By Tim Rosado (PolicyHighway)
The new (118th) Congress, with a Republican-led House, will start on January 3, 2023. Consequently, the current Congress has just a couple of weeks prior to the holidays to complete its policy agenda within a wholly Democrat-led majority, lame duck session.
While the confirmation of Federal judges, and perhaps a few Biden Administration officials, will be an important priority for Congressional leadership, there are several "must do" legislative measures needing completion by Congress, some "want-to-do" measures with significant bipartisan support that have potential for passage, and still other "hoped-for" measures that have smaller policymaker support constituencies and, therefore, a lesser chance of action.
Here is my take on how the legislative priorities break down within these groupings, linked to more detail below. GREEN indicates recent actions/updates.
Must Do
FY 2023 Annual Appropriations; 2023 National Defense Authorization; Rail Labor Agreement;
Want-To-Do
Debt Limit Increase; Ukraine & COVID 19 Supplemental Funding; Electoral System Reform; Marriage Rights
Hoped For
Online Privacy; Online Competition; Members of Congress & Stock Trading; Wildlife Funding; Targeted Immigration Reforms; Cannabis-Related Reform; Anti-OPEC Legislation; Retirement Reforms
Must-Do Measures
FY 2023 Annual Appropriations
As the annual appropriations process covering about 30% of Federal spending is never completed on time before the end of each fiscal year, the usual enactment of a "continuing resolution" (CR) enables government to continue to operate until completion of the process. A CR is currently in effect until December 16, 2022, that keeps prior-year (FY 2022) funding levels temporarily in place. Congress must either complete full-year appropriations by that time, or pass another CR for more time either during the lame duck session, or into the next Congress.
Outlook. The chances of completing a final funding bill during the lame duck session seem good, given that most opposition appears to encompass a minority of Republicans in the House who want the process moved to next year. The odds will become more certain in the coming days. Ultimately, negotiating parties will at least agree to another CR to prevent any government shutdown, which no one wants.
The Latest. The House and Senate passed a one-week CR extension funding the government until December 23. Bipartisan leaders in the Senate announced (December 13) that a framework on a full-year appropriations measure has been agreed to, with the details to be worked out in the coming days, which necessitated this CR extension.
FY 2023 Defense Authorization
Completed
The annual Defense Authorization bill is viewed as a “must” piece of legislation every year, unlike pretty much every other set of Federal programs requiring a periodic authorization by Congress. In fact, Congress has passed a Defense Authorization bill every year for decades. The Defense bill is the primary legislative vehicle for Congress to weigh in on both national defense and foreign policy matters, and traditionally has been developed and passed with bipartisan support
Final Outcome. A House/Senate compromise version of the bill was released December 6, and the House passed the measure by a vote of 350-80 on December 8 under rules that expedited consideration of the proposal. 45 House Republicans and 35 Democrats voted against the bill, with 2 Republicans not voting. The Senate passed the bill on December 15 by a vote of 83-11 with 6 Republican Senators not voting. While the President publicly objected to the inclusion of a measure repealing a Department of Defense COVID-19 vaccination requirement, he is nevertheless expected to sign the bill into law. More on the legislation HERE.
Rail Labor Agreement
Completed
Four of twelve rail labor unions, including one of the two largest, rejected a labor agreement tentatively agreed-to between industry and union leadership in September. On November 28, President Biden asked Congress to intervene and legislatively impose the terms of the agreement given the potential effects of any strike on the U.S. economy. A potential strike could have occurred as early as December 9.
Final Outcome. The House voted 290-137, with 5 representatives not voting, to impose the September agreement on labor union members to prevent a strike. The Senate voted 80-15 (December 1) on the same measure, with 4 senators not voting and 1 member voting "present." Three Democratic senators and one independent joined 11 Republicans voting against the measure. The President signed this action into law on December 2.
While the House approved a separate measure to impose 7 annual paid sick leave days per union member by a vote of 220-207, the Senate failed to garner the Senate supermajority needed for passage; the vote was 52-43 with 5 senators not voting. 60 votes were needed for passage. All "no" votes were Republican senators.
Medicare Cut Prevention
Budget neutrality requirements in current law for the Medicare program is driving a decision by the program to impose health provider (e.g., doctors, hospitals, etc.) reimbursement rate cuts estimated to be about 4.4% starting January 1, 2023. To overcome such cuts in recent years, the Congress passed legislation waiving budget rules and providing specific rate adjustment increases for providers, including a 3.0% adjustment for 2022. This increase expires, however, after this year. The medical community and a bipartisan coalition of Senators are pushing for waving budget rules and another statutory rate adjustment increase.
Outlook. Another adjustment in law seems certain to happen. While Republican members have been pushing for actions to reign-in mandatory program spending, including in Medicare, they will likely not prevent action on this matter in the absence of a more comprehensive plan that they expect to fight for in the future to address Medicare cost growth.
