News & Insights

• The Biden Presidency is seated amid pandemic

• The 117th Congress is seated with narrow, tenuous Democratic majorities in both Houses

The “political math” of the 117th Congress, and its tactical impact on legislation.

At press time, the last House race (New York 22nd District) has been certified as a Republican victory.

This result gives the Democrats a narrow 9-vote majority control in the House, 222-213, in the 117th Congress. Thus, on any given House vote requiring only a bare majority (which is true for most votes on the House floor), if only 5 Democrats vote with the GOP side rather than with their Democratic colleagues, the GOP side will prevail and the Democratic side will lose.

On the Senate side, the Senate is tied at 50-50, with the tie-breaking vote of Vice President Harris giving the Democrats the narrowest possible majority. This means that if even 1 Democrat chooses to vote with the GOP on any floor issue requiring only a bare majority, the Democratic majority side would lose and the GOP side would prevail.

Several centrist Senators’ votes will be courted quite closely on nearly every major contentious issue.

Unless there are new Senate rules changes that are extremely unlikely at this time, we expect the availability of the Senate filibuster to continue without abandonment. Sufficient Democrats have joined all Republicans to ensure that the filibuster will remain an available tactic. So, in addition to the tenuous bare majority votes in a 50-50 Senate, the need for 60 votes to override filibusters means that the Democrats will need to negotiate to bring at least 10 Republicans on board to defeat a filibuster on most important floor votes.

Whip counting (polling Members how they intend to vote before the vote is scheduled) will be as important as it has ever been.

While we expect the Hill to tilt decisively in the direction of the Democratic agenda, we know that narrow majorities can have a tactical/practical moderating effect on legislation, particularly in filtering out some hot-button issues and blurring some of the more controversial fine points of policy. There will be more on this below with respect to certain key legislative proposals.

With the majorities now settled, the House and Senate are organizing their committees in terms of Chairs and Ranking Members, and finalizing committee memberships. Committees are beginning to schedule hearings. ICPI is monitoring these efforts.

Meanwhile, at the White House, the Biden team is settling in and doing what it can to execute a fast start. At press time, several of the Biden Cabinet nominees have either been confirmed by the Senate or are moving normally through the confirmation process. So far there have been no controversies or delays in confirmations.

The first two orders of business have been to quickly ramp up on COVID-19 legislation, and to issue Presidential Executive Orders (EO) to overturn actions of the Trump Administration. Presidential action by EO is immediate and does not require legislation or negotiation with the Hill.

With respect to the COVID-19 $1.9 trillion package sought by President Biden, the President is relying on the Democratic House and Senate majorities, and the filibuster-proof rules of “Budget Reconciliation,” to move this first package.

President Biden has reached out to Senate GOP centrists. Initial talks between the President and GOP Senators have been cordial, businesslike. We expect polite discourse to continue, a mode which we expect may bear fruit on future legislation where the filibuster is possible and inter-party consensus will be required. But in this first bill, addressing the COVID-19 universe of issues on a massive and urgent basis, the President has accessed the rare procedural opportunity allowed under Budget Reconciliation to move the entire legislation without any GOP votes. (Budget Reconciliation is a privileged matter under the Budget Act, thus a Senate filibuster is not allowed.) At press time no Republican Member has signaled support for the massive $1.9 trillion bill wanted by the President.

The COVID-19 bill does not include issues that might have the most direct impact on ICPI interests, such as infrastructure, taxation, immigration or labor. But it does have many elements intended to improve the economy by both rapidly expanding vaccine deployment to quell the human medical impact of COVID-19 and by providing economic rescue to some of the hardest hit sectors in the U.S. economy.

The issues surrounding economic impacts include, for example, a raise in the federal minimum wage, direct payments to people, increases and extensions in the federal unemployment insurance program. Other examples include funding for FAA and the airlines, other transportation and mass transportation sectors, FEMA programs related to vaccine distribution and virus response. Of course it is a huge bill, substantively and in cost. Some economists say a large bill is needed; others express concerns about the cost, possible inflationary effects and the federal deficit. At press time the various Hill committees tasked to construct the final elements are doing so. Given the urgency of the pandemic and the favorable parliamentary circumstances, we expect a large COVID-19 bill to pass in late February/early March.

