Although some ballots are still being counted, Republicans appear likely to eke out a nominal majority in the House after last week’s elections. With the Senate still under Democratic control, this could result in a frequently gridlocked Congress: The House Republican majority may focus on passing messaging bills, and the Senate Democratic majority will ignore them and continue to confirm President Joe Biden’s nominations.
But before the new lawmakers can take office, the current Congress has a number of priorities it must address before year’s end—not least of which is each party selecting its leadership. The expectation that Republicans will have a majority in the House also complicates matters, potentially making GOP lawmakers hesitant to, say, raise the debt limit or pass an omnibus government funding bill when they will have a stronger negotiating position in just a couple of months. Thus the lame-duck session’s to-do list stretches ever longer as time runs short to accomplish goals that would be challenging even without the time crunch.
Most urgently, the government is set to run out of money on December 16; Congress will either need to pass a spending bill to fund the government through the end of the fiscal year (September 30, 2023) or kick the can down the road with a continuing resolution, which would keep the government funded through some arbitrary deadline. (That’s how we got to December 16 being the cutoff in the first place, as Congress passed a continuing resolution in September.)
But House Republicans have pledged spending cuts, and some conservative GOP members outright oppose using an omnibus funding bill—a single piece of legislation funding multiple government agencies rather than individual bills, as is theoretically the procedure—on principle. Key appropriators therefore hope to approve a funding package that would keep the government running through the end of the fiscal year. The chair and the ranking member of the Senate Appropriations Committee, Democratic Senator Patrick Leahy and Republican Senator Richard Shelby, respectively, are retiring at the end of this term, meaning that passing such a measure would also be an issue of legacy for the longtime lawmakers.
“We’re working toward yes. We’re trying to get to yes,” Shelby told reporters on Monday about the status of negotiations. He also waved off a question about what additional pieces could be tacked onto a funding bill, like Ukraine aid. “There’s a lot of things floating around,” he said. “But we’re mainly working on the basic appropriations.”
Matthew Glassman, a senior fellow at the Government Affairs Institute at Georgetown University, said that whether Congress passes an omnibus bill in the lame duck partially depends on when Republicans want to address the issue. “I think McCarthy has some incentive to not want to have to deal with this sort of fight in his caucus right out of the gate after he becomes speaker,” Glassman said, referring to current House Minority Leader Kevin McCarthy. (McCarthy, of course, still has to be elected leader of his conference and speaker of the House by his members. House GOP conference leadership elections are scheduled to occur on Tuesday, though some members have called for a delay, given both the number of House races that haven’t been called and the party’s poor performance at the polls.)
The Biden administration hopes that Congress will tack additional dollars onto an omnibus bill, including aid for Ukraine, coronavirus relief, and disaster assistance, among other priorities. The foreign aid has particular urgency, as some House Republicans have expressed skepticism about authorizing additional help for the embattled country, so it may be easier to approve funds during the lame duck. Additional coronavirus relief will be an uphill battle: Senate Republicans have repeatedly resisted efforts to approve further pandemic spending, delaying agreements on the omnibus bill, which ultimately passed in the spring without further Covid relief. Furthermore, there is considerable negotiation yet to be accomplished: The Senate is still evenly divided, and Democrats will need 10 Republican votes for an omnibus bill to overcome a filibuster.
Although not as existentially necessary as funding the government, the National Defense Authorization Act is also on the must-do list. Congress has passed it every year for more than six decades. Authorizing hundreds of billions of dollars in defense spending is one of the few issues that the body regularly addresses on time and on a bipartisan basis. But Senator Tim Kaine, the sponsor of a bill to repeal the 2002 Authorization of Use of Military Force in Iraq, expressed frustration that for a second year running it might not be included in the NDAA. “I am worried that there’s a process being set up that will not have room for an amendment process,” Kaine told me. “If we can have a floor process, we can’t do the AUMF.”
Raising the debt ceiling, the limit for the nation’s federal debt, will be a heavier lift. Congress technically does not need to do it this year, as the U.S. will not hit its borrowing limit until sometime in 2023. Raising the limit allows the Treasury to borrow money to cover prior congressional spending but does not authorize any new spending or incur new debt. Nonetheless, the fight over raising the debt ceiling has become a roughly annual political football match with the power to inadvertently throw the global economy into chaos.
