Hi Ho, Hi Ho, it’s back to work they go.
The midterms are over (well almost) and the parties are fighting out who will be in charge of their respective caucuses. But before they can move on to the new Congress, there is still plenty of work left to wrap up in this Congress during the admirably named lame duck.
What’s a Lame Duck session?
The lame duck Congress is the legislative period between the election in November and when the winners assume office in January. This period used to last from November until March but the 20th Amendment to the Constitution moved the term start dates up to January. While the term lame duck has a connotation of weakness, make no mistake, this session has all the legislative powers of a normal Congress. Indeed, there is even less accountability within this time frame because they are far away from the next election and many members have retired or lost, thus losing any need to stay beholden to the people (or party leadership for that matter). Major legislation has passed during previous lame duck sessions, including a deal to avert the 2012 fiscal cliff, the repeal of Don’t Ask Don’t Tell, and the creation of the Department of Homeland Security.
What must be done during the lame duck?
Congress has a December 7th deadline to pass the remaining 7 funding bills that they did not get to before their October recesses. Every year Congress is supposed to pass 12 appropriations bills to fund the government by September 30th. They rarely get the job done in time. This Congress actually set a recent high water mark by passing 5 of the 12 bills – with $850 billion of the roughly $1.3 trillion in discretionary spending contained in those bills.
That’ll be easy, right?
Just because the majority of the money is done, doesn’t mean the majority of the drama is. There will be a couple of components to this negotiation. The biggest one being funding for “the wall.” The President originally wanted more than $20 billion for border security. He is now reportedly seeking $5 billion (the same number that the House has proposed), while the Senate has proposed $1.6 billion.
Democrats, emboldened by their takeover of the House, are unlikely to lend their support for a major increase in border funding outside the context of a more comprehensive immigration reform package. The question is, will this be settled quietly or will the President go to the mat and refuse to sign a bill that does not include funding for his signature issue.
Is there anything else that could stall the process besides the wall?
The other component will be whether Democrats will want to play ball at all, given that their negotiating position will be enhanced in January when they will have the majority in the House. If that is the strategy they deploy, they would ask for a temporary Continuing Resolution (CR) to push negotiations into next year. This is also a possible out for them if things go haywire on controversial policies such as the border wall.
But there’s not a whole lot left to be gained for them in the fiscal year 2019 cycle (i.e. the 7 remaining funding bills that go through September 30th 2019). Democrats already won massive funding increases for non-defense spending in exchange for Republicans demands for massive increases in defense spending, thus they would benefit by getting real funding bills done earlier. Plus, a continuing resolution is a bad look for everyone, so it’s possible that the fiscal year budget gets wrapped up by December 7th and then the Democrats and Republicans will turn to the spring negotiations over a new budget deal and a debt ceiling increase.
So once they fund the government, the lame duck is done?
Nope! There are a couple more outstanding issues that need to be dealt with. The largest one being the $1 trillion Farm Bill. The farm bill is a five-year bill that is comprised of about 80 percent Supplement Nutrition Assistance Program (SNAP) payments (i.e. food stamps) and 20 percent agricultural subsidies and other conservation measures.
What are the main sticking points for the Farm Bill?
There continues to be a fundamental divide between the House passed Farm Bill, which included new federal work requirements on SNAP recipients which is opposed on a bipartisan basis by agriculture leaders in the Senate. The Senate bill only added new job training and employment programs.
There is also an inter-farmer squabble regarding how the farmers will divvy up taxpayer support – with southern cotton farmers wanting a change that would benefit their bottom line. Why taxpayers are so heavily intertwined with massive, profitable, farming operations in the first place is what we wish they were talking about, rather than how to spread out the spoils.
That’s a lot of spending. Any taxes or spending cuts to make up for it?
To the contrary, the likely Republican Minority Leader to-be Kevin McCarthy made a pitch to the Senate to take up and pass Tax Reform 2.0 – another round of budget busting tax cuts. The likelihood of the Senate taking that up, let alone passing it with the required 60 votes is zilch (reminder that Republicans used the complex reconciliation process to pass the first round with a simple majority in the Senate).
However, Congress’ worst Christmas tradition could rear its ugly head in the form of tax extenders – a group of narrowly targeted special interest tax carveouts. How this continues to be a thing after Republicans passed so-called tax reform is wild. We will have more to say on this in the future.
I read that there was a breakthrough on a criminal justice reform package. Is that so?
In what could be the most substantive and permanent outcome of this year’s edition of the lame duck, there is a chance that there could be a *gasp* bipartisan bill to make changes to the criminal justice system. Measures such as reducing mandatory penalties and giving judges more discretion to give less than the mandatory minimum for low-level crimes are in the works.
Our nation’s criminal justice system has been oft-criticized as being both strict, expensive, and counterproductive. Leaders from all parts of the political spectrum (and President Trump’s children) recognize this and this could be a breakthrough.
One thing standing in the way, vocal opponents that have the President’s ear, including Senator Tom Cotton (R-AR).
This doesn’t sound very lame. Anything else?
Congress also needs to keep the National Flood Insurance Program alive. The program is in major debt and is in desperate need of reform – but there are too many parochial interests to keep federal subsidies flowing to the flood plains – so another punt is likely in the works.
Finally, expect the Senate to continue to confirm more federal judges during the lame duck, though the need to churn through them is somewhat mitigated by the fact that the Republicans held the majority in the Senate. Only the Senate is required to confirm Presidential appointments – thus the Democratic takeover of the House has no impact on this process. As many as 49 judicial nominations are queued up for a Senate confirmation vote.
Last, but not least, the Joint Select Committee on Budget and Appropriations Process Reform group released a draft of its proposal today. We hope that this will make major headway into getting Congress to fix our broken and bloated budget. We will have more on this once we have time to analyze the product.