Capitol Connect
CM Services HomeCapitol Connect Archives
October 2018

Whatever the election outcome, look for a wild lame-duck session of Congress…

Leaders of both parties are eyeing a contentious agenda for the lame-duck congressional session that will follow the mid-term elections, with government funding, President Trump’s proposed border wall, a raft of judicial nominees, more tax cuts and renewal of the farm bill heading the list of issues.

This column will examine what promises to be a combative session and some of the major issues to be considered.

Much will depend on the outcome of the midterm elections on Nov. 6. Should Democrats win control of the House, Republicans will push their agenda with great urgency because it will be the last time for at least two years that they will control both chambers of Congress. If they hold their majority in the House, GOP leaders will be in much less of a rush and will push many issues into January.

While they are unlikely to win control of the Senate, Democrats will still be able to limit the Republican agenda because the short lame-duck session will enable them to successfully filibuster any legislation they want to stall in hopes that a Democrat-controlled House will be able to counter the GOP majority in the Senate next year.

But, even were they to win control of the Senate in the next Congress, Democrats will not be able to block approval of 36 pending federal judicial nominations during the lame-duck session so long as Senate Republicans stay together and exercise their current 51-49 vote edge. That’s because Senate rules require only 51 votes (or 50 with Vice President Pence breaking a tie) to approve a judicial nominee rather than the 60 votes needed to block a filibuster on legislation.

Asked about the agenda for December, Senate Republican Whip John Cornyn, R-TX, said, “Nominations, more nominations.”

That battle has already begun as Democrats charged that Republican leaders violated a “truce” under which no nominations were to be considered during the current Congressional recess. Despite that, the GOP leadership held a Senate Judiciary Committee hearing on several judicial nominees, including one whose qualifications have been questioned by the American Bar Association.

Complicating things, a possible government shut-down will be hanging over lawmakers’ heads as they struggle to resolve other issues. Unlike recent years, however, it would be a partial shutdown since Congress already passed nine of the 12 appropriations bills prior to its recess. That left about 25% of the federal government operating on a continuing resolution that expires Dec. 9.

One thing is certain: The extreme polarization that has marked congressional activity for much of the past two years will only grow more intense following the midterm elections, particularly in the Senate. Both sides are still smarting over the battle to confirm Justice Brett Kavanaugh to the Supreme Court. And, the rush to confirm many more conservative judges to the lower federal courts has poured salt in those wounds.

The wall looms over everything as a possible “deal” is emerging…

Of all the legislative issues on the Republican agenda for the coming lame-duck session of Congress, an expected partisan brawl over funding President Trump’s proposed wall along the U.S.-Mexico border looms over the proceedings.

However, depending on the election outcome, a possible deal is emerging.

“There’s going to be a major fight over that and that’s going to make progress on other areas difficult,” said Rep. Tom Cole, R-OK, a member of the House Appropriations Committee.

Democrats have promised to battle any attempt to fully fund the wall while President Trump has threatened to veto any spending bill that does not include full funding. Wall funding would generally be included in the Department of Homeland Security appropriation, which is temporarily authorized through Dec. 9.

The House voted to approve $5 billion for the wall, but the Senate legislation budgets only $1.6 billion. The president wants much more: $25 billion to be exact.

Some observers believe there’s room for a deal to trade approval of what Trump wants in exchange for legislation shielding immigrants who came to the country illegally as children — known as "Dreamers" — from deportation. Conservatives fear that the president will be willing to make such a deal if Democrats win control of the House and he sees this as his last chance to get money to build the wall.

“I’d like to do a deal: Full wall funding for DACA,” said Sen. Lindsey Graham, R-SC, one of Trump’s allies on Capitol Hill.

“Personally, I would oppose that deal, but it would not surprise me to see some kind of wall, DACA deal,” said Rep. Andy Biggs, R-AZ, a member of the ultra-conservative House Freedom Caucus.

Once again, the outcome could depend on the election outcome and the strength of any Democratic gains in the House. Should they win a strong enough majority, Democratic leaders will be less likely to accept compromises in the lame-duck when they could wait until January and block funding for the wall.

Tax Reform 2.0 is on the agenda for the lame-duck…

Senate Republicans will push for passage of a three-bill, House-passed package known as Tax Reform 2.0. It would make permanent the many temporary cuts in individual tax rates that were part of the 2017 Tax Cuts and Jobs Act, the major tax bill that was enacted last December.

It would also expand retirement and education savings accounts and create tax-advantaged Universal Savings Accounts.

While Senate Democrats will be able to block making the individual tax cuts permanent, there is support for attaching a bipartisan bill earlier approved in the Senate to amend the retirement savings provisions of Tax Reform 2.0. That would remove the 70½ age limit for making contributions to traditional individual retirement accounts and would make it easier for small businesses to band together to offer 401(k) plans and to offer annuities.

Another part of the House-passed tax bills could gain some traction in the Senate. It would let new businesses deduct up to $20,000 in start-up expenses in the year they are incurred so long as they meet certain qualifications.

Battle over farm bill focuses on food stamps and subsidies…

The current farm bill expired on Oct. 1, ending many programs and putting others on hold while lawmakers seek a replacement bill or some form of extension.

