THE DAILY WHIP: WEDNESDAY, JULY 6, 2016

H.Res. 803 – Rule providing for consideration of H.R. 4361 – The Federal Information Systems Safeguards Act of 2016 (Rep. Palmer – Oversight and Government Reform) (One hour of debate).  The Rules Committee has recommended a structured Rule that provides for one hour of general debate equally divided and controlled by the Chair and Ranking Member of the Committee on Oversight and Government Reform.  The Rule allows for 5 amendments, debatable for 10 minutes equally divided between the offeror and an opponent.  The Rule allows one motion to recommit, with or without instructions, and waives all points of order against the legislation.

In addition, the Rule also allows for Suspension Authority through the legislative day of July 8, 2016 to allow for consideration of legislation addressing the Federal Aviation Administration.  Members are urged to VOTE NO.

H.R. 1270 – Restoring Access to Medication Act of 2015 (Rep. Jenkins – Ways and Means) (One hour of debate).  Consideration of this bill marks House Republicans’ 64th vote to repeal or undermine the Affordable Care Act (ACA).  This measure repeals a provision of the ACA that scaled back the list of products eligible for purchase under a pre-tax Flexible Spending Account (FSA).  Under current law, any expenses paid for medicine or drugs are only deductible as a medical expense if the medicine or drug is prescribed by a physician.  However, under H.R. 1270, over-the-counter (OTC), nonprescription medicines like allergy medication, aspirin, or basic pain relievers could now be purchased using pre-tax dollars without a physician's order.  This bill disproportionately benefits higher-income individuals, who are more likely to have an FSA.  Additionally, the CBO estimates that the bill would result in $4.1 billion in lost revenue.

The text ofH.R. 5445, which is included in H.R. 1270, makes three changes to current rules governing Health Savings Accounts (HSAs) that amount to tax-breaks for higher-income individuals.  First, the bill allows spouses to make catch-up contributions to a single account.  Under current law, if both spouses are age 55 or older and otherwise eligible to make HSA contributions, those catch-up contributions must be made to two separate accounts.  Second, while under current law medical expenses can only be reimbursed if they were incurred after establishment of an HSA, the bill adds a 60-day grace period in which medical expenses incurred prior to the HSA's establishment can be reimbursed.  Finally, the bill would nearly double the limit for HSA contributions to the maximum out-of-pocket limit for high-deductible plans.  The rule changes in H.R. 5445 will cost an estimated $20.5 billion over the next 10 years. 

These measures would be offset with ACA subsidy recapture, otherwise known as “true up.”  Upon filing taxes, those eligible for premium assistance tax credits are required to reconcile their actual income for the tax year with their estimated income used to calculate their premium assistance tax credits, and either receive a refund or owe an additional tax obligation.  Under the ACA, if the credit was overpaid, there is a maximum overpayment that can be recovered through a tax return for households with income up to 400% of the Federal Poverty Level (FPL).   Under H.R. 1270, the maximum recovery amount would be increased for those with incomes between 250 – 400% of the FPL from $2,500 to $3,000 for families between 250 and 300% FPL and no repayment protection for families above 300% FPL in a given year.  With the inclusion of these true up changes, CBO and JCT estimate the package would reduce the deficit by $2.17 billion over the next 10 years, and would result in 130,000 individuals becoming uninsured.

While Republicans argue that H.R. 1270 will increase flexibility for consumers in dealing with health care costs, the bill is nothing more than another Republican attempt to undermine the ACA.  Exposing lower income families to greater financial risk in order to expand tax breaks for wealthier individuals does not advance the goal of making health care more affordable for Americans.  Republicans should work with Democrats to build on the successes of the ACA and work to ensure that all Americans have continued access to the quality, affordable health care they deserve.

In the Statement of Administration Policy, the President's senior advisors stated that they would recommend he veto this bill.  Members are urged to VOTE NO.

