25 by voice vote. The Senate Environment and Public Works committee reported out their bill, S 2848, the Water Resources Development Act of 2016 on April 28 by a vote of 19 to 1. The current authorization expires at the end of this fiscal year. The Senate bill includes a provision to address the Flint, MI water crisis.

16. State Department Reauthorization

The Senate Foreign Relations Committee reported out of committee S 2937, the State Department Authorization Act for Fiscal Year 2017. And S 1635, the Department of State Operations Authorization and Embassy Security Act for Fiscal Year 2016 was passed by the full Senate by unanimous consent on April 28, 2016. The State Department has not had a reauthorization since 2002. Senate Foreign Relations Committee Chairman Bob Corker (R-TN) still plans to pursue passage of the 2016 and 2017 authorization bills, but its unclear what venue he would choose. He and Ranking Member Ben Cardin (D-MD) could introduce it on the Senate floor or attempt to add it to the possible CR. 

17. Intelligence Reauthorization

The House passed their FY17 Intelligence Authorization Act (HR 5077) on May 24 by a vote of 371 to 35. The Senate bill, S 3017, has been reported out of the Senate Intelligence Committee but has not yet reached the Senate floor for consideration.