COVID-19 Updates - Implementation of the New Law and A Look At What's Next from Washington

The COVID-19 pandemic is driving dynamic action by the U.S. Government and other authorities to address the unfolding global health crisis and challenging business and economic conditions. Each day brings new and rapidly evolving legislative and administrative measures that are impacting businesses and communities nationwide. Our Government & Regulatory Affairs team shares the latest developments below. Click here for a listing of gubernatorial actions by state. 

Kevin Kelly  |  Government & Regulatory Affairs Practice Leader 
(202) 552-2351  |  kkelly@clarkhill.com

Friday, March 27, 2020

The House has given final approval to H.R. 748, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, by a voice vote.  While Rep. Tom Massie’s (R-KY) request for a recorded vote due to a lack of a quorum would have delayed the bill’s passage, the House Speaker Pro Tem (the presiding officer who oversaw the House floor debate) ruled that a quorum was present. This was actually was the case, and as a result, no recorded vote was required. 

The President will sign the bill shortly after it is presented to him, either later today or over the weekend.

For your information only (please do not widely distribute), here is a summary of the bill from Congressional Quarterly. It provides a practical summary of the bill’s provisions and was used as a briefing tool for House members.

In addition, here is a table that projects the 10-year cost of the tax provisions included in the recently passed measure, which amounts to nearly $600 billion.  The table itemizes each cost of the 21 tax provisions included in the CARES Act.

The House has adjourned until next Tuesday when it will reconvene in a pro forma session.  No legislative business will be conducted.

With the bill’s final passage, the action now shifts to the Federal agencies, which will issue rules and guidance on how the funding will be made accessible, along with the implementation of other non-funding provisions.  Clark Hill’s Government and Regulatory Affairs team will be providing regular updates on these steps, as they are critical in understanding the multiple trade routes available for entities to tap the recently passed resources and authorities.

 

Wednesday, March 25, 2020

Update:

The Senate passed the CARES Act package 96-0 shortly before midnight after Sen. Sasse’s (R-NE) amendment, which would have changed the bill’s unemployment benefits, failed (48-48).  The Senate is now adjourned until April 20.  (Note:  Non-essential businesses in DC are shut down per the Mayor’s order until April 24.)

The bill as passed, however, did undergo a change from the earlier version, reflecting a more rigorous reporting requirement in terms of loans made to businesses under the bill’s provisions.  The bill text as passed is here.

Also, here is a summary of the tax and unemployment insurance provisions in the bill.

The House is scheduled to take up the bill Friday morning at 9 a.m.  It’s still not clear if it will require a roll call vote, but in anticipation that some member(s) may insist on that (as is their right under House rules), the House leaders would be expected to temporarily change the voting procedures so as to allow Members to vote by proxy.  The hope is this will deter the insistence on a recorded outcome; most Members are not in town.

Previously:

Information about the Phase 3 Coronavirus Stimulus Package -  S. 3548 The Coronavirus Aid, Relief, and Economic Security (CARES) Act – has been coming out throughout the day.

The package is largely agreed to among Senators, though nothing is truly agreed to until everything is actually agreed to/voted on.  There is a hold up in the Senate vote due to an objection by a handful of GOP Senators who contend that the proposed expansion of unemployment benefits (see Section 2104 – highlighted in this document) is too generous.  It’s not the extended length of benefits (an extra month) to which they object, but the extra amount available per week ($600.00).  It is unclear if this will be remedied tonight; though there is a chance, it remains to be seen.

The Government and Regulatory Affairs team at Clark Hill has compiled a thorough yet long document, found below, that integrates a summary of the bill in a section-by-section format.  The bill text itself is both lengthy and complex, and there will be no committee report that accompanies it, leaving much of the work for its provisions to be implemented and interpreted by federal agencies.

The bill is organized into two sections: 1) Division A , which has most of the direct spending provisions of the measure (entitlement or entitlement-like programs to include small business lending, unemployment benefits, health care provisions, relief for specific industry sectors, and the State Stabilization Fund; and 2) Division B, which contains emergency appropriations included in the measure through dozens of traditional programs plus a number of sector specific “stabilization” funds – like education.

