By Hugh T. Ferguson, NASFAA Staff Reporter
While the next administration and Congress will not be formally sworn in until the end of January, Democrats have already begun plotting out their higher education agenda for the new term.
Even though there is an array of dynamics at hand, contingent on what levers of government they control, Democrats would be expected to tackle pandemic relief, reauthorization of the Higher Education Act (HEA), expansion of the Pell Grant program, college affordability, and debt relief — as well as a change of course at the Department of Education (ED) by revoking a host of regulations promulgated by Education Secretary Betsy DeVos.
Their main priority from the outset would be to reverse what they see as harmful trends of the Trump administration, according to Viviann Anguiano, associate director postsecondary education at the Center for American Progress Action Fund.
“If Biden did win the election, Democrats in Congress would probably reaffirm a lot of the student and borrow protections that were walked back by the Trump administration that allow for congressional action,” she said, highlighting that Democrats in control of multiple branches could signify a significant course reversal on the trajectory for higher education policy.
Democrats in a House Majority
It is increasingly likely that Democrats will retain their House majority, and Democrats’ priorities for higher education in the wake of the coronavirus have been housed in the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act — which has been pitched as a followup to the Coronavirus Aid, Relief, and Economic Security (CARES) Act — with Rep. Bobby Scott (D-Va.), chairman of the House Committee on Education and Labor, remaining hopeful that additional relief could come soon.
“We know that the need for support for higher education has only grown more urgent, and we hope that [Treasury] Secretary [Steven] Mnuchin, notwithstanding the president's directive, will continue to negotiate,” Scott said. “Looking ahead, as this virus continues to spread we must make our investments in higher education. Innovative strategies to maintain students' access to education have a key role in that effort. However, we cannot let those innovative ideas come at the cost of quality and equity.”
Should Democrats retain or even build on their House majority, Scott would more than likely continue to serve as the Education and Labor Committee chairman.
While negotiations over additional pandemic-related aid continue, it is possible that the next bout of relief will not be administered until well after the election, which would put recovery as a top agenda item for 2021.
The HEROES Act builds on the CARES Act and contains a multitude of priorities from Democrats. It is likely that Democrats could use the next round of pandemic relief — perhaps in a revised HEROES Act — to serve as a vehicle for implementing certain higher education policies.
“The immediate priority for Democrats going into the next Congress, of course, will continue to be COVID-19 relief as the topline, and that may include components related to higher education based on what we've seen in the proposals this Congress,” said Michelle Dimino, education senior policy advisor at Third Way.
Anguiano agreed that higher education policy would likely see its first implementation through further pandemic relief.
“The first focus would be on recovery from the pandemic. Trump just a few days ago has tried to re-enter negotiations, but if those are unsuccessful I think that'll be probably the first thing that Democrats do,” Anguiano said, adding that as many states will likely face budget shortfalls, Democrats could aim to provide additional funding for the Higher Education Emergency Relief Fund (HEERF) to help stabilize public colleges.
Scott has largely echoed this agenda by highlighting the need for job-specific training programs — like stackable credentials for nursing students, for example — in order to respond to the ongoing economic downturn that has resulted in continued declines in college enrollment. While previous economic downturns in many instances led to an increase in higher education enrollment, the COVID-19 outbreak has brought on additional challenges to the industry. Though remote instruction may provide flexibility for some students, it has compounded affordability barriers for others, such as those without internet access or a laptop to use.
“We have to support our community colleges to make sure that their job programs are fully funded so the people have those opportunities. But basically, the thing we have to do is defeat the virus,” Scott said. “As long as this virus is around, the economy is going to be in bad shape.”
Outside of the pandemic, the next Congress could also tackle HEA, which has been due for reauthorization since 2013.
At a Senate education committee markup in January, Ranking Member Patty Murray (D-Wash.) and Chairman Lamar Alexander (R-Tenn.) pledged to get to work on a reauthorization, hoping to get the legislation squared away before Alexander’s retirement at the end of the calendar year.
Two months later, the pandemic hit.
“Right before the coronavirus happened we were right at the cusp, it seemed, of a reauthorization of the HEA, and I would hope that Democrats definitely put that as a priority,” Anguiano said.
Dimino also sees a comprehensive overhaul of HEA as a top priority for Democrats next Congress, noting that areas of bipartisan agreement, such as the College Transparency Act, could help negotiations move forward.
“I think that looks different, depending on how things go in the election,” Dimino said.
More details from NASFAA on what comes next for an HEA reauthorization.
