Senate Advances Trillion Dollar Bipartisan “Physical” Infrastructure Deal as Democrats Push Separate $3.5 Trillion “Human” Infrastructure Package

Capitol building sun and green

The Senate on July 28 voted to advance a $1 trillion infrastructure package that would allocate $550 billion in new spending toward transit, utilities and broadband. The plan, which has not been translated into final legislation yet, was the result of a breakthrough in month-long negotiations between a bipartisan group of senators and President Biden. (White House Fact Sheet, July 28 | E&E Daily, July 29 | Roundtable Weekly, June 25) 

Historic Step Forward 

  • The Senate vote of 67-32 included the support of 17 Republicans and all 50 Democrats – and kick-started the process of debating and amending the measure, which could draw enough support to pass the Senate next week. (BGov, July 29)

  • Real Estate Roundtable President and CEO Jeffrey DeBoer yesterday stated, “The Real Estate Roundtable strongly supports the bipartisan agreement on infrastructure reached by the White House and senators this week – and we applaud the continued hard work of policymakers to work across the aisle to create legislation that will revitalize our economy and keep us globally competitive. The trillion-dollar+ infrastructure package is a positive, historic step forward. We look forward to its enactment and the well-paying jobs it will create, the economic growth it will spur on, and how it will benefit our long-term national competitiveness and productivity.” (Read DeBoer’s full statement, July 29)

  • Roundtable Chair John Fish (Chairman & CEO, Suffolk) and 11 other Roundtable members joined more than 100 business leaders in a July 26 letter to Congress that urged policymakers to pass the bipartisan infrastructure package. (The Hill, July 28)

  • The letter noted, “New jobs generated by investment in the nation’s mass transit, roads, bridges, airports, broadband and other essential assets will create training and re-employment opportunities for millions of Americans who lost jobs during the pandemic. The public-private initiatives that are created will accelerate recovery from losses suffered due to COVID-19.” (Business leaders’ joint letter, July 26) 

Infrastructure Package & CRE 

Philly evening bridge

Pay-Fors & Timing 

Sen. Chuck Schumer Hudson Yards Subway station
  • Miller & Chevalier reported on July 28 that the bipartisan plan’s wide-ranging infrastructure investments would be paid from a variety of sources, including: 

    • certain unused COVID relief dollars;
    • certain states returning unused federal unemployment insurance aid; 
    • sales of future spectrum auctions;
    • extending fees on GSEs; economic growth resulting from a 33 percent return on investment in long-term infrastructure projects; and 
    • information reporting requirements related to cryptocurrency.

  • Senate Majority Leader Chuck Schumer (D-NY), above, would need 60 votes in the upper chamber to avoid a Republican filibuster and pass the Bipartisan Infrastructure Investment and Jobs Act. Those votes would likely come from all 50 members of his caucus and at least 10 Republicans. (PoliticoPro, July 29)

  • “My goal remains to pass both the bipartisan infrastructure bill and a budget resolution during this work period. Both,” he said. “It might take some long nights. It might eat into our weekends. But we are going to get the job done, and we are on track.” Although the Senate’s recess is scheduled to start Aug. 9, Schumer has said he could keep the chamber in session longer to pass the measures. (New York Times, July 29)  

“Human” Infrastructure Package 

DC monuments night
  • The Biden administration’s separate $3.5 trillion “human infrastructure” plan to invest in child care, paid leave, education and measures to curb climate change is traveling along a parallel budget “reconciliation” path – a process that would require the vote of every Senate Democrat to pass the bill without any Republican votes. (CNBC, July 29)

  • Senate Budget Committee Chairman Bernie Sanders (I-VT) on July 28 said he has the 50 votes to pass a broad budget resolution next week that would lead to consideration of the package, according to Bloomberg. Sanders added, “It is my absolute conviction that you’re not going to have a bipartisan bill unless you have a reconciliation bill of $3.5 trillion.”