With respect to the early Biden Administration Executive Orders which might have relevance to ICPI and its members, the following is a brief selection of EOs and what they would do:

-Reverses Trump-era constraints on rulemakings, overturns many rules, and institutes a regulatory freeze on Trump administrative actions that were under development. A key adjunct is that the new Biden EPA counsel has asked DOJ to suspend work on environmental actions prompted under the Trump Administration to give the Biden Administration time to conduct their own reviews and possibly reverse course.

-Directs each federal agency to develop a plan to increase the resilience of its facilities and operations to the impacts of climate change and directs relevant agencies to report on ways to expand and improve climate forecast capabilities – helping facilitate public access to climate related information and assisting governments, communities, and businesses in preparing for and adapting to the impacts of climate change.

-Directs each federal agency to develop a plan to increase the resilience of its facilities and operations to the impacts of climate change.

-Catalyzes the creation of jobs in construction, manufacturing, engineering and the skilled-trades by directing steps to ensure that every federal infrastructure investment reduces climate pollution.

-Commits the U.S. to rejoining the Paris Climate Accord.

-Makes climate change an essential factor of U.S. foreign policy and national security.

-Re-establishes the President’s Council of Advisors on Science and Technology.

-Makes the Director of the Office of Science and Technology Policy responsible for scientific integrity for the federal agencies, and to ensure that sound science is used.

-Directs OSHA to release clear guidance to employers on COVID-19 (at press time this has already been released by OSHA), possibly establish an Emergency Temporary Standard for employers (currently under consideration by OSHA), and directs OSHA to enforce worker health and safety requirements.

-Directs agencies to apply and strictly enforce the prevailing wage and benefit guidelines of Davis Bacon and other acts and encourage Project Labor Agreements. These actions reaffirm that agencies should work to ensure that any jobs created with funds to address the climate crisis are good jobs with a choice to join a union.

-Strengthens Buy America rules affecting federal purchases of goods.

As we close our discussion of the early Biden EOs, we note the clear effort to include the environment and climate change in nearly every major action taken or contemplated by the new Administration. Of course, PICP is a green technology that fits well with any policy that favors green construction, stormwater mitigation, clean water, reduced flooding, water harvesting and more. We think it prudent to highlight, constantly and comprehensively, the substantial positive environmental benefits of PICP, certainly in discussions with any level of government, and probably to private sector elements influenced by government policies.

Specific issues particularly relevant to ICPI and its members

WOTUS, the “Waters of the U.S.” definition of waterways subject to the Clean Water Act (CWA) and related regulation by EPA and the U.S. Army Corps of Engineers: 

The first contemporary movement on WOTUS occurred when the Obama Administration redrafted WOTUS to include many more waterways/types of waterways subject to CWA (and for ICPI’s purposes, stormwater mitigation using permeable pavements). The second movement was the Trump Administration elimination of the Obama WOTUS rule, replacing it with a much narrower definition of waterways subject to CWA.

Now comes the third movement, the effort by the Biden Administration to reverse the Trump action and, presumably, eventually restore much or all of the Obama WOTUS rule.

President Biden included WOTUS in his early regulatory efforts, calling for a review of the Trump rule and a recommendation on how best to proceed.

Environmentalists want Biden to move even further and faster on WOTUS.  House Committee on Transportation and Infrastructure (T&I) Chairman Peter DeFazio and Subcommittee on Water Resources and Environment Chairwoman Grace F. Napolitano have called on President Biden to fully repeal the Trump rule now and immediately engage a new rulemaking to replace it.

Such a rulemaking would take considerable time, as was seen in both the Obama and Trump efforts, each of which took years to complete.  But it would provide the most complete repudiation and replacement of the Trump rule.

During the Obama rulemaking, ICPI provided WOTUS to EPA comments asserting how permeable pavement technology was readily available to help the country meet increased stormwater mitigation requirements with the economical, proven, readily available “off the shelf” technology to do so.  ICPI stands ready to participate in any new rulemaking respecting WOTUS during the Biden Administration. This position comports with ICPI’s effective efforts in branding PICP as a green technology that is fully in synchronization with growing demands for environmentally friendly infrastructure development.