Scott has also indicated that HEA reauthorization could be high on the committee’s agenda following the election, and in particular tweaking the programs for which a Pell Grant may be used.
“If all [a training program] leads to is a good paying job, you can't use a Pell Grant. And the couple of thousand dollars it costs to get that training, it serves as a major barrier to many people,” Scott said. “If it leads to a good paying job, of course you ought to be able to use a Pell Grant.”
He stressed, however, that expanding the Pell Grant program should be done in a way that would not open the door to abuse from bad actors.
“We don't want to open that door so that some storefronts can feed at the trough of the federal government and take the money and not provide a quality program,” Scott said.
While Democrats formulate their top priorities, a number of policies could continue to garner bipartisan buy-in. In a potentially divided Congress it is possible that a number of provisions, like those contained in the College Transparency Act, or enacted laws like the FUTURE Act, will gain traction, especially considering Congress’ recent support for historically Black colleges and universities (HBCUs) and minority-serving institutions (MSIs).
Should Republicans manage to regain control of the House, they have already pitched their agenda, with a plan to focus on career and technical education along with veterans’ higher education benefits.
In the Senate, Republicans have not outlined a clear higher education agenda. Further, with Alexander retiring at the end of this session, the committee will first need to select a new chairman or ranking member.
Democrats in the Senate Majority
The race for majority control of the Senate is still up for contention, but the party breakdown after the election is likely to be very narrow, and possibly rely on the vice president to break a number of tied votes.
Should there be a flip in the chamber, it would also likely advance Murray to the top slot of the Senate education committee, where HEA reauthorization would continue to be a top priority, likely with a focus on free public college, according to Anguiano.
Anguiano also said there would be an appetite for increasing and possibly doubling the Pell Grant, which Murray has been supportive of, along with an increased focus on HBCUs and MSIs.
Should Democrats sweep these races, they will still face procedural challenges, but with additional seats overcoming those hurdles could be eased.
“Now that the map has expanded a little bit, and there are more Senate seats in play it gets a little bit easier to see how you could get a path to a majority to eliminate the filibuster,” said Molly Reynolds, senior fellow of governance studies at the Brookings Institution. “The other question is, what is the thing that they would decide they wanted to unite around to actually pull the trigger?”
Senate business in the past few decades has gradually seen an increase in this legislative tool, which requires the Senate to reach a 60-vote threshold in order to pass most pieces of legislation, but it has been unclear what issue might push the chamber to eliminate the practice. While legislation in the House only requires a simple majority vote to advance, the Senate must have 60 votes to pass legislation, and without that majority a single senator can hold up a piece of legislation with the mere threat of a filibuster, which would prevent the bill from getting out of the chamber.
“The conversation has moved a little bit to be more about specific ideas, so you saw former President Obama come out at [Rep.] John Lewis’ funeral and say, if it takes, eliminating the filibuster to pass the new Voting Rights Act, Congress should do it,” Reynolds said.
Outside of the higher education sphere, Democrats have extensively discussed using the so-called nuclear option, which would change the voting threshold required to advance the chamber’s agenda, and get rid of the legislative filibuster, with one example being to expand the size of the Supreme Court.
“Depending on both what happens with ongoing COVID negotiations and what happens with the state of the world between now and January, you could also imagine there being kind of pent up demand for stimulus,” Reynolds said of other potential legislative items that could prompt Democrats looking to end the filibuster.
However, Senate Democrats might not need to eliminate the procedural tool and could instead rely on the reconciliation process — meant to expedite the process for approving certain budgetary legislation — to implement a number of higher education policies.
When HEA was last reauthorized over a decade ago, the process was done through reconciliation, but the process, which only requires a simple 50-vote majority in the Senate, has limitations and could pose additional barriers for Democrats.
Specifically, the reconciliation process can only be used to make changes to revenue — to the tax code, and to mandatory spending programs like Medicare, Medicaid, or student loans, for example. The process can't be used to change discretionary spending like military spending, most K-12 spending, and scientific research, for example. It also can’t be used to change discretionary programs on the higher education side, such as the Pell Grant, Federal Work-Study, and Federal Supplemental Educational Opportunity Grant programs.
Another limitation is that under what's called the “Byrd Rule” in the Senate, there are specific restrictions on making changes to the mandatory side of the budget. An example would be not being able to increase the deficit outside of a 10-year window. Senate Republicans also struggled to repeal the Affordable Care Act in 2017 due to the Byrd Rule.
