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On the Physical Capabilities of a Lame Duck

August 31, 2018

It has now become routine for Congress to come back to conduct further business after the elections, in what is called a “lame duck session.” (CRS history of “lame ducks” is here.)

The notable feature of post-election sessions is that, through retirements and election losses, some Members will not be in the new Congress in January, yet will get to vote in November and December. Sometimes (not always), big plans for lame ducks fizzle when those Members feel the full weight of no longer having a mandate to make important decisions for the American people.

The election will also reset the Republican/Democratic balance in both the House and Senate. The resulting dynamics are straightforward, although they can get quite complicated in practice. Majority parties want to accelerate legislative action if they lose control of the body or will have a narrower margin in January. They will want to defer legislative action if they will have a larger majority in the new Congress.

However, when certain scheduling and legislative decisions are made this September and early October, no one can know for sure what each party will gain or lose in November and by how much. The President will also play a role, although his objectives are unclear. He has talked about forcing a government shutdown, he has implied that appropriations bills might be held hostage until border wall funding is assured, or he can just force government onto a Continuing Resolution by vetoing appropriations bills.

All of this puts an interesting spotlight on the September/early October maneuverings of Senate Majority Leader McConnell (likely to retain his majority, but still must contend with filibusters) and retiring House Speaker Ryan (likely to see narrower margins in January if not outright loss of the majority and also must deal with political fallout from the fight to replace him in the new Congress). Both McConnell and Ryan want to be seen as leading a productive Congress and have encouraged Appropriations committee members to work hard to have spending bills in place by October 1.

On the other hand, Speaker Ryan wants to send his troops home to campaign as soon as possible, probably well before the House’s last scheduled day (October 12). Apart from the need for a CR, unfinished appropriations business is unlikely to be a sufficient reason to keep House Members in DC longer than necessary. In contrast, Majority Leader McConnell will want to keep Senators in DC as long as possible. But with the Senate having passed nine appropriations bills already and needing the House for completion of conferences, he will have to look to other business to extend the session once the House leaves.

The Senate’s overall strategy is to strip funding bills of policy riders and poison pills to avoid protracted negotiations and possible deadlock. For them, at least nine appropriations bills (in three mini-buses) can feasibly be completed by Congress by October 1. In contrast, the House has only 11 legislative days scheduled in September and before long will have to decide whether to accept the no-controversy Senate approach (presumably with compromises between House and Senate funding levels) or insist on their more controversial positions and go into the mid-term election with the federal government funded under a CR. As noted, the President also has the power to force CR-funded government if he wants to.

If government funding goes into the post-election session unresolved, then (truly) anything can happen in the lame duck — from major shifts in spending to the extension of CR-funded government into the new year.

Editorial note: The Analysis and Commentary section is written by Steven Grossman, Deputy Executive Director of the Alliance for a Stronger FDA.

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