United States Senate seal. January 28, 2015. (Photo: Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.)

Hope, it has been said, is not a strategy. And while Chris Spence, senior director of government relations at TIAA, is certainly hopeful for passage of major retirement legislation this year—along with quite a few retirement services providers—there are indications beyond wishful thinking that it could get done.

"The feedback we are getting on Capitol Hill over the last two to three weeks is that the SECURE Act will get done this year," Spence told BenefitsPRO.

"That gives us reason for optimism," he said. "What we—TIAA and industry writ large—are going to do is push to see what avenues we can pursue between now and the end-of-year spending package."

As is well known, the Setting Every Community Up for Retirement Enhancement Act, which passed the House of Representatives in May by a 417 to 3 vote, has been held up in the Senate.

Three "holds" on the bill kept it from being fast-tracked by unanimous consent in the Senate. Efforts since to have it attached to temporary spending bills failed.

3 scenarios where the SECURE Act could be passed by year's end

There are three avenues for passing the SECURE Act by the end of the year, explained Spence.

The first, and most likely, is to negotiate its attachment to a larger spending bill. The current continuing resolution funds the federal government until the third week in November. If it does what it has in recent end-of-year funding negotiations, Congress may pass another CR prior to negotiating full-year funding before the Senate is scheduled to adjourn on December 13.

Leaving for the holiday break without a full spending bill would cause a government shutdown, something no lawmaker will want going into an election year, noted Spence.

A second option is for Senate leaders to "hot line" the Secure Act, the precursor to bringing the bill up for a unanimous consent vote. But that would require the assurance of 100 Senatorial votes.

The three holds on the bill—reportedly placed by Republican Senators Ted Cruz, Mike Lee, and Pat Toomey—are "pretty resolute," said Spence. The assurances he has received that SECURE will pass this year have come from staff of Senate leadership on retirement issues, and not from the offices of the three Senators with holds on the bill.

A third option is to pass the bill on a stand-alone vote after debate on the Senate floor.

That option looks unlikely, as Senate Majority Leader Mitch McConnell, R-KY is committed to dedicating waning floor time to confirming judicial nominees.

"Not much of anything other than the judicial nominations is getting floor time, but it continues to be an option," said Spence.

The three Senate holds are not formally disclosed to the public, but Sen. Cruz is said to object to a 529 savings plan provision that was stripped from the House version of the bill at the 11th hour. It would have extended qualified education savings options to home-schooled families and other secondary education.

Sen. Toomey reportedly wants a provision providing tax relief to Gold Star families removed from the SECURE Act and voted on as a stand-alone bill.

"They want the bill to come to the floor so they can offer their amendments, have them debated, and have the opportunity to have their voices heard," said Spence.

If that were to happen, and amendments were successfully added to the Senate version of the bill, it would then have to return to the House for approval. Even if the amendments would survive House scrutiny, it is hard to imagine that happening by the end of the year.

"It's a bit of a Catch-22," said Spence. "The three senators are not saying they completely oppose the bill, but that they have concerns that want to be aired." Airing those concerns will, however, scuttle chances of passage this year.

For supporters of the bill—some investor advocates have objected to its use of terminating the Stretch IRA to fund it, but lawmakers have not publically raised that concern—all is not lost if it is not passed by the end of the year.

The 116th Congress will re convene in January.

"As long as the 116th Congress is still in session, we would continue to try to get it done, either through leadership moving it to the floor for a debate, or getting it attached to future spending bills," said Spence.

The nightmare scenario for the bill's backers is that it fails to pass by the end of 2020, pushing it to the next Congress, where "the slate would get wiped clean," and the bill would have to be reintroduced, he said.

What about impeachment?

That Democrats in the House are looking to advance to formal impeachment proceedings against President Trump would not necessarily impact SECURE's fate in the Senate if it is moved to a floor vote through regular order, said Spence.

But he does see potential scenarios where impeachment could impact its attachment to a year-end spending package.

"That would come down to negotiations between the four corners of leadership in Congress," said Spence, referring to the majority and minority leaders in both chambers.

"The impeachment process will constrain the relationship between House Democrats and the President, and that could have ripple effects as to what bills are negotiated as riders to a spending bill," he said.

"The hope is that SECURE will be immune from that—all four corners are supportive of it. That's the beauty of the bill's 31 provisions. You have 417 members of the House and 97 senators ready to go on this," added Spence. "There is so much good in the bill."

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Why some are optimistic about SECURE Act's passage in 2019: TIAA team

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