Want-To-Do Measures
Debt Limit Increase
The United States is close to reaching the current national debt limit set in law––$31.4 trillion. The limit must be increased by an act of Congress to enable continued Federal borrowing, which totaled about $1.4 trillion last year. Without the ability to conduct new borrowing, Federal programs would be thrown into disarray, with massive cuts to critical programs and potentially a default on already-issued debt. This could have massively negative implications for the U.S. and world economy, and the well being of millions of Americans.
Outlook. This issue is all but dead for the current Congress, and will have to be addressed early in the next Congress. There is certain to be significant political and policy confrontation between the White House, the Senate Democrat majority, and the Republican House majority. How this ends is anyone's guess at this point. Republican leaders have suggested that they want to use a debt limit increase as leverage to extract Federal budget cuts from the Biden Administration irrespective of the threat of a fiscal crisis on the economy by holding up a debt limit increase. This is why the Administration and Democrat leaders had desired passage of an increase before the new Congress starts. But this will now not happen.
Ukraine & COVID-19 Funding Supplemental
The Biden Administration sent a funding supplemental (November 15) request to Congress for Ukraine-related purposes totaling about $37 billion, as well as a $10 billion request for COVID-19 response and other vaccination needs. Congress approved a $16 billion supplemental funding request, only for Ukraine-related purposes, in September.
Outlook. Approval of new funding for Ukraine during the lame duck session seems likely to be included as part of a final appropriations bill for FY 2023, or as part of any CR extension that goes into the next Congress. Reporting suggests that there is not enough support right now for health-related supplemental funding, however, and such funding is likely to be off-the-table for now. On Ukraine funding, House Republicans are demanding more Ukraine accountability measurers, and they will likely get them to ensure that new funding is approved.
The Latest. Senate Majority Leader Chuck Schumer (D-NY) indicated that Ukraine substantial new Ukraine funding will be included in a final full-year appropriations bill for FY 2023. There was no indication that new funding for COVID-19 response will also be provided. A framework on a final full-year appropriations bill was agreed to on December 13, and the details will be revealed in the coming days.
Electoral System Reform
Senators Susan Collins (R-ME) and Joe Manchin (D-WV) led a bipartisan group through months of negotiations to produce in the summer two proposed election reform bills, both intended to prevent the kind of chaos that followed the 2000 election process. And, Senate Minority Leader Mitch McConnell (R-KY) expressed his support for the bills. The House, for its part, passed a very similar version of proposed reforms in September.
Outlook. Even if related elements are excluded, at least electoral system reforms are almost certain to get done during the lame duck session. A key factor, however, is the calendar. Will the schedule permit the time to complete consideration and passage of a bill? It seems certain that the Senate Minority Leader and outgoing Speaker of the House will move heaven and earth to get this one done.
The Latest. Senate Majority Leader Chuck Schumer (D-NY) indicated that electoral reforms will be included in a final full-year appropriations bill for FY 2023. A framework on a final full-year appropriations bill was agreed to on December 13, and the details will be revealed in the coming days.
Marriage Rights
Completed
The House approved (July 19) the Respect for Marriage Act, providing Federal statutory-based rights for both same-sex and interracial marriages. All 220 Democrats and 47 Republicans voted for the bill. A bipartisan group of Senators produced a compromise version of the bill in November that secured the support of 12 Republican Senators, enough to overcome any filibuster that would have prevented even consideration of the proposal in the Senate.
Final Outcome. The Senate voted 61-36 (November 29), with 3 Senators not voting, to pass the Respect for Marriage Act. The House passed the measure by a vote of 258-169 (December 8), with 4 Republicans not voting and 1 Republican voting "present." President Biden signed the measure into law on December 13.
Hoped-For Measures
Online Privacy
Online privacy took off as a significant public policy concern after revelations in the fall of 2021 about Facebook and Instagram marketing and operational tactics impacting young Americans. Months of negotiations among key members of the House produced a bipartisan proposal released in June that was approved by the House Energy and Commerce Committee by a vote of 55-3. Among other things, the group’s proposal includes provisions to minimize the amount of data collected from users and ban the transferring of data of users age 13 to 17 to third parties without consent; it enables consumers to turn off targeted advertisements and ban targeted advertising for minors; and it grant protections for Americans against the discriminatory use of their data.
Outlook. It is not clear that there is enough of a consensus on a bill, or time during the lame duck session, to succeed in passing a bill in Congress. The key missing supporter of the compromise–Senate Commerce Chair Maria Cantwell (D-WA)–had a proposal similar to the compromise but never signed onto the consensus version. Lobbying by the social media companies against legislation–though more focused against liability changes and online competition proposals–undermines the likelihood of action.
