With Election Day quickly drawing near, political forecasters say President Joe Biden could face Republicans winning a majority in the House, but control of the Senate is up in the air, hinging on results in a handful of neck-and-neck races.

In that divided government scenario, engineering and construction industry officials say that passing major legislation will be tough and will require building at least a moderately bipartisan consensus to avoid complete legislative gridlock.

“Whoever controls Congress next year, it’s going to be with a very razor-thin majority,”  says Steve Hall, American Council of Engineering Companies senior vice president for advocacy.  “It’s going to be very difficult—as we’re seeing today—for either party to push through anything.”

Others agree. Michael Johnson, National Stone, Sand & Gravel Association president and chief executive officer, says, “Frankly, no party seems poised to take control by such a large margin that you won’t still need to work with those in the middle—groups like the Problem Solvers Caucus—who seek to find common ground, middle-of-the-road bipartisan solutions to move policy forward."

Whichever party controls the Senate, “neither is going to have 60 votes"—the minimum needed to avoid a filibuster, adds Jimmy Christianson, Associated General Contractors of America vice president for government relations.

Moreover, even if Republicans sweep the Senate as well as the House, the GOP will not have free legislative rein.

The reason: Biden will continue to hold the power of the presidential veto. No one is predicting Republicans will gain the super-majority of two-thirds needed in both houses to override a veto.

Protecting IIJA

As Johnson and other industry officials look ahead to the 118th Congress, a top priority will be ensuring that landmark 2021 Infrastructure Investment and Jobs Act funding is safeguarded.  

Industry officials say a Republican House may seek to insert provisions in appropriations bills that would chip away at provisions its members find objectionable by barring funding for them at least for one fiscal year.

Christianson says that there is likely to be movement toward "nibbling at the edges" of the law through appropriations. One possible target, he says, is its out-year authorized, but not yet appropriated, funding for electric vehicle infrastructure.

But Christianson says a wholesale assault on the $1.2-trillion IIJA isn't likely, noting, "The reality is there’s so much money dedicated [in the law] to some of these members’ own districts. It’s not necessarily the best policy to win reelection if you yourselves advocate against your district receiving funds that it was supposed to get.” 

Johnson says NSSGA members have been working hard to tell lawmakers that IIJA is enacted law and provides needed infrastructure modernization that benefits the U.S. quality of life and strengthens its economic competitiveness. 

"When we have those conversations with the Republican leadership, they tell us that they recognize that [the IIJA] is now the law of the land."

Hall says, "I think it's going to be difficult to do anything major to the IIJA ... Projects are getting funded. Projects are moving forward."

To-Do List: FAA, Spending Bills

As officials look at the major new infrastructure bills coming up for 2023, they see a short list. 

Johnson says some the major accomplishments on Capitol Hill next year will involve "small ball" activity, not sweeping geopolitical measures.
"They're going to be really focused on governing," he says.

Besides the annual appropriations bills—which must pass to avert a government shutdown—the other significant measure on the agenda is reauthorization of Federal Aviation Administration programs. The present FAA bill lapses next Sept. 30.

For construction, engineering and airport groups, the key focus in the FAA bill is the agency's Airport Improvement Program, whose grants funds runway improvements and other infrastructure work.

As congressional aviation committees gear up for the new bill, airport industry groups are likely push for an increase in passenger facility charges (PFCs). 

The fees are an important revenue source for airport infrastructure projects, bringing in $2.5 billion in calendar year 2021, according to FAA figures. But they stand at $4.50 per flight segment and haven’t been raised since 2000.

Next year will be an off-year for a new Water Resources Development Act because Congress is expected to pass it in the upcoming lame-duck section, perhaps attached to the annual defense authorization bill.

Busy Regulatory Arena

Industry officials also see the Biden administration continuing to be active in regulatory initiatives and in issuing executive orders. 

They see Republicans seeking to fight those rules and directives. Some tactics could include policy riders on various pieces of legislation or appropriations language to de-fund an agency's effort to implement a particular rule.

Taking a broader look, Hall says, “We haven’t really had an election cycle like this where you have these monumental issues—the economy and abortion—that are looming as large as they are now.” 

He adds, "I don’t think they cancel each other out but I can see it's definitely going to keep it almost a status-quo Congress."