Bill Text for H.R. 1270:
PDF Version

Background for H.R. 1270:
House Report (HTML Version)
House Report (PDF Version)

H.R. 4361 – The Federal Information Systems Safeguards Act of 2016 (Rep. Palmer – Oversight and Government Reform) (One hour of debate).  H.R. 4361 is yet another Republican attack on the federal workforce and labor organizations.  The bill is a collection of measures that undermine due process protections, prevent the Obama administration from finalizing rules during its last two months in office and override collective bargaining rights for federal employees. 

The bill would bar most regulations from being finalized by virtually every federal department or agency during the last two months of the Obama administration, regardless of when they were proposed or how long they have been in the rule-making process.  The bill would also block agencies from proposing new rules during this moratorium period.  Specifically, H.R. 4361 would prohibit rules from being issued that:  (1) have an annual effect on the economy of $100,000,000 or more; (2) lead to a “major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions;” (3) have “a significant adverse effects on competition, employment, wages, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.”

Additionally, H.R. 4361 exempts from civil service collective bargaining requirements any agency action limiting access to any website the agency determines presents a current or possible future security weakness to its information systems.  The bill’s language is unnecessary because current law already authorizes federal agencies to “ensure that all personnel are held accountable for complying with the agency-wide information security program.”  In practice, this provision could allow agencies to cut off federal employees’ ability to communicate with childcare providers or get information on a weather emergency in the event their child’s school closes early, with no opportunity to negotiate an alternative arrangement.  The provision could also be selectively invoked to block access to the official websites of federal unions. Under current law, there is no right to bargain over the substance of agency information systems decisions, only over appropriate arrangements in the event that those decisions create an adverse impact on employees.  In addition, agencies can take any action without bargaining in advance if there is an emergency.  Agencies currently have broad authority in this area, making any additional limitation on employees’ ability to have a voice in their working environment unnecessary.

Further burdening federal workers, H.R. 4361 would extend the probationary period for newly-hired General Schedule employees from one year to two years. For positions requiring “formal training,” the two year time period would only commence after the required formal training. This is unnecessary, as the current one year probationary period allows sufficient time for agency management to assess and determine whether an employee is suitable for most positions and capable of performing its duties.

H.R. 4361 also reduces due process protections for senior employees.  Title IV of the bill would allow senior agency executives to be removed almost immediately with only minimal appeal rights.  Executives would have only seven days to file appeals, and an administrative judge would then have 21 days to issue a ruling.  No appeal of the judge’s decision would be permitted.  If the judge is unable to issue a ruling within 21 days, the agency’s decision would become final.  The Department of Justice recently announced that it will not defend the constitutionality of identical provisions being challenged in the Federal Circuit Court of Appeals.

Finally, H.R. 4361 would amend civil service law to require an annual report from OPM on agencies’ use of official time.  The provision mandates that the annual report include specific requirements, raising the concern that these reporting requirements are simply being advanced by Republicans as a first step toward elimination of official time.  Under current law, federal employees represented by a union can be granted official time, or the ability to perform during work hours, certain activities that are in the joint interest of both the union and the agency, during work hours.

In the Statement of Administration Policy, the President’s senior advisors stated that they would recommend he veto this bill.  Members are urged to VOTE NO.

The Rule makes in order 5 amendments, debatable for 10 minutes, equally divided between the offeror and an opponent.  The amendments are:

Palmer Amendment.  Makes technical and conforming changes to the bill.
Posey Amendment.  Establishes that no agency employee when acting in their official capacity shall be permitted to establish, operate, maintain, or otherwise permit the use of information technology not certified by the Agency’s Chief Information Officer as in compliance with the established information security protocols.
Norton Amendment.  Strikes sections that extend probationary periods, modifies suspension and termination procedures, and forced mandatory leave provisions.
Watson Coleman Amendment #1.  Strikes the requirement that agencies include a description and square footage of rooms used for official time.
Watson Coleman Amendment #2. Exempts from the midnight rules moratorium any rule that has been included in the Unified Regulatory Agenda for at least one year.