There are some significant changes in this bill compared to the measure originally introduced last week. 

  • Small business loan provisions. Provisions previously were limited to companies with no more than 500 employees.  The final version significantly alters that to companies with no more than 500 employees per location and allocates $349 billion to the loan provisions. 
  • Hospitals.  The bill includes a so-called “Marshall Plan” for hospitals that would send $100 billion to hospitals in need of cash for supplies and staffing, while another $11 billion would go toward a potential vaccine and therapeutics.   There are additional funds for community health centers, funds for states and local government (separate from the Stabilization Fund), and a number of other provisions. 
  • State Stabilization Fund.  The bill creates a $150 billion Coronavirus Relief Fund for state, territorial, tribal and local governments. All but $11 billion would go directly to states. The $11 billion would be for the District of Columbia, territories and tribal governments. Local governments with 500,000 or more residents would be able to apply for their own direct funding, with smaller ones needing to go through their state sums. A population-based formula would determine the amount each state receives, with no state seeing less than $1.25 billion, including the funds set for local governments.

There is more spending in Division B, the appropriations section of the bill, in comparison to what was first proposed. The funds are across a range of areas including public transit, education, housing, and health.

Some key documents:

These provisions will take some time to digest, and the measure’s final enactment – while probable – is not currently 100% guaranteed.

Sunday, March 22, 2020

Updated 8:00 PM EDT:

The Senate voted tonight 47-47 on the motion to proceed to the Coronavirus Relief Package #3.  Sixty votes were needed for approval of the motion.  Democrats voted en bloc against the motion.

The remaining disputes suggest that a bipartisan agreement may prove to be more challenging than anticipated, as it seems that the parties are further apart than previously imagined. After the vote (on which as many as five Senators were self-quarantining in response to Sen. Rand Paul’s (R-KY) announcement that he tested positive for COVID-19), both parties’ leaders blamed each other for the impasse.

At issue is Democrats’ insistence on more money for hospitals and health providers, along with stronger worker protections for any business that receives aid from the underlying relief package.

Next steps are unclear. Politico published a thorough summary of the day’s events that outlines the pressure on both sides to put a package in place before markets open on Monday morning.  Negotiations will continue.

For more resources on the legislation, here are two summaries on the pending CARES Act, though the final text is likely to be changed. First, here is an overall summary (that excludes appropriations, which Clark Hill posted previously today). Second, here is a summary of the HELP Committee (Health-Education-Labor) provisions in the proposed Senate measure. 

Previously posted:

It’s been a hectic weekend of negotiations on the 3rd coronavirus relief package, known as the CARES Act (Coronavirus Aid, Relief and Economic Security Act). Though Democrats and Republicans have yet to reach an agreement on the third package, negotiations have continued just off the Senate floor, with the first vote in the Senate today being postponed from 3 to 6 pm. 

As this pandemic expands (the Wall Street Journal reported today that number of coronavirus cases doubled worldwide in the last week), Senator Rand Paul (R-KY) became the first member of the Senate to be diagnosed with COVID-19.

Earlier today, the “Four Corners” – Senate Majority Leader Mitch McConnell (R-KY), House Minority Leader Kevin McCarthy (R-CA), Senate Democratic Leader Chuck Schumer (D-NY), and House Speaker Nancy Pelosi (D-CA) – met, though they failed to reach an agreement on all terms of the third stimulus package. In these sort of legislative negotiations, “nothing is agreed to until everything is agreed to.” As such, sticking points included worker protection language for industries and businesses aided by the bill; the size of a State Stabilization Fund that would support states and localities in addressing with health and hospital challenges as well as other economic disruptions; and the difficulty certain nonprofits that use Medicaid have faced when seeking Small Business Administration aid.

