Return of Congressionally directed spending?

Several press reports indicate that Congress may return to the practice of including line items for specific projects in this year’s appropriations bills (referred to either as congressionally directed spending or earmarks) and perhaps include them in an upcoming infrastructure package. It appears that both the House and Senate leadership, the Chairs of the respective Appropriations Committees, Senator Patrick Leahy (D-VT) and Congresswoman Rose DeLauro (D-CT) and the Chairman of the House Transportation and Infrastructure (TNI)  Peter DeFazio (D-OR), all have signed off on the return to so-called earmarks. Earmarks provide a way for individual members to advocate for their districts, and may serve as a means to build support for major legislation.  

At this point, it is not clear if the House and Senate Republican leadership and the top Republicans on the Appropriations Committees, Senator Richard Shelby (R-AL) and Congresswoman Kay Granger (R-TX), and the ranking member of the TNI Committee Sam Graves (R-MO), will also go along. It is possible that there could be a divide among Congressional Republicans. Minority Leader Mitch McConnell and Senator Shelby have a long history of inserting home state projects in annual appropriations bills but the House Republican leadership and the influential Freedom Caucus has opposed this process in the past. 

How did earmarks go away?

In response to congressional concern over the earmarking process, in the 110th Congress (2007-2008), the House and Senate codified earmark disclosure requirements in the legislative process rules for their respective chambers with the stated intention of bringing more transparency to the earmarking process.

As concern over earmarks continued, in the 112th Congress (2011-2012), in 2011, the House and Senate effectively banned the earmark process, by observing what has been referred to as an “earmark moratorium” or “earmark ban.” The moratorium does not exist in House or Senate rules, only in the Democratic and Republican Caucus rules, which means that the Democrats can unilaterally reinstitute the process without needing to pass a controversial rule change on the House and Senate floors.

How might the new process work?

Most of the current Members of Congress have no experience with the earmarking process. Only one-third of the House Members and one-half of the Senators were in Congress prior to the 2011 moratorium.

The Democratic Committee chairs are likely to announce a new process that will likely build on previous transparency, disclosure and other reforms.

If Congress adopts this change it will likely include:

  • A prohibition on earmarks to corporations and for-profit businesses.
  • Restrictions on what type of entity might be eligible to receive such funds. It is likely that only governments and non-profits that provide government-like services to citizens or communities will be eligible.
  • A limit on the total amount for each earmark (and potentially a 1 percent cap of total earmarks on the spending level in any funding bill).
  • A requirement that each line item appropriation include a publicly available description, purpose, any potential matching funds required, etc. 
  • A signed disclosure by each Member of Congress certifying that the Member has no financial interest in the earmark.

Earmark examples from the Fiscal Year 2010 appropriations bills

Congress rarely includes earmarks in the actual legislative text of the bill or what becomes the statute. These line items are mostly found in tables and committee report language accompanying the legislative text. While the earmarks do not become law, both Democratic and Republican Administrations have honored them as if they were in the statutory language.

Here are some examples of earmarks from the Fiscal Year 2010 appropriations bills.

  • Marshall University, Huntington, WV Forensic Science Center DNA Laboratory, $4,575,000
  • Miami-Dade County Public Schools, FL Technological Equipment Upgrade For Miami-Dade Schools Police Department, $600,000
  • Oglala Sioux Tribe Department of Public Safety, Pine Ridge, SD, $1,200,000
  • Armstrong Atlantic State University, GA, Cyber Security Research Institute, for curriculum development, including purchase of equipment, $457,000
  • Fayette County Schools, Lexington, KY for a foreign language program $2,500,000
  • University of Texas, M.D. Anderson Cancer Center, Houston, TX for a comprehensive cancer control program to address the needs of minority and medically underserved populations $500,000
  • Good Samaritan Hospital, Los Angeles, CA for facilities and equipment $400,000
  • Hawai’i Community Foundation, Hawai’i Marine Fund, $1,000,000
  • Street and Utility Reconstruction Main Avenue, Park Rapids, MN $730,500
  • Sumner County Regional Airport, TN, Airport Road Re-Location, $1,500,000
  • Grade Separated Railroad Crossing, Northlake, TX $500,000
  • Northwest New Jersey—Northeast Pennsylvania Passenger Rail Project, NJ/PA, $974,000
  • Ames Transit Facility Expansion, IA $750,000
  • Ohio Clean & Green Statewide Bus Replacement Program, OH $692,200
  • Brewer Business and Commerce Park, Brewer, ME, $1,280,000
  • Baltimore City Schools, Baltimore, MD Career and Technology Pathways $350,000

FEC Increases Contribution Limits For 2021-2022

Earlier this week, the Federal Election Commission (FEC) announced the updated federal contribution limits for the 2021-2022 election cycle as required under the Federal Election Campaign Act. The new per election and per calendar year limits are effective for the entirety of 2022 election cycle starting late last year. Below is a chart that explains the new limits applicable to specific donors and recipients.

Donor Recipient
Candidate Committee PAC Super PAC State, Local or District Party Committee (Federal Accounts) National Party Committee Main Account National Party Committee Special Accounts
Individual $2,900 per election $5,000 per year Unlimited $10,000 per year (combined)

$36,500 per year

*Each national party committee has its own separate contribution limit.  For example, the national senatorial and congressional committees of both major parties have separate limits from the DNC and RNC.

$109,500 per account per year
*Each national party committee has special accounts for:
(1) HQ Building Account
(2) Election Recount, Challenge and Legal Account
(3) Presidential Convention Account (DNC and RNC only)
PAC $5,000 per election for multicandidate PACs
$2,900 per election for non-multicandidate PACs
$5,000 per year for all PACs Unlimited $5,000 per year (combined) for multicandidate PACs
$10,000 per year (combined) for non-multicandidate PACs
$15,000 per year for multicandidate PACs
$36,500 per year for non-multicandidate PACs
$45,000 per year per account for multicandidate PACs
$109,500 per year per account for non-multicandidate PACs

The key contribution limit adjustments of note in the above chart include:

  • A $100 adjustment upward for individual donors giving to candidate committees – moving from a $2,800 per election limit for the 2020 cycle to $2,900 for the 2022 cycle.  This adjust means that individuals may now give up to $5,800 per candidate per cycle for candidates participating in both primary and general elections.
  • A $1,000 adjustment upward for individual donors giving to national party committee main accounts – moving from $35,500 per year for the 2020 cycle to $36,500 for the 2022 cycle.
  • A $3,000 adjustment upward for individual donors giving to national party committee special accounts – moving from $106,500 per year for the 2020 cycle to $109,500 for the 2022 cycle.


US Policy Scan 2021

Dentons’ US Public Policy practice is pleased to release its annual Policy Scan, an in-depth look at policy at the Federal level and in each of the 50 states. In this document we provide a first look at the key policy questions for the next year in the states, the House of Representatives, the Senate and the new Administration. Additionally, we examine the people who will be driving change.

US Policy Scan 2021 takes deep dives into the turbulent political and policy waters swirling around agriculture, cannabis, education, energy and the environment, financial services, foreign policy, health care, housing and community investment, immigration, infrastructure, smart cities and communities, national security, Native American communities, tax, technology, trade, and voting rights and government reform. All with an eye toward providing you with a clear, comprehensive and reader-friendly description of what US public policy will look like in 2021.

Other features include:

  • 2021 Congressional and State House Session Calendars
  • First 100 days of the Biden Administration
  • Biden cabinet nominees and senior White House staff appointees
  • New Committee Chairs and Rankers
  • Analysis of 2022 US Senate races
  • Key decided and pending cases before the Supreme Court of the United States.

And as in years past, we have also included a review of state legislative activity in 2020, an overview of legislation passed by the House Democrats in the 116th Congress that didn’t see movement in the Republican controlled Senate, and the policy drivers that will shape state legislative and executive branch activity in 2021.