Bill Text for H.R. 4361:
PDF Version

Background for H.R. 4361:
House Report (HTML Version)
House Report (PDF Version)

Begin Consideration of H.R. 5485 – Financial Services and General Government Appropriations Act, 2017 (Rep. Crenshaw – Appropriations) (One hour of debate). H.R. 5485 appropriates $21.735 billion in discretionary budget authority for Fiscal Year 2017, a cut of $1.5 billion (6%) below FY 2016 and $2.7 billion (11%) below the President’s request.  These cuts will severely impair the federal government’s ability to serve the American people.  The Treasury Department’s budget is cut $246 million below FY 2016, and $1.449 billion less than the President’s request and the Internal Revenue Service’s budget is cut $236 million below FY 2016, and $1.281 billion less than the President’s request.  The measure also contains deep cuts to a number of other critical programs, including cuts to the Election Assistance Commission (EAC), the Securities and Exchange Commission (SEC), the Federal Communications Commission (FCC), the Office of Management and Budget (OMB), and the Federal Buildings Fund.  The bill also restricts the District of Columbia’s ability to manage its own affairs in the areas of women’s health, education, and locally raised tax revenue. 

In addition to severe cuts, the measure contains a number of controversial policy riders, including provisions prohibiting implementation of the Affordable Care Act’s coverage requirements and restricting reproductive health services coverage in the health insurance marketplaces and Federal Employee Health Benefits (FEHB) program. The measure would require the Consumer Financial Protection Bureau to become subject to the annual appropriations process and would change the structure of CFPB from a directorship to a 5-member commission which would make it harder for the CFPB to issue regulations and guidance.  The bill would further impede the autonomy of the District of Columbia by: (1) prohibiting D.C. from using its local funds to further legalize marijuana; (2) repealing D.C.’s new law establishing budget autonomy; and (3) reauthorizing the private school voucher program.

According to Ranking Member Nita Lowey, H.R. 5485 “is merely a vehicle for accomplishing the most extreme policy priorities of the Republican majority.  It would undermine key elements of ACA and Dodd-Frank, diminish women’s access to legal health services, meddle in DC’s internal affairs, undermine the President’s Cuba policy…. the bill rewards tax cheats by failing to provide sufficient funding to enforce tax law.”

Lastly, despite repeated promises of openness and transparency, House Republicans have reversed course for the appropriations process and are bringing bills to the Floor under a structured rule to avoid votes on tough issues after their Members voted down their Energy and Water appropriations bill because it banned discrimination against LGBT Americans.  In May, House Republicans brought H.R. 5055 – Energy and Water Appropriations, 2017 to the Floor, only to have less than 1/3 of the House vote in favor.  That vote can be found here.  In June, at the direction of Republican leadership, the Rules committee failed to make in order an amendment to H.R. 5293 – Defense Appropriations, 2017 offered by Rep. Sean Maloney of New York, Rep. Ros-Lehtinen of Florida, Rep. Peters of California, and Rep. Hanna of New York which would prohibit the use of funds to contravene the President’s Executive Order pertaining to equal employment in Federal government contracting.

In the Statement of Administration Policy, the President’s senior advisors stated that they would recommend he veto this bill.  

The Rule provides for one hour of general debate and makes in order seventy amendments.  A full list of amendments can be found HERE.  Members are urged to VOTE NO.

Bill Text for H.R. 5485:
PDF Version

Background for H.R. 5485:
House Report (HTML Version)
House Report (PDF Version)

Suspension (1 bill)

1. H.R. 2646 – Helping Families in Mental Health Crisis Act of 2016, as amended (Rep. Murphy (PA) – Energy and Commerce)

Postponed Suspension (1 bill)

1. S. 1252 – Global Food Security Act of 2015 (Sen. Casey – Foreign Affairs)

TOMORROW’S OUTLOOK
The GOP Leadership has announced the following schedule for Thursday, July 7: The House will meet at 12:00 p.m. for legislative business. The House is expected to consider H.R. 5611 – Homeland Safety and Security Act (Rep. McCarthy – Homeland Security) (Subject to a Rule).  The House is also expected to continue consideration of H.R. 5485 – Financial Services and General Government Appropriations Act, 2017 (Rep. Crenshaw – Appropriations).