After this session, Speaker Pelosi proposed that the House introduce its own COVID-19 Stage 3 Relief package tomorrow, which would almost certainly delay the package being finalized. This adds more uncertainty to the potential timeline for completion, and will likely further rattle global financial markets. However, in a sign of potential action, Senate Majority Leader McConnell announced a delay on a procedural vote from 3 pm to 6 pm – a motion to proceed – to consideration of the “shell bill” (H.R. 748) that will be used as the vehicle for moving on the CARES package. The Senate will be unable to proceed to the underlying bill unless 60 Senators vote to allow the motion to pass. The next likely update will come when the Senate reconvenes in an unusual Sunday session shortly, and then proceeds to a vote an hour later – unless that vote is delayed again.

What’s expected to be in the bill?

Earlier this afternoon, Senate Republicans released both the text and summaries of what they anticipate to be included in the final package. This was done in part to try to force Democrats’ hands on the upcoming vote.  The bill, as now drafted, has two major divisions. The first includes non-appropriations legislative provisions (Division A) that provide either direct spending programs or change underlying statutes to expedite efforts to fight Covid-19. The second (Division B) has the appropriations text. 

Discretionary Spending

Senate Appropriations Committee (Majority) summary 

The total included in discretionary spending now totals approximately $242 billion. The bill includes large investments for major portions of the US economy that rely on federal funding for their operations and core programs.  However, the so-called “State Stabilization Fund” is not included in this summary, as released by the Senate Appropriations Majority (GOP).  Even still, to illustrate the scale of the proposed investment, the current total in the bill is a little more than a third of what is annually provided through regular non-defense programs.

The Senate Committee summary highlights the large percentage of the package’s funds that go to state and local governments (e.g., airports, public transit, community development and education programs). However, as noted above, the summary omits the broader “State Stabilization Fund,” for which Democrats have sought as much as $750 billion in any final package. 

Other Provisions

In addition to discretionary appropriations, there are a range of other proposed changes (including a few that clarify certain benefit and paid sick leave changes in the 2nd relief package that became law just last week).  Other items include:

  • Small business retention loans that would give employers two weeks of cash flow coverage to keep workers on the payroll.
  • A one-time cash payment to families, with an average check of about $3,000 for a family of four.
  • Enhanced unemployment insurance benefits for those who lose jobs as a result of the coronavirus.
  • A broad-based lending program through the Federal Reserve that would leverage up to $4 trillion in liquidity to support both big and small businesses during the next 90 to 120 days.
  • Student loan borrowers would have a full six months of interest-free relief from paying federal student loans.
  • Short-term extension for the federal community health centers and National Health Service Corps program.

Where Do We Go From Here?

By early evening, we should know whether or not the package as finally presented in the Senate will be voted on by both chambers tomorrow.  If that’s what happens, there will almost certainly be more alterations to the current text.

Senate Democrats believe that the current bill fails to provide sufficient funds to hospitals and public health agencies to address the crisis. Even the most conservative members of the Senate Democratic Caucus, Senator Joe Manchin (D-WV), have said they will vote against the bill if there are no accommodations on this issue.  Senate Republicans point to the more than $100 billion included for hospitals.  How this issue is resolved (amongst several others) will help us see what the path forward looks like. 

Friday, March 20, 2020

Senator Mitch McConnell released details of the Coronavirus Aid, Relief, and Economic Security (CARES) Act last night, March 19.  Democrats have insisted that the package include additional discretionary appropriations, and this morning Senate Democrats released a list of proposed items - which heavily focus on state and local needs - that they want included in the final version of the Coronavirus phase 3 relief bill.

Some key documents:

The Administration and Senate Republicans have indicated that the final package should include items from the Senate Democrats’ list.  What is currently unknown is how many of those items will be added and how much money will be allocated in the package.  The additional appropriations could be anywhere from $200-400 million, putting the bill’s final figure well over $1 trillion.  As a frame of reference, regular annual non-defense discretionary spending totals for FY 2020 are $624 billion (excluding money designated for overseas contingency funding), and the Obama Stimulus package was $1 trillion.