We hope you find this report helpful and informative.

The Impact of the Georgia Senate Runoffs on the 2021 Biden Legislative Agenda

Full Democratic Control of Congress Would Expand the 2021 Biden Legislative Agenda While Continued Republican Control of the Senate Would Contract It

Since the 2014 elections that led to Republican Senator Mitch McConnell becoming the Majority Leader, the Senate has been seen by most political commentators as the place where Democratic-sponsored bills passed by the House go to die.  That characterization is well-earned.  As of November 3, 2020, last year’s general election day, a search of the website Congress.gov revealed that, since January 3, 2019 when the current Congress convened, the House has passed 431 bills sponsored by Democrats that the Senate has not taken up. 

Some of these bills, or at least the subjects that they cover, like the annual appropriations bills funding the federal government, the National Defense Authorization Act (NDAA) and funding for additional COVID-19 pandemic relief, were considered “must-pass” items that the Congress passed and sent to the President during the post-election “lame duck” session .  On  December 27 . the President signed into law an omnibus appropriations act funding the federal government’s operations through September 30, 2021.  That omnibus appropriations bill also included a limited, heavily negotiated COVID-19 relief package that will provide some additional relief for those affected by the COVID-19 crisis.  The additional COVID-19 relief provided by this package is expected to be exhausted by March 2021. 

Within days of his January 20th inauguration, at the behest of President Biden, Congressional Democrats are expected to introduce additional COVID-19 legislation intended to address  many issues that were not addressed in the December COVID relief package and that will extend the relief provided by the December package well beyond March 2021 to the extent deemed necessary when this legislation is considered. 

Both the House and the Senate will adjourn sine die on or before  January 3, 2021 at noon, the time when the next Congress will convene.  All of the 431 House Democratic-sponsored bills that the House passed and sent to the Senate that the Senate did not consider will die whenever the current Congress concludes.

Nonetheless, a review of these 431 bills is instructive, especially given the potential changes in the political landscape and public policy that may result depending on the outcome of the two January 5th Georgia runoff elections which will determine whether Republicans or Democrats will control the Senate for the next two years.  Taken together with the policy positions revealed by President-elect Biden in the course of the presidential campaign, these bills provide clear clues about the topics that will comprise much of the new administration’s legislative agenda for 2021 and 2022.

If Republicans win one or both of the Georgia runoff elections, barring something currently completely unforeseen, Leader McConnell will continue as the Majority Leader for the next two years with the power to determine what legislation makes it to the Senate floor for consideration.  In that circumstance, unless President Biden proves to have truly extraordinary powers to promote and achieve bipartisanship, the gridlock that characterized the Senate floor for the last two years can be expected to continue.

If, however, the Democratic candidates win both runoff elections, Senator Charles Schumer will become the new Majority Leader with the power to determine the Senate’s legislative agenda.  Divided government will end as, with two Independents caucusing with the Democrats, the Senate will be split 50-50 between the parties with Vice President Harris as the President of the Senate having the power to break tie votes. 

Obviously, even if the Democrats gain control of the Senate, with such narrow margins of Democratic control in both the Senate and the House, the legislative agenda that President Biden pursues is likely to be far less ambitious than the agenda he would have pursued had the “blue wave” election that Democrats sought and many political handicappers predicted would have actually occurred. 

However, as the House is a majoritarian institution, unlike the Senate, even with a materially smaller Democratic majority in 2021, the House is likely to pass once again most of the key bills that it passed in the prior Congress.  Even if the chances of Senate passage of several of these bills are slim because of such narrow Democratic control of the Senate, several of the bills that the House manages to pass in 2021 are nonetheless likely to be offered in the Senate for messaging purposes.

So, how do we reduce these 431 Democratic sponsored bills that the House passed and the Senate did not consider to a far more manageable number for analysis?  Where do we begin?

While House bills usually receive a number in the order in which they are submitted, one of the customs of the House of Representatives is that the first ten bill numbers (HR 1-HR 10) are reserved for use by the Speaker of the House and the next ten bill numbers are reserved for use by the House Minority Leader (HR 11-HR 20).  Thus, any bill that receives a bill number within this range does so because the bill represents a key policy priority of the party that is offering it and that party wants to feature it prominently.  The current House has passed each of the Democratic sponsored bills numbered HR 1 through HR 9.  (Speaker Pelosi has used bills numbers HR1 through HR 9 but has not yet used HR 10.)  Not surprisingly,  the Senate has not considered or passed any of these bills.  So what are these nine bills?

HR 1, the For the People Act of 2019, passed March 8, 2019,is a voting rights bill that addresses voter access, election integrity, election security, political spending, and ethics for the three branches of government.  It expands voter registration and voting access and limits removing voters from voter rolls. The bill provides for states to establish independent, nonpartisan redistricting commissions.  The bill also sets forth provisions related to election security, including sharing intelligence information with state election officials, protecting the security of the voter rolls, supporting states in securing their election systems, developing a national strategy to protect the security and integrity of U.S. democratic institutions, establishing in the legislative branch the National Commission to Protect United States Democratic Institutions, and other provisions to improve the cybersecurity of election systems.

The bill also addresses campaign spending, including by expanding the ban on foreign nationals contributing to or spending on elections; expanding disclosure rules pertaining to organizations spending money during elections, campaign advertisements, and online platforms; and revising disclaimer requirements for political advertising.  It establishes an alternative campaign funding system for certain federal offices. The system involves federal matching of small contributions for qualified candidates.

It sets forth provisions related to ethics in all three branches of government. Specifically, the bill requires a code of ethics for federal judges and justices, prohibits Members of the House from serving on the board of a for-profit entity, expands enforcement of regulations governing foreign agents, and establishes additional conflict-of-interest and ethics provisions for federal employees and the White House.  The bill also requires candidates for President and Vice President to submit 10 years of tax returns.

H.R.2, the INVEST in America Act, passed July 1, 2020, is an environmental and surface transportation infrastructure bill that addresses provisions related to federal-aid highway, transit, highway safety, motor carrier, research, hazardous materials, and rail programs of the Department of Transportation (DOT).  Among other provisions, the bill

  • extends FY2020 enacted levels through FY2021 for federal-aid highway, transit, and safety programs;
  • reauthorizes for FY2022-FY2025 several surface transportation programs, including the federal-aid highway program, transit programs, highway safety, motor carrier safety, and rail programs;
  • addresses climate change, including strategies to reduce the climate change impacts of the surface transportation system and conduct a vulnerability assessment to identify opportunities to enhance the resilience of the surface transportation system and ensure the efficient use of federal resources;
  • revises Buy America procurement requirements for highways, mass transit, and rail;
  • establishes a rebuild rural grant program to improve the safety, state of good repair, and connectivity of transportation infrastructure in rural communities;
  • implements new safety requirements across all transportation modes; and
  • directs DOT to establish a pilot program to demonstrate a national motor vehicle per-mile user fee to restore and maintain the long-term solvency of the Highway Trust Fund and achieve and maintain a state of good repair in the surface transportation system.

H.R.3, the Elijah E. Cummings Lower Drug Costs Now Act, passed December 12, 2019, establishes several programs and requirements relating to the prices of prescription drugs, health care coverage and costs, and public health. 

Among other things, the bill’s provisions are designed to lower prices through fair drug price negotiation, provide Medicare with Parts B and D prescription drug inflation rebates, reduce the annual out-of-pocket spending threshold and eliminate beneficiary cost-sharing above this threshold, increase drug price transparency, include program improvements for Medicare low-income beneficiaries,. establish dental, vision and hearing coverage under Medicare , increase NIH, FDA and Opioids funding, and expand guaranteed issue rights with respect to Medigap policies. 

H.R.4, the Voting Rights Advancement Act of 2019, passed December 6, 2019, establishes new criteria for determining which states and political subdivisions must obtain preclearance before changes to voting practices in these areas may take effect. (Preclearance is the process of receiving preapproval from the Department of Justice or the U.S. District Court for the District of Columbia before making legal changes that would affect voting rights.)

