Congressional Outlook 2005

The new congress that convened in Washington, D.C., this month faces significant issues. The war in Iraq, Social Security reforms, and record federal deficits are among the difficult problems that members will struggle with all year. At least, for the first time in several years, Congress has already passed last year's budget.

In addition to facing tight fiscal controls on science spending, Congress this year will most likely have renewed debates on a national energy policy, more wrangling over committee jurisdiction over national security, efforts to revise air pollution regulations, and moves national energy policy, more wrangling about committee jurisdiction over national security, efforts to revise air pollution regulations, and moves to toughen government oversight of prescription medicines.

This 109th Congress has several more Republican members than the previous one, with 232 Republicans in the House and 55 in the Senate. In general, this means that most presidential initiatives will be able to pass the House with little change, but in the Senate, some bills are not expected to pass because of stiff Democratic opposition.

Also, as in the previous session, this Congress promises to be partisan and argumentative. With that, here is C&EN's annual outlook of what Congress will be doing in the months ahead.

ECONOMY & BUDGET. Burgeoning budget deficits over the past two years have left Congress no room for funding increases for fiscal 2006. That budget, to be sent to Congress by President George W. Bush on Feb. 7, will contain some of the tightest numbers in years, especially for discretionary spending, which includes most science and technology funding.

Debates this year will focus on the big items in the budget, including defense spending for the war in Iraq, reform of Social Security, and taxes. The budget is expected to face the same pattern as last year: fairly easy passage of the President's proposals in the House but serious problems in the more closely divided and independent Senate.

Bush made a campaign promise to freeze discretionary spending, except on defense and homeland security. This means possible reductions, adjusted for inflation, for areas such as energy, agriculture, transportation, education, and science and technology.

Taxes will also be on the agenda, because the Republicans wish to make previous tax cuts permanent, including reductions in the taxes on dividends and capital gains. These reductions are central to Bush's economic plan, and the 2006 budget is expected to reflect them. Democrats oppose making the changes permanent because of the huge deficits, and this opposition is likely to push any congressional action on taxes until later this year.

CHEMICAL PLANT SECURITY. Republican Senate leadership is reexamining its support for legislation requiring plants that handle large quantities of potentially lethal chemicals to take antiterrorism security actions.

Such a bill cleared the Senate Environment & Public Works Committee more than a year ago, but it was never brought to the floor because of disagreements among committee members (C&EN, Jan. 26, 2004, page 34).

Committee Chairman James M. Inhofe (R-Okla.) and Republican allies supported this bill, which would have required some 15,000 plants to assess vulnerability to a terrorist attack and take actions if necessary. The bill put the Department of Homeland Security (DHS) in charge of the process and mandated that the assessments would not be made public.

Democrats and a few Republicans on the committee, however, sought a bill that formally spelled out an oversight mechanism for DHS to ensure the quality of the assessments and DHS's review. They also wanted the plants to consider risk reduction alternatives beyond guns and guards.

Now as the new session begins, Will Hart, majority committee spokesman, says Inhofe has requested a study of chemical plant security needs by the Government Accountability Office to determine "what, if anything," would be needed. Inhofe did not set a time for GAO to complete its review, which may take several months, Hart says.

"There has been much progress made by DHS and chemical plant programs," Hart says. "We want to determine if legislation is truly needed and ensure that it would not be redundant."

Meanwhile, committee Democrats plan to introduce a bill, authored by Sen. Jon S. Corzine (D-N.J.), that was introduced in the previous session and is opposed by Inhofe. A minority committee spokesman says Senate Democrats still believe such legislation is necessary.

The House has yet to take action on plant security legislation.

ENERGY. This marks the fourth year in a row that Congress has worked on energy legislation, and Republican leaders in both the Senate and House have voiced their wishes to finish the job in the new Congress.

In the Senate, energy legislation has already come under discussion in a natural gas hearing on Jan. 24. The hearing is one of several expected early in this congressional session.

Sen. Pete V. Domenici (R-N.M.), chairman of the Senate Energy & Natural Resources Committee, is seeking action on a broad energy bill within two to three months to avoid floor competition with other legislation. Like last year, Domenici wants a large, comprehensive energy bill, but he has said the process to develop the bill will be different this year, with Republicans working more closely with Democrats.