According to Reynolds, a unified Democratic Congress and the White House would have, in theory, three chances to adopt a reconciliation bill between January 2021 and the November 2022 midterm elections. It would be up to congressional leadership to decide which bill to peg a potential HEA reauthorization on.
At the start of 2021, the Senate would have a “leftover” opportunity to complete a reconciliation bill that would need to be completed by September 30 of that year in order to abide by the calendar for fiscal year 2021. Once the calendar passes Sept. 30, 2021 the chamber, regardless of whether they cleared their first legislative attempt at reconciliation, would then be able to take up another reconciliation bill.
Following that timeline, Senate Democrats could then put forth a second reconciliation bill for fiscal year 2022, or if they were unable to utilize the first attempt could try again. However, this effort would need to be completed before the following September. Then, after Sept. 30, 2022, Democrats could, in theory, complete another reconciliation bill before the 2022 midterm elections by tapping into the fiscal year 2023 budget process and could complete the process in the fall of 2022, either before or during the lame-duck session.
However, even a unified Congress with a simple majority pathway needed to enact legislation could still pose internal issues for Democrats.
“I think that there would still be questions about what exactly those proposals look like, and what can get passed through Congress given that, even within the Democratic Party there are different views on what debt forgiveness should look like, whether it should be more targeted or universal,” Dimino said. “Things like free college plans — whether that should be a universal plan versus a more targeted system. Those ongoing debates between universal and targeted will continue to be part of the conversation within the Democrats going forward.”
A Biden Administration
If former Vice President Joe Biden’s presidential campaign is successful, it is likely that a number of higher education policies would be at the forefront based on his campaign pledges as well as Dr. Jill Biden’s career as an educator.
Experts said a Biden administration would have a greater focus on higher education, and more robust federal investment in higher education than under the current administration. Given Dr. Jill Biden’s career as a community college professor, a particular emphasis is expected to be placed on investments for community college programs.
With Biden in the White House, Democrats may seek to swiftly reverse a number of policies implemented by DeVos, such as the borrower defense to repayment regulations. While a measure to block implementation of DeVos’ rule — under the Congressional Review Act, a legislative mechanism that allows the overturning of rules issued by federal agencies — passed both the House and the Senate, Trump vetoed the bill, and the House was unable to garner the two-thirds majority vote to override the veto.
The Congressional Review Act, which has been used by both Republicans and Democrats to overturn agency rules, could be another tool for Democrats to advance their higher education agenda.
“If Democrats have unified party control, they may try to use the Congressional Review Act to roll back some Trump administration regulations just as the Trump administration and the Republican Congress did at the beginning of 2017,” Reynolds said. “Those resolutions under the Congressional Review Act also can't be filibustered.”
On the agency side, it’s also possible that a newly installed education secretary could look toward Trump’s recent executive action that extended the pause on student loan repayments and interest accrual through the end of 2020 as a means of implementing broader loan forgiveness.
However, according to Michele Streeter, senior policy analyst at The Institute for College Access & Success (TICAS), the authority of ED to implement loan forgiveness is murky and the lack of a legal challenge to the order makes it hard to predict exactly how a new agency could use the previous authority as precedent.
“I would take it as a general agreement that there is no reason to push back against the extension of the pause,” Streeter said. “I just don't think there was any appetite to poke at the legal authority there in that particular context, but I don't think that a definitive answer to the question of what the legal authority is there to modify federal loans.”
Still, Streeter said it wouldn’t be impossible for a Biden administration to argue that Trump’s action sets a precedent. It’s still unclear, for example, what authority the department is using to implement the pause in loan repayment and interest accrual, she said.
“[The executive order] hasn't been held up to any serious scrutiny that I'm aware of externally, outside the administration itself, so I think it's certainly possible that a potential Biden administration could look at the same statutes and draw the same conclusions as to what authority they covered,” Streeter said.
While much of Democrats’ higher education agenda would be contingent on party control, there are still a number of avenues through which bipartisan work could be completed, such as areas of bipartisan support in reauthorizing HEA — with the College Transparency Act — or additional coronavirus relief aid.
Still, CAP Action Fund’s Anguiano said there are significant gaps between how Democrats and Republicans view higher education and that it will take strong leadership from Democrats to push overarching policies forward.
“It is really difficult to move things in Congress without bipartisan support,” Anguiano said. “If Democrats don't find ways to gain support for their proposals, I think it will be really challenging procedurally, there will be a ton of procedural block for them to get things done.”
Publication Date: 10/27/2020
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