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This is the End

By Tim Rosado (PolicyHighway)

More likely than not, the lame duck session of the current 117th Congress will end after this week. A pro-forma session between Christmas and New Year's day is possible, but any significant policy matters will probably be decided by end-of-day December 23.

This is important because with a split, upcoming 118th Congress, it is not clear what significant policy measures will be resolved over the next two years.

And so, in what is now a the lame duck session week, what is still to be done and what is almost certainly off the table?

Still Likely To Be Done

FY 2023 Omnibus Appropriations ("Omnibus") legislation is currently considered to be the only significant legislative action remaining this week. Senate and House bipartisan negotiators reached agreement on the framework of a bill (December 13), and details will be released within days. A temporary "continuing resolution" (CR) funding the Federal Government expires on Friday, December 23.

Annual appropriations within the Omnibus generally covers about 30% of all Federal spending, and this year's Omnibus funding is expected to total about $1.7 trillion. The key policy matter apparently decided, and for which details have not yet been released, is the funding split between defense and non-defense programs.

But that is not the only key policy matter within the Omnibus. As this legislation will be the last significant legislative vehicle moving through the Congress, a select number of other extraneous matters will be attached to, and approved as part of, the bill.

As of today (December 19), here is my take on policy matters that are likely to be included:

  • Ukraine 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. COVID-19 funding seems unlikely to be included in the Omnibus, but additional Ukraine funding (potentially larger than the November request) has significant bipartisan support. Congress approved a $16 billion supplemental funding request, only for Ukraine-related purposes, in September.

  • Electoral System Reform Senate Majority Leader Chuck Schumer (D-NY) stated at the announcement of the framework agreement on the Omnibus, that electoral reforms will be included. Some form of one or both of bipartisan electoral/election reform proposals will be included.

  • Medicare Reimbursement Rate 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 that waives budget rules and provided specific rate adjustment increases for providers, such as a 3.0% adjustment for 2022. This increase expires, however, after this year. Another adjustment in law seems certain to happen.

  • Recovering America's Wildlife Act If tax measures are included within the Omnibus, there is a good chance that the "Recovering America’s Wildlife Act,” will be included. This bipartisan legislation 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. Reporting suggests that a new proposal financing measure–tightening the tax treatment of cryptocurrency assets by subjecting them to the IRS wash sale rule– could have enough bipartisan support to permit the proposal's inclusion on the Omnibus.

  • Retirement System Reforms Both the Senate (the Enhancing American Retirement Now–EARN Act) and the House (the Securing a Strong Retirement Act–SECURE ACT 2.0) have passed retirement reform legislation. If tax measures are included in the Omnibus, some compromise package of reforms is likely to be included.

  • TikToK Ban on Government Devices The Omnibus is expected to include legislation passed by the Senate that bans the TikTok app on Federal Government devices given the Chinese ownership relationship to TikTok, and the perceived security and privacy threats of Chinese access to user data.

Not Going To Be Done

While surprises can happen, even in Washington, it seems certain that the following major policy matters will not be decided this week:

  • 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. However, 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.

  • Immigration Reform No big surprise here that this issue falls into this category, as efforts to gain agreement on comprehensive immigration reform have failed time and again. But there was hope that there could be agreement given a growing near-term crisis at the border with the end this week of Title 42-based immigration restrictions and a massive number of immigrants lining up for entry. But during the current lame duck session, the House was unable to bring up for passage (due to the lack of support) bipartisan legislation reforming limited aspects of legal immigration within the EAGLE Act, which is a bad omen for any more comprehensive reforms under as bipartisan framework reportedly developed by Senators Thom Tillis (R-NC) and Kyrsten Synema (I-AZ).

  • Online Competition/Privacy There has been significant movement in the Congress to agree to some elements of both online privacy and online competition actions, but time basically ran out for actions this year and not enough consensus exists for passage in the lame duck session. After months of negotiations on online privacy legislation, 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. On the competition side, the most significant proposal has been a bipartisan, bicameral measure to prevent online companies from prioritizing their products over the products of competitor companies. Ultimately, it may be possible to gain sufficient consensus in both of these areas, but not until the next Congress.

  • Cannabis-Related Reforms 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 wanted to expand on these actions during the lame duck session, including related cannabis banking reforms (e.g. the Safe Banking Act) and/or more comprehensive reforms (e.g., the Cannabis Administration and Opportunity Act). However, while there was much discussion and reporting about include these measures within the National Defense Authorization Act for 2023 during lame duck, cannabis-related measures were ultimately excluded. This might suggest that such measures also will not make it into the Omnibus.

  • Members of Congress & Stock Trading A ban on Members of Congress trading stocks is unlikely to be included in the Omnibus. 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." But there is no reporting that currently indicates there is a consensus on this matter, or the votes, which means that inclusion in the Omnibus is unlikely.

  • Assault Weapons Ban With recent mass shootings there was hope, however faint, that there could be renewed interest in enacting an assault weapons ban law. In July, the House passed legislation (H.R. 1808) by a vote of 217-213, but just 2 Republicans joined 215 Democrats to approve the bill. 5 Democrats joined 208 Republicans against the bill. Despite the hope, this one really was never to be, and the matter died off quickly from lame duck discussions.

  • No-OPEC ("NOPEC") After OPEC countries decided to cut world oil production in October by 2 million barrels-per-day despite 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. Proponents subsequently called for enacting a measure during the lame duck session. Since that time, however, gas prices as the pump have continued to decline and OPEC has not taken further provocative actions (though they did decide in December to stick with the production cut). There is no reporting that indicates a measure will be included in the Omnibus.


Key 2022 Legislative Accomplishments

FY 2023 Defense Authorization


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


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.


Marriage Rights


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 given explicit religious liberty protections, enough to overcome any filibuster that would have prevented even consideration of the proposal in the Senate. The Senate subsequently passed the compromise measure by a vote of 61-36 (November 29), and the House passed it by a vote of 258-169 (December 8). President Biden signed the measure into law on December 13.


Gun Safety & Control


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.


Budget Reconciliation


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.


Semiconductor Manufacturing


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.


Veterans/Toxic Burn Pit Benefits


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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