Capitol to Capitol | Nov. 14, 2018

Laundry List of To-Do's Remain for the Lame Duck Congress


Veterans Day was first called Armistice Day and was established in 1919 as the one-year anniversary of the ending of World War I. In 1954, President Eisenhower signed legislation to change the title to Veterans Day to honor all of America’s veterans.

While talks of what’s to come in the divided 116th U.S. Congress have dominated the news this past week, the 115th Congress still has its work cut out for the remainder of 2018. The House and the Senate returned to Washington yesterday for the first time since the elections and several issues must be addressed before the lame-duck session ends. Both chambers have just four weeks to negotiate a multitude of important matters while also evading several contentious issues that will most likely lead to high-profile policy fights and plenty of drama. Here are some of the issues to watch:

  1. Government Funding. Congress has less than a month to negotiate seven unfinished spending bills for the current fiscal year to prevent a partial government shutdown. A final spending package of more than $300 billion in discretionary funding must be created by Dec. 7 when a stopgap funding measure expires. The departments of State, Homeland Security, Commerce, Agriculture, Transportation, Interior, Justice, and Housing and Urban Development are all at risk of shutting down if Congress doesn’t come to an agreement. In September a $855.1 billion omnibus spending package was signed into law that included the five other annual appropriations bills.
  2. Nominations. Dozens of executive and judicial nominations are at the top of the to-do list for Senate Republicans. A record number of judicial picks in influential circuit courts have been approved by the Senate and this work is expected to continue. As for the departure of Attorney General Jeff Sessions, it is unlikely there is enough time on the calendar to vet, debate and vote on a Cabinet nominee.
  3. Farm Bill. There is speculation that lawmakers could come to an agreement on a massive agriculture bill by the end of the year. This comes after a Sept. 30 deadline passed as the House and Senate couldn’t compromise over their bills on key items such as food stamps.
  4. Criminal Justice Reform. Senate Majority Leader Mitch McConnell pledged before the midterms that he would re-examine support for a criminal justice reform bill and bring it to the floor if it can get the 60 votes needed to pass. The bipartisan legislation would prove to be one of most substantial rewrites of the nation’s sentencing and prison laws by including changes to ease drug sentences and provide judges greater ability to sidestep mandatory minimum sentences.
  5. Disaster Relief. While President Donald Trump suggested withholding federal payments for wildfire relief in California this past weekend, Senate Republicans did not echo the president’s sentiment. Prominent Senate Republicans assured California that it would receive financial assistance to help deal with some of the most destructive wildfires in the nation’s history. The National Flood Insurance Program also expires on Nov. 30, but lawmakers are expected to approve a short-term reauthorization and push consideration on any reform into the new Congress.
  6. Political Potholes. While the to-do list remains long, there are a number of contentious issues to watch that may complicate matters, including:
  • The Border Wall. The largest hurdle Congress will need to deal with is a looming federal government shutdown fight over Trump’s proposed U.S.-Mexico border wall. Both McConnell and Minority Leader Chuck Schumer (D-N.Y.) said talks about “border security” have been bipartisan and ongoing, but interference from the White House could complicate things and result in a standoff over immigration.
  • Mueller Investigation. With the dismissal of Sessions, Trump has installed Matthew Whitaker as acting attorney general. This has set off a chain reaction on Capitol Hill in relation to special counsel Robert Mueller’s investigation into Russian meddling in the 2016 presidential elections. There are talks of introducing bipartisan legislation that would protect the special counsel’s investigation. While the likelihood of this passing is low given opposition from GOP leadership, you can bet it will complicate things in the public eye.
  • Leadership Fights. Finally, partisan infighting over who will lead each party could further complicate matters. As Speaker Paul Ryan prepares to retire, Republicans now have a crowded race for who will lead them in the new minority party. House Democrats could also have their own drama as the current House Democratic Leader Nancy Pelosi attempts to retain power of the party as some members push for a change.

NCSL Contact: Jake Lestock

A Holiday Season of Policymaking

While many analysts predict a divided Congress will diminish the chances of any major legislative accomplishments in 2019 and beyond, it may help to push some major policy legislation across the finish line before the end of 2018. Two bills that may get a needed boost are the 2018 Farm Bill and federal autonomous vehicle legislation.

So far, both the House and Senate have passed their own versions of a 2018 Farm Bill. However, the two versions are quite different in certain key areas (e.g., food stamps, conservation, commodities) which has led to a protracted stalemate. The loss of the majority in the 116th may provide a window for negotiations to be completed in December. Likewise, both chambers have been very active in enacting their own bill on autonomous vehicles.

The House passed its version, the SELF DRIVE Act, in 2017 while the Senate passed its version, the AV START Act, out of committee later that year, but has not been able to bring it to the floor for a vote by the full Senate. With the possibility of having to start fresh in 2019 with a Democratic House now a reality for both Republican-controlled chambers, the odds of reaching a negotiated compromise before the end of 2018 has risen although is still not guaranteed.

NCSL Contact: Ben Husch

DOJ Issues Interim Final Rule on Asylum


Before the late Stan Lee began writing and creating the stories of infamous super heroes, Lee wrote antemortem obituaries for celebrities at an undisclosed news office in New York. He said that he eventually quit the job because it was too “depressing.” Lee also served in the U.S. Army during World War II and worked as a playwright to write film scripts for Army training movies alongside other famous writers including Frank Copra and Theodor Geisel (Dr. Seuss). 

