January/February 2019

2019 Legislative Outlook

As a new group of legislators takes office, NSPE sets priorities.

BY STEPHANIE HAMILTON

The 2019 legislative calendar looks to be active and exciting, with a lot of opportunities for NSPE members to comment on and influence important legislative issues at both the state and federal levels. To follow is a brief overview of the licensure-related issues we believe will be the most active, the ones NSPE will be focused on, and ways you can get involved.

The Midterm Election

The November midterm election went about as expected for both parties. Democrats picked up 40 seats in the House, and will be in the majority in 2019, while the Republicans retained their majority in the Senate, and picked up four seats. With control of Congress divided between the parties, it’s hard to predict how much bipartisanship to expect. Democrats are likely to prioritize infrastructure spending, while Senate Majority Leader Mitch McConnell has said he intends to keep his focus on, among other things, “an anti-regulatory agenda,” according to Bloomberg Government.

Regardless of where Congress puts its time and energy, political strategists agree that it has until mid- to late-summer to forge bipartisan deals. After that, the 2020 election cycle will begin in earnest, significantly reducing the likelihood that the parties will work together.

No matter how long the goodwill lasts between legislators, NSPE has a body of issues it’s working on at both the federal and state levels.

Threats to Licensure

This issue certainly hasn’t gone away, and, in fact, is likely to ratchet up in 2019. Last year, we saw threats at both the state and federal levels, and expect the same this year.

At the state level, licensure threats are varied and common. To better determine where we’ll spend our limited resources, NSPE has started ranking licensing legislation as “low,” “medium,” and “high” priority, based on the threat severity. An example of a low-level threat is legislation calling for board review, provided there aren’t any sunset provisions tied to the reviews. Medium-level threats cover board reviews with sunset provisions and similar bills; and “consumer choice” language is a good example of a high-level threat. Consumer choice provisions allow people to practice any legally allowable occupation, without a certification or license, as long as the service provider discloses the fact that he or she is unlicensed.

Some examples of legislation from 2018 that we expect to see again in 2019 include:

S.1649/HR.3446, Restore Board Immunity Act: The federal RBI Act is promoted as an antitrust bill. And while it does offer antitrust protections for licensing boards and their members, those protections are conditional. Specifically, a board and its members are protected only if the state in which the board operates “adopts a policy of using less restrictive alternatives to occupational licensing.” In other words, protections are triggered only if the state shifts to a different form of regulation, like certification or a consumer-choice-style provision.

New Mexico “Consumer Choice” Executive Order: On October 3, 2018, New Mexico’s outgoing governor issued an executive order that included a “consumer choice” provision. The provision allows people to practice any occupation, unlicensed, as long as that fact is disclosed to consumers, and consumers sign a consent form acknowledging they’re aware that the person is unlicensed.

Arizona SCR 1037: Called the “right to engage in occupation,” this Arizona Senate bill would have amended the state Constitution so that “no state law or rule shall be enacted or enforced that prohibits or regulates a person from engaging in any occupation or profession unless the state law or rule is clearly necessary to protect the public health or safety.” The bill would have prohibited the use of licensing by the state, or any city or county. The burden of proof was heavy in this bill, and even engineers, whose benefit to public health and safety is commonly agreed upon and understood, would have had difficulty proving licensure was necessary.

Going into 2019, NSPE is watching closely for bills similar to these. We expect many to pop up in the weeks and months to come. When they do, your involvement will be critical to defeating them. Elected officials will need to hear from you, as licensed PEs, about why your profession should be licensed, and how licensure protects the public health and safety.

In addition to the public health and safety argument, NSPE is reviewing some interesting research that shows occupational licensing actually helps “level the playing field” for underrepresented minorities, reducing instances of discrimination and closing wage gaps. This is a compelling argument, and NSPE will be creating talking points around this research, as a way of bolstering our position and our advocacy of professional licensing. NSPE will also continue emphasizing the many differences between professional engineers and people who work in regulated occupations, like manicurists or hairstylists. Often, conversations about licensing lump all occupations together, making no distinction between an occupation like professional engineering that has education, examination, and experience requirements and jobs like hairstyling that have far less stringent requirements.

Infrastructure

Infrastructure spending will be high on the Democrats’ list of priorities in the 116th Congress. House Speaker Nancy Pelosi and Minority Leader Senator Chuck Schumer have proposed a $1 trillion infrastructure spending plan that includes money to repair 56,000 structurally deficient bridges, build out high-speed internet access and make it available to more rural areas, expand high-speed rail systems, repair and upgrade school buildings, and improve ports and inland waterways. The high price tag will make it a hard sell to Republicans, but a middle-of-the-road deal might be possible, especially since Senate Republicans have also expressed a desire to get something done on this issue.

A strong infrastructure package could mean over a million new related jobs, some of which will be in engineering. NSPE will closely watch infrastructure spending developments and will be inviting you all to be part of Congressional conversations. Negotiations provide an opportunity for discussing not only the importance of upgrading and improving America’s infrastructure, but also highlighting the many ways that professional engineers can and should be part of the process.