A state and all of its political subdivisions would be subject to preclearance of voting practice changes for a 10-year period if (1) 15 or more voting rights violations occurred in the state during the previous 25 years; or (2) 10 or more violations occurred during the previous 25 years, at least one of which was committed by the state itself.  A political subdivision as a separate unit would also be subject to preclearance for a 10-year period if three or more voting rights violations occurred there during the previous 25 years.

A state or political subdivision that obtains a declaratory judgment that it has not used a voting practice to deny or abridge the right to vote would be exempt from preclearance.

All jurisdictions would have to preclear changes to requirements for documentation to vote that make the requirements more stringent than federal requirements for voters who register by mail or state law.

The bill specifies practices jurisdictions meeting certain thresholds regarding racial minority groups, language minority groups, or minority groups on Indian land, would have to preclear before implementing. These practices include changes to methods of election, changes to jurisdiction boundaries, redistricting, changes to voting locations and opportunities, and changes to voter registration list maintenance.

The bill expands the circumstances under which (1) a court may retain the authority to preclear voting changes made by a state or political subdivision, or (2) the Department of Justice may assign election observers.

States and political subdivisions would also have to notify the public of changes to voting practices and the bill would revise the circumstances under which a court would have to grant preliminary injunctive relief in a challenge to voting practices.

H.R.5 , theEquality Act, passed May 17, 2019,  prohibits discrimination based on sex, sexual orientation, and gender identity in a wide variety of areas including public accommodations and facilities, education, federal funding, employment, housing, credit, and the jury system. Specifically, the bill defines and includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation.

The bill expands the definition of public accommodations to include places or establishments that provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services.

The bill allows the Department of Justice to intervene in equal protection actions in federal court on account of sexual orientation or gender identity.

H.R.6 , theAmerican Dream and Promise Act of 2019, passed June 4, 2019, cancels and prohibits removal proceedings against certain aliens and provides such aliens with a path toward permanent resident status.

The Department of Homeland Security (DHS) or the Department of Justice (DOJ) would cancel removal proceedings against certain aliens who entered the United States as minors and grant such aliens conditional permanent residence status for 10 years. The bill would impose various qualification requirements, such as the alien being continuously physically present in the United States and being enrolled in or having completed certain educational programs. DHS would have to establish streamlined procedures to apply for conditional permanent residence for aliens who received Deferred Action for Childhood Arrivals (DACA) status and were not disqualified for renewal.

DHS would remove the conditional permanent resident status granted to such aliens, if the alien applies and meets certain requirements, such as completing certain programs at an educational institution or serving at least two years in the Uniformed Services and being discharged honorably.

DHS or DOJ would cancel removal proceedings against certain aliens who qualified for temporary protected status or deferred enforced departure status on certain past dates (both statuses temporarily protect covered aliens from removal). For such aliens who apply and pass the required background checks, DHS would grant permanent residence status.

DHS would not be able to use information from applications to adjust status under this bill for immigration enforcement purposes and would have to establish a grant program for nonprofit organizations that assist individuals with certain immigration-related issues.

H.R.7, the Paycheck Fairness Act, passed March 27, 2019, addresses wage discrimination on the basis of sex.  It amends equal pay provisions of the Fair Labor Standards Act of 1938 to (1) restrict the use of the bona fide factor defense to wage discrimination claims, (2) enhance nonretaliation prohibitions, (3) make it unlawful to require an employee to sign a contract or waiver prohibiting the employee from disclosing information about the employee’s wages, and (4) increase civil penalties for violations of equal pay provisions.

The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance Programs would be directed to train EEOC employees and other affected parties on wage discrimination.

The bill also directs the Department of Labor to (1) establish and carry out a grant program for negotiation skills training programs to address pay disparities, including through outreach to women and girls; (2) conduct studies to eliminate pay disparities between men and women; (3) report on the gender pay gap in the teenage labor workforce; and (4) make available information on wage discrimination to assist the public in understanding and addressing such discrimination.

H.R.8, the Bipartisan Background Checks Act of 2019, establishes new background check requirements for firearm transfers between private parties (i.e., unlicensed individuals).

Specifically, it prohibits a firearm transfer between private parties unless a licensed gun dealer, manufacturer, or importer first takes possession of the firearm to conduct a background check.  The bill’s prohibition does not apply to certain firearm transfers, such as a gift between spouses in good faith.

H.R.9, the Climate Action Now Act, passed May 2, 2019, requires the President to develop and update annually a plan for the United States to meet its nationally determined contribution under the Paris Agreement on climate change.

(Sec. 3) In addition, the bill prohibits federal funds from being used to withdraw from the agreement.

(Sec. 4) The bill outlines what must be included in the plan, including descriptions of steps to (1) cut greenhouse gas emissions by 26%-28% below 2005 levels by 2025, and (2) confirm that other parties to the agreement with major economies are fulfilling their announced contributions. The President would have to seek and publish comments from the public when submitting and updating the plan.

(Sec. 5) Within six months, the President would also have to report on the effect of the Paris Agreement on clean energy job development in rural communities.

(Sec. 6) Within six months, the President would contract with the National Academy of Sciences to report on the potential impacts of a withdrawal by the United States from the agreement on the global economic competitiveness of the U.S. economy and on U.S. workers.

(Sec. 8) Within one year, the Government Accountability Office would also have to study and report on the impact of the plan on U.S. territories.

Which of These Bills May Come First in the Next Congress?

The pace and the order in which President Biden and the new Congress turn to these nine bills will be determined in large part by the extent to which the prior Congress was able to clear the decks through passing legislation in its lame duck session on such issues as funding the federal government and providing additional COVID-19 relief.  While passage of an omnibus takes funding the federal government off the table as an issue in the near term, given the scope and duration of the COVID-19 crisis. legislation to implement the Biden COVID-19 plan is likely to be the new President’s first priority even recognizing that many Congressional Republican are likely to oppose additional COVID-19 relief.

Because infrastructure legislation usually can attract at least some, and many times significant, bipartisan support, we would expect that a massive infrastructure proposal, along the lines of the Invest in America Act, could be the first key bill up after the Biden COVID-19 reiief plan, unless by then the Supreme Court has issued an opinion striking down all or much of the Affordable Care Act. 

If Supreme Court were to strike down the ACA, we would expect an early legislative response from President Biden and the Democratic Congress, one that would probably be accompanied by a bill along the lines of the Elijah E. Cummings Lower Drug Costs Now Act. 

As this election cycle identified many shortcomings in the way that federal elections are conducted and Democrats have many concerns about the issues of voter suppression, voting rights bills, like the For The People Act and the Voting Rights Advancement Act, are likely to  receive early attention, at least for messaging purposes if not for enactment into law, even recognizing that bills of this sort are passionately opposed by many Republicans.  Although gun control is seen by many politicians on both sides of the aisle as a toxic issue politically, because background checks are widely popular in the United States, even among NRA members, a control bill like the Bipartisan Background Checks Act could also be a candidate for early consideration.

Given President Biden’s history of being among the first and most prominent politicians supporting gay marriage, he can be expected to push hard for the Equality Act.  Moreover, in light of Biden’s pledge to return the United States to the Paris Climate Change Agreement on day one of his term, the Climate Action Now Act as modified by the Biden climate change plan would also be a candidate for early action. 

Given the overwhelming support that President Biden received from women in this year’s election, he will surely want to demonstrate his appreciation for their votes by pushing the Congress to send the Paycheck Fairness Act to his desk promptly for his signature. 

Finally, while immigration legislation is an even more divisive issue than most of the other bills discussed above, in addition to his personal commitment with respect to these issues, the new President will be under great pressure from Progressives and the immigrant community to ensure that the Dreamers are protected and given a path to citizenship and that all available steps are taken to reunite families where children were separated from their parents.  President Biden has promised to introduce a bill protecting the Dreamers from deportation and establishing a path to citizenship within the first 100 days of his administration.