On Nov. 8, the Department of Homeland Security and Department of Justice issued a joint statement and interim final rule on asylum regulation. The interim final rule would bar potential asylum seekers at the southern border who do not enter the United States through a legal port of entry from making an asylum claim. The interim final rule can be found here. In response, civil rights groups filed a complaint in the U.S. District Court for the Northern District of California on Nov. 9. The complaint alleges that the Trump administration is violating immigration law as well as the federal statute that governs the way administrative agencies can issue rules.

NCSL Contact: Susan Frederick

NCSL Urges Congressional Leaders to Avoid State Preemption of Clean Water Authorities

On Nov. 11, NCSL sent a letter to congressional leaders expressing strong concerns surrounding the pre-emption of state authority contained in the revised version of the Vessel Incidental Discharge Act (VIDA). The Clean Water Act, through sections 510 and 401, explicitly provides states the opportunity not only to adopt standards or discharge limitations that are equal to, or more stringent than federal standards, but also the ability to certify, or condition “any activity,” which “may result in any discharge into the [Nation’s] navigable waters.” This ensures that decisions made in Washington will not negatively impact water quality across the nation. Unfortunately, current text of VIDA states that “no State, political subdivision of a State or interstate agency may adopt or enforce any law, regulation, or other requirement of the State, political subdivision, or interstate agency,” which ignores the importance of taking a state’s unique environmental and biological nature into account and instead imposes a one-size-fits-all approach.

NCSL Contact: Kristen Hildreth

Work on Keystone XL Pipeline Halted

Judge Brian Morris of the U.S. District Court for Montana ordered the administration and TransCanada to stop any work on the Keystone XL pipeline because the pipeline’s approval last year violated several key environmental and administrative laws by ignoring facts about climate change. The judge noted in his ruling that "The (State) Department instead simply discarded prior factual findings related to climate change to support its course reversal.” The judge also blocked the federal government and TransCanada "from engaging in any activity in furtherance of the construction or operation of Keystone and associated facilities until the Department has completed a supplement to the 2014 [Supplemental Environmental Impact Statement] that complies with the requirements of" the National Environmental Policy Act and the Administrative Procedure Act.

The Keystone XL Pipeline is not the only pipeline that has been delayed by judicial rulings. The Mountain Valley Pipeline, which would carry natural gas 300 miles from West Virginia to southern Virginia, has been delayed after being approved by the Federal Energy Regulatory Commission in October 2017. The Fourth U.S. Circuit Court of Appeals in July 2018 ruled that the Interior and Agriculture Departments had violated environmental laws when approving its path across federal lands. The Atlantic Coast Pipeline was also forced to stop construction following approval by FERC, after the Fourth Circuit ruled that permits to cross National Park Service land were not correct. However, construction resumed in September after the NPS issued a new permit.

NCSL Contacts: Ben Husch, Kristen Hildreth

NCSL’s 2018 Capitol Forum

Join NCSL in Washington, D.C., to advocate for states on Capitol Hill and help to develop the States’ Agenda. Get context and analysis on the most critical issues facing state legislatures and share your insights and experiences and network with legislators and legislative staff from around the country.

NCSL’s 2018 Capitol Forum will take place Dec. 5- 7 in Washington, D.C., at the Hyatt Regency Capitol Hill.

Upcoming Capitol Forum Dates:

  • Wednesday, Nov. 14: Hotel reservations must be completed to take advantage of NCSL’s discount room rates ($181/plus tax).
  • Wednesday, Nov. 20: Final day to access the advanced registration rate of $400 for legislators and legislative staff.

NCSL in D.C. 

Looking for more detailed information about federal issues that could affect states? NCSL’s committee newsletters released every month give you up-to-date insight on:

On this Day, Nov. 14, in…

  • 1832:  The first streetcar went into operation in New York City. The vehicle was horse-drawn and had room for 30 people.
  • 1851:  Herman Melville's novel "Moby Dick" was first published in the U.S.
  • 1909:  Albert Einstein presents his quantum theory of light. 
  • 1965:  The U.S. government sends 90,000 soldiers to Vietnam.

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NCSL's Advocacy in Washington

NCSL's Washington staff advocate Congress, the White House and federal agencies on behalf of state legislatures in accord with the policy directives and resolutions that are recommended by the NCSL Standing Committees and adopted by the full conference at the annual NCSL Legislative Summit Business Meeting. As a result of the advocacy that is guided by these policies positions, NCSL is recognized as a formidable lobbying force in state-federal relations.

NCSL Staff in Washington, D.C.

  • Molly Ramsdell | 202-624-3584 | Director
  • Jake Lestock | 202-624-8171 | Budgets and Revenue
  • Susan Frederick | 202-624-3566 | Law, Criminal Justice, and Public Safety
  • Abbie Gruwell 202-624-3569 | Human Services
  • Ben Husch | 202-624-7779 | Natural Resources and Infrastructure 
  • Jon Jukuri  | 202-624-8663 | Labor, Economic Development and International Trade
  • Haley Nicholson | 202-624-8662 | Health
  • Molly Ramsdell | 202-624-3584 | Commerce and Financial Services
  • Joan Wodiska | 202-624-3558 | Education