A Divided Congress: What It Means for Transportation and Infrastructure

The Senate Commerce, Science, & Transportation and the House Transportation and Infrastructure Committees will look very different in 2019

HOUSE: With the Democrats winning the House this midterm and several retirements on the GOP side, the House Transportation and Infrastructure Committee will have a very different composition in January.

Current Ranking Democratic Member, Peter DeFazio (OR04), is expected to take over as the Chairman of the Transportation Committee in the 116th Congress. First elected to Congress in 1986, Mr. DeFazio has a strong background in transportation and infrastructure policy, serving on the Committee for his entire tenure and leading committee Democrats since 2014. The Chairman will set the committee agenda and direct legislative efforts.

Other changes to the House Democratic Committee roster include the departures of Rail Subcommittee Ranking Member Michael Capuano (MA07), Rep. Richard Nolan (MN08), and Rep. Elizabeth Esty (CT05). With these changes, expect a Subcommittee Chairmanship reshuffling in January.

In comparison, big changes are in store for House Transportation Committee Republicans. Retiring from the Committee are Chairman Bill Shuster (PA09), Committee Vice Chairman John Duncan, Jr. (TN02), Aviation Subcommittee Chairman Frank LoBiondo (NJ02), Economic Development and Emergency Management Chairman Lou Barletta (PA11), and Rep. Todd Rokita (IN04). The midterm elections claimed the seats of Rail Subcommittee Chairman Jeff Denham (CA10) and Reps. Mark Sanford (SC01), Barbara Comstock (VA10), John Faso (NY19), and Jason Lewis (MN02). Rep. Rob Woodall (GA07) appears on track to win re-election by an extremely tight margin. These ten Republican departures represent four out of seven committee leadership positions and losses of at least 27 percent of total committee GOP membership.

Leadership of Committee GOP members is uncertain. The two leading candidates for the Committee Ranking Member position were Highways and Transit Subcommittee Chair Sam Graves (MO06) and Rail Subcommittee Chairman Jeff Denham (CA10). With Denham’s loss, Graves is poised to be Ranking Member but could potentially face a last-minute challenger.

Expect the Republican Steering Committee to decide the Committee Ranking Member in early December, and the Democratic Steering Committee to confirm Rep. DeFazio as chair. Both Steering Committees will likely set committee rosters in early January and announce Subcommittee Chairs and Ranking Members toward the end of that month.

SENATE: The Republicans retained control of the Senate in the midterm elections, most likely picking up two seats. However, changes are also expected for the Senate Commerce, Science, & Transportation Committee.

On the GOP side, Senate Leadership reshuffling is expected to elevate current Senate Commerce Chairman John Thune (SD) to Senate Whip, and Sen. Roger Wicker (MS) is expected to take over as Chairman. Further, Sen. Dean Heller (NV) lost his reelection, which potentially creates an open slot on the committee.

On the Democratic side, Senate Commerce Committee Ranking Member Bill Nelson (FL) narrowly lost to Republican Gov. Rick Scott. It is expected that Sen. Maria Cantwell (WA) will relinquish the top Democratic slot she currently holds on the Energy & Natural Resources Committee to be Ranking Member on Senate Commerce.

Transportation and infrastructure issues and efforts in the upcoming Congress

Under new Democratic leadership in the House next year, expect all committees, especially Transportation and Infrastructure, to strongly exert an oversight role. Some of the investigations that may gain steam under Chairman DeFazio include review of post disaster efforts following the hurricanes and wild fires, possibly in the context of climate change; the GSA plan to relocate or rebuild the FBI headquarters; airline conduct, especially regarding passenger rights; the lease of the Old Post Office to the Trump organization; air and water quality matters; and scrutiny of Secretaries and Administrators within the jurisdiction of the committee, possibly including previous officials such as former EPA Secretary Scott Pruitt.

Legislatively, expect Chairman DeFazio to emphasize funding for national transportation and infrastructure projects. An item high on Mr. DeFazio’s agenda to provide additional resources to the system will be fundamental changes to the “gas tax”.

Republicans and Democrats broadly agree that more should be spent on transportation and infrastructure programs. The main funding mechanism for highways and transit programs is the gas tax, which replenishes the Highway Trust Fund (HTF) to fund these programs. However, the gas tax is not pegged to inflation and is accessed at the same level since 1993 (18.3-cents-per-gallon gasoline and 24.3-cents-per-gallon diesel). The HTF continues to be challenged as consumers are buying more fuel-efficient vehicles, more electric vehicles are on the road, and Americans are driving fewer miles annually. The Congressional Budget Office projects the HTF transit account to be insolvent by 2021 and the highway account by 2022.

Though specific gas tax policy adjustments are the primary jurisdiction of the House Ways and Means Committee, expect Chairman DeFazio to work closely with expected Ways and Means Chairman Richard Neal (MA01) as Congress may consider increasing the gas tax or moving to another option like a “vehicle miles traveled” (VMT)/“road usage charging” (RUC) based system of taxation. It is less likely the Senate will lead on this issue, but it may follow House action.

Regarding the potential of an “infrastructure bill”, President Trump and soon-to-be Chairman DeFazio have indicated a desire to implement legislation to invest in American infrastructure. However, there are stark differences to the scope and financing of such legislation. With very different proposals put forth by the White House and Senate and House Democrats, it hard to imagine that sides could come together on compromise legislation—especially as posturing for 2020 races are already underway.

The best hopes for legislative accomplishments come in the reauthorizations of a national highway and transit programs and a water resources bill. The most recent reauthorization of highway and transit programs became law in 2015 as the Fixing America’s Surface Transportation (FAST) Act. The five-year reauthorization sets policy for federal highway, transit, highway safety, motor carrier safety, hazardous materials, and passenger rail programs and expires in September 2020. With a deadline approaching, a highway and transit reauthorization will likely be on the agenda for the upcoming Congress.

The House and Senate have also signaled their intent to reauthorize federal water resources programs every two years. The previous Water Resources Development Act (WRDA) was signed into law in October 2018 and invests in harbor, waterway, flood protection, and other water infrastructure improvement programs. This reauthorization is also expected to be addressed in 2020.

Potentially relevant to both reauthorizations is the unsettled question regarding permissibility of Congressionally directed spending – or “earmarking” federal funds for specific local projects. Many House Democrats – and some Republicans – favor a return to earmarks with transparency and safeguards, but some previous instances of misuse and waste make the matter politically fraught. The question of earmarks will likely remain unsettled until the House passes its rules package in January, which may have an impact on the path the Senate takes.

Finally, some additional matters that may be considered in the 116th Congress include the implementation of positive train control (PTC) across the rail system; development and integration of autonomous vehicles/systems, not only on roads but also in aviation and maritime capacities; and the development of commercial space operations.

The 116th Congress will no doubt be contentious; however, in crisis there can be opportunity.Stay tuned, and we will share further developments as the dust settles.

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