As bipartisan Senate negotiators continue marathon talks on an infrastructure package that includes $579 billion in new spending, a concern among committees and committee staff has grown: Where are our voices?
They say they’ve been cut out of negotiating on issues in their areas of jurisdiction, and it’s led to confusion and occasional hard feelings as arcane policy details are hammered out by 22 lawmakers who are mostly not members of those committees.
The bipartisan group, which forged a deal on COVID-19 spending late last year, is well versed in cutting deals, the committee people say. The group members are just not experts in infrastructure.
“I think it is an unusual process that the bipartisan group is using,” said Sen. Benjamin L. Cardin, who chairs the Environment and Public Works Committee’s Transportation and Infrastructure Subcommittee. “And there has not been the openness with the committee leadership and trying to reach decisions that should have been there.”
The Maryland Democrat said he believed there were "some genuine misunderstandings” during the crafting of the framework.
“But that's because there wasn't an opportunity to work with committee leadership as they were developing their proposals,” he said. “They just sort of went on their own. And that's not the way they should have done it.”
Senate Majority Whip Richard J. Durbin, D-Ill., compared the current process with the COVID-19 spending deal. "Each of the provisions was referred to the committee. And they made changes. Now the bill looked a lot different when it was all over, but it happened … and it went through the committee process in a very unusual way, not the regular way," he said.
The drafting of the infrastructure package, which is still not written in legislative text, has not been the same experience, Durbin said.
The tension became evident last week when EPW Chairman Thomas R. Carper, D-Del., threatened to withhold his support on the infrastructure package because he was frustrated at how the framework funded waste and drinking water projects. Sen. Tammy Duckworth, D-Ill., chairman of EPW’s Fisheries, Water and Wildlife Subcommittee, followed suit.
The Democratic concerns were noteworthy because of the 50-50 split in the Senate and the need to have at least 10 Republicans on board to overcome any filibusters if the Democrats stick together. Sen. Mitt Romney, R-Utah, a negotiator, said he believed the waste and drinking water issue was “resolved.”
“With apologies to Lennon and McCartney, it was a long and winding road because of that lack of familiarity with the issues,” Carper said Tuesday.
Duckworth said none of three relevant chairpersons — including herself, Carper and Cardin — was consulted on the water money. That lack of consultation, she said, “just wasn’t tenable."
Romney pushed back on suggestions that committees of jurisdiction have been shut out. The negotiators have used committee-passed legislation as policy language as they have filled in the framework.
“There's been extensive conversation with committee staff and committee leads,” Romney said. “And in most cases, the legislation that's being drafted is simply taking the legislation that already went through committees and using that.”
Asked why there had been so much confusion over the water issue, Romney said, “Everything’s going to be confused until the deal’s done and voted on.”
Sen. Bill Cassidy, R-La., said committee chairs and ranking members have cooperated with the negotiating team.
“Knowing that this is not ideal but it's just the way it worked out, they have been very supportive,” he said. “Is there occasional awkwardness? Yes, of course. But do things get worked out? Yes.”
A GOP aide familiar with the process, who asked not to be named to speak candidly, was less diplomatic. “We’re all for regular order, but there is no chance this would have ever gotten this far had we left the committees to their own devices,” the aide said. “Some of them just didn’t get their work done.”
There’s also tension in the House, where Transportation and Infrastructure Chairman Peter A. DeFazio, D-Ore., said the framework “not only undercuts the House, it undercuts the subject matter experts in the Senate.” His five-year surface transportation and water bill, which passed the House on July 1, has effectively been ignored during the process.
DeFazio criticized the framework, saying it is being crafted “by these self-appointed experts who I'm not aware have any significant history in transportation policy.” He said he's wary of the precedent set by a group of Senate negotiators cutting deals with the White House and leaving out the House altogether.
“We've become unicameral, with, you know, diktats from the White House and the Senate,” he said. “No, that's not acceptable to the House of Representatives.”
DeFazio, a member of the transportation committee since he came to Congress in 1987, is affronted by the framework’s inattention to climate change, saying the negotiators are neglecting an ideal opportunity to address the threat.
“Transportation is the largest fossil fuel emitter,” he said. “And anybody today who says there is no climate change is a jerk and an idiot.
"To do a transportation bill that doesn't meaningfully deal with fossil fuel pollution from the largest source would be a travesty, and to lock in that policy for five years would be disastrous," said DeFazio, who indicated he does not plan to vote for the Senate framework.
For their part, negotiators remained positive about their chances of a deal even as work continues on disputes that have bedeviled them throughout the process.
Those include where to peg the percentage of funding going to public transportation systems, how to handle the bill's broadband provisions and which pots of unused COVID-19 relief money can be used to pay for the infrastructure spending.
That last discussion has been complicated by different numbers on just how much COVID-19 relief money is available and the resurgent pandemic fueled by the rapidly spreading delta variant.
“There’s a lot of things that continue to come up, which I take as good, because it means that those are things that actually had to be ironed out for you before you get an agreement that could pass,” said Cassidy. “As people become more familiar, inevitably more details arise.”