Brustein & Manasevit, PLLC Julia Martin 3 Independents - - PDF document

Julia Martin Brustein & Manasevit, PLLC

Senate: 114 th Congress

Democrats Republicans Independents

3

• With Republicans in control of both chambers,

stronger negotiating position against President on:

• Repeal/ replacement of health care law
• Immigration
• Federal funding generally
• Education
• Including: gainful employment/ for-profit colleges, student

loans/ aid, ES EA, charters, etc.

• BUT S

enate already a highly contentious body where some procedures require 60+ votes

• 54 votes is not a “ filibuster-proof” maj ority
• The “ pizza party” rule

Democrats Republicans Vacant

• Increased Republican maj ority

represents less of a change here

• Republicans already in maj ority
• S

traight maj ority still most important in House (but some efforts require 2/ 3)

• Partisan fights between and within

parties (especially between Republicans) continue

• S

enate Committee on Health, Education, Labor, and Pensions

• New Chairman: Lamar Alexander (R-TN)
• New Ranking Member: Patty Murray (D-WA)
• House Committee on Education and the

Workforce

• Rep. John Kline (R-MN) remains Chairman
• New Ranking Member: Rep. Bobby S

cott (D- VA)

• Voted in overwhelmingly conservative House

and S enate

• Many governorships/ S

tate legislatures changed hands to Republicans

• BUT
• Voters in CO, TN, and ND rej ected fetal

“ personhood” amendments

• AK,OR, and DC legalized recreational marij uana

possession/ use

• AK, AR, IL, NE, and S

D increased minimum wage

• Voters in WA passed gun background check bill

• What will it mean for this Congress?
• Lack of conservative mandate?
• S
• me more mainstream/ moderate legislation
• Desire to re-make Republican party as “ party of

education”

• But also confusion about what voters want/ find

important

• “ I don’ t want the American

people to think that if they add a Republican president to a Republican Congress, that’s going to be a scary outcome. I want the American people to be comfortable with the fact that the Republican House and S enate is a responsible, right-of-center, governing maj ority.”

• Joint op-ed from November lists

priorities as:

• S

implify tax code

• Reduce spending by revising

entitlement programs and other drivers of debt

• Legal reforms, including medical

malpractice

• Regulatory Reforms
• Education reform

• Reform federal involvement in education

through:

• Expanding charter school access
• Reducing college costs
• F

AS T Act reintroduced on 2nd day of new Congress

• Reforming K-12 education by: (mostly part of H.R.

10)

• Revamping teacher evaluations
• Giving S

tates/ districts more control over use of federal funds

• Increasing school choice options

• Policy-based:
• Approve the Keystone XL Pipeline
• Changes to health care law
• Immigration reform
• Deadline-based
• Medicare “ doc fix” (March)
• Highway trust fund (May)
• FY 2016 Appropriations (S

eptember)

• Child nutrition (S

eptember)

• Debt Ceiling (fall)

• Current appropriations bill expires S

eptember 30, 2015

• What to look for in negotiations:
• Republican-controlled Congress looks to flex

muscles

• Pressure to trim federal spending overall
• S

equestration returns!

• End of Murray-Ryan spending caps agreement

means more wrangling on whether to keep existing sequester or change it

• Republican push to eliminate sequestration on

Defense spending, which would push more cuts to non-defense side

• Likely Outcomes
• Debate pushes toward (or through!) end of FY

2015

• No more discretionary grant programs that offer

“ blank checks” to ED

• Almost certain to have small cuts to spending

“ caps”

• Which means lower appropriations across the board
• Possible there will be larger cuts to non-defense

spending

• And need to look for additional money within Labor-HHS
• ED appropriations to cover new costs
• Possibly leading to increased cuts

• Overall in Congress, education not top

priority

• Instead, focus is on:
• “ must-pass” legislation
• Vote-generating legislation
• Emergent crises
• How to determine what is a priority?
• Time
• Legislation
• Bill number

• For House/ S

enate Committees, ES EA is reauthorization priority #1

• S

enate Committee on Health, Education, Labor, and Pensions

• Discussion draft released, hearings began mid-January
• S

tarting from scratch – not Harkin bill

• Promises to craft bipartisan Alexander-Murray bill for introduction
• House Committee on Education and the Workforce
• S

tudent S uccess Act (H.R. 5) introduced early February, approved by Committee February 11th

