The Odds Are Split for Senate SECURE Act Passage This Year

Bradford Campbell, as a partner in Drinker Biddle and Reath’s employee benefits and executive compensation group, spends a significant amount of time tracking and analyzing the progress of retirement-focused legislation in the nation’s capital.

Among other important topics, such as the Securities and Exchange Commission Regulation Best Interest project, these days he is in large part focused on the Setting Every Community Up for Retirement Security Act, commonly referred to as the “SECURE Act.”

Campbell’s analysis benefits from the fact that he formerly served as an Assistant Secretary of Labor and as head of the Employee Benefits Security Administration (EBSA) from 2006 to 2009. During this time, he helped guide the implementation of the Pension Protection Act, or “PPA.” That law, passed in 2006 and implemented over the course of several years, dramatically changed the defined contribution (DC) plan landscape. Advocates of the SECURE Act say it will be the next big step to follow up on the PPA and create an effective DC-centric retirement planning system for the 21st Century U.S. workforce.

“Currently, our best hope for the bill, in my view, is that some version of it gets included in a big, end-of-year omnibus bill that includes some must-pass spending provisions,” Campbell says. “Overall, it is an uncertain picture, but the SECURE Act is not dead in the water. I would say it is a little less than 50-50 that it happens.”

Campbell agrees with other observes who argue the SECURE Act’s main hurdle is a lack of Senate floor remaining this year and ahead of the 2020 elections—rather than real substantial concern with the bill among the vast majority of lawmakers. Supposing Congress can’t get the SECURE Act through this year despite its mass bipartisan appeal, there remains a chance that the Senate could act on the bill in 2020.  

“While it is true that, prior to the presidential election next year, Congress could take another run at it, I believe the SECURE Act has a better chance in 2019 than 2020,” Campbell says. “Conventional legislative wisdom says that next year will very quickly start to be dominated by the election. The concepts here have gotten bipartisan support, though, so they will stick around in 2020. Eventually, I think some of these ideas will make it into law. It’s just hard to know what the vehicle will be and what the time frame will be.”

Like Campbell, the majority of observers say the SECURE Act’s holdup is more logistical than substantial. That is to say, with the GOP’s clear focus on making appointments to the judicial branch, there is actually a great premium on floor time for the remainder of this year. That’s why the Senate leadership initially pushed first for the SECURE Act’s passage under a loophole known as “unanimous consent.” In short, if a bill enjoys unanimous consent among every Senator, it doesn’t require any floor time.

At this juncture, it appears three GOP Senators are refusing to allow the bill’s passage under unanimous consent: Ted Cruz, Mike Lee and Pat Toomey. The word in Washington is that Senator Cruz has concerns about certain 529 college savings plan provisions. Senator Lee has concerns about a provision that provides some relief for small community newspapers. And Senator Toomey has primarily voiced concerns about certain technical tax corrections that impacts retailers, which he wants to see addressed through floor debate and amendment.