Criminal History

Until now, the criminal history of individuals hasn’t been in NSPE’s advocacy “wheelhouse,” so-to-speak. In the past year, however, state and federal legislators have been looking closely at the effect of licensure requirements on those with criminal histories. NSPE needs to be part of the conversation to ensure that we’re helping frame state and federal solutions. In particular, having a criminal history is often a barrier to licensure, and consequently a barrier to employment. Unemployment is a leading cause of recidivism, so lawmakers are looking for ways to ease licensing restrictions for people with criminal histories.

Outgoing Michigan governor Rick Snyder, for example, issued what’s known as a “ban the box” executive order before leaving office. It compels state agencies and entities to remove the criminal history question from all state applications, including licensing applications. The challenge with “ban the box” initiatives is that they limit a licensing board’s ability to determine if a person’s criminal history could affect his or her ability to ethically practice the licensed occupation.

Other states have introduced legislation that attempts to revise the “good moral character” requirement of licensing applications. Most of those revisions simply prevent criminal history from being an automatic disqualifier. Others outright prevent a licensing board from rejecting an applicant solely based on his or her criminal record.

NSPE doesn’t yet have a formal position on the relationship between criminal history and licensure, though our Committee on Policy and Advocacy is working on one.

Additionally, NSPE intends to work with federal and state officials on “ban the box” initiatives and efforts to revise “good moral character” clauses, to find the least restrictive means for licensure as a path to employment while ensuring PEs continue to protect public health, safety, and welfare.

License Mobility

License mobility continues to be a trending issue, especially as it relates to military families and veterans. In a January 2018 op-ed in the Wall Street Journal, Labor Secretary Alexander Acosta urged states to form multistate compacts that allow licensed professionals to more easily work across state lines. In response, the South Dakota House of Representatives introduced a bill (H.B. 1319) that would have done exactly that, by issuing temporary licenses within 30 days of having received the application.

As state legislatures began prefiling bills for the 2019 session, we were already seeing a lot of activity on this issue. In addition, NSPE was recently alerted to a joint study being conducted by the Army, Navy, and Air Force about licensing processes and reciprocity among states. According to the letter, these branches of the armed services intend to use information about licensing reciprocity when deciding where to send resources and personnel.

STEM Education

Near the end of the 115th Congress, Senator Brian Schatz (D-HI) introduced the INSPIRES Act (S. 3589). It allocates $200 million for the improvement and building of STEM education facilities in rural and Native American communities. It was just one of several STEM-related bills introduced during the last congressional session, and we expect there to be many more in this current one. Many of the federal bills target minority and underserved populations, but others, like H.R. 4023, provide teacher training that’s specific to STEM education, in order to continue building more robust STEM learning opportunities across the country.

Emerging Technologies

Focus on technologies like autonomous vehicles, artificial intelligence, and cybersecurity increased significantly in the 115th Congress. To give you an idea how quickly this issue has risen to the forefront of congressional concern: In the 114th Congress (2015–16), just two bills related to artificial intelligence were introduced. In the 115th, there were 38. Similarly, the number of bills dealing with autonomous vehicles more than tripled between the 114th and 115th congressional sessions.

Congress has taken its cue from the public, which is increasingly concerned with the safety of emerging technologies on multiple fronts. Not only is there concern about the safe performance of autonomous vehicles, but also tremendous concern about the protection of private data. This heightened concern is evidenced by the push-back Congress received on the AV START Act (S.1885). The bill allowed car makers to request exemptions from standard safety requirements while developing and testing autonomous vehicles. Public concern was great enough that only three senators signed on as cosponsors.

We expect the 116th Congress to again take up issues of regulating autonomous vehicle safety, protecting the public’s data via increased cybersecurity, and establishing best practices for the development and use of artificial intelligence. In all of these issues, NSPE will continue advocating for outcome-based markers that genuinely protect public health and safety.

Calls to Action

The success of NSPE’s legislative agenda relies heavily on member involvement. Though we will certainly be meeting with members of Congress and federal agencies to discuss these issues and provide our expertise, it’s important that these folks hear from you, too. That’s especially true of your elected officials. Your opinion goes much further, as a constituent, than that of a professional lobbyist. The general public often vastly underestimates the influence it can have with Congress because things move so slowly, and there are political considerations over which we have no control. There have been many recent studies, however, in which congressional staffers indicated that constituent opinions strongly influence an elected official’s decision to support or oppose a certain issue or bill.

So, we’ll be turning to you often in the coming year, asking you to call, write, or visit your elected officials’ offices. In addition, we’ll be making even more resources available to you. And in the very near future, we’ll be hosting an Advocacy 101 webinar that will cover everything from how to schedule a meeting to how to build a positive relationship with your congressional offices. NSPE staff will be there every step of the way, to offer guidance and suggestions as needed. We’ll have a lot of opportunities this year to effect real and positive change. And each of you will have the chance (possibly many chances) to be a part of it.

Here’s to a productive and successful 2019!

Stephanie Hamilton is NSPE’s manager of government relations and advocacy.