NAICU Washington Update

2020 Congressional Outlook

January 16, 2020

As Congress convenes the second session of the 116th Congress, more is on the agenda than the “three I’s” regularly reported on in the media: Impeachment, Iran and Iowa (Caucuses). Higher education policy, student aid funding, and regulatory action will keep Congress, the Department of Education, and colleges and universities extremely busy in 2020.  Based on the Congressional schedule and election-year campaigning, a heavy legislative and regulatory push is expected between now and July.
Here is a look ahead to the key higher education issues expected to be Congressional priorities in 2020:
Higher Education Act (HEA). The House Education and Labor Committee passed the College Affordability Act last October and plans to bring it to the full House of Representatives for a vote as soon as Chairman Bobby Scott (D-VA) has secured sufficient co-sponsors. This comprehensive reauthorization of the HEA includes expansions in all programs, with a hefty price tag that will need to be paid for or waived before a vote.
The Senate Health, Education, Labor and Pensions (HELP) Committee continues to work internally on its version of an HEA reauthorization. While Chairman Lamar Alexander (R-TN) was successful in adding FAFSA simplification to the recently enacted FUTURE Act to fund minority-serving institutions, he may want to leave his mark on larger, landmark legislation before his retirement at the end of the year. A sticking point between Sen. Alexander and his Democratic counterpart, Sen. Patty Murray (D-WA) has been the language related to campus sexual assault (see Title IX Regulations below).
While skeptics may say “nothing gets done in an election year,” the Senate is in session for 100 days between February 3 and the August recess, with no break the entire month of June.  This schedule offers plenty of time to consider an HEA reauthorization. Despite the distractions of national headlines, congressional policy staff continue to work on the issues in their legislative portfolios and keep bills moving forward. In fact, the impeachment proceedings in Washington may offer time for leading education staff to forge ahead on crafting details of a comprehensive HEA package.
FY 2021 Student Aid Funding. Student aid programs fared well in the final FY 2020 spending bill, which increased the Pell Grant maximum to $6,345, and increased all other programs.  This bill passed months after a bipartisan budget deal was enacted in August to raise the spending caps for FY 2020 and FY 2021.
The FY 2021 cap increases only slightly above FY 2020, which means this year’s allocation will be tighter. The process will kick off with the President sending his budget to Congress on February 10, after he addresses the nation in the State of the Union address on February 4.  Despite the budget deal, the President’s budget is expected to include spending cuts below the caps for non-defense programs, as it has the last three years. Each year, Congress has rejected those cuts with bipartisan votes to increase defense and non-defense spending.  Senate Republican appropriators have requested the administration send a FY 2021 budget that meets the cap parameters to avoid flare ups in the appropriations process.  
While House Democratic leadership have targeted June to finalize all spending bills, budget watchers have already predicted a lame-duck final spending bill despite best intentions for regular order.  
Title IX Regulations. It has been more than a year since the Department of Education issued a notice of proposed rulemaking on Title IX and campus sexual assault. The higher education community, and others, responded with over 100,000 comments. The highly anticipated final regulations, which are rumored to deviate little from the proposed regulations, are expected to be published any day now. It is widely known that campus sexual assault is a key priority that Senate HELP Committee Ranking Member Patty Murray (D-WA) wants included as part of any comprehensive HEA reauthorization.  The administration’s delay in releasing the regulations has in turn delayed what the HELP Committee can produce on HEA, but once released, could expedite the HEA process.
Endowment Tax Guidance. Two years after enactment of the private college endowment/net investment income tax, final guidance on how institutions should calculate the tax is expected from the IRS in the coming months.  Last October, NAICU joined community comments, led by the National Association of College and University Business Officers (NACUBO), on the proposed guidance. While NAICU supports the recommendations of the community on lessening the burden of this new tax, it remains steadfastly opposed to the tax as an unfair attack on one sector of higher education and a dangerous intrusion into charitable giving that does nothing to help students.
DACA Decision. The U.S. Supreme Court continues deliberations on the legal status of President Trump’s rescission of the Deferred Action for Childhood Arrivals (DACA) program.  While it’s predicted that the court will uphold the legality of the administration ending the program, it will force Congress to act to address the immigration status of the affected individuals. The court decision is expected in late spring, or early summer, quickly escalating immigration to the top of the election year agenda.
Other Higher Education Regulations. The Department of Education is expected to regulate in several other areas:
  • In December, the Department published proposed rules that would both facilitate faith-based institutions’ access to the Title IV programs and revise the TEACH Grant Program. These proposed rules are the second of three sets of rules that are expected to emerge from last year’s negotiated rulemaking. The first set of regulations, on accreditation and state authorization, were finalized in November and will become effective on July 1, 2020. The third and final set of rules is expected to contain changes affecting distance education and other Title IV requirements.
  • At the beginning of 2020, the Department published a different set of proposed regulations that are designed to implement President Trump’s Executive Order (EO) addressing freedom of speech on college campuses, as well as to facilitate faith-based institutions’ eligibility to participate in various grant programs under the Higher Education Act (HEA).
  • The Trump Administration has also announced that it plans to issue proposed regulations that would amend current rules governing the Family Educational Rights and Privacy Act (FERPA).
Party Conventions and August Recess. Democrats will hold their party convention the week of July 13, and Republicans will convene the week of August 24. The House will be in recess for five weeks from August 3 to September 8 and the Senate for four weeks starting August 10. Congress will then be in session five weeks between Labor Day and Columbus Day before breaking for the campaign trail.

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