WRDA, the Water Resources Development Act: The WRDA 2020 reauthorization became law late in the immediately preceding 116th  Congress. Now comes the time to implement the new law.  Infrastructure proponents on the Hill are urging the Biden Administration to do so as soon as possible, in large part because it is the infrastructure bill that has already been passed and is available to boost infrastructure activity in the economy.

An interesting recent twist to WRDA is that it is being hailed for its green construction opportunities as much as for construction jobs.  For ICPI, we interpret green construction as opportunities for PICP.

In a recent statement issued by House T&I Chairman DeFazio, he cited key provisions from WRDA 2020 that will help the Biden administration achieve its climate, resiliency, and equity goals:

-Directs final agency procedures for Principles, Requirements, and Guidelines (PR&G). The PR&G ensures that future water resources development projects maximize sustainable development, protect and restore the functions of natural systems, and fully-evaluate environmental, economic, and societal goals (including both monetary and non-monetary effects), in addition to addressing environmental justice concerns and ensuring meaningful participation of locally-affected communities.

-Expands the ability of the Corps of Engineers to provide local governments with direct resiliency planning assistance (at no cost to the local government through the Corps’ Flood Plain Management Services) to avoid repetitive flooding impacts, to prepare and adapt to climate change and extreme weather events, and to quickly recover from flooding events.

-Directs the Corps to prioritize planning assistance to economically disadvantaged communities and communities subject to repetitive flooding events.

-Reaffirms the commitment to greater use of natural and nature-based projects by ensuring natural and nature-based alternatives are fully evaluated in any flood or storm risk-reduction feasibility study carried out by Corps and are provided the same cost-share as structural alternatives.

-Authorizes the Corps to study, design, and construct water resources projects for communities that have been subjected to repetitive flooding events and have received emergency flood assistance, including construction of temporary barriers. This authority is directed at helping repetitive loss communities, especially those in economically disadvantaged communities, obtain critical flood protection.

-Creates additional flexibility for the Corps to address the water resources needs of economically disadvantaged communities, minority communities, and rural communities both through pilot efforts to reduce (or eliminate) the local cost share for partnering with the Corps, or through providing additional resiliency planning or technical assistance, at no cost to the community.

ICPI supports the rapid implementation of WRDA and its growing focus on environmental concerns and combating repetitive flooding.

An “infrastructure package”

While the Biden Administration has not made it a top priority on the same level as COVID-19, an infrastructure package is always mentioned as a priority for action in 2021.

The Biden campaign offered the Build Back Better statement of goals during the 2020 campaign.This was an aspirational campaign document lacking in substantive detail.

President Biden is expected to deliver a speech to Congress on February 23 at which time he is expected to address infrastructure plans in greater detail.

We know that leaders in both parties in House T&I, the Senate Environment and Public Works Committee, and other committees have detailed working drafts ready for consideration. There is strong support for a bill among the business and construction communities.

In days leading up to this writing, President Biden is reported to have said, paraphrasing, he cannot wait to work out an infrastructure package with Chairman DeFazio.

ICPI welcomes those favorable comments and stands ready to offer support and possible permeable pavements language for consideration in such a bill. ICPI will be watching these developments closely as 2021 unfolds.

Immigration, and the H-2B worker visa program      

In 2020, President Trump eliminated issuance of new H-2B visas twice, the latter announcement extending his delay on new visas through March of 2021.

President Biden has issued several early EOs addressing various aspects of immigration. He has proposed a study of the political, economic and societal reasons why citizens of other countries emigrate to the U.S. as a precursor to modify U.S. foreign policy to address those dynamics. He has pledged to pursue legislation to reform the immigration system, including enactment of an eight-year pathway to citizenship.

A comprehensive immigration bill remains a primary means to address the H-2B worker visa issue, though not the only means. Unilateral regulatory action by the Administration, DHS and DOL can and do impact H-2B. Further, in recent years, important H-2B action has originated in the House and Senate Appropriations Committees, with directives and conditions attached to DHS and DOL funding legislation.

ICPI is a member of the H-2B Worker Visa Coalition and supports increases in the annual visa caps and the release of additional visas as allowed in recent appropriations bills. In addition, ICPI supports provisions intended to enable expanded use of the H-2B worker visa program, ease the allowances for returning workers and reduce the procedural and paperwork roadblocks to U.S. companies using the program. H-2B is a priority for ICPI.

