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On the Hill: The Legislative Outlook for the New 118th Congress

By Hanna Stark posted 15 days ago

  

Sign up for our monthly advocacy newsletter to receive regular updates from the National Trust for Historic Preservation’s government relations team. Join us on February 23, 2023 for a conversation about Historic Preservation Advocacy in the new Congress with staff from the National Trust for Historic Preservation. 

The start of 2023 brings the beginning of a new legislative session, the 118th Congress. This is a moment of change and opportunity, but also a time to reflect on the previous two years of the 117th Congress, where significant strides were made in preservation advocacy. Still, a great deal of work awaits in this new Congress, including advocating for the Historic Preservation Fund’s reauthorization, advancing legislation to protect historic places, preventing a weakening of historic preservation and environmental review regulations, building support for improvements to the federal historic tax credit, and telling the full story of all Americans.

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The U.S. Capitol in 2010. | Credit: Architect of the Capitol

Looking Back on the 117th Congress

The 117th Congress brought a Democratic trifecta, holding the majority in the White House, the U.S. Senate, and the U.S. House of Representatives. The historic preservation community accomplished many achievements during these two years.

Historic Preservation Fund

For the first time in history, funding for the Historic Preservation Fund (HPF) exceeded its $150 million authorized level, achieving $173 million in the FY 2022 appropriation cycle. The FY 2023 appropriations process saw a continuation of that support, with Congress appropriating $204 million through an omnibus appropriations bill which amounted to an 18.2% increase over FY22 funding levels. After more than a decade, Democrats reintroduced the practice of earmarks in FY22, now referred to as Congressionally Directed Spending in the Senate and Community Project Funding in the House, with new disclosure and eligibility requirements. Also unprecedented in the life span of the the HPF, millions of dollars have been allocated within the fund for congressionally directed spending projects.

A chart of allocations for the Historic Preservation Fund.

In addition, HPF’s program authorization is set to expire in September 2023, prompting Congressional champions to think about the future of the HPF. Reps. Teresa Leger Fernández (D-NM) and Earl Blumenauer (D-OR) introduced the Historic Preservation Enhancement Act (H.R. 6589) in February 2022, which would have permanently authorized funding for the HPF, increased its authorization from $150 to $300 million annually, and ensured $300 million is appropriated each year. The House Natural Resources Subcommittee on National Parks, Forests, and Public Lands held an important hearing on the legislation in late April, but ultimately the bill was not brought to a vote in the House or Senate before the end of the Congress. With the HPF reauthorization deadline of September 31 fast approaching, this issue will be a priority of the National Trust and preservation partners in the 118th Congress. 

Historic Tax Credit Enhancements

In spring 2021, the Historic Tax Credit Growth and Opportunity Act (HTC-GO) (H.R. 2294/S. 2266) was introduced. The legislation was built on past bipartisan support for the Historic Tax Credit (HTC) and would help close financing gaps for historic rehabilitation projects, add more value to the credit, and improve investor pricing. During the summer of 2021, as the Biden Administration’s multi-trillion-dollar infrastructure legislation, initially referred to as Build Back Better (BBB), began to take shape, the National Trust advocated for the inclusion of HTC-GO provisions as part of the bill.

In September, all of the HTC-GO provisions were included in the language adopted by the House Ways and Means Committee for the BBB legislation. Unfortunately, overall spending for the legislation was reduced significantly, and the HTC provisions were dropped from the bill. Support for HTC-GO continued throughout 2022, attracting a record-setting 104 co-sponsors in the House and 15 members in the Senate. Despite strong, bipartisan support for HTC-GO, the legislation was not passed. The significant base of support that was established in the 117th Congress will put HTC advocacy in a strong position heading into the new Congress. 