House and Senate Democrats are negotiating the provisions with Congressional Republicans and with the Administration.   The Senate wants to vote on the package on Monday, March 23; however, negotiations are intense, and it’s unclear if the discussions will wrap up tonight the way McConnell has stated they should.  The situation remains fluid, but once the measure passes, legislators will leave DC for an unspecified period of time.

Thursday, March 19, 2020

Economic Impacts

The beginning evidence of the acute economic pain caused by Covid-19 emerged yesterday as the Big 3 automakers announced they were ceasing production, the hotel industry (a good indicator of the nation’s service industry) projected that 45% of all hotel workers would lose their jobs in the coming weeks and applications for unemployment spiked in many states.  The stock market has dropped more than a third in the last month.  It took the market a year to drop by that much during the 2008 Financial Crisis. Axios has an excellent story this morning on this next phase of the crisis where the public health, economic and political response intensifies. 

The 2nd Coronavirus Relief Package

Last night, the President signed into law HR 6201, the Families First Coronavirus Response Act with the technical corrections incorporated by H Res 940, the technical corrections measure passed by the House on Monday.  The Senate passed the measure by a vote of 90-8.  The new benefit provisions go into effect no later than 15 days from yesterday and the Department of Labor will be issuing guidance on their implementation no later than when the new law takes effect.

There remains a lot of uncertainty about how the individual provisions of that law impact individuals and businesses. Some key documents:

  • Bill text.  The Final enacted text of the law;
  • Technical Corrections Summary.  A summary of Changes Made by House "Technical Corrections" Amendment to HR 6201 Relating to Paid Leave Benefits;
  • Final Paid Leave Benefits.  A summary of the Paid Leave Benefits in HR 6201 that incorporates those changes made by the technical corrections measure;
  • Chart on Emergency and Sick Leave.  A summary chart of the Paid Public Health Emergency and Sick Leave Requirements as corrected; and,
  • Tax Credit explained.  The Joint Committee on Taxation's explanation of the tax provisions contained in HR 6201, the Families First Coronavirus Response Act.  

The 3rd Coronavirus Relief Package

Given the unprecedented economic and public health threat posed, the Administration and Congress face a very short deadline to enact a third package of relief measures.  Secretary Mnuchin told Senate Republicans earlier this week that absent a trillion-dollar intervention by the Federal Government, unemployment could hit 20% - a figure that rivals or exceed the Great Depression.

The Administration.  The Administration has proposed a trillion-dollar package (see Treasury Stage 3 proposal memo) that proposes:

  • Airline industry bailout: $50 billion
  • Other affected industries bailout: $150 billion
  • Small business interruption loans: $300 billion.
  • Payouts to individual Americans: $500 billion.
    • This would be done via two separate checks of equal amounts, one on April 6 and one on May 18.
    • The specific dollar amounts would be means-tested, meaning it would be based in income level and family size.

The Senate.  Senate Majority Leader McConnell has begun work on a package that he hopes to unveil as early as the end of this week.  His approach is apparently to gather recommendations from several task forces in his GOP Senate Conference, then negotiate a final package with Senate Democratic Leader Schumer.  It’s likely the McConnell proposal will incorporate most or much of what is in the Administration package.  The signals so far suggest McConnell does not want to negotiate directly with House Speaker Pelosi.  Schumer unveiled his ideas for that package earlier in the week that focus less on industry-specific relief and instead push for more changes that directly affect benefits for individuals (see his powerpoint here).  Schumer and McConnell are scheduled to meet this morning.  One key sticking point that is sure to surface is Democrats’ insistence that any loans or financial relief to business must protect the jobs of existing employees and the wages now paid to them.

The House.  Speaker Pelosi directed her Committee Chairs to prepare recommendations for this package which they will likely release sometime early next week though events on the ground (including financial market volatility) could alter that timeline.  No doubt she will be signaling the House priorities to Senate Democrats in their negotiations with Senator McConnell.