The 117th Congress ends on January 3, 2023 and Republicans will thereafter control the House. Democrats do still have a lame-duck opportunity to move some legislation, but their timeframe is quite limited.
The remaining calendar not only contains the holiday season but also includes the political distraction of the Georgia Senate runoff and a surfeit of internal Republican maneuvering related to the January 3 vote to select the new House Speaker.
While there’s no shortage of legislative possibilities, Democrats need to be brutally realistic and laser focused on the most important items that they can actually complete. They can’t eat up precious time pursuing issues that have been political dead-ends for the past two years. They can’t attach amendments to bills that will decrease its chances of success. They can’t waste time on show votes on bills that have no prayer of passing.
Even the important list is very aggressive, particularly since some of these measures will require cooperation from at least ten Republican Senators. Here’s my wish list, roughly in my order of importance. Your mileage may vary.
Increasing the Debt Limit
This game of chicken is dangerous and the debt limit shouldn’t be a political football for either party. Refusing to raise the debt limit is not a means to reign in government spending. Congress does that with spending bills. The debt limit merely allows the government to service the debt on money that Congress previously approved and that WE’VE ALREADY SPENT. Pretending there’s any connection to future spending is pure political theater. A debt limit is, and always has been, a remarkably stupid idea. Failing to raise it will cause the United States to default on its debt, lower our country’s credit rating, tank the U.S. economy, and throw the entire global economy into chaos.
Nevertheless, I am quite certain that a Republican House will want to hold the government hostage, using a debt limit increase to try to extract whatever unrelated concessions they can dream up. The Biden administration and the Democratic-led Senate will not and should not negotiate here. However, a Republican House majority will hold a live grenade and I have no faith whatsoever that they wouldn’t just pull the pin in spite and blow up everyone.
I want to believe that there are enough sane Republican Senators remaining to at least not get in the way of a clean lame-duck debt limit increase. If not, Democrats need to use reconciliation to pass it by themselves. That will eat up scarce floor time, but it’s absolutely necessary for Democrats to take this insane weapon away from Republicans while they still can.
Passing the National Defense Authorization Act
The NDAA is not a funding bill. As its name implies, it’s an annual authorization bill for the military. Funding that authorization is obviously important, but it’s a separate concern (see below).
For 61 years in a row, in dramatically different political environments, the NDAA has passed Congress with bipartisan support. Failing to pass it this year would seriously hamper our military. Among a massive list of impacts, it would halt some troop pay (including a 4.6% raise, hazard pay for service in combat zones, military bonuses, etc.), halt necessary military construction (including much needed military housing), halt military child care, and halt important military research. Defense Secretary Lloyd Austin has said that failure to pass the NDAA now “will result in significant harm to our people and our programs and would cause harm to our national security.” This isn’t a game and even Congress has recognized, for over six decades, that this is must-pass, non-partisan legislation.
Nevertheless, Presumed-Speaker-To-Be Kevin McCarthy has said that he wants to delay passing the NDAA until a Republican House can leverage the bill to change some military policies to appease their far-right wing. Seriously. It wasn’t that long ago that Republicans were military champions. Now they’re just looking to increase their social media followers at the military’s expense.
I suspect (hope) that Republican Senators won’t want to play games with the military, so this should be a top candidate to pass during the lame-duck session. If minor modifications are necessary to get ten Republican Senate votes now, Democrats just need to do it. For example, Sen. Chuck Grassley (R) wants to add an amendment to punish OPEC for its oil production cut. Dandy. Pass the damn bill.
Passing the Electoral Count Act
There have already been significant efforts to try to construct legislation aimed at preventing another debacle like we saw after the 2020 Presidential election. Sen. Susan Collins (R) and Sen. Joe Manchin (D) hashed out a bipartisan measure to address some of the major issues earlier this year. The Senate bill enjoys bipartisan support and has 30 co-sponsors, including 16 Republican Senators. While a much more robust bill has passed the House, it has no prayer of passing the Senate. Democrats could go through a time-consuming conference to verify that fact or they could just pass the Senate version and be thankful for what they got. Either in-progress version of this bill will be DOA in the 118th Congress.
Funding the Government
Government funding expires on December 16 and Congress needs to… do something.
Ideally, the lame-duck Congress would pass an omnibus spending bill for 2023. They’ve been working on it forever and there’s been a ton of finger-pointing on all sides assigning blame for the lack of recent progress. In truth, both sides have valid concerns given their respective priorities.
While passing a bipartisan omnibus bill is a definite long shot, it’s worth one last serious attempt and a two-week continuing resolution would give them a tiny bit of breathing room. The good news is that Senate Appropriations Chairman Patrick Leahy (D) and Vice Chairman Richard Shelby (R) are both sane, are both retiring this year, and would both like to leave on a high note. These two Senators are capable of coming up with a compromise agreement but, even if they can, it will be a massive struggle to get it through the full Senate. Of course, it would then need to pass the Democratic lame-duck House who will want make their own modifications. If an omnibus spending bill somehow makes it this far, someone will need to remind House Democrats that they lost their chamber and that they need to humbly accept whatever gift the Senate manages to put under their Christmas tree.
A less optimal, but more probable, outcome is for Congress to at least pass a continuing resolution to keep the government running at current levels well into 2023. This simply kicks the can down the road, but it would be better than nothing. Perhaps Congress could agree to add the proposed $40 billion package for Ukraine support to the CR since there’s currently bipartisan support for that in the Senate.
Alternatively, if none of the above happens, we’ll have a government shutdown just in time for Christmas. Fa la la la la.
Passing the Respect for Marriage Act
Subsequent to the Supreme Court’s Dobbs abortion decision, which opened the floodgates for potential attacks on other privacy-related rights, there has been an effort to legislatively protect same-sex and interracial marriages. Both parties sadly agreed to punt on this issue until after the mid-terms to avoid any political fallout. However, there has been recent progress with a dozen GOP Senators helping to advance a bipartisan bill that provides the necessary protections nationwide. It’s not a perfect bill but, again, it’s much better than the nothing we’ll get after Republicans take over the House.
Confirming Judges
This has become ever so slightly less critical given that Democrats will continue to control the Senate after January 3. However, confirmation processes still need to continue with as much speed as possible. There are currently 25 judicial nominations that have passed through the Judiciary Committee that are simply awaiting a Senate floor vote. In addition, there are another dozen on so nominations that Senate Judiciary Chair Richard Durbin (D) says he will soon advance to the Senate floor. It would be great to have as many of these confirmed in the lame-duck session as possible. Unfortunately, any unconfirmed nominations will expire on January 3, will subsequently need to be re-submitted by the President, and the new Congress will need to start all over again on each confirmation process.
Extra Credit
If, by some miracle, the lame-duck Congress ends up with additional time, there are certainly many other issues worthy of consideration. However, they should not impact the passage of any of the above. These additional issues include:
- Expanding the child tax credit. This is important but, since it’s probable that there will be sufficient Republican support to address it in the new Congress, it’s not an immediate priority.
- Passing a permitting reform bill. This would ease construction of clean-energy infrastructure but should, again, garner enough Republican support to allow it to be punted to the new Congress.
Other
These topics have been raised, but have no chance of quickly passing and are thus a waste of lame-duck time. Here are just a few:
- Reforming immigration policies.
- Restricting assault weapons.
- Restricting lawmakers’ stock trades.
House Democrats don’t need to like the fact that they’re lame ducks. They just need to recognize what they are and waddle as best they can to the finish line.