In the 2004 Congress, Republicans in the House and Senate largely wrote their own energy bills and pushed them through committee and to the floor, shutting Democrats out of conference committee discussions.

The House Republicans were able to power the conference bill though that body. But in the Senate, Democrats and a handful of Republicans objected, and the Republican majority could not reach the 60 votes needed to overcome a filibuster, so the bill died.

This year, Rep. Joe Barton (R-Texas), chairman of the Energy & Commerce Committee, has yet to issue a committee agenda, and some confusion exists there. At first, Barton said he would wait for the Senate to act because energy legislation was no longer a priority for his committee. But House staff and others now say his views have changed, and Barton--along with other Republican leaders--wants to quickly pass last year's bill, H.R. 6, and lay it out as a marker as the Senate debates legislation.

H.R. 6 held a strong tilt to energy production: It allowed drilling in the Arctic National Wildlife Refuge (ANWR) and included some $31 billion in energy incentives and tax breaks--three times more than was acceptable to the Bush Administration. The bill was not supported by the Senate, which in part led to its defeat there.

This time around, however, several of the tax breaks are off the table because they have already been made law as part of other legislation that was passed last year. Domenici and other Republicans have also signaled that they don't want such an expensive bill this time around.

Democratic staff say the more friendly Senate climate will encourage Sen. Jeff Bingaman (D-N.M.), an Energy Committee minority member, to push harder for provisions he failed to gain in the 2004 Congress. Among them are establishment of a national renewable energy requirement, higher vehicle fuel-efficiency standards, and provisions to address climate change.

These issues, however, are unpalatable to Republican House leaders. Other divisive issues left over from last year include incentives to encourage use of ethanol as a fuel additive, liability protection for firms that are responsible for groundwater pollution from the fuel additive methyl tert-butyl ether, and oil and gas drilling in ANWR.

On ANWR, in the past, drilling supporters have clearly lacked votes to overcome a Senate filibuster. Still, Domenici has pledged to open the refuge and plans to seek language in budget legislation to include revenues from ANWR drilling as well as provisions to allow drilling there. Budget bills cannot be filibustered, but it remains unclear how this controversy will play out.

Key to passage of an energy bill will be the President's active support, congressional staff say, noting that Bush's interest has been lukewarm. A signal will be energy's visibility in the President's State of the Union Address. Last year, Bush devoted only 37 words to energy and took the wind out of the sails of those hoping for the first energy policy overhaul in more than 10 years.

ENVIRONMENT. The Senate has started work on President Bush's Clear Skies initiative to curb air pollution from power plants. The President's plan calls for reductions in emissions of sulfur dioxide, nitrogen oxides, and mercury from these facilities, and it has the backing of utilities.

On Jan. 24, Inhofe and Sen. George V. Voinovich (R-Ohio), who chairs the Subcommittee on Clean Air, Climate Change & Nuclear Safety, introduced a bill (S. 131) to implement the Clear Skies plan. On Jan. 26, Voinovich's panel held its first hearing on the legislation, which is similar to a bill that died in the Senate last year.

Meanwhile, on Jan. 25, Sen. James M. Jeffords (I-Vt.), ranking member of the Environment & Public Works Committee, introduced a competing bill (S. 150) that would make faster, deeper cuts in the three pollutants covered by S. 131 and would also curb carbon dioxide emissions from power plants.

The American Chemistry Council supports Clear Skies as part of the government's effort to stabilize the price of natural gas, a key raw material for chemical makers, says Carter L. (Kerry) Kelly, senior director of environment and federal affairs for the industry group. ACC wants air pollution control legislation that would allow utilities to convert to clean-coal technologies rather than switch to natural gas and drive up the price for that commodity, she explains.

A recent report from the National Research Council, however, says the Clear Skies program likely would cut less pollution than an existing program under the Clean Air Act, called new source review (C&EN, Jan. 24, page 8). The report bolsters similar arguments by Clear Skies opponents, which include Jeffords, and environmental groups.