  • However, Sen. Kyrsten Sinema (D-AZ) – the lead Democratic negotiator on the bipartisan infrastructure bill – this week told the Arizona Republic, “I have also made clear that while I will support beginning this process, I do not support a (reconciliation) bill that costs $3.5 trillion – and in the coming months, I will work in good faith to develop this legislation with my colleagues and the administration to strengthen Arizona's economy and help Arizona's everyday families get ahead.” (CNN, July 28) 

In the House of Representatives, Speaker Nancy Pelosi (D-CA) has insisted she will not consider either the infrastructure bill or budget measure until the Senate passes both. (CNBC, July 29) 

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Eviction Moratorium

Imminent Expiration of CDC Eviction Moratorium Prompts White House, FHFA Actions to Protect Tenants; Real Estate Groups Counter 11th Hour Attempts at Extension

CDC signage Atlanta

The Biden Administration took steps this week to protect tenants at risk of eviction for non-payment of rent. (PoliticoPro, July 28). Announcements from the White House and the Federal Housing Finance Agency (FHFA) were prompted by the anticipated July 31 expiration of the national moratorium on residential tenant evictions – first enacted by Congress in March 2020, then extended by the Centers for Disease Control (CDC), and scheduled to sunset tomorrow. (Roundtable Weekly, June 25)

Congressional Action     

  • In response to the CDC moratorium’s expected lapse, Congressional Democrats today pursued an 11th hour attempt to resuscitate the eviction ban through legislation. The Hill reported late today that efforts to extend the federal moratorium "fell far short amid resistance from moderates and housing industry groups." House Speaker Nancy Pelosi (D-CA) subsequently urged the CDC to unilaterally extend the current moratorium again. Politico reported earlier today that House Democrats were considering extending the moratorium to mid-October – and that there was not a plan yet to get the vote through Senate Republicans.

  • A coalition of 15 national real estate organizations – including The Real Estate Roundtable – sent a letter today to all members of Congress strongly opposing another moratorium extension. The joint letter called for policymakers to focus on disbursing the vast unspent sums of federal rental assistance appropriated in prior COVID-19 bills – instead of destabilizing rental markets with a new legislative eviction moratorium.

  • Roundtable President and CEO Jeffrey DeBoer commented, “In the first half of this year, Congress rightly appropriated more than $45 billion for rental assistance, but so far states have distributed less than 10 percent of that assistance. If the moratorium is extended, it needs to be more tightly targeted to people in distress due to the pandemic, including housing providers.”

Federal Actions Supporting Tenants 

FHFA logo

  • The FHFA announced on Wednesday that owners of all multifamily properties with a federally-backed mortgage must provide a 30-day written notice to a tenant before requiring removal for not paying rent. 

  • [Most states already have laws requiring some “wait period” or notice to tenants before eviction proceedings can commence, though typically not as long as 30 days according to this summary.]

  • The FHFA’s notice requirement had been limited to situations where a landlord received mortgage forbearance protections. Now, the FHFA requires the tenants’ notice regardless of whether the landlord benefits from delayed loan payments – where the debt is backed by Fannie Mae, Freddie Mac, or a federal agency. (See FHFA fact sheet).

  • The White House on June 24 released its fact sheet, “Initiatives to Promote Housing Stability by Supporting Vulnerable Tenants and Preventing Foreclosures.” The fact sheet also references “strict adherence” to tenant notice requirements and offers further measures such as:

    • Accelerating disbursement of Emergency Rental Assistance (ERA) to get the funds appropriated by Congress into the hands of landlords and tenants;

    • Providing a streamlined payment option so large landlords can receive “bundled” payments from multiple eligible tenants; and
    • Urging state and local courts to participate in "eviction diversion efforts" that encourage landlords and tenants to access ERA funds before litigation is pursued.   
  • The White House released another fact sheet on Wednesday summarizing how private sector companies, non-profits, and government agencies are notifying Americans about available emergency rental assistance – including a national “rental assistance finder” produced by the Consumer Financial Protection Bureau (CFPB) that helps tenants apply for ERA funds in their localities.

Rental Assistance Delays 

Treasury Dept building close
  • Severe delays in getting federal rental aid to those in need have added another layer of pressure on tenants at risk of eviction – as well as on housing providers who are unable to collect rent, yet remain responsible for taxes, maintenance and other property costs. (Wall Street Journal, July 22)

  • Only 6.5 percent of $46.5 billion allocated by Congress for rental aid has found its way to state and localities in the first half of 2021, according to a recent Treasury Department report.  (Washington Post, July 21 and Bloomberg and July 22)
  • Treasury’s report also notes some progress – more than $1.5 billion in rental assistance reached households in June, which is more than all of the money disbursed between January and May combined. 
  • The Roundtable is part of a broad real estate coalition that has consistently urged state, county and municipal officials to distribute the billions in allocated federal funds as soon as possible. (Coalition letter, April 15)

  • The National Multifamily Housing Council (NMHC) on July 26 urged the leadership of the Senate Banking and House Financial Services Committees to push for the swift distribution of rental assistance funds.  
  • Additionally, a recent NMHC survey of apartment owners and managers shows that 100 percent of multifamily firms surveyed worked with residents facing financial hardships since the onset of the COVID-19 crisis. 