• No hearings – building on debate in 113th Congress

• S

et for vote last week of February, but bill was pulled from schedule before final vote

• S

cheduling bill on same day as Homeland S ecurity funding vote meant it was lower priority

• Obj ections from conservative Republican groups:
• Not enough of a departure from NCLB
• Not enough flexibility for S

tates/ districts  too prescriptive

• Keeps support for Common Core
• House bill did not allow Title I portability funds to be

used at private schools

• What’s Definitely Out
• AYP
• Instead: S

tates design and implement plans for intervention and improvement

• Requirement to adopt specific college- and career-ready

standards

• Instead: leaves standards and assessments up to S

tates

• Race to the Top (and i3)
• Instead: focus on formula funding (and budget-cutting)
• Teacher evaluations
• Instead: focus on S

tate licensure/ training/ PD

• Also: no more HQT
• Maintenance of Effort

• What’s Definitely In
• Title I structure, formula
• S

upplement, not supplant

• Charter school grants
• And focus on S

tates with laws more open to charters

• Limitation on S

ecretarial waiver, decision-making authority

• Funding flexibility between Titles II and IV
• Consolidation of some programs/ titles
• Limitation on appropriations through 2021

• Assessment Frequency
• Background
• S

enate draft bill contains two options on assessments:

• Option 1: allow S

tate-designed schedule

• Option 2: maintain current testing frequency
• House Bill would require current testing frequency
• Input
• Parents: reduce testing
• Advocacy groups: maintain accountability through

current testing

• Administration, S

peaker Boehner: maintain current testing

• Likely outcome: current requirements remain

• Title I Portability
• Background: both House and S

enate bills allow S tates to set up systems where Title I funding follows low-income student to school of their choice

• In S

enate, includes private schools

• Input:
• White House, left-leaning advocacy groups highly

critical

• Right-leaning groups, lawmakers see as extension
• f “ school choice”
• Likely outcome: unclear (private school funding

unlikely, but portability option may remain)

• Busy House/ S

enate schedule

• Democratic opposition
• From Democrats in Congress
• Lack of bipartisan cooperation in drafting?
• Disagreements over assessments/ accountability
• From President/ administration
• Concerns about “ walking back” accountability/ civil rights
• President has no fears of issuing veto threat
• Republican opposition
• S
• en. Tim S

cott (R-S C): won’ t vote for a bill if they’ ve given up too much to Democrats

• Opposition from conservative Reps., action groups

• Two choices (assuming S

enate Passes bill):

• House passes S

enate bill (or vice versa)

• Then S

enate passes revised version with any House amendments, sends to President for signature

• House and S

enate meet in “ conference” to work

• ut differences between bills
• Final compromise legislation must be passed by House and

S enate, then sent to President for signature

• BUT if House rej ects its own bill: reauthorization is

DOA

• If ES

EA reauthorization is not passed:

• ES

EA waivers continue into next Congress

• Congress may pass smaller stand-alone bills, including:
• S

uccess and Opportunity through Quality Charter S chools Act (H.R. 10)

• Passed House with strong bipartisan support in 2014
• Revamps federal charter school programs, drives funding to

S tates with laws more open to charters and with stronger charter accountability

• S

trengthening Education Through Research Act (H.R. 4366)

• Reauthorizes Education S

ciences Reform Act

• Easily passed House in February
• Due for S

enate floor action

• WIA Reauthorization: DONE
• Workforce Investment and

Opportunity Act (WIOA) passed July 2014

• Child Care and Development

Block Grant: DONE

• Administration plan announced in President’s 2014 S

tate

• f the Union address
• $77 billion in subsidized universal pre-K for

low/ middle-income families over next decade

• Federal share drops from 90%

to 25%

• ver 10-year period
• S

tates receive funding for adopting certain quality standards

• S

enate 2014: S trong S tart for America’s Children Act

• S

imilar to President’s proposal

• S
• en. Murray wants to roll into ES

EA reauthorization?

