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What Democratic Control of Washington Means for Higher Ed

By Hugh T. Ferguson, NASFAA Staff Reporter  

President-elect Joe Biden’s legislative agenda has a somewhat clearer pathway to enactment now that Democrats have secured majority control of both chambers of Congress. 

While gridlock — stemming from the incredibly narrow party divide in both chambers — is likely to curtail some of Biden’s most ambitious proposals, those that have bipartisan buy-in, including a number of higher education issues, are far more likely to see movement than they would have in divided government.

NASFAA previewed Democrats’ higher education plans prior to the 2020 elections. Those efforts include additional 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.

Here are a number of dynamics to be aware of when it comes to implementing these agenda items:

Senate Majority Leader

Control of the Senate chamber means that Majority Leader Mitch McConnell (R-Ky.) will likely be replaced by Sen. Chuck Schumer (D-N.Y.) and that the Democrats will take control of committee leadership.

Schumer gave some insight into his agenda for the upcoming session of Congress during a press conference following the Georgia elections results on January 6, but did not indicate when the chamber would tackle a myriad of issues. 

While a number of agenda items still require 60 votes, the change in leadership means that Schumer can force votes on a number of measures that did not come up under McConnell’s term and could siphon off enough GOP votes to pass the chamber. An example of such a vote that is unlikely to garner 60 votes would be to codify the Deferred Action for Childhood Arrivals (DACA) program. 

Once Biden is sworn in, Vice President-elect Kamala Harris will be able to split any tied votes in the chamber, so any action on divisive issues will not likely be tackled until after the presidential inauguration on January 20.

Budget Reconciliation

One legislative maneuver that does not require a 60-vote threshold is budget reconciliation, which provides a “fast-track” process for consideration of bills to implement the policy choices embodied in the annual congressional budget resolution.

The process is considered fast-tracked because it limits the time members can debate the legislation and only requires a simple majority in each chamber. However, limits are placed on what policy changes can be considered via reconciliation. 

A part of the process, the so-called “Byrd Rule” prevents any legislation from being included that does not have a budgetary effect and is unrelated to spending or taxes. Application of this rule is debated in the Senate and enforced by the Senate parliamentarian.

The reconciliation process cannot be used to change discretionary programs. On the higher education side, this includes the Pell Grant, Federal Work-Study, and Federal Supplemental Educational Opportunity Grant programs. However, several major higher education policy changes — such as the 2010 Student Aid and Fiscal Responsibility Act that eliminated bank-based lending and the 2007 College Cost Reduction Act that established the Public Service Loan Forgiveness program — were completed through reconciliation.

Among the issues that could be changed through the budget reconciliation process are the Pell Grant program’s mandatory funding, higher education tax provisions, and the federal student loan program.

NASFAA’s HEA Reauthorization Positions

Incoming Senate Budget Committee Chairman Bernie Sanders (I-Vt.) has pledged to utilize the tool. Since the majority, particularly in the Senate, is so narrow this process would require the endorsement of every Democratic senator in order to pass.

Without getting overly technical, Congress would have at least three reconciliation bills, each of which would require a simple majority threshold in both the House and Senate and is something the Biden administration is likely to tackle at its outset

Confirmations

Cabinet positions and judicial nominations only need a simple majority in the Senate, which will enable Biden to more easily confirm his nominee for Secretary of Education, as well as other Cabinet positions. This will reduce the amount of floor time spent on a number of nominations, freeing up time for legislative activity, which depending on the amendment process could take up a bulk of the chamber’s time.

Due to the Senate’s narrow majority, this 51-vote threshold will not be achievable until Harris is sworn in.

Congressional Review Act

Utilized at the outset of PresidentDonald Trump’s administration when Republicans gained control of Washington in 2016, the Congressional Review Act (CRA), which has been used by both Republicans and Democrats, was used to overturn recently approved agency rules.

The legislative tool only requires a simple majority in each chamber and is a streamlined way for congress to nullify agency rulemaking issued in the preceding six months. The agency also cannot issue a similar rule without authorization from Congress. The CRA was successfully used in 2017 to prevent the implementation of Obama-era regulations related to teacher preparation programs. Now in control of both the House and the Senate, Democrats may use the CRA to roll back recent Trump administration rules more quickly than would have been possible with control of only one chamber.

Senate HELP Committee Leadership

Democrats will now control all of the chamber’s committees. Yet due to the uniqueness of the 50-50 split, Schumer and McConnell could work out an agreement over shared control.

It wouldn’t be the first time. Leaders could look to emulate the power dynamic the last time the Senate saw a 50-50 split in 2001, which lasted until Democrats garnered a majority a few months into the session.

According to a 2006 Congressional Research Service Report, the Senate established a power sharing agreement in which all committees had an equal numbers of Republicans and Democrats and created a process for party leaders “to seek to attain an equal balance of the interests of the two parties” in scheduling and considering legislative and executive business brought to the Senate floor.

No agreement has been made official, but with Schumer becoming majority leader, Democrats would chair the chamber’s committees.

This dynamic makes way for Sen. Patty Murray (D-Wash.) to become the chairwoman of the Senate Health, Education, Labor, and Pensions (HELP) Committee, having served as ranking member during Democrats’ time in the minority.

When it was announced that Democrats would attain a majority, Murray pledged to work through gridlock.

March 1, 2019: Murray Outlines Priorities for Higher Education Act Reauthorization

It is not yet clear who will lead the HELP committee Republicans  as ranking member, and new committee members from both parties could be announced in the coming days.

Filibuster Status

Prior to the 2020 election, congressional Democrats hinted at nuking the legislative filibuster, and while their takeover of Washington makes the prospect possible, the pathway to changing this rule would be incredibly difficult. Schumer would need all of his members to agree to the rule change, and a number of members have indicated a hesitancy to change the voting threshold.

If the chamber were to remove the legislative hurdle it could possibly be contingent on debate surrounding a bill concerning the Voting Rights Act, which a number of high-profile Democrats have rallied around as a justification for eliminating the rule.

The issue of voting rights has been a top priority for congressional Democrats with the House advancing a massive overhaul package last session. Over the summer during the funeral for former Rep. John Lewis (D-Ga.) President Barack Obama made a full throttle endorsement of eliminating the voting threshold referring to it as a “Jim Crow relic” that a Democratic Senate majority should do away with.

However, Schumer upon garnering the seats necessary to become majority leader did not commit to ending the filibuster. 

While Democrats had begun to unveil their legislative plans for the new Congress, their attention immediately shifted to addressing the violent mobs that swarmed the Capitol and renewing an effort to impeach Trump over his response to the riot.

A number of higher education issues have garnered bipartisan support and could still see action in a gridlocked Congress — some of which were included in a year-end spending package.

Should Democrats remove the filibuster, the likelihood that they could enact more of their higher education priorities would dramatically increase. But by the same token, removal of the tool would make it easier for a future Congress to more easily rescind federal programs.

Stay tuned to Today’s News for more details on leadership announcements and news on what the new Congress means for higher education.

Correction: Although several major higher education policy changes were completed through budget reconciliation, the full Higher Education Act reauthorization did not occur through that process.

 

Publication Date: 1/12/2021


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