Biden’s “Hands-Tied” by SCOTUS

The U.S. Supreme Court building

  • A U.S. Supreme Court majority indicated last month that the CDC overstepped its authority in issuing the federal-level eviction ban, with Justice Kavanaugh writing that “clear and specific” legislation from Congress would be necessary to extend the moratorium past July 31.  (New York Times, June 30)  The Biden Administration reportedly “found its hands to be tied” by the high Court’s decision. (PoliticoPro, July 29)

  • The White House issued a July 29 statement, noting, “President Biden would have strongly supported a decision by the CDC to further extend this eviction moratorium to protect renters at this moment of heightened vulnerability. Unfortunately, the Supreme Court has made clear that this option is no longer available.”

  • The statement also requested the U.S. Departments of Housing and Urban Development, Agriculture, and Veterans Affairs to extend their respective eviction moratoria through the end of September “to provide continued protection for households living in federally-insured, single-family properties.” 

Yesterday’s statement from the administration sparked today’s last-minute scramble in Congress. White House Press Secretary Jen Pskai said, “In light of the Supreme Court’s ruling, the President calls on Congress to extend the eviction moratorium to protect such vulnerable renters and their families without delay.” 

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Capital and Credit

House Financial Services Committee Approves Bill to Transition Away from LIBOR

Rep. Brad Sherman table mic

Legislation advanced this week by the House Financial Services Committee would help smooth the transition away from the London Interbank Offered Rate (LIBOR) as a reference rate for financial contracts. (House Financial Services Committee markup documents and videos, July 28 | Rep. Brad Sherman (D-CA), above)

Why It Matters 

  • Libor is currently used in many outstanding financial contracts – including commercial real estate debt, mortgages, student loans and derivatives – worth an estimated $223 trillion. (Committee memo, page 6)

  • The use of LIBOR for new contracts is scheduled to terminate at the end of 2021. Additionally, all LIBOR maturities will stop in June 2023, although some will cease at the beginning of next year.

  • The Adjustable Interest Rate (LIBOR) Act of 2021 was sponsored by Rep. Brad Sherman (D-CA) – chair of the Subcommittee on Investor Protection, Entrepreneurship, and Capital Markets. The bill would authorize the Federal Reserve to issue rules to "establish a clear and uniform process on a nationwide basis for replacing LIBOR in existing contracts,” with replacement benchmark rates. An amendment to the legislation was also approved during the Financial Services Committee July 29 markup.

  • The bill would also provide a safe harbor for market participants switching existing LIBOR-referencing financial contracts over to a replacement benchmark for debt instruments. This would apply to instruments such as floating-rate bonds, which require all parties to agree to terms that cannot easily be changed.  The bill also includes a federal preemption.

  • Treasury Secretary Janet Yellen and Federal Reserve Chair Jerome Powell recently told the Financial Stability Oversight Council that Congress urgently needed to pass legislation to allow for a smooth transition away from LIBOR. (Bloomberg, June 11)

  • Additionally, the Fed’s Alternative Reference Rates Committee (ARRC) yesterday endorsed use of Secured Overnight Financing Rate (SOFR) Term Rates, a forward-looking version of the LIBOR alternative for financial instruments. (Bloomberg, July 29)

  • As Federal Reserve Vice Chair for Supervision Randal Quarles continues to encourage the termination of the use of LIBOR by year-end, the House bill and the ARRC endorsement of SOFR Term Rates are intended to provide market participants with the tools they need to transition away from LIBOR.  

Roundtable Support 

House Financial Services Committee
  • The Real Estate Roundtable and 17 national trade groups on July 27 submitted a letter to House Financial Services Committee policymakers in support of legislation to address “tough legacy” LIBOR contracts during the transition away from the benchmark.  (Joint Trades’ Letter on Libor)

  • The joint letter noted that currently, there is no realistic ability to modify legacy contracts that cannot be converted to a non-LIBOR rate or be amended with adequate fallback language before all LIBOR maturities are scheduled to stop in June 2023.

  • The coalition letter stated, “A state-by-state piecemeal approach does not provide the necessary comprehensive protections that is achievable at the federal level given importance of the issue and the very limited time remaining until LIBOR’s end in less than two years.” 

The letter also commended Rep. Sherman and the Committee for providing a meaningful legislative solution in support of the LIBOR transition by providing fair, equitable and consistent treatment for all tough legacy contracts. 

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