Congress’ lame-duck to-do list

Good morning! It’s Thursday, November 17, 2022. The 2024 elections are 719 days away.

Heads up: Sometime this morning, House Speaker Nancy Pelosi (D-CA) is expected to announce her plans for the next Congress. This will be huge news: Pelosi has been one of the most influential lawmakers of the 21st century and a historic figure as the first female House speaker. If she steps down, it will mark a tectonic shift in Washington as House Democrats lose their leader of the past two decades. But after Democrats performed better than expected in the midterms, it is also possible that she stays on. (Pelosi could also remain in Congress but opt for more of an emeritus role.)

Pelosi is holding her decision close to her vest, reportedly even taking home two versions of her speech last night: one where she stays and one where she goes. Obviously, no matter what she announces, I will be covering it in full in tomorrow’s newsletter. But instead of speculating ahead of time, I wanted to devote this morning’s issue to looking at some of the policies that will be on the agenda for lawmakers in the coming weeks.

What to watch during Congress’ lame-duck session

Republicans clinched the U.S. House majority on Wednesday, giving the party a foothold in Washington after two years of complete Democratic control.

The seat that put Republicans over the top was California’s 27th district, where Rep. Mike Garcia (R-CA) defeated Democratic challenger Christy Smith for the third time. The Associated Press has now called exactly 218 races in favor of Republicans and 211 for Democrats, with six races left to be declared.

The news confirmed, more than a week later, what had been expected since Election Day: that America is headed for at least two years of divided government, with a Democratic president and Senate and a Republican House. After the unusually productive 117th Congress, it is unclear how much bipartisan legislating will now manage to scrape by in the 118th. (In a statement, President Biden said he was “ready to work with House Republicans to deliver results for working families.”)

However, the 117th Congress isn’t done just yet. There is still the so-called “lame-duck session”: that two-month period between November and January, when the next Congress has been elected but not sworn in and the old Congress gets one last legislative joyride.

Whatever the name might suggest, these sessions often aren’t very lame at all: 44% of the bills that became law in the last Congress, for example, were passed during the lame-duck, including a $900 billion Covid relief bill that was (at the time) the largest stimulus package ever enacted in the U.S.

Other productive lame-ducks include the 2010 session, which came after the last election in which Republicans flipped the House during a Democratic presidency and included the repeal of “Don’t Ask, Don’t Tell” and ratification of a major arms treaty with Russia.

This lame-duck is shaping up to be a busy one as well. Here are the top issues to watch in Congress during the next two months:

1. Marriage equality

The House passed the Respect for Marriage Act, which would repeal the Defense of Marriage Act of 1996 and codify Supreme Court decisions requiring the federal government to recognize same-sex and interracial marriages, in a bipartisan vote this July. Senate Majority Leader Chuck Schumer (D-NY) had been ready to take it up right then, but a group of moderate GOP senators persuaded him not to, arguing that the measure would have a better chance of surpassing the 60-vote filibuster threshold after the midterms.  

Schumer’s gamble paid off on Wednesday, when the Senate voted 62-37 to advance the bill, with 12 Republicans voting “yea.” Wednesday’s vote put the measure on track to pass during the lame-duck, a major victory for marriage equality advocates. The bill is poised to be amended by the Senate to address some GOP concerns (namely religious liberty protections and a clarification that the bill does not recognize polygamy), so it will have to be approved again by the House after it passes the Senate.

2. Government funding

Lawmakers have less than a month — until December 16 — to pass a government funding bill and avoid a shutdown. Senate Appropriations Committee chairman Pat Leahy (D-VT) and ranking member Richard Shelby (R-AL) are both retiring in January, and they are hoping to pass a full omnibus package (which would fund the government through September 2023) rather than a stopgap continuing resolution as a capstone to their appropriations legacies.

The Biden administration has requested a $47.7 billion emergency funding package be tacked onto the omnibus bill, with nearly $38 billion going to Ukraine (including both military and humanitarian aid) and more than $9.25 billion going towards Covid funding. It is unlikely that the Covid ask will get through Senate Republicans — but Senate Minority Leader Mitch McConnell (R-KY) has given his blessing to the additional Ukraine aid.

The aid takes on additional importance in light of the fact that McConnell’s House counterpart, Rep. Kevin McCarthy (R-CA), has suggested that Ukraine funding might have a difficult time getting passed under the forthcoming House GOP majority. F0r that reason, Biden and McConnell are both committed to getting as much aid as possible sent to Ukraine during the lame-duck, before it might be too late.

3. Debt ceiling

Another fiscal cliff looms: the U.S. is set to hit its debt ceiling (the limit of how much the federal government can borrow) sometime in July. That may seem like a far way away — but if the Obama era is any guide, raising the limit is poised to get a whole lot harder under a Republican-controlled House. McCarthy has already floated plans to demand spending cuts in exchange for raising the ceiling.

