By Hugh T. Ferguson, NASFAA Staff Reporter

The novel coronavirus pandemic is forcing Congress to sort through what its daily operations will look like as lawmakers continue to assess the health and safety risks around in-person negotiations, further limiting the legislative route a rewrite of the Higher Education Act (HEA) could take. 

Between the members, their staff, and the federal workforce that assists in the daily operations of the legislative branch, Capitol Hill serves as a ripe hotspot for COVID-19 and leadership are taking precautions as they plot out how to reconvene. While members had many legislative priorities for this session, including bipartisan provisions that could have been drafted as a part of an HEA reauthorization, progress on those big ticket items has now become murky as Congress focuses squarely on mitigating the economic damage of COVID-19.

The Senate resumed session this week, but will “modify routines in ways that are smart and safe,” according to a press release from Majority Leader Mitch McConnell (R-Ky.), that aims to outline the way in which the chamber will operate to adhere to social distancing guidelines.

And while the House initially planned to make a similar return, Majority Leader Steny Hoyer (D-Md.) said due to guidance from the speaker, members, and Congress’ attending physician, plans to return would be postponed until another relief package was ready for a vote.

Kevin Kosar, vice president of research partnerships at the R Street Institute and co-founder of the Legislative Branch Capacity Working Group, said the House and Senate are “not close to figuring out how to operate fully” in this environment.

“When you look at folks who have run both chambers, they are very used to politics and governing being conducted in a person-to-person fashion, and that's been taken away,” Kosar said. “Trying to map all the complexity of how negotiations work, how oversight, the moving of legislation when everybody is split apart, I think it's proven rather confounding.”

The health scare serves as a reminder that Congress still has a lot of work to do when it comes to modernizing operations, which Kosar said could spur institutional change.

“I certainly think that Congress is going to update, upgrade operations, in various ways to enable it to operate remotely,” Kosar said. “We had a good example of why this should have been done right after the 9/11 attacks, but Congress didn't really muster the energy to do it. So now we've got smacked in the mouth a second time.”

The House is trying to implement remote voting and could aim to return sometime during the month of May to work out additional relief efforts, but those schedules are up in the air.

As all priorities shift to COVID-19 relief, committee chairmen will still want to find a way to convene. While it will be challenging to hold regular markups to hash out legislative debate, Kosar said leadership will adhere to a new sort of protocol.

“I think what we are probably going to see is the development of ‘non-hearing’ hearing. They’ll look like hearings, but they may not be fully treated as such,” Kosar said. “But you will have both Democrats and Republicans present. They will be questioning individuals. And there'll be kind of wobbling along trying to operate in this environment and hoping that the web connections don't go down for any of them.”

The House Committee on Education and Labor did just that last week in a virtual forum, during which Rep. Joe Courtney (D-Conn.) urged leadership to make accomodations for hearings and markups, and continue virtual action due to the small size of committee rooms, which would make the practice of social distancing nearly impossible.   

During that forum, discussions shed light on the waning opportunity to make progress on legislative priorities not directly related to COVID-19, as Rep. Virginia Foxx (R-N.C.), the committee’s ranking member, said further spending needs some refinement.

“We cannot keep throwing money at this pandemic and we shouldn’t pursue partisan pipe dreams that have nothing to do with combating COVID-19,” Foxx said. 

The forum primarily focused on short-term actions needed to tackle the health and economic challenges imposed on districts by the crisis, but members also touted hopes to bolster workforce protections by making educational investments down the line. 

However, as the presidential election enters into high gear, the likelihood of those long-term agenda items — including a reauthorization of HEA — begins to dim.

The congressional calendar always imposes limits on legislative agendas and with 2020 being an election year, many priorities will face an additional time crunch.

“The calendar is inevitably contracted, and you throw COVID on top, which has driven both chambers away for weeks, and the calendar gets smaller,” Kosar said.

Standalone items — like bipartisan legislation that could be a part of an HEA rewrite — might face obstacles in reaching the floor due to time constraints, but Kosar said the appropriations process could be another venue for extraneous policy riders. 

“If we can push $2 trillion off the door in one single piece of legislation, there's real possibilities that a whole lot of stuff that is in the docket ... could get done,” Kosar said.

It’s unclear, however, how many more aid packages Congress will consider this term.

“It's probably going to be a little more tricky to move legislation forward, but all it takes is another spike in COVID cases, COVID deaths, or even more economic calamity to possibly change the minds and to spur additional action,” Kosar said.

Terry Hartle, senior vice president of government and public affairs at American Council on Education (ACE) agrees. As the pandemic continues to unfold, he cautioned that it will be difficult to project how negotiations over these massive packages will play out. While partisan rancor surrounding the first trove of spending measures was eventually worked out, he questioned whether that trend will continue.  

“What I wonder now is if the disagreements will become more like a canyon that people can't easily bridge,” Hartle said.

While Hartle said he will be pushing for institutions of higher education to receive additional aid, he’s all but certain the chances for a massive HEA overhaul have passed. Even at the start of the calendar year, Hartle said it was ambitious to have a rewrite of the HEA on the agenda.

“The chances are very slim and they're getting slimmer every single day,” Hartle said. “It was going to be a long shot on January 1 for Congress to completely reauthorize the Higher Education Act. Obviously the coronavirus pandemic has completely changed every priority in Washington, D.C.” 

The pandemic, in tandem with the natural pressures of the calendar, has gravely impacted an overhaul to any extensive piece of legislation.

“We are in May. We have an election coming. We're in the middle of a pandemic and an economic catastrophe,” Hartle said. “So the likelihood that Congress will find the time and energy to rewrite 1,000 page piece of legislation that could pass both houses of Congress, and be signed into law by the president is really very, very slim.”  Hartle said. 

“You should never say ‘never’ in 21st century American politics, but that's a pretty good bet in this case,” he added.

Hartle did say some minor provisions that have been floated as a part of a reauthorization bill — such as FAFSA simplification — could gain traction in subsequent relief bills, or during a lame duck session of Congress after the election.

And while there are many legislative items that leadership on both sides of the aisle would like to tout before the 2020 election, the simple act of reconvening could be dire, Kosar said.

“Both chambers skew, I don’t want to say elderly, but late middle age,” Kosar said. “When you have those folks convening with one another, all it takes is one person who is a carrier, and is asymptomatic, and you could have a few members die and then that makes it personal. It's no longer an abstraction, [it’s] a life and death thing.”

Publication Date: 5/6/2020

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