Following last week’s midterm elections, Congress returns today, Monday, November 14, for a loaded lame-duck session that includes an ambitious list of outstanding issues to address before the end of the year. (A lame-duck session of Congress occurs after an election but before the newly elected Members are sworn in. The loss of election-related pressure coupled with the push to close out items before the current Congress terminates has historically allowed lame-duck sessions to be periods of time when contentious issues can be addressed and bipartisan cooperation is more palatable.) Democrats may press for many of their legislative priorities in this year’s lame-duck session, especially if they believe they may lose control of the House next Congress.
The top two priorities will be the year-end government spending deal and the National Defense Authorization Act (NDAA). Several other issues could be included in one of the two aforementioned bills, or they could move on their own. Below we summarize many of the issues that may be in-play during the lame-duck session.
Appropriations: A top priority during the lame-duck will be securing another funding deal. In October, Congress passed a short-term continuing resolution to extend federal funding through December 16, giving Congressional leaders just over a month before another spending shutdown. There is a bipartisan push among Senate appropriators to secure an omnibus package over the lame-duck that will fund the government through next September, but House Republicans may not want to reach a compromise over spending levels of policy issues if they believe they will take control of the chamber next year.
NDAA: The Senate is expected to immediately consider the annual defense policy bill when it returns to session. The NDAA remains one of the few must-pass pieces of legislation each year that reliably passes with bipartisan support. The measure has become law for 62 years in a row. As such, lawmakers often seek to attach non-defense-related priorities into the bill. Members from both sides of the aisle have expressed their preference for keeping unrelated provisions out of the NDAA, but given the limited number of legislative vehicles left to move this year, lawmakers are again expected to offer all kinds of amendments to the bill. More than 900 amendments have already been filed to the Senate version of the NDAA, ranging from support for Ukraine, abortion access for servicemembers, which countries can and cannot buy F-16 fighter jets, and responding to Chinese aggression toward Taiwan. While not all these amendments will get a vote, the process will take a lot of the Senate’s limited floor time. The House passed its version of the NDAA earlier this year. Once the Senate passes its version the conference process will combine both versions. Final enactment is expected near the end of year.
Debt Ceiling: While the debt ceiling will not need to be raised until next year, the Biden administration and Congressional Democrats may push to raise the cap before the end of this Congress. If they wait until next year, they may have to negotiate with a Republican-controlled House, who have warned they intend to use debt ceiling negotiations to extract deep spending cuts. However, getting Republicans to support lifting the debt ceiling may jeopardize agreement on the government spending omnibus because it would remove significant bargaining leverage that Republicans are eager to employ next year if they control the House. The Biden administration may look to negotiate a deal with Senate Republicans to lift the cap in the weeks to come in hopes that Senate Minority Leader Mitch McConnell (R-KY) will want to avoid the potential economic damage of a debt limit standoff. The alternative would be to use the budget reconciliation process to raise the debt ceiling with just 50 Senate votes – an approach that would bypass Republicans all together but would take up limited floor time that lawmakers had hoped to devote to other agenda items.
Permitting Reform: Earlier this year, Senator Joe Manchin (D-WV) withdrew his signature energy permitting legislation from the stopgap government funding legislation after Senate Republicans were set to defeat it in retribution for Manchin helping Senate Majority Leader Chuck Schumer (D-NY) pass the Inflation Reduction Act. Manchin is expected to attempt to include his permitting plan in the NDAA or the year-end spending deal. However, if Republicans control the House next Congress, there may be little incentive for them to agree to Manchin’s proposal in the lame-duck. Many Republicans will prefer to put forward their own energy package next year, which would include more aggressive permitting reform and initiatives seeking to increase oil and gas production.
Trade Package: Representative Kevin Brady (R-TX), the top Republican on the House Ways and Means Committee, believes it is still possible for Congress to agree on a trade package renewing the Generalized System of Preferences (GSP) in the lame-duck. GSP is the largest and oldest U.S. trade preference program that provides duty-free treatment, enabling many developing economies to spur economic growth through trade. Democrats want the package to include the renewal of the Trade Adjustment Assistance (TAA) program, which provides job training assistance to workers who lost jobs as a result of global trade. Republicans said they will only include the TAA renewal if it includes the Trade Promotion Authority (TPA), legislation that would open the possibility for more free trade deals. If the Republicans control the House next Congress, they are expected to push for a variety of trade liberalization measures, so GSP, TPA, and TAA may be punted into next year.
Election Reform: Legislation to reform and modernize the 1887 Electoral Count Act is also likely to pass during the lame-duck session. The Electoral Count Reform Act seeks to ensure that the electoral votes tallied by Congress accurately reflect each state’s public vote for President. The House passed its version of the legislation this fall, and the Senate version, which is slightly narrower in scope, has received enough bipartisan support, including from Senate Minority Leader Mitch McConnell, to avoid a filibuster.
Same Sex Marriage: The Respect for Marriage Act, which would officially repeal the 1996 Defense of Marriage Act that defined marriage as between a man and a woman, easily passed the House this summer with the support from several dozen Republicans. The Senate decided to wait until after the midterms in order to secure enough Republican support without the pressure of the campaign season. Senator Tammy Baldwin (D-WI), the Democrat sponsor of the legislation, is pushing for a vote immediately, although nothing has been scheduled. The biggest obstacle to enactment in this Congress may be lack of floor time available to get it across the finish line.
Hurricane Aid: While FEMA’s disaster funds had enough cash to meet the immediate needs in the aftermath of Hurricane Ian, Florida Republican Senators Marco Rubio (R-FL) and Rick Scott (R-FL) are requesting $33 billion in an aid package for the state. Both senators have expressed their preference for the disaster aid to be separate from a government funding package, however a year-end government spending deal may be the best opportunity to finalize the assistance.
Ukraine Assistance: Congress is expected to approve additional assistance for Ukraine in the year-end government spending bill, although the White House has yet to submit a request for a specific amount. The U.S. has already approved more than $65 billion in assistance for Ukraine this year, including nearly $18 billion in military assistance since Russia’s invasion in February. House Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Mitch McConnell have expressed consistent support for Ukraine funding, while a few members of Congress in both parties have publicly questioned U.S. support for Ukraine.
Tax Issues: The year-end funding deal may also include some targeted tax breaks, including reviving the expired Child Tax Credit, allowing businesses to immediately write off research expenses, expanding retirement savings incentives, and other tax breaks.
Our team will be following all these issues closely and will update you throughout the remainder of the year.
Sincerely,
The Bridge Team