That’s why Democrats are intent on raising it now (possibly even until 2024), in order to avoid a debt ceiling crisis next year. (Recall that failing to raise the ceiling would lead the U.S. to default on its national debt for the first time ever and likely trigger a global financial crisis.) However, the likelihood of them being able to do so is fading, as McConnell has signaled a preference to wait until next year. Democrats have discussed raising the ceiling through the reconciliation process (which would require only 51 votes, instead of 60); per Politico, though, the White House does not believe all 50 Democratic senators would support that option.

4. Electoral reform

Like same-sex marriage protections, here’s another issue that has lingered in Congress all year but will likely only see action now that elections have passed. Ever since January 6, Democratic and Republican lawmakers have been focused on reforming the Electoral Count Act of 1887, an arcane law that governs the certification of Electoral College votes. Former President Trump and his allies took advantage of several holes in the statute to sow chaos after the 2020 election.

The House has already passed a proposed reform bill, but if any bill passes both chambers, it will probably look more like the Senate version that already has support from more than 10 Republican senators (including McConnell). Among other provisions, the measure would clarify that the vice president’s role during the certification is merely ceremonial; require states to appoint electors in accordance with their pre-Election Day laws; create a new process for post-election legal challenges; and raise the threshold for members of Congress to object to electoral votes.

5. Defense spending

Congress traditionally passes the National Defense Authorization Act each year, a major package that outlines the Defense Department’s budget and policies. (Funding is technically appropriated in the omnibus spending package, but this bill authorizes that funding and also has a lot of influence over the specific priorities the Pentagon will use the money for.) The amount of money involved in this package is huge: almost a trillion dollars.

Lawmakers opted to push the NDAA until the lame-duck — but now McCarthy is arguing that the bill should be held until January, when he takes over the majority. The California Republican accused Democrats of attaching “woke” policies to the package, although he did not specify which provisions he was referring to. If Congress does not pass an NDAA by January 1, it will mark the first year in more than six decades that legislators did not approve the package.

6. DACA

This one is not very likely, but Democrats are pushing for it to be added to the lame-duck agenda so it’s worth including. Since the Deferred Action for Childhood Arrivals (DACA) program was implemented in 2012, providing protection from deportation to immigrants who arrived illegally in the U.S. as minors, lawmakers from both parties have toyed — but never moved forward — with giving it legislative permanence.

Now, with the House about to slip out of their grasp, Democrats have signaled plans for one more push. Although there are Republicans who have expressed interest in codifying the program and giving its protectees (who are known as “Dreamers”) a path to citizenship, reaching the 60-vote threshold in the Senate will be a heavy lift.

Still, this is exactly the type of last-minute push you should expect to see members of Congress take up during the lame-duck — many of them will fail, but with electoral pressure on lawmakers at its lowest possible level (and some of them headed for the door), you never know what might be able to get passed.

🚨 What else you should know

CONGRESS: Sen. Mitch McConnell (R-KY) was elected to another term as Senate Minority Leader on Wednesday, surviving his first challenge in 16 years as the top Senate Republican. McConnell defeated Sen. Rick Scott (R-FL) in a 37-10 vote, a comfortable victory but also one that showcased the significant frustration that exists within a faction of his caucus.

McConnell is now poised to become the longest-serving Senate party leader in U.S. history next year.

IN THE CITIES: Rep. Karen Bass (D-CA) was declared the winner of the Los Angeles mayoral election on Wednesday, marking the first time a woman will lead America’s second-largest city. Bass defeated a fellow Democrat, billionaire developer Rick Caruso, in a race that attracted high-profile celebrity endorsements on both sides.

FOLLOWING UP: To my piece yesterday on Republicans hesitating to embrace Trump’s 2024 campaign... this piece in the New York Times on former Trump allies who are now inching away from him. Among those quoted pouring water on Trump’s comeback bid: Gov. Kristi Noem (R-SD), once floated as a possible Trump running mate; Mike Pompeo, Trump’s former secretary of state; and Rep. Mo Brooks (R-AL), one of Trump’s top defenders in Congress.

• To my piece last week on the many ups and downs in President Biden’s life as he once again catches his critics by surprise... this piece in The Atlantic on “what Joe Biden knows about America.” Key quote: “Over his career, a pattern keeps reasserting itself. Just after he is dismissed as a relic, he pulls off his greatest successes.”

🤔 Ask Gabe: Wait, could a Democrat be elected speaker?

With some uncertainty about whether Kevin McCarthy can notch the votes needed to be elected speaker of the House, I’ve been getting a lot of questions this week along these lines. So let’s dive into it.

Here’s how the speakership election works: First, both parties nominate their candidates. Republicans already nominated McCarthy this week (although there were 31 holdouts). Democrats are set to choose their nominee on November 30: we’ll learn today whether that will be Nancy Pelosi or one of her potential heirs (Steny Hoyer and Hakeem Jeffries are the two most likely possibilities).