Public Lands Legislation

The 117th Congress made substantial progress on legislative priorities related to the preservation and protection of historic buildings and cultural resources on federal lands. In October 2021, President Biden issued a proclamation to restore Bears Ears National Monument in southeast Utah after the previous administration significantly reduced its size. Strong protections are back in place for an area rich with archaeological resources, prehistoric cliff dwellings, paleontological resources, and sites sacred to many Native American tribes. The State of Utah is now legally challenging President Biden’s authority to restore the boundaries. The National Trust, alongside a coalition of conservation groups and tribal nations, is fighting in court to protect Bears Ears and the effectiveness of the Antiquities Act.

President Biden signed into law the Amache National Historic Site Act (H.R. 2497) in March 2022, designating the Amache National Historic Site, a former Japanese American incarceration facility outside of Granada, Colorado, as part of the National Park System. The National Trust joined our partners in an advocacy effort to preserve this site that honors the over 7,500 civilians of Japanese descent who were unjustly and forcibly incarcerated there during World War II. The site will preserve, protect, and interpret the unique and powerful stories of those incarcerated at Amache for current and future generations.

On May 12, 2022, President Biden signed into law the Brown v. Board of Education National Historical Park Expansion and Redesignation Act (S. 270) that will help share the full history of the landmark Brown v. Board of Education case, which led to the end of the separate but equal doctrine in public education and mandated the desegregation of public schools. After a multi-year advocacy campaign led by the National Trust, the Senate and House both passed the bill unanimously. The innovative legislation helps connect communities in Kansas, Delaware, South Carolina, Virginia, and the District of Columbia and tell their stories within the National Park System.

President Biden signed into law the Safeguard Tribal Objects of Patrimony (STOP) Act (H.R. 2930) on December 22. This bipartisan, bicameral legislation endorsed by the National Trust would strengthen laws aimed at preventing trafficking in Native American cultural items and facilitate the voluntary return of sacred and cultural objects. The Honorable Brian D. Vallo, the Governor of Pueblo of Acoma, a National Trust Historic Site in New Mexico, testified as a witness in support of the bill at a May 2021 House Natural Resources Subcommittee for Indigenous Peoples of the United States hearing.  

Congress also included a number of preservation-related public lands bills in the FY 2023 omnibus funding package, including provisions of the African American Burial Grounds Preservation Act (S. 3667/H.R. 6805). This program authorizes the National Park Service, in consultation with the National Trust and members of the Black heritage community, to establish a $3 million annual grant program to aid preservation efforts across the country to research, identify, document, preserve, and interpret historic African American burial grounds. The provisions allow descendant-led and preservation organizations working to protect African American burial grounds to receive funding to preserve these sacred landscapes. We look forward to working with the Secretary of the Interior and partner organizations on the implementation of the grant program.

The omnibus package also included a provision to establish the New Philadelphia National Historical Site in Illinois as a unit of the National Park System, which the National Trust endorsed. New Philadelphia, located in Pike County, Illinois, was founded in 1836 by Frank McWorter, an enslaved African American man who purchased his own freedom and that of over a dozen family members. New Philadelphia is the first town known to be platted and legally registered by an African American prior to the Civil War and is historically significant.

On December 21, the Senate passed the Great Dismal Swamp National Heritage Area Act (H.R. 1154). Endorsed by the National Trust and other preservation organizations, this Act authorizes a study to assess the designation of that National Heritage Area. The Great Dismal Swamp is a landscape rich in cultural and historic resources and holds significant environmental importance for Virginia, North Carolina, and nationally. In September 2021, the bill passed the House with a vote of 391–36 and now heads to President Biden’s desk.

Conservation Easement Provisions Advance 

Also included in the Omnibus appropriations bill are provisions of the Charitable Conservation Easement Program Integrity Act (S. 2256/H.R. 4164) that seek to address abusive land conservation transactions. For many years, the IRS has viewed syndicated conservation easements—or easement transactions that include an investor partnership—with skepticism because of instances of inflated appraisal values and promises of significant returns to investors. As a result, the IRS routinely audits nearly all syndicated conservation easement transactions, including syndicated historic preservation easements, to seek out fraudulent activity. This rigorous oversight has unfortunately led many potential easement donors to turn away from conservation easements as part of the solution to preserve historic resources.