In short, one could easily envision a scenario starting in late January, 2021,where the Democratic Senate , acting in conjunction with the Democratic House, would eventually seek to pass in substance all nine of these bills and then spend the better part of the next two years taking up, passing and sending to the President several of the other House Democratic-sponsored bills that the Senate in the current Congress refused even to consider.

Other Democratic Bills Passed By the House In the Current Congress That May Be Considered As Part of the 2021-22  Biden Legislative Agenda

Obviously, it’s not possible to cover herein all of the 422 other Democratic-sponsored bills that the House passed but the Senate never considered, and many of these bills do not warrant such attention in any event.  Nonetheless. here are an additional 51 key Democratic bills passed by the current House but ignored by the Senate that could well receive Congressional attention in some form during the next two years.  With a few notable exceptions, bills that passed the House by voice vote or under suspension of the rules are not included in this list.  For ease of reference, these House bills are listed in ascending order by bill number from the current Congress:

  • H.R.35, the Emmett Till Antilynching Act (passed February 26, 2020)
  • H.R.36, the Combating Sexual Harassment in Science Act  (passed July 23, 2019)
  • H.R.51, the Washington, D.C. Admission Act  (passed June 26, 2020
  • H.R.397, the Rehabilitation for Multiemployer Pensions Act (passed July 24, 2019)
  • H.R.582, the Raise the Wage Act (passed July 18, 2019)
  • H.R.624, the Promoting Transparent Standards for Corporate Insiders Act (passed January 28, 2019)
  • H.R.1044, the Fairness for High-Skilled Immigrants Act (passed July 10, 2019
  • H.R.1112, the Enhanced Background Checks Act (passed February 28, 2019)
  • H.R.1230, the Protecting Older Workers Against Discrimination Act (passed January 15, 2020
  • H.R.1423. the Forced Arbitration Injustice Repeal Act (passed September 20, 2019)
  • H.R.1425 , thePatient Protection and Affordable Care Enhancement Act (passed June 29, 2020)
  • H.R.1500, the Consumers First Act (passed May 22, 2019)
  • H.R.1582, the Electronic Message Preservation Act (passed March 12, 2019)
  • H.R.1585, the Violence Against Women Reauthorization Act (passed April 4, 2019)
  • H.R.1595, the Secure And Fair Enforcement Banking Act (passed September 25, 2019)
  • H.R.1815, the SEC Disclosure Effectiveness Testing Act (passed October 17, 2019)
  • H.R.1941, the Coastal and Marine Economies Protection Act (passed September 11, 2019)
  • H.R.2203, the Homeland Security Improvement Act (passed September 25, 2019)
  • H.R.2339 , the Protecting American Lungs and Reversing the Youth Tobacco Epidemic Act (passed February 28, 2020)
  • H.R.2382, the USPS Fairness Act (passed February 5, 2020)
  • H.R.2474, theProtecting the Right to Organize Act (passed February 6, 2020)
  • H.R.2513, the Corporate Transparency Act (passed October 22, 2019)
  • H.R.2534, the Insider Trading Prohibition Act (passed December 5, 2019)
  • H.R.2574, the Equity and Inclusion Enforcement Act (passed September 16, 2020)
  • H.R.2639, the Strength in Diversity Act (passed September 15, 2020)
  • H.R.2722, the Securing America’s Federal Election Act (SAFE Act) (passed June 27, 2019)
  • H.R.3239, the Humanitarian Standards for Individuals in Customs and Border Protection Custody Act (passed July 24, 2019)
  • H.R.3299, the Promoting Respect for Individuals’ Dignity and Equality Act (passed July 24, 2019)
  • H.R.3621, the Comprehensive CREDIT Act (passed January 29, 2020)
  • H.R.3624, the Outsourcing Accountability Act (passed October 18, 2019)
  • H.R.3670, the Short-Term Detention Standards Act (passed July 25, 2019)
  • H.R.3702, the Reforming Disaster Recovery Act (passed November 18, 2019)
  • H.R.4335, the 8-K Trading Gap Act (passed January 13, 2020)
  • H.R.4344, the Investor Protection and Capital Markets Fairness Act (passed November 18, 2019)
  • H.R.4432, the Protecting Critical Infrastructure Against Drones and Emerging Threats Act (passed February 10, 2020)
  • H.R.4447, the Clean Economy Jobs and Innovation Act (passed September 24, 2020)
  • H.R.4617, the  Stopping Harmful Interference in Elections for a Lasting Democracy Act– (SHIELD Act)  (passed October 23, 2019)
  • H.R.5003, the Fair Debt Collection Practices for Servicemembers Act (passed March 2, 2020)
  • H.R.5065, the Prison to Proprietorship for Formerly Incarcerated Act (passed January 8, 2020)
  • H.R.5078, the Prison to Proprietorship Act (passed January 9, 2020)
  • H.R.5084, the Improving Corporate Governance Through Diversity Act (passed November 19, 2019)
  • H.R.5322, the Ensuring Diversity in Community Banking Act (passed September 21, 2020)
  • H.R.5332, the Protecting Your Credit Score Act (passed June 29, 2020)
  • H.R.5377, the Restoring Tax Fairness for States and Localities Act (passed December 19, 2019)
  • H.R.5602, the Domestic Terrorism Prevention Act (passed September 21, 2020)
  • H.R.7120, the George Floyd Justice in Policing Act (passed June 25, 2020)
  • H.R.7301, the Emergency Housing Protections and Relief Act (passed June 29, 2020)
  • H.R.7327, the Child Care for Economic Recovery Act (passed July 29, 2020)
  • H.R.7909, the Ensuring Children and Child Care Workers Are Safe Act (passed September 16, 2020)
  • H.R.8015, the Delivering for America Act (passed August 22, 2020)
  • H.R.8134, the Consumer Product Safety Inspection Enhancement Act (passed September 29, 2020)

While we do know that the bill numbers for all of these bills will change when and if they are offered in the next Congress, we also know that the text and even the substance of some of these bills could change to reflect more recent developments and to incorporate more of the new President’s policy proposals. 

Moreover, if the White House and the Congress end up being controlled by the same party for the next two years, some of these bills may not even be offered in the next Congress or be dialed back somewhat in their scope because the Biden White House believes that the goals of some of these bills can now be achieved instead through administrative or regulatory action rather than legislation. The prospects for several of these bills also could depend on what, if anything, the Senate elects to do with respect to the current filibuster rules.     

If the Democrats win both Georgia runoffs, the end of divided government between the White House and the Congress , at least for the next two years, will have a profound impact on when and how the legislative process moves forward  and on which bills are viable candidates to become law or at least receive Senate consideration for messaging purposes.  That said, the bills discussed above should provide a clear window and overview into how the new Biden administration is likely to proceed legislatively. 

Recent polling indicates that both Georgia runoffs currently are very close.  Thus, control of the Senate for the next two years remains very much in doubt.  Given the enormous potential impact of these runoffs on the Biden legislative agenda, we will continue to monitor these races  closely and report on all material developments in this space as we learn and can evaluate the election results.  If you would like a more particularized analysis of what the outcome of the Georgia runoffs may mean for your business and your policy priorities, please contact us. 

Three New Commissioners Join FEC as Busy 2021 Looms

On December 18, 2020, three new Commissioners were officially sworn in as members of the Federal Election Commission (FEC or Commission), restoring the agency’s quorum and its ability to conduct business for the first time since June of 2020.  The appointees – Ms. Shana Broussard, Mr. Sean Cooksey, and Mr. Allen Dickerson – were nominated by President Trump earlier this year and confirmed by the U.S. Senate on December 9th.  After months without a voting quorum, the FEC will now be able to commence its core regulatory and enforcement functions on matters of campaign finance and elections, including issuing advisory opinions, promulgating and implementing regulations, and taking formal action in enforcement matters.

