9.15.22 Article by Michael Marsh

They call this the “silly season” in Washington, D.C.

“Silly season” is the period after Labor Day and ahead of the midterm elections as another Congress flails around ahead of its passage into history.  Curious proposals make their way into introduced legislation that have virtually no chance of ever being able to muster enough support to gain Committee attention, let alone Floor action.  However, they are advanced so a member can go back to their state or district to campaign and tout what they have done on behalf of their constituents.

Of course, there is some real work that needs to occur in the Congress as it wraps, but that sometimes seems to be an afterthought to the silliness.

Prior to the end of September, the Congress will have to agree on a plan to keep the government funded.  Funding for the programs the government has implemented has to be approved on a regular basis and, absent that approval, certain aspects of the government are forced into shutdown.  Several years ago, we witnessed one of these shutdowns, the consequent tumble in stock markets around the world reflecting concern that the U.S. might default on its debt, and even the absurdity of long lines of government employees queueing for distributions from food banks.  

I witnessed these lines here in D.C. close to my office near the FBI building.  A somber sight in our nation’s capital.

A couple of different “cures” to a standoff over the potential closure of the government will be considered.  One would be for the Congress to pass a continuing resolution (CR) to continue to fund the government and its programs.  A CR is a type of appropriations legislation that extends funding at the same level as in the prior fiscal year but terminates on a certain date.  After which, the Congress must pass another CR or, do its work and pass the government appropriations measures, as is their responsibility.

A second “cure” would be an omnibus spending bill.  An omnibus spending bill is a type of bill that packages many of the smaller ordinary appropriations bills the Congress is required to pass into one larger single bill that can be passed with only one vote in each Chamber.  However, as we have seen in the past, these omnibus bills can be “Christmas treed” and adorned with various ornaments extrinsic to the necessary appropriations.  This can lead to omnibus failure due to an inability to garner enough votes or, it can lead to less than desirous outcomes.

The circumstance of this silly season has consequences for agricultural labor.

Following the passage of a CR in this Congress, members will recess to their states and districts to campaign for reelection.  And the election season thankfully ends on a date statutorily set by the Federal Government as “the Tuesday next after the first Monday in the month of November”.  Alternatively, the Congress could choose to pass an omnibus measure ahead of the end of September and assure the government stays funded.

So, what this means for agricultural labor reform, is that our time is exceedingly short to get anything done.

In March 2021, the House of Representatives passed HR 1603 “The Farm Workforce Modernization Act of 2021” (FWMA).  While it is not a perfect bill, as no legislation is, it reflects rare bipartisan progress on a vexing issue that must be addressed.

Since then, NCAE and our aggie allies have been working to advance a more employer-friendly version of this legislation in the U.S. Senate.  This Senate effort has been championed by Michael Bennet (D-CO) and Mike Crapo (R-ID) reflecting the bipartisan attention this issue requires as well as the necessity of acquiring 60 votes to pass off the Senate floor.  Their negotiations are not yet complete.

This means that for agricultural employers who have been looking to this Congress to at last provide a solution to the demand for agricultural labor that constantly outraces supply, options are limited. 

The Congress could pass the omnibus spending bill discussed earlier and attempt to attach ag labor reform to that piece of legislation.  Alternatively, after the midterm elections, and during the “lame duck” session of the 117th Congress, bipartisan leadership in both Chambers could join to advance legislation on this critical issue.

It may be the “silly season” in D.C., but for agricultural employers, it’s not funny.