Insights

In a business environment characterised by tremendous change and impact as a result of the new Trump Administration and the 119th Congress, it is crucial for U.K. businesses to stay informed about developments in the U.S. Crowell is focused on providing clients with timely and actionable insights that can help to inform forward-looking business priorities and strategies.

To keep our clients informed about the proposed policies and announced platforms of the presidential candidates and the potential composition of the new Congress, Crowell is launching its Election 2024 series. The series will provide insight and analysis on what the election of Vice President Harris or former President Trump could mean for business, as well as explore what’s at stake in key state and congressional races. 

While not new, Congressional investigations have certainly been receiving increased press coverage in recent years, raising questions about their scope and potential risk for organizations and individuals. Congressional investigations have some similarities to other law enforcement and regulatory investigations, but are distinct in many respects. This alert will provide guidance about the unique nature of congressional investigations, and how to respond if you are the target of one.

A U.S. federal government shutdown creates a number of direct and indirect consequences that impact U.S. companies, individuals and virtually every aspect of the U.S. economy.  Although the federal government has experienced previous lapses in funding that have led to shutdowns of all or part of the federal government, the current funding impasse and impending shutdown raise a number of unique and unprecedented questions for government workers, government contractors and businesses, and the public at large.

On Tuesday, September 12, a key subcommittee of the Senate Judiciary Committee held a hearing entitled “Oversight of AI: Legislating on Artificial Intelligence” the day before the Senate’s first AI forum.

Last week, Ranking Member Bill Cassidy (R-LA) of the Senate Committee on Health, Education, Labor and Pensions (“HELP”) issued two separate requests for information (“RFIs”) asking for stakeholder feedback on artificial intelligence (“AI”) and health data privacy policy issues to identify current challenges and receive recommendations to inform potential legislation.  With deadlines set for the end of September, each RFI provides a short window for organizations to submit comments.

On June 21, 2023, Senate Majority Leader Charles (“Chuck”) Schumer (D-NY) released a broad policy framework, the SAFE Innovation Framework for Artificial Intelligence (AI) Policy (“the Framework”), to help guide Congress in developing future AI legislation. The Framework emphasizes the importance of maintaining national security, combatting misinformation, protecting intellectual property, and developing transparency requirements for AI systems developers. While the Framework is Senator Schumer’s work product, he’s already started searching for allies in his own party and across the aisle. Leader Schumer has convened a bipartisan working group that includes Senators Martin Heinrich (D-NM), Michael Rounds (R-SD), and Todd Young (R-IN) to consider future AI legislation. They haven’t specifically endorsed Schumer’s framework, but they’ve committed to working with him on the issue. As they look to put an AI bill together, Schumer’s office will be looking to Senate Committees as a major source for legislative language.  

On March 9, 2023, President Biden released his fiscal year (FY) 2024 budget request outlining the administration’s priorities, including a nearly 10 percent increase in discretionary spending over the current enacted funding levels. The President’s budget requests a total of $6.9 trillion federal spending for FY 2024. Of this amount, $4.2 trillion would be in mandatory spending and $1.9 trillion would be in discretionary spending. Defense spending would receive an approximately 3 percent increase from FY 2023 for a total of $885 billion in discretionary spending, while non-defense spending would receive a nearly 4 percent increase from FY 2023 levels for a total of $1.02 trillion in FY 2024. The President’s budget request proposes a 7 percent increase over current non-defense spending level and tax increases among other proposed revenue raisers designed to lower the national deficit by $3 trillion over the next 10 years. 

On February 15th, Daniel Werfel, the nominee for IRS Commissioner, testified before the Senate Finance Committee during his nomination hearing. As expected, Werfel faced tough questioning about how he would oversee the use of $80 billion in new funding coming to the IRS over the next decade. The Inflation Reduction Act, which passed late last year, appropriated the additional funding for the IRS to increase compliance and provide better customer service to taxpayers. 

If past is prologue, then energy companies may again find themselves targets of congressional investigations. The new Republican majority in the House of Representatives has outlined plans to investigate the Biden Administration’s climate change policies and the clean energy and transportation companies that receive government money under the Infrastructure Investment and Jobs Act (“IIJA”) and the Inflation Reduction Act (“IRA”). This is a replay of when the GOP took control of the House in 2010 and congressional committees investigated implementation of the American Recovery and Reinvestment Act of 2009, focusing in part on exposing what they believed to be spending abuses by the Department of Energy’s (“DOE”) Loan Programs Office. Most famously, congressional Republicans targeted Solyndra, a California-based solar panel manufacturer that eventually went bankrupt after receiving the first loan guarantee issued by DOE under Title 17 of the Energy Policy Act of 2005.

With the midterm elections (mostly) behind us (Republicans won a narrow House of Representatives majority, and Democrats will retain their slim Senate majority), Congress will return to Washington next week to tackle a list of must-pass items before the conclusion of the 117th Congress. Topping the must-do list in this period referred to as the “lame duck” session is funding the government for the remainder of fiscal year 2023 before the current continuing resolution (CR) expires on December 16 and passing the National Defense Authorization Act (NDAA), the annual defense policy bill. Many other issues are likely to be taken up in what is expected to be a very active end of the 117thCongress. In addition to these legislative priorities, the Senate will likely pass the annual tax extenders bill, try to fit in a few other priority bills that have waited all year or are time sensitive, and continue to process federal judicial nominations and agency appointments that need Senate confirmation.

