Congress May Address Two NASBP Issues

Federal Lawmakers May Address Two NASBP Issues of Concern Before Year's End  

Even with the 114th Congress winding down, unfinished business important to NASBP remains. After returning from recess in early September, Congress may address two issues on NASBP's Legislative Agenda: (1) reauthorization of 2014 Water Resources Reform and Development Act (WRDA), which includes a provision that authorizes pilot programs for public-private partnerships (P3s) for water infrastructure projects, and creates a federal loan and grant program known as the Water Infrastructure Finance Innovation Act (WIFIA), to provide financing to states and localities for those P3 projects and (2) repeal of the written prior approval authorization, which removes the requirement that trade associations must have written authorization before they can solicit their members for a political action committee (PAC) contribution.

WRDA Reauthorization and Bonding Requirements in WIFIA Agreements

After Congress examined the WRDA section pertaining to P3s, it concluded that all applicable federal laws must be followed, which includes the federal Miller Act. However, requirements for bonding WIFIA agreements remain unclear. Since the fall of 2015, NASBP has been meeting with Congressional offices whose members serve on the U.S. House Transportation and Infrastructure Committee and U.S. Senate Committee on Environment and Public Works to educate them about why bonds should be required for P3 agreements incorporating federal government grants and loan guarantees contemplated by WIFIA. While NASBP conversations were productive and convinced U.S. House of Representative Richard Hanna (R-NY 22nd) to offer an amendment during the WRDA mark-up that would have required bonds on WIFIA agreements, House Transportation Chairman Bill Shuster (R-PA 9th), decided to keep the bill narrow in scope and tailored almost exclusively to U.S. Army Corps of Engineers projects and to not reauthorize WIFIA. 

Both the U.S. Senate and House of Representative committees approved their respective WRDA bills earlier this spring.The House bill, H.R. 5053, varies a great deal from the Senate bill, S. 2848, which includes funding for Flint, Michigan to address contaminated lead pipes by appropriating WIFIA funds, while the House version, H.R. 5053, does not include a reference to the WIFIA program. In all likelihood, the House and Senate will pass their respective versions sometime this fall. The WRDA bill will then go to conference, where House and Senate conferees will attempt to reconcile the differences and produce a Conference Report. If a Conference Report is not agreed upon, short term extension funding for WRDA will be adopted and the process will start fresh in 2017. If a Conference Report is agreed upon, with both chambers approving the Report language, the reauthorization of WRDA might occur prior to the November General Election or during the lame duck session of Congress in November or early December.  

Recognizing that it is highly unlikely that Representative Hanna’s language requiring bonds on WIFIA agreements will be included in the 2016 House WRDA bill, NASBP and SFAA are pursuing an administrative strategy. Recently, both associations met with the WIFIA policy team of the Environmental Protection Agency (EPA), which is currently drafting interim rules to address the WIFIA program. Subsequent to that meeting, NASBP and SFAA submitted a letter, cosigned with six other stakeholder organizations, requesting that EPA consider bonding for the design-build or construction portion of P3s receiving financing through WIFIA when drafting the proposed interim rules, which are to be released to the public for comment later this year. The six stakeholder associations were: the American Institute of Architects; The American Insurance Association; the American Subcontractors Association, Inc.; the Business Coalition for Fair Competition, the Mechanical Contractors Association of America; and the National Electrical Contractors Association. In addition, at the request of NASBP, U.S. Representative Hanna submitted a letter to EPA Administrator Gina McCarthy and members of the EPA Office of Congressional and Intergovernmental Relations emphasizing the importance of requiring bonds when the federal government provides grants and loans for P3s as contemplated under the WRDA Act. NASBP, SFAA and others are seeking additional Congressional offices to submit similar letters to the EPA as well. 

Burdensome Prior Approval Requirement Imposed on Trade Association PACs

Prior to the July recess, the U.S. House of Representatives passed the Financial Services General Government (FSGG) bill, by a vote of 235-185, which provides funding for the Department of the Treasury, the Executive Office of the President (EOP), the Judiciary, the District of Columbia, and more than two dozen independent agencies. Included in the bill was an amendment, co-sponsored by Representatives Mark Amodei (R-NV 2nd) and Lynn Westmoreland (R-GA 3rd), that defunds the Federal Elections Commission (FEC) enforcement of the prior approval requirement for fiscal year 2017. For the past year, the Prior Approval Reform Coalition (PARC), of which NASBP is an active member, has stressed to lawmakers that prior written authorization is an unnecessary requirement and should be eliminated because: it restricts trade association’s First Amendment rights; no other class of political action committee, including corporate, labor union, and individual membership association PACs, is subject to the prior approval requirement; and the documentation and retention requirement for prior approval is a recordkeeping challenge for associations. Earlier this year, the Senate passed their version of the FSGG, which did not include language that removes the prior written authorization requirement. Once Congress is back in session, members of the PARC, including NASBP, will begin to educate those U.S. Senate appropriators on the importance of removing the FEC’s written authorization requirement and to accept the Amodei (R-NV-2nd)/Westmoreland (R-GA-3rd) amendment. 

NASBP will continue to keep the NASBP membership apprised of these two outstanding issues as the 114th Congress nears adjournment.