Inhofe faces a tough sell to get a Clear Skies measure out of his committee, says Frank O'Donnell, president of the Clean Air Trust, a national nonprofit watchdog group. The panel has 10 Republicans, seven Democrats, and the Independent Jeffords. The Democrats and Jeffords are likely to vote against the bill. The crucial swing vote will likely be moderate Rhode Island Republican Sen. Lincoln D. Chafee, who has indicated that he will vote against the bill unless it contains provisions to curb carbon dioxide in addition to SO₂, mercury, and NO_x. Inhofe, a skeptic about climate change, opposes controls on CO₂ and will push only the President's three-pollutant plan.

If the committee approves a three-pollutant bill and the Senate passes it, the legislation would next go to the House Energy & Commerce Committee. Many observers say that Barton, the panel's chairman, would use the bill as a vehicle to revamp the Clean Air Act to shape it more to industry's liking. Barton could move such a bill quickly, O'Donnell says, and the measure would face little resistance gaining passage in the House.

If a conference committee has to hammer out a compromise between a simple Clear Skies measure from the Senate and a more complex Clean Air Act rewrite by the House, Inhofe "isn't going to have any problem accommodating his House colleagues," says Philip Clapp, president of the National Environmental Trust, a nonprofit environmental advocacy group.

O'Donnell says legislation is also possible in 2005 on a "sleeper" issue under the Clean Air Act. This involves the rights of states to adopt vehicle emissions standards that are tougher than federal standards.

In the past, California set tighter than federal emission requirements for vehicles, and some northeastern states have adopted the California standards. The Golden State recently established benchmarks for greenhouse gas emissions from cars, and automakers are strenuously objecting to them.

Congress may try to prohibit states from setting vehicle emissions standards that are higher than federal ones, O'Donnell says, even though this practice has led to technological innovations. There is a legislative precedent, he notes. After California adopted tough pollution standards for lawnmowers, Congress prohibited other states from following suit.

Congress may also act this year on one aspect of the Superfund law, ACC's Kelly tells C&EN. In December 2004, the Supreme Court ruled that a company that voluntarily cleans up a Superfund site cannot recover any of its costs from any other business that contributed contamination unless the government has sued that contributing firm first.

The decision "puts a big dampening effect on voluntary cleanups," which the Environmental Protection Agency has promoted in part because they are less expensive than those involving lawsuits, Kelly says. So Congress may consider changing the Superfund law to allow those firms voluntarily doing cleanups to collect from companies that are also potentially responsible for pollution at a particular site.

Although some Democrats in the Senate may introduce legislation to reinstate Superfund taxes, chances that the Republican-controlled Congress would take up such a bill are slim, Kelly says. Superfund, a federal trust fund for cleaning up abandoned hazardous waste sites, was filled by taxes on chemical and petroleum feedstocks and on corporate income. However, those levies expired in December 1995, and the Superfund balance has in the past two years dwindled to nearly nothing. Federal cleanups of these sites are now funded heavily from general tax revenues.

It is also unlikely that any bill dealing with greenhouse gases will be enacted by this Congress, although the chances are better in the Senate than in the House. All Democrats on the Senate Environment Committee and Chafee say they want to take action to reduce CO₂ emissions. A climate-change bill will likely be offered, not as stand-alone legislation but as an amendment to the energy bill or to the Clear Skies Act, whichever comes up first.

Sens. Joseph I. Lieberman (D-Conn.) and John McCain (R-Ariz.) have vowed to reintroduce their Climate Stewardship Act, first offered in 2003, and Sen. Thomas R. Carper (D-Del.) plans to reintroduce his four-pollutant bill, called the Clean Air Planning Act. It addresses mercury, SO₂, NO_x, and CO₂. Both bills would return CO₂ emissions to 2000 levels by 2010.

In the House, the Energy & Commerce Committee is unlikely to move any climate-change bill. Ranking member John D. Dingell (D-Mich.) and a number of other Democrats, as well as Republicans, on the committee are very much opposed to addressing greenhouse gas emissions. But the House Science Committee, chaired by moderate Republican Sherwood L. Boehlert (R-N.Y.), plans to make climate change a priority.

