As Nationwide Closures Persist, Congress Shifts Schedule

With schools and businesses around the country closed, lawmakers too have headed back home to shelter in place.  While they had originally anticipated returning to Washington the week of April 20th, now lawmakers have given themselves until May 4th to stay in their home districts.  Given the rapidly developing nature of the COVID-19 pandemic, that date may still change, pushing into the summer and quickly reducing the number of legislative days this year.  Neither chamber has made arrangements for remote voting, so legislation will either need to be uncontroversial enough to pass through expedited Congressional procedures during pro forma sessions, or wait until regular business resumes.

With the unexpected and extended absence from Washington, the Congressional agenda for the rest of the year will almost certainly have to be pared back.  That means that planned reauthorizations of programs like the Higher Education Act – a priority of retiring Senator Lamar Alexander (R-TN) – and child nutrition – championed by Senator Pat Roberts (R-KS) – will have to wait for the next Congress.  It also means that the regular-year appropriations processes will be delayed.  Though lawmakers in the House of Representatives and the Senate had begun the process of inviting cabinet members and agency officials to testify about their spending priorities, that process was halted by the quick shift to debate and passage of stimulus legislation and an unplanned recess.  It is unlikely that the normal process will resume for the federal fiscal year 2021.  Instead, Congress will likely proceed directly to passing a Continuing Resolution (CR) that will fund federal programs at current levels past the November election and into the new Congress, obviating any need for concern about a potential government shutdown during the campaign and transition. 

When members do return to Washington  the focus will be on a fourth stimulus bill to help State and local government and other entities deal with the fallout of the pandemic (the first, passed in early March, focused on the medical and public health response; the second, the Families First Coronavirus Response Act, provided family and medical leave for those impacted by illness or school closures; and the third, passed toward the end of March, was the Coronavirus Aid, Relief, and Economic Security – CARES – Act, which will provide funding to institutions of higher education, States, and local educational entities).  That bill is anticipated to provide additional funding to stabilize State and municipal governments amid a coming shortfall in tax revenues.  But it may also contain funding for childcare, hospitals, and other essential entities to ensure that parents can return to work and children to school.

The law may also contain additional authority that will allow the Secretary of Education to waive more provisions of key federal laws.  The CARES Act instructed the Secretary to offer certain waivers, but also asked her to report to Congress within 30 days of passage – that is, by the end of April – on what waivers she would like to offer under the Elementary and Secondary Education Act, the Individuals with Disabilities Education Act, Section 504 of the Rehabilitation Act, and the Perkins Career and Technical Education Act (under most of these, she has no statutory waiver authority).  The Department of Education has not yet indicated what waivers it might request, but advocates are already weighing in, suggesting that any waivers of the Individuals with Disabilities Education Act would be unnecessary and only lead to civil rights violations.

As it has for other Americans, the COVID-19 pandemic has proven extremely disruptive for Congress, causing rapid shifts in needs and priorities.  It has also made the future of legislation somewhat uncertain, except for the fact that the pandemic will be the center of attention for some time to come.

About the Author

Julia Martin is an attorney with the Washington, DC law firm The Bruman Group, PLLC. Established in 1980, the Firm is nationally recognized for its federal education regulatory and legislative practice, providing legal advice regarding compliance with all major federal education programs as well as the federal grants management requirements, including the Education Department General Administrative Regulations (EDGAR). In addition, they work with agencies on federal spending flexibility, allowability, policies and procedures, audit defense and resolution and legislative updates. The Firm provides government relations services for the National Association of ESEA State Program Administrators (NAESPA).