• Preschool Development Fund
• Appropriations special proj ect in FY 2015, part of

President’s request for FY 2016

• No action to date
• S
• me technical tweaks to MOE penalty in

appropriations bills

• Focus is on “ full funding” of existing federal
• bligation
• “ Full funding” = 40%
• f excess cost of

educating students with disabilities

• Various bills to bring federal commitment up to

that level

• But these initiatives stall because of cost
• Extremely unlikely to move before ES

EA

• Carl D. Perkins Career and Technical Education Act
• riginally due for reauthorization in 2012
• Bill introduced in S

enate in June 2014

• S
• en. Tim Kaine (D-VA) and S
• en. Rob Portman (R-OH)
• Would reauthorize, promote alignment with other programs,

workforce needs

• S
• me information sessions, one “ field hearing” by

House CTE caucus in October 2014

• No significant action to date

• Healthy, Hunger-Free Kids Act Expires

S eptember 30, 2015

• Law and regulations continue to be controversial

because of new nutrition standards for school meals

• S

chool Nutrition Association lobbying hard for weakened standards/ restrictions

• Administration vowed to veto appropriations bills

that weakened standards in FY 2015

• Congressional Republicans say standards are costly,

wasteful

• Will be big fight in summer 2015!

• Conflicts between parties
• Conflicts within parties
• Veto threats from President
• S

hort-term fixes on big problems mean constant crisis situation

• Result: non-critical legislation gets

no “ air time”

• Case study bills: WIOA and CCDBG
• In both cases, reauthorization of legislation was:
• relatively uncontroversial
• modest in scope, requiring no additional funds
• but had been stalled for years (WIA: 1998, CCDBG:

1996)

• House and S

enate each released text of reauthorization bills

• But bills were highly partisan, passed only one

chamber

• Compromise legislation announced after little-

publicized meetings of “ pre-conference committees”

• Pre-Conference committees allow bills to

bypass normal legislative process

• Pro: bypasses potential pitfalls of

Committee/ amendment, meaning legislation actually moves

• Final compromise bills pass with broad

bipartisan support after limited debate

• Cons: less opportunity for input, only works

with some legislation

• Lesson: substantive legislation is now most

effectively passed through extra-legislative process

• How far can Congress take this?
• IDEA reform - NO
• Focus is on funding, and that makes a bill more

contentious

• ES

EA Reauthorization - NO

• Depends on building consensus between Democrats,

Republicans

• Will changes be significant/ structural?
• Will there be changes to funding formula?
• HEA - Maybe
• Depends on consensus, scope of changes
• Perkins - Maybe
• Depends on consensus, scope of changes

• Republican maj ority may

make some rule changes to make it easier for them to pass legislation – especially in S enate

• Follows on heels of “ nuclear
• ption” rule change by S

en. Harry Reid (D-NV) in November 2013

• Changed S

enate rules so executive branch nominations only require 50- vote threshold

• “ Dynamic scoring” in House
• In January 2015, House voted to require that cost of

bills be estimated by “ dynamic scoring”

• Requires CBO to base cost estimates on predicted

reactions of market

• Regulatory Review
• E.g. REINS

Act: Requires a j oint resolution of approval before maj or rules may take effect. Congressional “ pocket veto” after 70 days. Permits a 90-day trial period for health/ safety/ national security reasons.

• Congress controlled by one party means

legislation moves through with more frequency and speed – in theory

• S

trong commitment from everyone (House, S enate, administration) to reauthorize ES EA

• Republican party eager to reclaim mantle as “ party
• f education”

• Lots of other “ must-pass” items on the

calendar ahead of education bills

• Education not a top priority for House or

S enate

• Administration content to continue with

ES EA waivers – no urgent desire for reauthorization

• Continued partisanship makes

it difficult to find common ground

• S

plits within parties cause problems

• Controversial issues and

legislation will slow down legislative process

• Filibuster and veto threats

continue to make it difficult to find common ground

• Budget strings continue to tighten
• Little substantive legislation moves through

Congressional process

• Administration continues to push priorities

through regulation and non-regulatory guidance

• Focus is on new rulemaking/ technical

compliance

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