The provisions are designed to curb the abuse of conservation easements and allow legitimate easement transactions to move forward unencumbered. Syndicated historic preservation easements, which are frequently followed by an investment in the rehabilitation of the building, will be subject to additional reporting requirements but were ultimately exempted from a cap in the value of the donated easement in order to promote greater investment into the rehabilitation and reuse of historic buildings.

Previewing the 118th Congress

Leadership Changes

The most significant change resulting from November’s midterm elections is the leadership shift in the House of Representatives from the Democrats to the Republican party. Republican colleagues nominated Rep. Kevin McCarthy (R-CA) as Speaker of the House. Given his party’s slim margins, he had to go to the House floor in 15 ballots over four days to fight for his Speakership bid. He had to make significant concessions with Republican members opposed to his Speakership that will make governing the House more difficult.

Several House committees are particularly important in carrying out historic preservation activities. Key among them is the House Appropriations Committee, now chaired by Rep. Kay Granger (R-TX). Chair of the powerful Ways and Means Committee, important for its jurisdiction over the Historic Tax Credit, was won by Jason Smith (R-MO) after a tight three-way contest with Vern Buchanan (R-FL) and Adrian Smith (R-NE). The House Natural Resources Committee governs jurisdiction over public lands legislation and reauthorization for the HPF. Rep. Bruce Westerman (R-AR) chairs this committee, with Rep. Russ Fulcher (R-ID) leading the subcommittee on National Parks, Forests, and Public Lands. This committee will play a central role in reauthorizing the HPF before the end of the fiscal year in September. The committee is also expected to scrutinize the Biden Administration's energy and natural resource policies.

House Democrats, who are back in the minority for the first time since 2019, are also undergoing significant leadership changes, with Speaker Nancy Pelosi (D-CA), Majority Leader Steny Hoyer (D-MD), and Majority Whip James Clyburn (D-SC) now playing new roles in the chamber. On November 30, House Democrats elected Rep. Hakeem Jeffries (D-NY) as minority leader to head the party, marking a generational shift after two decades of Rep. Pelosi’s reign. Rep. Katherine Clark (D-MA) was elected caucus chair, Rep. Pete Aguilar (D-CA) was elected Democratic whip, and Rep. Jim Clyburn (D-SC) was elected assistant minority leader, a position where he remains in House Democratic leadership in a different role.

The Senate makeup was solidified following Rep. Raphael Warnock’s (D-GA) victory in the Georgia run-off race. Despite Senator Kyrsten Sinema’s (I-AZ) decision to leave the Democrat Party to become an Independent, Democrats will retain control of the Senate next year. Senate leadership sees fewer changes, with Senator Chuck Schumer (D-NY) remaining as the Majority Leader and Senator Mitch McConnell (R-KY) continuing as Minority Leader. The powerful position of Senate Appropriations Chair was vacated by retired Senator Pat Leahy (D-VT), and Senator Patty Murray (D-WA) now takes the helm. The committee’s ranking member, Senator Richard Shelby (R-AL), also retired, leaving Senator Susan Collins (R-ME) to fill the powerful spot.

The Senate Democrat majority will allow the administration to push forward its agenda. The House Republicans will wield their slight majority and push their own agenda, exercising oversight of the administration and resisting many Democrat agenda items. While a divided Congress seems ripe for roadblocks and conflict, there will be opportunities for collaboration and historic preservation benefits from strong bipartisan support.

Advisory Council on Historic Preservation Chair Confirmed

On December 22, the Senate confirmed by a voice vote the nomination of Sara Bronin to serve as the Chair of the Advisory Council on Historic Preservation (ACHP). The ACHP is an independent federal agency that promotes the preservation, enhancement, and sustainable use of our nation's historic resources and is tasked with advising the President and Congress on national historic preservation policy.