FOOD & DRUG SAFETY. Since 2003, health officials have found three cases of mad cow disease in Canada and one case--a Canadian-born animal--in the U.S. Two of the Canadian cases were detected this January, not long after the Department of Agriculture proposed a rule to allow imports of live cattle and expanded varieties of beef from Canada, starting in March.

Consequently, there is a renewed push in Congress to implement mandatory country-of-origin labeling for meat earlier than the legislated September 2006 deadline. Sen. Tim Johnson (D-S.D.) has introduced a bill to keep the U.S.-Canadian border closed to imports of live cattle until mandatory country-of-origin labeling takes effect. The Senate plans to hold a hearing on the issue in February.

Worries over mad cow disease may give more impetus to the idea of creating a single food safety agency for the U.S. Under current law, 12 federal agencies--including USDA, the Food & Drug Administration, and the National Marine Fisheries Service--are responsible for food safety inspection and labeling. Sen. Richard J. Durbin (D-Ill.) and Rep. Rosa L. DeLauro (D-Conn.) plan to introduce bills, shortly after Congress reconvenes, that would create one food safety agency. The bills would establish requirements for tracing foods to their point of origin. "For too long, there has been uneven and unpredictable oversight of our food system," DeLauro says.

Several drug-related issues are focusing attention on FDA's surveillance of prescription drugs after they are marketed. Findings that most antidepressants may increase the risk of suicidal behavior in children and data showing that the painkiller Vioxx may increase the risk of heart attack and stroke have led to calls for creation of an autonomous board at FDA to track the safety of drugs after they are marketed.

Currently, FDA's Office of Drug Safety is in the same division as the office that approves new drugs. Sen. Charles E. Grassley (R-Iowa) and Rep. Henry A. Waxman (D-Calif.) plan to introduce legislation to set up an autonomous board at FDA that would have the power to make label changes and to withdraw drugs from the market. Larry Sasich, a pharmacist and research analyst at Public Citizen, a nonprofit consumer advocacy organization, says the board should also have the authority to penalize companies for failing to perform post-marketing studies requested by FDA.

Concern over drug safety has also led to calls for a publicly available registry of clinical trials. Sens. Johnson and Christopher J. Dodd (D-Conn.) are interested in introducing legislation that would require drug companies to post the results of nearly all clinical trials on a national registry. In January, members of the Pharmaceutical Research & Manufacturers of America, a drug industry trade group, vowed to place mid- to late-stage clinical trial results on a registry.

HOMELAND SECURITY. Considering the enormity of the task, Congress acted quickly after the terror attacks of Sept. 11, 2001, to reorganize the government by establishing DHS. Congress acted less expeditiously, however, and more surgically, in setting its own chambers in order to oversee the new department.

The end result of this minimal reorganization: Some 88 committees and subcommittees claimed jurisdiction over DHS, which the 9/11 Commission in its final report called untenable. In fact, one of its key recommendations was that a single committee in each chamber be given jurisdictional primacy over DHS. Each chamber, the commission said, should establish "a single, principal point of oversight and review for homeland security" across the federal government.

After a two-year experiment in which jurisdictional battles yielded little effective oversight of DHS and no important legislation--including no authorization bills--Congress moved to correct the situation. Late last year, the Senate chose to give the Governmental Affairs Committee expanded powers to include more, but not complete, jurisdiction over DHS and renamed the panel the Homeland Security & Governmental Affairs Committee. Sen. Susan M. Collins (R-Maine) was reelected as the committee's chair this year, but her renamed committee will have no authority over large critical components of DHS, such as the Transportation Security Administration.

Early this month, the House voted to make its Select Committee on Homeland Security a permanent standing committee--with expanded but not complete jurisdiction over DHS--and to reduce its membership substantially. Rep. Christopher Cox (R-Calif.), who chaired the select committee, was named chairman of the standing committee.

Neither the Senate nor the House responded entirely to the 9/11 Commission's sweeping recommendation. But the new committees should offer more efficient and more effective oversight of DHS. George Washington University analysts found that, last year, DHS officials had testified at 160 congressional hearings.