ICPI signed letters supporting the Senate confirmations of Marty Walsh as Secretary of Labor and Alejandro Mayorkas as Secretary of Homeland Security. These are the two cabinet positions most closely related to immigration issues and the H-2B worker visa program. (At press time, Mayorkas has been confirmed by the full Senate, and Walsh’s nomination has been approved by the Senate HELP Committee by a vote of 18-4). In expressing these views, ICPI re-stated the importance of H-2B to the paver installation industry.

ICPI cosigned a letter to Secretary Mayorkas urging him to use authority granted by Congress to release more H-2B visas.

During the recent Senate confirmation hearings, Senators Susan Collins and Lisa Murkowski voiced support for the H-2B worker visa program.

ICPI greatly appreciates their favorable comments.

Labor issues/agenda

Given the Democratic control of the House, Senate and White House, the likelihood of labor union-supported legislative and regulatory action in 2021 has increased substantially.

At press time, the Biden labor agenda is yet developing in the wake of the more urgent COVID-19 priorities. We anticipate robust action on the labor issue front.

On the Hill, the PRO Act (Protecting the Right to Organize Act), has been reintroduced. The PRO Act is one of the top legislative priorities of the labor union community, perhaps the top priority. It is an assemblage of union-organizing proposals sought by the labor community.

The following is a selection of elements in the PRO Act gleaned from statements from PRO Act proponents (in the interest of space it is not a complete list):

-Authorizes meaningful penalties for companies and executives for violating workers’ rights. The bill also permits the NLRB to impose personal liability on corporate directors and officers who participate in violations of workers’ rights or have knowledge of and fail to prevent such violations.

-Streamlines access to justice for workers who suffer retaliation for exercising their rights.

-Authorizes a private right of action for violations of workers’ rights.

-Gives workers the power to override so-called “right-to-work” laws that prevent unions from collecting dues from the workers they represent. The PRO Act allows employers and unions to enter into a contract that allows unions to collect fair-share fees that cover the costs of collective bargaining and administering the agreement.

-Enhances workers’ right to support boycotts, strikes, or other acts of solidarity.

-Prevents employers from interfering in union elections. The bill prohibits employers from requiring workers to attend meetings designed to persuade them against voting in favor of a union. If a violation takes place or the employer otherwise interferes with a union representation election, the NLRB will be empowered to issue an order that requires the employer to bargain with the union. The bill also prevents employers from interfering in representation cases, which exist to determine workers’ free choice, not corporations’ preference about how their employees should exercise protected rights.

ICPI opposes the PRO Act.

The PRO Act might become the leading labor bill in the 117th Congress. Its chances for enactment are uncertain. The bill appears likely to face a filibuster if it should reach the Senate floor.

It seems plausible that at some point alternative efforts will be made to break the bill into smaller parts, issue by issue. Some elements might have a greater chance for passage than others. ICPI will be monitoring closely.

Tax reform/tax increase proposals

Some Democrats have urged tax proposals to improve tax equity, generate revenues to offset COVID-19 spending, or address deficit issues.

Such proposals include increasing the corporate income tax rate to circa 27%; increasing taxes on individuals earning more than $400,000 per year; increasing the highest individual income tax bracket rate; increasing capital gains taxes on individuals making more than $1 million per year; enacting “mark to market” proposals to tax capital gains annually for gains not yet realized rather than waiting until assets are sold.

There is no single coherent tax package for consideration at this time. Proposals, rates, percentages and mechanisms are being discussed on a conceptual level.

We do not anticipate early action on tax, for multiple reasons that are mutually reinforcing. First, COVID-19 and jobs recovery take precedence. Second, tax increases might be problematic for moderate and red-state Democrats. Third, the prospect of tax increases during a pandemic and high unemployment seems bad timing.

Thus, there will likely be tax debate, the introduction of bills, hearings held and more; there may be calls from Democratic governors to reinstate the federal tax deduction for state and local taxes. But there are solid reasons to question whether a significant tax reform bill is possible at any early point in 2021. It might be, but it would require a superlative effort.