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May 14, 2020

HEROES IN THE HOUSE: Congress Begins Consideration of a 5th COVID-19 Response Package Totaling $3 Trillion in New Spending

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Executive Summary

The House of Representatives introduced the HEROES Act on Tuesday, May 12, formally kicking off the process to pass the fifth major piece of federal legislation to support the American economy and respond to the COVID-19 pandemic. The first four COVID-19 bills passed Congress without going through the regular order of committee mark-ups and floor amendments. In each instance, the chamber moving first forced the other chamber to accept their product without any changes, in part due to the sense of necessity for unity and urgency. Passed in late March, the CARES Act is one of the most expensive bills in American history. The CARES Act was assembled and negotiated by just a handful of senators, representatives and senior Trump Administration officials over a period of just three weeks. Passage of the first four bills was an overwhelmingly bipartisan activity because of the urgent need to act and to show leadership in a time of crisis.

The process of passing the fifth COVID-19 bill will be much different, much more political in nature, and therefore much more difficult to complete. The Senate is back in session, and the House is inching towards a full-time return in the weeks ahead. Rank and file representatives and senators, largely shut out of the process for drawing up the first four bills, have been extremely vocal and active in pushing specific ideas for inclusion in the next package, as they seek to respond to the urgent needs of their constituents. There are now clear political differences about how to handle many elements of the pandemic and recovery—who wears a mask where/when, what restrictions are unreasonable, whether we are reopening too quickly/too slowly, what to do if/when there is a second wave, etc.—and those political differences color the debate about future legislation.

After the CARES Act passed, the conventional wisdom was Congress would likely pass two more major pieces of legislation addressing the COVID-19 crisis—a May package designed to handle the remaining needs of the shutdown period, and a summer package designed to turbocharge a V-shaped economic recovery. Now, it seems much more likely that Congress will not finalize the next major legislation until June, and there is a small chance political differences will prevent such major legislation from reaching the President's desk at all. Furthermore, the chances of a "summer economic recovery package" seem much less likely now that political divisions about how best to recover are more evident every day. In short, this next bill could be the last major COVID-19 response bill that moves through Congress for some time and thus the stakes are enormously high for every industry that needs to see its solutions addressed in order to survive the pandemic.

© Arnold & Porter Kaye Scholer LLP 2020 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.