President Biden will soon sign into law the Inflation Reduction Act (IRA), which provides $750 billion in funding and major federal policy changes impacting the U.S. energy, environment, healthcare and tax sectors. On August 7, 2022, the IRA passed the U.S. Senate by an all-Democrat 50-50 party line vote, with Vice President Harris breaking the tie and ensuring passage. On August 12, 2022, the IRA passed the U.S. House by a vote of 220 to 207. The President's signature, will make the bill law, and allow President Biden, U.S. Senate Majority Leader Chuck Schumer (D-NY), and U.S. House Speaker Nancy Pelosi (D-CA) to claim a major victory while making progress on a portion of the President's Build Back Better agenda just three months before the mid-term elections on November 8, 2022.

Now that the Tri-agencies have drawn back the curtains to reveal some of the inner workings of their developing Mental Health Parity and Addiction Equity Act (MHPAEA) comparative analysis enforcement efforts, the question is: What’s next?

Just days following the enactment of the omnibus appropriations law for the remainder of the current fiscal year ending on September 30, President Biden released a $5.7 trillion budget proposal for the 2023 fiscal year. The President is seeking from Congress $1.64 trillion in funding for discretionary programs, a nine percent increase from current funding levels. Of that amount, the proposed budget seeks $813 billion in defense spending and $829 billion for non-defense programs.  In contrast, almost two-thirds of the proposed budget – $3.65 trillion – is earmarked for mandatory spending including Social Security, Medicare, and Medicaid. The White House projects the proposal would result in a $1.3 trillion decline in the federal deficit due in large part to new proposed taxes, including a 15 percent minimum tax on corporate profits and a new minimum tax on households worth more than $100 million.

During his first State of the Union address, President Joseph Biden promised continued coordination with allies and pressure against Russia in response to that country’s invasion of Ukraine before pivoting to a domestic agenda and economic recovery plan centered on improving health care for all Americans, rebuilding American manufacturing and infrastructure, and addressing lingering effects of the pandemic. President Biden highlighted accomplishments of his first year in office, such as enactment of the American Rescue Plan and the bipartisan Infrastructure Investment and Jobs Act, and renewed a call for reforming the tax code and immigration system, raising the minimum wage, lowering pharmaceutical prices, subsidizing child care, banning assault weapons and high-capacity magazines, and strengthening voting rights – all major priorities of the Democratic party that have stalled in the closely divided Congress.

Crowell & Moring, LLP (Crowell) has established a multi-practice, cross-office Infrastructure Implementation Team to assist U.S. and foreign businesses in monitoring, tracking and making business decisions based on the rollout of $1.2 trillion infrastructure law that was enacted in November 2021. This will be an important and exciting year in the infrastructure space as U.S. federal agencies begin to create new programs, promulgate regulations and push out billions of dollars in infrastructure funding through federal contracts and grants to state, tribal, and local governments and the private sector. Crowell’s Infrastructure Implementation Team is composed of industry leading attorneys and policy professionals in our Government Affairs; Government Contracting; Transportation; Corporate; Mass Torts, Products and Consumer Litigation; Aviation; and Environment, Energy and Natural Resource practices. Our Infrastructure Implementation Team stands ready to help clients navigate the myriad funding opportunities and regulatory actions that will result from the law over the months and years to come.

Late in the evening on Friday, November 5, 2021, the U.S. House of Representatives passed the $1 trillion Bipartisan Infrastructure Bill (BIB), reauthorizing various surface transportation programs, paving the way for $550 billion in new infrastructure spending over five years, and paying a significant down payment towards the President’s goal of transitioning the transportation sector away from fossil fuels.  The legislation passed the U.S. Senate on August 10, 2021, and now awaits the President’s signature.

Infrastructure reform has been the talk of Washington, D.C., for years. The Trump and the Biden Administrations both made it a high priority, and the issue has now come to a head in Congress. In July, the U.S. House of Representatives passed the $715 billion INVEST in America Act (H.R. 3684) along a largely party-line vote. After months of behind-the-scenes negotiations, the U.S. Senate moved decisively to pass a $1.2 trillion Bipartisan Infrastructure Bill followed by a $3.5 trillion partisan Budget Resolution just prior to starting recess on August 11, 2021. The U.S. House of Representatives is scheduled to return to session on August 23, 2021 to take up both Senate-passed measures. While the prospects for infrastructure reform becoming law are stronger than they have been in years, there are a number of potential pitfalls that could derail the efforts this fall. The following is a summary of the current state of play in this August recess which will soon become an incredibly busy fall.

Today, President Biden signed an Executive Order establishing a “whole-of-government” effort to promote competition across broad swaths of the American economy. The Order is intended to address perceived harms from “excessive” corporate consolidation, which threatens “basic economic liberties, democratic accountability, and the welfare of workers, farmers, small businesses, startups, and consumers.” Sectors that receive particular focus are agriculture, healthcare, banking, internet platforms, telecommunications and labor markets generally. The Order builds upon the Biden/Sanders Unity Task Force recommendations for “Tackling Runaway Corporate Concentration.”