For the first time in roughly three years, the panel will be at a full slate of six Commission members. The newest appointees include one Democrat and two Republicans with differing backgrounds and viewpoints on the role of the Commission and the appropriate reach of federal campaign finance and election law.  Shana Broussard, the newest Democrat Commissioner, fills the seat previously held by former Commissioner Ann Ravel and holds a term that extends through April 30, 2023.  Ms. Broussard served as counsel to Commissioner Steven Walther prior to her appointment and also has previous public service experience as an Attorney Advisor for the Internal Revenue Service and Assistant District Attorney in New Orleans, LA.  Commissioner Cooksey – one of the new Republican additions to the Commission – joins the agency after serving as General Counsel to U.S. Senator Josh Hawley and Deputy General Counsel to U.S. Senator Ted Cruz.  Prior to his government service, Mr. Cooksey worked as an attorney in private practice focusing on appellate and constitutional law.  Commissioner Dickerson – the second of the new Republican members of the Commission – joins the agency after a long stint as legal director for the Institute for Free Speech and its nationwide First Amendment litigation practice.  Mr. Dickerson also has background as a Judge Advocate in the US Army Reserve and as a private practice litigator.  

Due to its longstanding lack of a quorum, the FEC currently faces a significant matter backlog with at least – 446 open matters before the agency and 275 staff reports awaiting action.  The beginning of 2021 thus looks to be a busy one for the new Commissioners, as they attempt to clear their docket and set priorities for regulation and enforcement in the dynamic of a Biden administration.   In light of this reality, the Dentons Political Law Team, which regularly represents clients before the FEC in enforcement matters, investigations, audits, advisory opinion requests, and other matters, will monitor the agency’s activities in the coming months and provide regular updates.

COVID-19 Emergency Relief Package – Detailed Summary of New Agreement

Introduction

Congressional leaders reached a deal on roughly $900 billion spending package to bolster the U.S. economy amid the continued spread of the coronavirus, giving lawmakers a short timetable to review and pass what would be one of the biggest economic-rescue measures in the nation’s history.

Senate Majority Leader Mitch McConnell, House Speaker Nancy Pelosi and Senate Democratic leader Chuck Schumer announced the accord Sunday. The legislative text was still being written, but the House was expected to vote on it Monday followed by the Senate.

Below is a summary of the legislation produced by Senate Leadership.

Health Care Authorizations

Democrats secured a permanent end to surprise medical billing, finally providing patients with a critical new consumer protection. The bill also includes a 3 year extension of numerous public health programs, including funding for Community Health Centers, the Special Diabetes Program, a delay of the Medicaid DSH cuts, the Certified Community Behavioral Health Center program and more.

Additionally, the bill eliminates Medicare copays for colonoscopy treatment, provides Medicaid coverage to COFA migrants, provides the first expansion of the Medicare GME program in nearly 15 years, improves enrollment processes and offers new protections for Medicare beneficiaries, provides new mental health parity requirements, and expands access to rural health care and mental health telehealth treatment.

Unemployment Insurance – $120 Billion

In this relief bill, Senate Democrats secured $120 billion in additional federal funding for struggling workers nationwide by extending the historic unemployment insurance expansion established by the CARES Act, through March 14, 2021. Specifically, this bill:

  • Provides enhanced unemployment insurance benefits through the Federal Pandemic Unemployment Compensation (FPUC) program. It provides an additional $300 per week to supplement all state and federal unemployment benefits, starting after December 26, 2020 and ending March 14, 2021.
  • Extends the Pandemic Unemployment Assistance (PUA) program, which provides continued unemployment assistance to the self-employed, freelancers, gig workers, part-time workers and other individuals in non-traditional employment. It also increases the number of weeks of PUA benefits an individual may claim, from 39 to 50.
  • Extends the Pandemic Emergency Unemployment Compensation (PEUC) program, providing additional weeks of federally-funded benefits to workers who have exhausted their regular state unemployment benefits. It also increase the weeks of PEUC benefits an individual may claim, from 13 to 24.
  • Provides full federal financing of state Shared Work programs, allowing employers to avoid layoffs during the downturn by connecting their employees who are working reduced hours with partial unemployment compensation, through March 14, 2021.

Direct Payments – $166 Billion

In this legislation, Democrats secured an additional round of Economic Impact Payments, delivering $166 billion in critical financial support in the form of one-time direct payments of $600 for individuals making up to $75,000 and $1,200 for couples making up to $150,000, as well as an extra $600 per eligible child dependent. Importantly, it also includes a provision, which is retroactive to the CARES Act, to expand these direct payments to mixed-status households, ensuring that millions of immigrant families across the U.S. get access to this relief. Notably, these direct payments serve as a critical poverty-reducing tool, as earlier this year economists found that the payments, combined with the enhanced unemployment benefits, in the CARES Act prevented nearly 12 million more people from falling into poverty. Under this bill, a family of four would receive $2,400 in direct payments.

Tax Provisions

  • Extension and Expansion of the Employee Retention Tax Credit (ERTC): The bill importantly extends and expands the refundable Employee Retention Tax Credit (ERTC), which was established in the CARES Act. The extension of this tax credit, through July 1, 2021, will help keep additional U.S. workers on payroll and more small businesses and nonprofits across the country afloat. Specifically, this legislation, among other changes:
    • Increases the credit rate, from 50% to 70%;
    • Raises the limit on per-employee creditable wages from $10,000 for the year, to $10,000 for each quarter;
    • Expands eligibility for the credit by reducing the required year-over-year decline in gross receipts from 50% to 20%; and
    • Modifies the threshold for treatment as a ‘large employer’ by increasing the 100-employee delineation for determining the relevant qualified wage base to employers with 500 or fewer employees.
  • Special “lookback” for EITC and CTC: The bill includes a special temporary rule allowing lower-income individuals to use their earned income from tax year 2019 to determine the Earned Income Tax Credit and the refundable portion of the Child Tax Credit (i.e., the Additional Child Tax Credit) in the 2020 tax year. This will help workers who experienced lower wages this year, due to the pandemic, to get a larger refund that is consistent with their earnings from prior filing seasons.
  • Clarification of Tax Treatment of Paycheck Protection Program Loans: The bill specifies that forgiven Paycheck Protection Program (PPP) loans will not be included in taxable income. It also clarifies that deductions are allowed for expenses paid with proceeds of a forgiven PPP loan, effective as of the date of enactment of the CARES Act and applicable to subsequent PPP loans. This same tax treatment also applies to EIDL grants and certain loans and loan repayment assistance.
  • Extension of Paid Leave Credits: The bill extends the refundable payroll tax credits for paid sick and family leave that were established in the Families First Coronavirus Response Act, through March 31, 2021. The bill also allows self-employed individuals to use their average daily self-employment income from 2019, rather than 2020, for purposes of computing these credits.
  • Extension of Charitable Giving Incentives: The bill includes a one-year extension of the $300 above-the-line-deduction, which was established in the CARES Act and set to expire the end of this year. It also increases the amount for 2021 that married couples filing jointly can deduct for charitable contributions, from $300 to $600. This will continue to incentivize individuals who do not itemize to support charitable organizations during this crisis. Additionally, the bill extends through the end of 2021 the increased limits on deductible charitable contributions for companies and taxpayers who itemize.
  • Relief for Individuals with Flexible Spending Arrangements (FSAs): The legislation provides relief for individuals with health and dependent care FSAs, ensuring U.S. workers and families do not unfairly lose out on these employer-sponsored benefits at the end of the year, through no fault of their own. Specifically, it allows individuals to carryover any unused health and dependent care FSA benefits from 2020 into the 2021 plan year, along with other FSA plan flexibilities.