Then, on January 3 — the first day of the new Congress — every member casts their vote in a public roll call. Generally, most members vote for their party’s nominee, but they’re under no obligation to do so; in fact, they don’t even have to vote for a sitting House member. (Although every speaker has been a congressman or woman, they aren’t technically required to be.)

To be elected speaker, you must win a majority of all voting members, which is generally 218. The House GOP will likely have only a few more members than that in the next Congress — so if just a handful of the 31 Republicans who voted against McCarthy on Tuesday do so again in January, he’ll come up short. However, to answer Dave’s question, that doesn’t mean the Democratic nominee would simply glide to the speakership since they would have a plurality.

Because the Democrat wouldn’t have a majority either, the vote would go to a second ballot — or as many ballots as it takes for someone to get a majority. No speakership election has gone to a second ballot since 1923; the longest it has ever taken was 133 ballots in 1855.

But note that I used very careful language above, saying the speaker needs “a majority of all voting members.” Per the Congressional Research Service, only members who actually cast their ballot for someone count towards that number, so if someone votes “present” — which is essentially abstaining — McCarthy’s threshold would go down. This could give an out to, say, Matt Gatez, who has said he won’t vote for McCarthy in January. If he were to vote “present,” he could still oppose McCarthy without throwing the speakership vote into chaos.

This is how Pelosi won with 216 votes last year: it was enough because three Democrats voted “present.” (Another Democrat voted for Jeffries, and one more voted for Illinois Sen. Tammy Duckworth.) So that is a possible outcome to watch, where McCarthy survives but conservatives are still able to register their displeasure with him.

There’s one more scenario to mention. Rep. Don Bacon, a Nebraska Republican, has suggested that if McCarthy falls short and the chamber deadlocks on the first ballot, he and others would be willing to work with Democrats to rally behind a moderate Republican as a consensus choice.

I would be very skeptical that this could happen, though. McCarthy may have a tough road offering concessions to the 31 dissenters to persuade them to flip — but that is easier to imagine than members of “the Squad” voting for a Republican speaker, even a moderate. Stranger things have probably happened in politics, but not too many.

🗓 What your leaders are doing today

All times Eastern. Click on an event’s time to watch or listen to it.

Executive Branch

President Biden will receive his daily intelligence briefing (12 pm). He has nothing else on his public schedule.

Vice President Harris and Second Gentleman Emhoff will arrive in Bangkok, Thailand (10 am).

White House press secretary Karine Jean-Pierre has no briefing scheduled.  

Legislative Branch

The Senate will convene (10 am) and resume consideration of the Respect for Marriage Act, which would repeal the Defense of Marriage Act of 1996 and codify Supreme Court decisions requiring the federal government to recognize same-sex and interracial marriages.

The measure, which passed the House in a bipartisan vote this summer, was advanced in the Senate by a 62-37 vote on Tuesday, with 12 Republicans joining all 50 Democrats in favor. Additional votes on the bill are possible today.

The House will convene (10 am) and vote on the FIRE Act, which would reform FEMA’s response to wildfires, and the Disaster Survivors Fairness Act, which would simplify the process for individuals to seek federal disaster assistance.

Committee sessions will include a Senate Homeland Security and Governmental Affairs hearing on threats to the U.S. homeland (10:15 am). Homeland Security secretary Alejandro Mayorkas and FBI director Christopher Wray will be among the witnesses.

Judicial Branch

The Supreme Court has nothing on its schedule.

👋 Before I go...

Here’s something uplifting. NBA star Marcus Smart has had one too many brushes with illness, between his brother Todd’s childhood battle with leukemia and his mother Camellia’s death from bone marrow cancer in 2018.

That’s why Smart has made it a point to frequently visit Boston area hospitals to “spend time with kids who needed a friend and a distraction” before they undergo chemotherapy. Here’s how Smart describes his visits:

“As long as you can change one person’s life, put a smile on one person, then I’ve done my job. Some of them go through it alone and it’s just really tough and people don’t really understand that. We get so caught up in our own lives that we forget that there’s somebody out there fighting and battling something way worse than what we’re going through here. And maybe just saying hello is all they needed to keep going.”

Smart has also founded a charitable foundation that supplies carts to hospitals with tablets and video game consoles to provide entertainment for patients.

Read more from The Athletic on Smart’s work and the relationship he has bridged with patients. Thanks to reader Tam C. for sending in this story.

Also: On Tuesday, I shared a story in this space on the world’s population reaching the 8-billion mark. Following up on that, I also wanted to flag this Washington Post piece, which helps put that number into context and shows how you fit in. I thought it was a really cool example of interactive digital journalism.

👍 Thanks for reading.

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— Gabe