Online Competition
Separate from online privacy legislation, a flurry of legislation has been under consideration since last year to address antitrust concerns tied to online companies. Currently, the most significant proposal is a bipartisan, bicameral measure to prevent online companies from prioritizing their products over the products of competitor companies; for example, private label Amazon products over rival items on the Amazon platform. In March, the Justice Department expressed support for the proposal. Larger companies like Google, Apple, and Amazon have lobbied hard against this and other similar legislation, while smaller companies have been supportive.
Outlook. While there is bipartisan some support on a proposal, many members of Congress want more significant action against online companies, and many others want less or no action. The lack of a meaningful consensus on the right approach towards addressing online competition makes it likely that Congressional leaders will not carve out time to consider legislation on this issue during the lame duck session.
Members of Congress and Stock Trading
The Speaker of the House had promised that the House would vote on stock trading legislation for Members of Congress before the mid-term elections, but then she backtracked and put off any vote. Supporters of strengthening existing law relating to stock trades want lawmakers to be entirely banned from trading stocks. It is not known if a proposal to come before the Congress would actually go that far. The Senate Majority Leader never committed to do anything on the Senate side.
Outlook. This issue, more likely than not, is dead for this Congress. There was clearly an inability to get adequate consensus among Democrats in the House on a proposal, and there is no reason to believe that anything has changed over the last couple of months.
The Latest. At the House Speaker's weekly press conference (December 8), in response to a question on the prospects for legislation on this matter, the Speaker stated that in order for a proposal to move forward "they have to have the votes, and that is what we are waiting to hear. It could be that they could get something that could be ready next week, but I have – I've said, whatever the Committee recommends, I support. Among the people who have been advocating, they have some disagreements: who wants this more than that? Who wants this more? And they'll just have to, as we do when we legislate, come to a conclusion so that we could have the legislation, which I hope that we will have."
Wildlife Funding
The House passed (June 15) the “Recovering America’s Wildlife Act,” bipartisan legislation that has its genesis in the recommendations of a 2016 Blue Ribbon Panel report to establish a significant and permanent source of funding for the U.S. Fish and Wildlife Service (FWS) Wildlife Restoration Program. Funding would total nearly $1 billion annually starting in FY 2023, growing to $1.4 billion by FY 2026.
Outlook. While there is strong bipartisan support, this legislation is a revenue bill. In the current political environment, revenue-generating legislation complicates the legislative process including the ability to ensure a bipartisan consensus on legislation that comes to the Senate floor. At this point, the bill may not have enough support to move forward in the Senate this year.
The Latest. If tax measures are included within annual appropriations legislation, where there appears to be bipartisan leader agreement to move forward on an omnibus bill, there is a good chance that this proposal will be included. Reporting indicates that conservatives opposed the original revenue measures of this legislation, believing that these would not have been sufficient to fully offset costs. A new financing measure, which may have bipartisan support, is to tighten the tax treatment of cryptocurrency assets by subjecting them to the IRS wash sale rule.
Targeted Immigration Reforms
While comprehensive immigration reform has been off the list of legislative priorities for some time now, primarily because of the inability to secure enough Republican support, some leaders have sought more targeted legislative actions during the lame duck session. For example, there has been hope that Congress will provide legislative protection to DACA/Dreamer immigrants in the wake of a recent Federal court action against the program, as well as legal immigration reform for farmworkers (e.g., the Farmworker Modernization Act).
Outlook. Given the political sensitivities of immigration issues, it will likely take a miracle to get anything done on this issue this year, or anytime over the next two years with Republican control of the House.
The Latest. The Washington Post reported (December 6) that Senators Kyrsten Sinema (D-AZ) and Thom Tillis (R-NC) reached agreement on an immigration reform framework that includes a pathway to citizenship for Dreamers; asylum program reforms, a one-year extension of Title 42 immigration restrictions; and upwards of $40 billion in new funding for border security activities. As of right now, there is no indication that there is enough time, or support, to move a major immigration bill like this within the next couple of weeks.
The House was scheduled to vote on the equal Access to Green cards for Legal Employment (EAGLE) Act for the week of December 11 (HR 3648). This legislation is intended to reform aspects of legal immigration; most importantly, moving employment and family-based immigration away from a system based country-based allocations and towards one that emphasizes education and skill. The House vote has been delayed, however, as the legislation may not have enough votes to pass. Even if it does pass the House, it is not certain the Senate will have the votes to pass this measure.
Cannabis-Related Reform
In October, the Biden Administration announced a couple of key actions on marijuana policy including a general pardon of all prior Federal offenses of simple possession, and initiating an administrative review for how marijuana is treated under federal law. Key Senators, including Majority Leader Chuck Schumer, potentially want to expand on these actions during the lame duck session, including banking reform (e.g. the Safe Banking Act) and/or more comprehensive reforms (e.g., the Cannabis Administration and Opportunity Act).