As a result of Congress' recent restructuring, neither committee has really begun to function as DHS's watchdog. At press time, membership of the committees was still being decided, which means that formal legislative agendas for this year had not yet been developed.

Still, some agenda items can be gleaned from the new committees' responsibilities and from issues left unattended last year. Among the latter are several of importance to the efficient functioning of DHS. Not the least of these is whether the department has a large enough budget to carry out its myriad responsibilities effectively. Many members of Congress--both Republicans and Democrats--have faulted outgoing DHS Secretary Tom Ridge for not fighting for larger budgets. Bigger budgets might have allowed the department to improve its computer systems, which now operate on different platforms and don't communicate with each other, and to hire more staff for key functions.

Exacerbating budget matters, internal DHS audits have uncovered failures in ensuring cost-effective contracts and in the awarding of contracts to states and localities on the basis of risk. Ridge has also been criticized for not doing more to improve security at nuclear and chemical facilities and at U.S. borders and ports.

Those issues and many others are likely to receive varying degrees of attention by the House and Senate committees. But whether oversight of DHS will be improved remains open to debate.

The House established rules that give the permanent Homeland Security Committee primary jurisdiction over both the government-wide counterterrorism policy and DHS's counterterrorism mission. But because oversight by Cox's committee is essentially limited to areas not already covered by other committees, turf battles with leaders of other House committees with jurisdiction over various DHS activities appear likely. The House Science Committee, for example, shares oversight with Cox's committee over R&D within DHS but retains control over homeland-security-related R&D at agencies other than DHS.

Oversight of and money for biodefense programs are scattered among several committees. The $5.6 billion Bioshield program, for instance, is now funded through DHS but is managed by the Department of Health & Human Services and is likely to fall within the purview of different committees. Supporters of Bioshield plan to offer legislation that will reduce liability and extend patents, issues of importance to the pharmaceutical industry and issues that are likely to be fought over by several committees.

Still, the Republican leadership believes "the new committee will have by far the most significant responsibility for homeland security policy of any committee in the House or Senate." And Cox agrees. He says his permanent committee "will permit the House to give [DHS] the same legislative support and dedicated oversight that the Committee on Armed Services provides the Department of Defense."

The ranking member of the permanent committee, Rep. Bennie G. Thompson (D-Miss.)--the only Democrat formally named to the committee at press time--laid down the gauntlet. "From this point forward, there is no excuse for congressional inaction," he warned.

Cox has also said his committee will help DHS's "22 legacy agencies tear down their bureaucratic barriers," especially in the areas of preventing bioterrorism and nuclear terrorism, which he has listed as DHS's two top priorities. Cox will also keep a close watch on the department's initiative to increase security of shipping containers entering the U.S. Border security and critical infrastructure protection are also high on Cox's agenda, a congressional aide says.

When she was reelected chair of the renamed Homeland Security & Governmental Affairs Committee, Sen. Collins said she anticipates strengthening "our national security by, among other things, overseeing and improving DHS and investigating sources of terrorism financing."

Oversight of various DHS agencies once conducted by the Armed Services, Energy & Natural Resources, and Foreign Relations Committees are now consolidated under Collins' committee. These include oversight of several of DHS's science-related functions: the Science & Technology Directorate's Office of Science & Technology, the Advanced Research Projects Agency, the Office for National Laboratories, the National Bioweapons Defense Analysis Center, the Plum Island Animal Disease Center, and the Science & Technology Advisory Committee. In addition, the committee will also have jurisdiction over the advanced scientific computing research activities of Lawrence Livermore National Laboratory.

SCIENCE POLICY. The National Aeronautics & Space Administration will be the focus of a number of congressional hearings this year. Of immediate concern will be whether NASA should spend more than $1 billion to service and maintain the Hubble Space Telescope. Last year, the agency began serious development of a robotic mission to save the Hubble (C&EN, Nov. 29, 2004, page 18), but a National Academies report recommended that NASA focus on repairs via a shuttle mission (C&EN, Dec. 13, 2004, page 22). Although the dates and times have not been set, hearings on this issue are on the agenda in the House Science Committee and the Senate appropriation subcommittee with NASA jurisdiction.