Small Business – $325 Billion

Democrats secured critical funding and policy changes to help small businesses, including minority-owned businesses, and nonprofits recover from the pandemic. This bill includes $284 billion for the Paycheck Protection Program (PPP) and extends PPP through March 31, 2021. Changes to PPP include:

  • Provides a second PPP forgivable loan for the hardest-hit small businesses and non-profits with 300 or fewer employees and that can demonstrate a loss of 25% of gross receipts in any quarter during 2020 when compared to the same quarter in 2019;
  • Creates a dedicated $15 billion set-aside for lending through community financial institutions, including Community Development Financial Institutions and Minority Depository Institutions to increase access for minority-owned and other underserved small businesses and nonprofits;
  • Creates a set-aside for very small businesses with 10 or fewer employees and for small businesses located in distressed areas;
  • Expands PPP eligibility for more critical access hospitals, local newspapers and TV and radio broadcasters, housing cooperatives, and 501(c)(6) nonprofits, including tourism promotion organizations and local chambers of commerce;
  • Allows for small businesses in the restaurant and hospitality industries to receive larger awards of 3.5 times average total monthly payroll, rather than 2.5 times;
  • Adds PPE expenses, costs associated with outdoor dining, and supplier costs as eligible and forgivable expenses;
  • Simplifies the forgiveness process for loans of $150,000 and less;
  • Repeals the requirement of deducting an EIDL Advance from the PPP forgiveness amount.

EIDL Grant Program – $20 Billion

This bill includes $20 billion for EIDL Advance grants. Small businesses and nonprofits in low-income communities are eligible to receive $10,000 grants. Any small businesses and nonprofits in low-income communities that received an EIDL Advance previously are also eligible to receive the full $10,000 if their award was less in the first round of grants.

Grants for Shuttered Venue Operators – $15 Billion

The bill provides $15 billion for SBA grants up to $10 million to live venues, independent movie theaters, and cultural institutions to address the economic effects of the pandemic. Grants can be used to cover expenses such as payroll costs, rent, utilities, and personal protective equipment. Two priority periods are established to ensure the hardest hit entities have dedicated access to assistance for the first 28 days of the program, while a reserve fund is made available ensure entities that are ineligible for the priority periods are able to receive assistance following the two 14-day priority periods. A set-aside of $2 billion is also reserved for entities with 50 or fewer employees. The program is authorized to make supplemental grants equal to 50 percent of the initial grant.

Extended SBA Debt Relief Payments – $3.5 Billion

This bill provides $3.5 billion to resume debt relief payments of principal and interest (P&I) on small business loans guaranteed by the SBA under the 7(a), 504 and microloan programs. All borrowers with qualifying loans approved by the SBA prior to the CARES Act will receive an additional three months of P&I, starting in February 2021. Going forward, those payments will be capped at $9,000 per borrower per month. After the three-month period described above, borrowers considered to be underserved—namely the smallest or hardest-hit by the pandemic—will receive an additional five months of P&I payments, also capped at $9,000 per borrower per month. SBA payments of P&I on the first 6 months of newly approved loans will resume for all loans approved between February 1 and September 30, 2021, also capped at $9,000 per month.

Enhancements of SBA Lending Programs – $2 Billion
This bill provides $2 billion to enhance SBA’s core programs, including 7(a), Community Advantage, 504, and the Microloan program, by making them more affordable and useful to small businesses. It also provides $57 million for the SBA Microloan Program to provide technical assistance and leverage about $64 million in microloans for minority-owned and other underserved small businesses.

Transportation Authorizations – $18 Billion

This bill includes $45 billion in transportation funding to provide relief to transit agencies, airlines and airline contractors, state transportation agencies, airports, Amtrak, and private motorcoaches, school buses, and ferries, which have all been significantly impacted by coronavirus as travelers are urged to stay home and demand is down. Of this amount, the breakdown is as follows:

  • Airline Payroll Support Program – $15 billion to renew the CARES Act program which will keep workers on payroll without furloughs or reducing pay rates and benefits until March 31, 2021, with requirements for airlines to rehire workers laid off after Sept. 30, 2020, as well as stipulations preventing airlines from using funds for stock buybacks, executive bonuses, or for utilizing the funds in anything other than supporting workers.
  • Airline Contractors Payroll Support – this program will receive an additional $1 billion as part of the extension of the Payroll Support Program. And these workers have the additional protection of relief from furlough until all of their employers’ PSP funds are expended. 
  • Buses and U.S. Vessels – Nationwide, buses will receive $2 billion in relief, which will benefit private motorcoaches, school buses, and U.S.-flagged small passenger vessels. 
  • FMCSA – This provision expands the time period in which FMCSA grant funds can be expended by states if they’ve faced a hardship because of COVID-19.
  • NHTSA – This bill extends the CARES Act provision that allowed NHTSA to waive or postpone some requirements for states receiving highway safety grants if needed due to COVID. DOT has taken the position that the language only applied to FY 2020, and they need this extension to be able to grant similar relief to states in FY 2021.

Emergency Rental Assistance – $25 Billion

This legislation will establish a new and historic program to provide emergency rental assistance to Americans in need across the country. This emergency rental assistance program, which will be run through the U.S. Treasury Department, will utilize the resources and experience of the Treasury Department in distributing emergency aid to states and localities, while leveraging the existing local housing agencies that can best distribute these funds on behalf of tenants. With $25 billion in assistance provided to assist renters in need, these funds will be targeted to families impacted by COVID that are struggling to make the rent and may have past due rent compounding on itself. These families will be able to utilize this assistance for past due rent, future rent payments, as well as utility and energy expenses. The program will rightly prioritize support for the most in-need households.

Also critical is the extension of the CDC rental eviction moratorium, which will be extended through January 31st, 2021.

With these emergency funds and the extension of the eviction moratorium, individuals and families will be able to stay in their homes and make their utility payments throughout the winter.

Low-Income Water Utility Bill Assistance – $638 million

Democrats secured a new program that will help low-income families cover the costs of their drinking water and waste water utility bills.  This program will provide grants to states and tribes, who in turn will provide funds to owners or operators of public water systems or treatment works to reduce arrearages and rates to low-income households.  3% of the funds will be set aside for tribes.

Community Development Financial Institutions and Minority Depository Institutions – $12 Billion

The bill provides $12 billion in targeted emergency investments to Community Development Financial Institutions (CDFIs) and Minority Depository Institutions (MDIs) to help low- and moderate-income and minority borrowers and communities who have been disproportionately impacted by the COVID-19 pandemic and resulting economic stress.  The bill establishes emergency programs to revitalize and provide long-term financial products and service availability for, and provide investments in, low- and moderate-income and minority communities to better reach underserved businesses and nonprofits.

Specifically, the bill includes $9 billion for a new Emergency Capital Investment Program (ECIP), to provide low-cost, long-term capital investments to minority depository institutions (MDIs) and community development financial institutions (CDFIs) that are depository institutions and $3 billion in emergency assistance provided to CDFIs through the CDFI Fund, of which $1.2 billion will be targeted to “minority lending institutions,” a new category of CDFIs that predominantly serve minority communities.

U.S. Department of Labor Job Corps Flexibilities

This bill provides temporary programmatic flexibilities for individuals seeking enrollment in Job Corps, including a waiver of drug testing until students are able to return on-site and additional time for students who may otherwise have aged out of Job Corps eligibility. Several Job Corps centers began gradual resumption of in-person operations in November, however most students remain virtual. Thousands of additional individuals have expressed interest in enrolling virtually in the interim. Current requirements for drug testing have created barriers and backlogs preventing timely enrollment as contracts and procedures are for testing at the center locations. This section seeks to alleviate those barriers and provide additional time for individuals who may have aged out due to the backlog.