Outlook. Action is possible on cannabis legislation, particularly given bipartisan interest and the Majority Leader's interest. This could largely depend, however, on the demands of the legislative calendar over the next month. There simply may not be enough time to get anything like this done.
The Latest. Cannabis-related legislation was left out of a proposed defense authorization bill moving through Congress, disappointing supporters who hoped for inclusion. It appears unlikely that there will be other opportunities to consider reforms during the remaining days of the current lame duck session.
Anti-OPEC Legislation
After OPEC countries decided to cut oil production in October by 2 million barrels per day despite current high-oil demand and prices, there was much discussion in the Congress about voting on anti-OPEC legislation in the Senate (a.k.a. "NOPEC" legislation), though this did not happen at the time. The proposal would revoke "sovereign immunity" helping protect OPEC members and their national oil companies from lawsuits. Some proponents have called for consideration of the measure during the current lame duck session. OPEC meets again on December 4 to decide any changes in its current production policy.
Outlook. Any OPEC decision keep current production cuts, or cut production further, could put this kind of measure much higher on the lame duck session agenda. That said, the complicated U.S. relationship with Saudi Arabia undermines prospects for an action that could be construed as a punitive against the country.
The Latest. OPEC met on December 4 and decided that there will be no changes in production, which means that the 2M barrel-per-day production cut remains in place. OPEC is not scheduled to meet again until June, 2023. So far at least, there does not appear to be any increased interest to move to consider legislation on this matter.
Retirement Reforms
Proponents in Congress of relatively modest retirement system reforms are hopeful that legislation can sneak into the current busy lame duck session. On the Senate side, the key bipartisan bill is the Enhancing American Retirement Now (EARN Act). According to the sponsors, the proposal is intended to encourage small business adoption of retirement plans, make it easier for part-time workers to participate in a retirement plan, expands tax credits for low and middle-income workers, and expands penalty-free withdrawals.
Outlook. Anything with tax provisions may have difficulty getting on the lame duck session agenda, and this one also depends on getting agreement with the House on a bipartisan proposal. Action on retirement reform seems unlikely, but you never know.
Key actions during 2022 of the current 117th Congress included:
Gun Safety & Control
Complete
In June, comprehensive and bipartisan gun safety and control legislation (summary) passed the Congress and was enacted into law by the President. The Senate vote included 65 Senators voting for the bill, 33 Senators voting in opposition, and 2 Senators not voting. The House vote included 234 Representatives voting for the bill, 193 Representatives voting in opposition, and 3 Representatives not voting. More details on the new law and the vote breakdown can be found here.
The House also passed (July 29th) assault weapons ban legislation (H.R. 1808). The vote was 217-213, with 2 Republicans joining 215 Democrats to approve the bill. 5 Democrats joined 208 Republicans against the bill. One Republican did not vote. There was some faint hope that the Senate might consider this legislation during the lame duck session of Congress, but new support to even permit this bill to be considered did not materialize in the wake of recent mass shootings.
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Budget Reconciliation
Complete
The Inflation Reduction Act (IRA) was enacted into law on August 16. The IRA is a massive budget reconciliation legislative package that combines revenue-raising tax changes with the distribution of new resources for healthcare, climate, and budget deficit reduction purposes. The final votes in the House and Senate were 220-207 and 51-50, respectively. For both chambers, all Democrats voted for the legislation and all voting Republicans opposed.
More details on the IRA can be found here.
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Semiconductor Manufacturing
Complete
The CHIPS and Science Act was enacted into law on August 8. Among other things, the Act provides resources intended to help facilitate the growth U.S. semiconductor manufacturing in the United States. The final Senate vote to approve the legislation was 64-33 (July 27th) and the House vote was 243-187 (July 28th). Core investments include $39 billion to "build, expand, or modernize domestic facilities and equipment for semiconductor fabrication, assembly, testing, advanced packaging, or research and development," and a related $2 billion dedicated solely to related Defense-focused semiconductor efforts; as well as $11 billion for Department of Commerce research and development including creation of a National Semiconductor Technology Center (NSTC) a public-private partnership to conduct advanced semiconductor manufacturing and other specialized R&D programs.
More details on the CHIPS and Science Act can be found here.
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Veterans/Toxic Burn Pit Benefits
Complete
The President signed the Honoring Our PACT Act into law (August 10). The Senate approved the legislation 86-11 (August 2) while the House vote was 342-88 (July 13). The White House released a Fact Sheet summarizing the core elements of the Act. The legislation comprehensively addresses healthcare and benefits coverage for veterans exposed to toxins, not just toxins derived from so-called burn pits but also toxins like agent orange. This is primarily achieved by expanding the factors determining “presumptive” service-connected disability.
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