The National Trust strongly supported President Biden’s June 2021 nomination of Sara Bronin due to her strong commitment to historic preservation law and policymaking through her scholarship on historic preservation, architecture, land use, and property law. We look forward to working with Sara Bronin as the second full-time Chair of the ACHP during the 118th Congress and continuing the National Trust's more than seventy-year history of working with the Advisory Council.

FY 2024 Appropriations

During the House Republicans rules conference at the end of November 2022, a motion to ban earmarks was defeated resoundingly, 158-58-1, setting the stage for the FY 2024 appropriations process. Typically, the President submits their budget request to Congress on the first Monday in February, but in recent years this has been delayed due to delays in passing the previous year’s funding bills. Since the FY 2023 appropriation process was completed in December 2022, it is more likely that the administration can follow this timetable. The National Trust and other preservation partners are beginning to formulate their budget recommendations, and for the fifth year, the National Trust will publish its “The Preservation Budget: Select Preservation Priorities for FY 2024 Appropriations” in early March.

Hope for New National Monument Designations

President Biden exercised his authority under the Antiquities Act to designate his first National Monument in October 2022 by designating the Camp Hale–Continental Divide National Monument in Colorado’s Rocky Mountains. The National Trust is hopeful that additional National Monument designations, such as one to honor Emmett Till and Mamie Till Mobley, will continue to recognize more diverse places that tell the full American story. The National Trust urges President Biden to utilize his authority under the Antiquities Act to create a national monument that memorializes the historic Roberts Temple Church of God in Christ and the Mississippi sites connected to Emmett Till and Mamie Till Mobley. This national monument would honor the overlooked contributions of Black women in civil rights and provide essential lessons as sites of consciousness, healing, and justice.

Permitting Reform Continues

Senator Joe Manchin’s (D-WV) push in the lame-duck session to attach permitting reform provisions to must-pass legislation like the NDAA or omnibus funding package was unsuccessful. His proposal would set maximum timelines for permitting reviews, streamline existing environmental permitting processes, and address “excessive litigation delays” for the National Environmental Protection Act (NEPA). While conservative Republicans and progressives blocked Manchin’s earlier efforts, permitting reform has support on both sides of the aisle, making the policy issue a possible piece of bipartisan legislation in the new Congress.

The Biden administration has expressed support for the passage of permitting reform legislation, in part because of potential benefits for renewable energy production. The new Republican House majority will likely act on other reform legislation that may go further in making changes to NEPA, Section 106 of the National Historic Preservation Act, and other regulatory laws. House Republicans, like Rep. Cathy McMorris Rodgers (R-WA), the incoming House Energy and Commerce Committee chair, and Rep. Bruce Westerman (R-AR), the expected chair of the House Natural Resources Committee, have stated they are eager to find partners in the Senate to overhaul permitting next year. The National Trust will continue to work to prevent the weakening of our historic preservation and environmental review regulations. 

Bill Reintroductions

Various bills that made progress during the 117th Congress were ultimately not passed, and the National Trust will work with congressional champions and partners to secure reintroduction in the new Congress. One such bill, the Route 66 National Historic Trail Designation Act provides an opportunity to secure the preservation and protection of Route 66, the most culturally celebrated and internationally recognized stretch of highway in America. The bipartisan House bill led by Representatives Darin LaHood (R-IL) and Grace Napolitano (D-CA) had a House Natural Resources Committee hearing and markup session in November 2021 with the bill receiving unanimous, bipartisan support similar to it passing the Republican-controlled House during the 115th Congress. So far, more than 71,000 supporters have signed a petition in support of the preservation of Route 66.

It is a testament to the acknowledged importance of protecting diverse stories of America’s history that significant action was taken on preservation priorities in the 117th Congress. Finding common ground to advance preservation priorities will be critical for success over the next two years in the face of a divided Congress. We look forward to sharing with you continued advocacy opportunities and resources in the weeks and months ahead to help secure the preservation of more of our nation’s historic and cultural resources.

Hanna Stark is the policy communications coordinator for Government Relations at the National Trust For Historic Preservation.


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