Nutrition and Agriculture – $26 Billion

This bill provides $26 billion in agriculture and nutrition funding. Of the $26 billion, $13 billion will be used for direct payments to farmers who have suffered losses due to the coronavirus. The remaining $13 billion will be used to combat food insecurity which is on the rise due to the economic impacts of the pandemic. Millions of families across the country are struggling to put food on the table and 1 in 6 kids face hunger. This bill will help address rampant food insecurity by increasing SNAP benefits by 15%. For Puerto Rico and territories that do not have access to the SNAP program, the bill has dedicated $614 million in funding for nutrition assistance block grants. An additional $400 is allocated for The Emergency Food Assistance Program (TEFAP) to fund the continued work of food banks. 

The bill also improves the P-EBT program, which provides additional nutrition benefits for families with children who are eligible for free school lunches to help cover the cost of meals children would have otherwise received at school.

US Postal Service

This legislation converts the CARES Act $10 billion loan into direct funding for the USPS without requiring repayment nor applying terms or conditions previously agreed upon with Treasury. The Postal Service can use these funds to maintain payrolls intact, cover operational costs, provide personal protective equipment for postal workers, and many other COVID-19 related costs. These relief funds will secure the jobs and safety of postal workers, and ensure quality service for veterans, small businesses, rural communities, and seniors who rely on the mail for medicines, essential goods, correspondence, and for their livelihoods.

Broadband – $7 Billion

This legislation includes $3.2 billion in emergency funds for low-income families to access broadband through an FCC fund. Additionally, democrats created a $1 billion tribal broadband fund. Included is $250 million dollars in telehealth funding and $65 million to complete the broadband maps in order for the government to effectively disperse funding to the areas that need it most. Last, this bill includes $2 billion to small telecommunication providers to rip out Huawei/ZTE equipment to replace it with secure equipment and a new $300 million grant program to fund broadband in rural areas.

Coronavirus Relief Fund Extension

This bill extends the availability by one year (until Dec. 31, 2021) for funds provided to states and localities by the Coronavirus Relief Fund in the CARES Act.

Contractor Pay Extension

This bill provides federal agencies the authority to reimburse contractors for the costs of paid leave during the COVID pandemic, for contractors who are temporarily unable to work due to facility closures or other restrictions. This is particularly important for our national labs, like Brookhaven National Laboratory, and national security facilities.

CARES Act Lending Facilities & Lending Authority

The legislation requires the recession and allows for the repurposing of no less than $429 billion of unobligated CARES Act funds that were provided to the Treasury Department to facilitate direct and indirect lending in response to the crisis. Additionally, the legislation mandates an end to the Federal Reserve’s emergency lending facilities that were funded by CARES Act appropriations. Last, the Treasury Secretary’s authority to fund 13(3) facilities that are the same as those established with CARES Act funding will require Congressional approval in some circumstances.   

Fisheries Assistance – $300 Million

This bill provides $300 million in assistance to fisheries participants to help mitigate coronavirus-related economic impacts. The funding will be available for coastal and Great Lakes states and territories through September 30, 2021. Of the $300 million allocated in the bill, $15 million is set aside for fishery participants in states bordering the Great Lakes and $30 million is set aside for Tribal fisheries of federally recognized Tribes and Alaska Native groups. Fisheries jobs and sales have been jeopardized by the coronavirus outbreak and fishing communities have been devastated by supply chain disruptions, restaurant closures, and the loss of a market to sell their products. The funding provided in this bill will help fisheries participants weather some of the profound financial impacts they’ve experienced due to this crisis.

Health Care COVID Relief Spending: Vaccines, Testing and Tracing, Community Health and Health Care Provider Support – $69 Billion

Democrats secured essential funding for vaccine procurement and distribution, providing roughly $20 billion to BARDA for procurement of vaccines and therapeutics, nearly $9 billion to the CDC and states for vaccine distribution and more than $3 billion for the strategic national stockpile. This includes $300 million specifically directed to high risk and underserved areas for distribution, including communities of color.

The bill provides more than $22 billion, all sent directly to states, for testing, tracing and COVID mitigation programs. Of this total, $2.5 billion will be sent out as grants specifically targeted at needs in underserved areas, including both communities of color and rural communities.

Democrats secured $4.5 billion in mental health funding and more than $1 billion for NIH to research COVID-19. The bill includes $9 billion in support for health care providers, which compromises an extension of relief from Medicare sequester cuts through March 31, 2021, an additional $3 billion and new distribution requirements for the Provider Relief Fund, and $3 billion in budget neutrality adjustments to the Medicare Physician Fee Schedule.  This bill also has $1 billion in direct funds to the Indian Health Service to carry out these services.

International Vaccine Distribution – $4 Billion

This legislation includes $4 billion in funding for GAVI, a private-public partnership aimed at getting vaccines to low-income countries around the globe

Transportation Spending – $27 Billion

This bill includes $45 billion in transportation funding to provide relief to transit agencies, airlines and airline contractors, state transportation agencies, airports, Amtrak, and private motorcoaches, school buses, and ferries, which have all been significantly impacted by coronavirus as travelers are urged to stay home and demand is down. Of this amount, the breakdown is as follows:

  • Transit Agencies – $14 billion to provide operational aid due to COVID-related revenue shortfalls.
  • Airports – Nationwide, airports will receive $2 billion to continue operating and disinfect locations for the safety of passengers. 
  • Highways – $10 billion in road, bridge, walking, and biking funding to continue building critical projects that connect residents and put employees back to work. 
  • Amtrak – $1 billion for Amtrak.

Education – $81.88 Billion

This bill provides $81.88 billion in education funding to provide relief to states, K-12 institutions, and higher education institutions that have all been significantly impacted by coronavirus. These funds are flexible and can be used on a variety of things to provide educational services to students and support the on-going functionality of school districts and colleges and universities. Similar to the CARES Act, the education funding is split into three funds as follows:

  • Governors Emergency Education Relief Fund: $4.05 billion
  • Includes a set aside for services to private K-12 schools to be administered by public agencies
  • Elementary and Secondary School Emergency Relief Fund (Public K-12 schools): $54.3 billion
  • Higher Education Emergency Relief Fund: $22.7 billion
  • $20 billion distributed to all public and private non-profit institutions of higher education
  • $908 million to for-profit colleges to provide financial aid grants to students
  • Relief for outlying areas and the Bureau of Indian Education: $818.8 million
  • Includes set-asides of an additional $1.7 billion for HBCUs, tribal colleges, and Minority-Serving Institutions and $113.5 million for institutions with the greatest unmet needs or those not served by the primary formula, such as independent graduate schools.

FEMA – $2 Billion

This legislation provides $2 billion for the Disaster Relief Fund and activates FEMA’s Disaster Funeral Assistance program – financial aid to those who have lost a loved one among the over 310,000 deaths caused by COVID through the end of this year. This targeted assistance can cover many typical funeral costs, including a casket, mortuary services, and burial plot. The bill provides this assistance at 100% federal cost share. This benefit, while not utilized often, is typically provided at 75% federal to 25% state, territory, or Tribal Nation monies. The tragic death toll of COVID across our country means this benefit will be provided on a historic scale, ensuring that those grappling with unspeakable loss are not also saddled with the financial burden of exorbitant funeral costs in this moment of economic and emotional turmoil.

Child Care – $10 Billion

This legislation provides $10 billion in emergency funds for child care providers through the Child Care and Developmental Block Grant (CCDGB) program. These grants provide immediate relief to child care providers who and are currently in operation or have been temporarily closed due to the pandemic. Providers will have flexibility in their use of funds, including personnel costs; sanitization and cleaning; personal protective equipment, fixed costs, rent, utilities, and other child care related services. This emergency relief will allow child care providers to remain open or reopen and assist essential workers and families who are in great need of this critical service. The bill also includes $250 million for Head Start providers to ensure they are able to continue to safely serve low-income children and families throughout the pandemic.

