What to expect as Congress returns for ‘lame duck’ session: Same-sex marriage, Ukraine aid and much more

WASHINGTON – Lawmakers return to the Capitol this week with a busy agenda for the “lame duck” period before a new Congress begins in January, but the priorities of Democratic leaders depend largely on which party will control the House and Senate next year – something that remained unclear for the House Saturday as vote counting continues in several key races.

The uncertainty promises to inject an extra dose of chaos into what already was shaping up to be a hectic lame duck session.

Democratic Sen. Catherine Cortez Masto, a Gonzaga Law School alumna, won re-election Saturday in a Nevada race that had hung in the balance for days. Control of the upper chamber otherwise would have come down to a Dec. 6 runoff election in Georgia. If Democrats hadn’t clinched the Senate, they would have been likely to prioritize confirming as many of President Joe Biden’s judicial nominees as possible in the lame duck, anticipating Senate GOP Leader Mitch McConnell of Kentucky would block their confirmation, just as he did during the Obama administration.

Other priorities include must-pass bills to fund the government and authorize military programs, plus legislation to codify a right to same-sex marriage, clarify how Congress certifies Electoral College votes and more.

Despite a strong midterm showing from moderates, a narrow majority for either party in the House could empower more radical lawmakers, making the prospect of bipartisan legislation in the next two years less likely. With the GOP inching toward an unexpectedly slim majority in the lower chamber, Democrats and moderate Republicans may try to raise the federal debt ceiling before year’s end to avert a potential default that could deal another blow to an already shaky economy.

Both parties are also expected to hold internal votes to elect their leaders in both chambers. Most drama surrounds whether House Speaker Nancy Pelosi of California, who signaled before the election she intended to step down, will choose to remain the top House Democrat after a better-than-expected showing by Democrats in the midterms. Meanwhile, House Republicans are expected to re-elect Rep. Kevin McCarthy as their leader, but a narrow GOP majority could make for major headaches for the fellow California lawmaker.

Here’s what to expect when Congress returns from its six-week break for the midterm elections.

Paying the bills

One of the most basic responsibilities Congress has is to pass annual appropriations bills to fund the federal government, but in recent years lawmakers often have failed to strike a full-year deal before the fiscal year ends, instead passing stopgap spending bills to avert a government shutdown. That’s what happened in September, when Democrats and Republicans passed a short-term spending bill to keep funding at current levels through Dec. 16.

Lawmakers could pass another stopgap spending bill to kick the can down the road, but all signs point to the Democrats who lead both the House and Senate doing their best to pass an omnibus spending bill before Christmas. That must-pass legislation would then serve as a vehicle for other measures likely to be tacked on, including aid for victims of recent hurricanes and more money to support Ukraine in its fight against Russia.

Updating the Pentagon budget

The other must-pass bill is the National Defense Authorization Act, legislation to set the budget and policy for the Department of Defense. Congress has passed the NDAA annually without fail for more than 60 years, making it another popular vehicle for unrelated legislation to hitch a ride to passage.

White House press secretary Karine Jean-Pierre told reporters Thursday the Biden administration hopes Congress will use the defense bill to pass legislation championed by Sen. Joe Manchin, D-W.Va., to streamline the federal permitting process for energy projects, reform that would speed the approval of both low-carbon energy and fossil fuels. Manchin’s legislation faces opposition both from progressives and from Republicans who have their own permitting reform proposal, making its fate unclear.

Confirming judges and other Biden nominees

Senate Democrats have used much of their two years in the majority to confirm Biden’s nominees for federal judgeships and key roles in his administration, an important if relatively low-profile theater in the battle for political power across the country. When Republicans took control of the Senate under then-President Barack Obama in 2014, they blocked the confirmation of federal judges until former President Donald Trump took office two years later. That allowed the GOP to fill a record number of judicial vacancies under Trump, and Democrats have made confirming judges a priority under Biden.

With the Senate majority win from Nevada, Democrats will likely focus on other priorities during the lame duck. If Republican Adam Laxalt had ousted Cortez Masto and Senate control remained up in the air until the Dec. 6 runoff in Georgia, Democrats were expected to confirm as many Biden nominees as possible before the end of the year, forgoing some legislative priorities.

Codifying same-sex marriage rights

While a narrow majority of Supreme Court justices in 2015 decided the Constitution guarantees a right to same-sex marriage, the court’s conservative supermajority in June reversed a nearly 50-year precedent that relied on a similar legal theory to overturn a federal right to abortion. That prompted the House to hold a vote in July to codify a right to same-sex marriage – along with interracial marriage, which also isn’t explicitly protected by the Constitution.

Forty-seven Republicans, including Rep. Dan Newhouse of Sunnyside, Washington, voted for the Respect for Marriage Act in the House, while Rep. Cathy McMorris Rodgers of Spokane and most House GOP lawmakers opposed the bill. The Senate is expected to vote on a similar bill, with added provisions aimed at protecting religious liberty, during the lame duck, with several GOP senators having declared their support, along with the entire Democratic caucus.

Preventing another Jan. 6

There is bipartisan appetite for reforming the Electoral Count Act, an 1887 law whose ambiguity let Trump’s acolytes in Congress try to block the certification of Electoral College votes on Jan. 6, 2021, before – and after – other Trump supporters stormed the Capitol.

The House passed a bill in September that would raise the bar for objecting to election results and clarify that the vice president’s role in the certification is strictly ceremonial. Only a few House Republicans supported that bill, and the Senate is aiming to pass its own version with broader bipartisan support.

Cracking down on insider stock trading

Members of Congress already are banned from using inside knowledge from their roles at the Capitol to inform investments in the stock market, but dozens of lawmakers have violated the existing rules critics say don’t go far enough. That has driven a bipartisan push to pass a stricter insider trading law that applies to politicians and their families.

Despite support from across the political spectrum – from Rep. Pramila Jayapal of Seattle, a progressive Democrat, to Rep. Matt Rosendale and Sen. Steve Daines, both Montana Republicans – leaders in both parties have raised objections to the multiple insider trading bills introduced in Congress. Proponents of new rules are expected to make a strong push to pass legislation before the end of the year, because GOP leaders are seen as more resistant than Democrats, but action on this front is far from certain.

Reforming a broken immigration system

Congress has tried and failed for decades to pass a comprehensive bill to fix the nation’s immigration system, which hasn’t been overhauled since 1986 and which members of both parties agree is broken. Despite a longstanding consensus that any bipartisan reform would include strengthening border security while creating legal pathways for immigrants, hardliners have pulled both parties away from a compromise.

Bipartisan immigration reform bills have been introduced in both the House and Senate, and the House has twice passed a narrower bill backed by dozens of Republicans and nearly all Democrats that would revamp a work visa program the nation’s farmers and ranchers rely on. Advocates of the farm workforce bill, including Newhouse and Rep. Mike Simpson, an Idaho Republican, have been making another push for action in the Senate before year’s end, but all signs point to immigration reform getting put off again.