NASA will also face questions from Congress about its progress on returning the shuttle fleet to flight. The agency has been addressing the 15 shuttle flight repairs required by the Columbia Accident Investigation Board in August 2003 (C&EN, Sept. 1, 2003, page 6), but it was forced to delay its upcoming mission because of hurricane damage in Florida. NASA is now on schedule for a late-May launch of its first shuttle since the February 2003 Columbia tragedy.

Another agency that will be the focus of numerous congressional hearings is the National Institutes of Health. One issue that will be the topic of hearings is the agency's new open-access policy. The policy has not yet been released (C&EN, Jan. 24, page 10), but in its more than seven-month development period, Congress has not held a hearing on the issue. Once the policy is rolled out, Congress probably will invite NIH Director Elias A. Zerhouni to Capitol Hill to explain the policy's development and justify the final product.

NIH will also continue to face congressional inquiry into issues related to conflict-of-interest allegations against its intramural scientists. The House Energy & Commerce Committee is in the midst of an investigation into several situations in which it appears that NIH employees accepted inappropriate compensation for outside consulting activities. The committee will likely hold more hearings this session.

That committee also plans to take up the issue of NIH reauthorization. The need for reauthorization was discussed last May by Committee Chairman Barton, who noted that the agency hadn't been reauthorized in more than 10 years.

The National Oceanic & Atmospheric Administration is expected to be the focus of legislation in the House. The House Science Committee will make passing the Organic Act for NOAA a priority in this session. The legislation--which was supported by the Final Report of the U.S. Commission on Ocean Policy, released this past fall--could restructure the agency.

The Science Committee will also monitor the ability of foreign students to obtain visas. A spokesman for the committee notes that the hearings held last year were helpful in drawing attention to the impact of this issue on science and technology programs at American institutions. The spokesman says the Administration is working to improve the delays.

Stem cell research will also garner attention in this congressional session. Currently, the federal embryonic stem cell policy limits federal funding to research done on cell lines derived before August 2001. With the Administration not expected to expand this policy, Rep. Michael N. Castle (R-Del.) plans to reintroduce legislation that would make federal funds available for study using cell lines derived after August 2001 from donated embryos that were originally created for fertility treatments but are no longer needed and are scheduled to be discarded.

Interest in the development of adult stem cell research will also continue. With the limits of the current policy, Congress will likely hold more hearings on the promise of adult stem cell research--an area for which federal funds are not restricted.

LEGAL REFORM. Proponents say tort reform legislation has a good chance of enactment this year. The Class Action Fairness Act, which will likely be brought to the Senate floor by Majority Leader Bill Frist (R-Tenn.) in early February, would make it easier for class-action lawsuits involving parties from many different states to be heard in federal rather than state courts. State courts are usually more favorable to plaintiffs. A bill with similar provisions has passed the House in every session since 1997. But such measures have been blocked in the Senate with filibusters, a situation that could change because of the increased Republican majority this year.

"The election has changed the political landscape, providing a significant opportunity to enact tort reform measures bottled up by a vocal minority in the Senate," says Don Evans, deputy general counsel for chemical industry trade group ACC.

The American Tort Reform Association says class-action lawsuits raise the price of health insurance and goods and services and that attorneys benefit too much from them. But the powerful Association of Trial Lawyers of America says class-action lawsuits contribute only 1–2% to the cost of health insurance and are one of the few remedies for consumers victimized by negligence, fraud, and reckless misconduct.

Another push from the business community is for legislation to create an asbestos liability trust fund. Senate Judiciary Chairman Arlen Specter (R-Pa.) has said he hopes to introduce such legislation shortly after Congress reconvenes. The bill, the Fairness in Asbestos Injury Resolution Act, would remove asbestos lawsuits from the court system and create a trust fund to pay claimants exposed to the fiber.

Representatives of businesses, labor, and insurers support the creation of a trust fund but disagree about the details. ACC's Evans says the fund should be roughly $140 billion, but labor representatives consider that amount inadequate. There are also disagreements about award values for claimants and about the amount that each firm involved in manufacturing or using asbestos products should pay into the trust fund.

It is unlikely that Congress will succeed in resolving all these issues this year.