2020 Presidential Election: Where Things Stand

November 3rd is nearly two weeks in our rear view mirror – here is what we know. Most major news outlets have called the race for former Vice President Joe Biden, but President Donald Trump has refused to concede, and has filed a string of lawsuits around the country challenging the results of the election. We leave the politics aside and provide you with an overview of where things stand in the certification process in key states, and what is required to happen between now and Inauguration Day by federal law.

Vote Certification – and the Electoral College

Congress enacted the Electoral Count Act of 1887 to set forth a uniform process for states to follow to deliver their electoral votes to Congress after the election. Congress ultimately counts and certifies the results of the Electoral College, this year on January 6th, three days after the new Congress is sworn in on January 3rd. In order for a state’s electors to receive protection that Congress will accept their electors without any questions asked, a state must certify the results of its election by the “safe harbor” deadline of six days before the electors meet to cast their votes. This year, that means that states have until December 8th to receive safe harbor status, as the winning electors will meet to cast their votes for President and Vice President on December 14th.

As of the time of this writing, six states have already certified their electors. It is widely expected that all states will do so before the safe harbor deadline. While there are reports that Republican legislators in some states may try to certify their own slate of electors in conflict with current state law in every state, this is a highly unlikely scenario, and one that likely wouldn’t change the electoral college count such that the results of the election change. We briefly detail the current status of vote certification in a number of swing states below.

Status in Swing States

Arizona

The certification date for Arizona is November 30th. As of the time of this writing, former Vice President Biden maintains a roughly 11,000 vote lead, and most major news outlets have declared him the victor. Arizona has very restrictive recount laws, so there is unlikely to be a recount. The Trump campaign has filed a lawsuit seeking to block the state’s certification of votes.

Georgia

The certification date for Georgia is November 20th. As of the time of this writing, former Vice President Biden maintains a roughly 14,000 vote lead, and most major news outlets have declared him the victor. The Georgia Secretary of State has announced that the state will conduct a hand recount of every ballot cast in the presidential race, and will also conduct a risk-limiting audit to rule out the possibility of fraud or errors. This process has begun as of the time of this publication.

Pennsylvania

The certification date for Pennsylvania is November 23rd. As of the time of this writing, former Vice President Biden maintains a roughly 60,000 vote lead, and most major news outlets have declared him the victor. Biden’s lead is currently too large to trigger an automatic recount, and it is unclear if the Trump campaign would request one. Pennsylvania is the state where the Trump campaign has filed the most lawsuits. Because of one of the lawsuits, the United States Supreme Court ordered mail ballots postmarked by election day but received in the three days following election day to be sequestered. The number of ballots in this category appears to be approximately 10,000. The Trump campaign has also filed a lawsuit seeking to block the state’s certification of votes.

Wisconsin

The certification date for Wisconsin is December 1st. As of the time of this writing, former Vice President Biden maintains a roughly 20,000 vote lead, and most major news outlets have declared him the victor. The Trump campaign has said that it would request a recount, which would need to be completed within 13 days of its commencement under state law.

Lame Duck Session Fact Sheet

Dentons’ Public Policy team has developed a fact sheet as a quick reference guide on the lame duck session.

Click below for an overview of the 116th Lame Duck Agenda, the differences between the House’s Heroes II bill and the two bills introduced by Senate Majority Leader McConnell and legislation passed in recent lame duck sessions.

US Election Insight 2020

Biden Declared by News Networks To Be America’s Next President

Elections Insights 2020 Cover

While the states of Alaska, Georgia and North Carolina have not yet been called, and President Trump has not conceded the election’s outcome, former Vice President Joseph R. Biden, Jr., is expected to be the next President of the United States and Senator Kamala Harris the Vice President-elect, and the first woman and person of color to serve in that role.

After being declared the winner in Pennsylvania by many media organizations, President-elect Biden has won states with 290 Electoral College votes, more than the 270 votes required to be elected, while President Trump has won states with 213 Electoral College votes.
With over 13 million votes nationwide still to be counted, Biden holds a majority of the national popular vote, with a lead of about 4.1 million votes (about 2.8%) that is anticipated to expand as more votes from the West Coast, especially California, are counted. This is the seventh time in the last eight presidential elections that the Democratic candidate has won the popular vote.

President Trump and his supporters have initiated multiple lawsuits seeking to dispute and overturn these election results. However, unless these legal actions ultimately persuade the courts to disqualify sufficient ballots in states that have been called for Biden in a manner that would alter the Electoral College result, an outcome that appears highly unlikely, the presidential race is over.

Control of the Senate Will Be Determined by Two Georgia Runoff Elections on January 5, 2021

In the Senate, at this writing Republicans and Democrats each have secured 48 seats. Democrats have achieved a net gain of only one seat to date, with 4 races uncalled: two of which are expected to remain Republican (Alaska and North Carolina) and two seats in Georgia. With a Democratic White House, Democrats need to pick up two more seats in order to capture the Senate. Under Georgia law, US Senate candidates must receive 50% of the total votes cast or face a runoff election. As none of the candidates reached the 50% threshold, there will be two runoff Senate elections in Georgia on January 5, 2021. If Republicans win at least one of these two races, Senator Mitch McConnell will remain the Majority Leader, while Democrats will control the chamber if they win both runoffs.

Democrats will continue to have the majority in the House of Representatives, but with a narrowed margin, to the surprise of many Democrats who were expecting at least modest gains to their House majority. Thus far, Republicans have achieved a net pick-up of about five seats.

Click here to see our Election Results on One Page, our preview of the Biden Transition Team members and a look ahead to potential Biden Cabinet members.

US Election Insight 2020 – Results as of 4:30 p.m. ET

Since the release of this morning’s Results Report, there have been several developments which have materially increased the chances that former Vice President Biden will be America’s next President and that Republicans will continue to control the Senate. While President Trump continues to have paths to 270, former Vice President Biden continues to have several more pathways.

  • In the presidential race, the Associated Press has declared Biden the winner in Wisconsin. With all but about 300 votes counted, Biden leads Trump by 20,510 votes. As the difference in vote totals is less than 1% of the votes cast, the Trump campaign will seek a recount but it cannot commence until late next week after a canvass of the votes has been completed.
  • In Nevada, the state elections commission announced this morning that no more results will be announced until noon Eastern time tomorrow. The votes that remain to be counted are expected to increase the Biden lead.
  • In Michigan, with 93% of the vote in and Vice President Biden now leading by about 37,000 votes, the Michigan Secretary of State said that she expected to have a very clear if not final picture of the election results by tonight. Several news organizations have called the state for Biden.
  • In Georgia, with 93% of the vote in and President Trump leading by about 78,000 votes, about 230,000 votes from counties expected to favor Biden remain to be counted. The Georgia Secretary of State expects the number of uncounted votes to be substantially reduced, if not exhausted, by the end of today.
  • In Pennsylvania, where President Trump leads by about 355,000 votes with 83% of the votes in, the remaining mail ballots come from Philadelphia and Allegheny County and are expected to favor Vice President Biden decisively. Pennsylvania election officials expect that most of the ballots outstanding will be counted by the end of this Friday.  

Democrats continue to have a net gain of one seat in the US Senate. With Senator Susan Collins’ re-election win in Maine, the window for Democrats to capture control of the Senate has narrowed considerably, even if Vice President Biden is elected President. As Alaska is expected to remain a Republican seat, even assuming that Senator Gary Peters pulls out a win in Michigan, Democrats would have to win both Georgia seats to gain control, a highly unlikely prospect. The balance of power has not materially changed in the House since this morning’s report.  

Finally, in a year where very little changed when it comes to state legislative control, New Hampshire gave Joe Biden and Democratic Senator Jeanne Shaheen large victories, then turned around and elected Republican Governor Chris Sununu to another term and flipped democratic majorities in the House and Senate to republican majorities going into 2021. The flip makes New Hampshire the only new “Trifecta” government (single party control of the governorship, House and Senate) of the cycle.

We will update this report tomorrow morning and sooner if exceptional circumstances require it.