House Republicans have threatened to leverage the debt limit—and by extension, a future in which the U.S. could default on its debts, destabilizing the world economic system—in order to extract cuts to Medicare and other social spending, a strategy Republicans attempted during the Obama administration. If Democrats want to avoid that scenario, they may want to raise the debt limit this year.
Senate Majority Leader Chuck Schumer told CNN on Monday that he would prefer to address the debt ceiling in the lame duck. “That’s something we’d like to do, best done on a bipartisan basis,” Schumer said. “I’m going to talk to my caucus and the leadership on the other side of the aisle to see what we can get done.”
Democrats could use the technical budgetary process known as budget reconciliation, which would allow them to circumvent a potential filibuster, to raise the debt ceiling. But the calendar is running out on 2022, and reconciliation eats up valuable time, which is why Democrats prefer to deal with the debt limit with GOP agreement. Some Democrats would prefer to get rid of it altogether, but Republicans oppose this idea.
Representative Steve Womack, a Republican from Arkansas and the ranking member of the Financial Services Committee, told me that the current Congress should address the debt ceiling and the omnibus bill before the new one is seated in January. “I’m an appropriator,” he said. “I’m for cleaning the trash off the curb. Let’s get the trash to the landfill, and let’s let this new Congress come in and not be burdened with the unfinished business of the previous Congress.”
Then there are the opportunities for cooperation between lawmakers. Several key tax breaks for things such as research and development are scheduled to expire at the end of the year, and some Democrats hope that any deal to extend them would be paired with an extension of the expanded child tax credit. That program, which provided millions of low-income American families with a monthly disbursement, expired at the end of last year due to congressional inaction. Representative Richard Neal, the chair of the House Ways and Means Committee, told reporters on Monday that the child tax credit “has been raised” in discussions about a tax extender deal. “There’s been no rejection at the moment,” Neal said. “These conversations are likely to continue for the next five or six weeks. We want to keep the conversation fluid.”
Less controversially, Congress must act before the end of the year to waive billions of dollars of Medicare cuts that would go in effect next year; this is expected to be addressed without issue.
Meanwhile, the Senate is also expected to vote on a bill codifying same-sex marriage. The House approved the measure in September, but Schumer agreed to delay the vote after negotiators working to get 10 Republicans on board asked him to do so. This was a strategic maneuver: Instead of forcing GOP senators to take a potentially difficult vote ahead of the midterms, the thinking went, holding the vote afterward could garner support from sympathetic Republicans who would otherwise be disposed to oppose it for political reasons. Bipartisan Senate negotiators announced a narrow compromise on Monday that would guarantee that “valid marriages”—those that are legal in the state where they were performed—enjoy “full faith and credit” anywhere in the country. Individual states that do not permit same-sex marriages would not be required to issue such marriage permits. A vote on the bill is expected Wednesday.
The other major nonfiscal measure on the agenda for the end of the year is reforming the Electoral Count Act, the antiquated law that details how Congress should certify Electoral College results. A bipartisan group of senators crafted reform legislation in the wake of the January 6, 2021, attack on the Capitol. The House voted on its own, slightly more expansive bill to overhaul the Electoral Count Act in September. But the bipartisan Senate group has called for that chamber vote to on its measure, arguing that it is the only bill of the two that can get sufficient Republican support there. The bills are substantially similar but differ on provisions like the threshold by which members of Congress can raise objections to a state’s slate of electors and the conditions under which those objections can be raised. Senator Mitt Romney, one of the negotiators on the Electoral Count Reform Act, told reporters on Monday that the bill was “likely to get done before the end of the year.”
Despite the lengthy to-do list, accomplishing these goals will be easier than it would be if Democrats had lost the Senate. Glassman noted that were Republicans set to take the majority in January, Democrats would likely spend valuable floor time in a mad dash to confirm as many of Biden’s judicial nominees as possible before the chamber changed hands. Now they have time to confirm judges and other nominees over the next two years.
“If they want to do a lot of legislating, the space to do it in the Senate is more available than it would have been if they [lost] control of the chamber,” Glassman said. “Anything that you thought might go through the Senate in the lame duck I think has a slightly higher chance of going through, just because they’re not going to be totally worried about the executive calendar anymore.”