At the center of the fight are provisions in the House-passed farm bill to tighten the Supplemental Nutrition Assistance Program (SNAP), popularly known as the food stamps program, by expanding work requirements for adult able-bodied recipients. At the same time, the House expanded subsidies for farmers.

The Senate isn’t ready to sign on to these changes. This has produced the current impasse over the $420 billion farm bill. Nearly 80% of that spending goes to the food stamp program.

Once again, Democrats generally oppose the changes in the House bill and want to simply extend the current law until they potentially assume control of the House in January. Republicans are pushing for a compromise plan during the lame-duck session.

Making it harder to reach an agreement, major farm bill programs such as SNAP and crop insurance for farmers continue despite the farm bill’s expiration because they are permanently authorized or already funded in appropriations bills. But, the expiration of the farm bill leaves 39 farm programs unauthorized and inactive, including the Foreign Market Development program used to promote sales of U.S. commodities overseas.

Criminal justice reform could be on Lame-duck agenda…

A compromise criminal justice reform bill could be passed in the lame-duck session, but only if it can overcome opposition from some Senate Republicans.

The pending proposal, called the First Step Act, is a House-passed bill that combines a prison reform bill with bipartisan proposals to reform mandatory minimum sentencing laws for nonviolent drug offenders. While President Trump has signaled his support for that plan, it is strongly opposed by conservative Republicans and Attorney General Jeff Sessions.

Senate Majority Leader Mitch McConnell, R-KY, says he will put the criminal justice reform legislation on the floor in the lame-duck session if it can garner 60 votes to overcome a potential filibuster.

McConnell has never been a big fan of the legislation, but he is wary that Trump supports the bill.

“We’re going to try real hard to get it done,” said Senate Judiciary Committee Chairman Chuck Grassley, R-IA.

Protecting women against violence will be debated in the lame-duck session…

With the Violence Against Women Act (VAWA) about to expire at the end of last month, Congress approved a temporary extension until Dec. 7 to avoid a potentially contentious debate just before the mid-term elections.

VAWA was passed 24 years ago with bipartisan support, and more than $7 billion in grants have since been disbursed under VAWA to programs aimed at preventing or responding to violence against women. But, the Office of Violence Against Women, a part of the Justice Department, has been criticized for irregularities, fraud and abuse by the agencies and private organizations receiving those grants.

Republicans are insisting on new controls and oversight of that office as a condition for renewing VAWA.

Also, lawmakers are also divided over an issue involving gun control. Democrats are pushing for closure of the so-called “boyfriend loophole” in the Federal Gun Control Act, a provision that exempts unmarried or childless partners convicted of domestic violence from being banned from owning a firearm.

Look for House leadership fights in both parties…

No matter who wins control of the House, you can expect leadership fights in both parties.

For Republicans, House Majority Leader Kevin McCarthy, R-CA, is favored to succeed retiring Speaker Paul Ryan, R-WI. But, he could face a tough challenge from Majority Whip Steve Scalise, R-LA, or Jim Jordan, R-OH, the leader of the conservative Freedom Caucus. Observers say that the outcome may depend on how McCarthy manages House consideration of any deal for funding the border wall, which will divide his caucus during the lame-duck session.

On the Democrat side, Minority Leader Nancy Pelosi, D-CA, expects to regain the speakership should Democrats win control of the House. But, there will be a fight.

Nearly 40 Democrat candidates for the House pledged during the campaign not to support Pelosi after their Republican opponents labeled her a symbol of super-liberal Democrat policies. And, there is also opposition among incumbent Democrats, many of whom have expressed disappointment in Pelosi’s leadership.

All of this is likely to produce a viable candidate to oppose her for the speakership when House Democrats vote during the lame-duck session.

Anticipating such a skirmish, some House Democrats last month proposed a change in their party rules, which now require a candidate to receive a majority of the Democratic Caucus in order to become the party’s nominee. That means dissidents must then unite behind the party’s nominee when the full House votes on the next speaker.

The proposed change would raise the bar, requiring the speaker candidate to win 218 votes—or a number equal to a majority of the full House—in the Democratic caucus. That would presumably free dissenters to vote for another candidate when the full House votes on the next speaker. How that would work if the Democrats have a majority of only a few votes was not explained.

That plan was set aside, however, after the dissidents who proposed it abandoned their effort until after the mid-term elections. “We’re all united moving forward,” said Rep. Tim Ryan, D-OH, who ran against Pelosi two years ago. “Let’s win, and then have the family fight after.”

The House will be less male and less white than ever before…

Looking beyond the lame-duck session of Congress that will follow the mid-term elections, it appears that the House of Representatives which takes office in January will be less male and less white than at any time in its history.

Based on the current candidates and the likely outcomes in dozens of closely contested races, it appears that if the Democrats take control of the House, the incoming Congress will have more people of color and more women than ever.

Fifty years ago, men comprised 97% of the House of Representatives. Their share has slowly decreased, with women making up 44% of the current House. People of color comprised less than four percent of the House 50 years ago and today make up 45%.

Those numbers vary dramatically when viewed by political party. Women currently represent 32.5% of Democrats in the House compared to 10.5% of the Republicans, while people of color represent 45.7% of Democrats compared to 6.7% of Republicans.