• Lame Duck Session
  • November 8, 2010 | Author: Michael L. Pate
  • Law Firm: Bracewell & Giuliani LLP - Washington Office
  • Congress will reconvene November 15-19, take a one week break for Thanksgiving, and then reconvene on November 29. The final date of adjournment will depend on how ambitious the agenda Majority Leader Harry Reid and Speaker Nancy Pelosi attempt to accomplish, and how amenable the Republicans are to passing any of the legislation. We have heard that the Senate would like to end the lame duck session by December 3.

    In addition to legislative work considered during the lame duck session, Congress will also organize itself for the 112th Congress. Leadership votes will occur during the week of November 15.

    Legislation Scheduled for the Lame Duck Session

    Recent reports have indicated that Democratic leaders will consider as many as twenty pieces of legislation during the lame duck session. The most notable issue that Congress will address is the extension of the Bush 2001 and 2003 tax cuts, which are set to expire at the end of 2010. Republicans will be pushing for a permanent extension of the tax cuts for all Americans, while the Democrats favor an extension of tax cuts for people making less than $250,000. An alternative that might be considered is a one- or two-year extension of the tax cuts, which would be followed in the first session of the 112th by a strong push by Republicans for a permanent extension.

    Another piece of legislation which has been touted as a priority by Democrats is the Defense Authorization Bill. This year, it also includes a repeal of the Military's "don't ask, don't tell" policy, making it the target of a Republican filibuster. The bill failed to pass a procedural hurdle before the Senate recessed for the elections, and will likely face continued opposition from Republicans during the lame duck.

    Legislation to extend unemployment insurance benefits and freeze scheduled cuts to doctors’ Medicare reimbursements are key priorities in the Democrats' agenda. These are viewed as "must pass" by many, because on November 30 thousands of laid-off workers will begin to lose unemployment benefits and on December 1, doctors are scheduled to see a 23 percent cut in Medicare reimbursements.

    Senate Majority Whip Dick Durbin (D-IL) has promised to push for consideration of the DREAM Act during lame duck. This bill would give children of illegal immigrants a chance to earn citizenship.

    Speaker Pelosi has made passing a child nutrition bill a priority. This legislation has already passed the Senate by unanimous consent, and is a popular issue for liberals in the House. Barring internal disputes among the Democrats following the election, it has a very good chance of being sent to the President. Another food related bill which may be taken up and is a top priority of Sen. Tom Harkins (D-IA) deals with food safety. This bill was pulled from the floor in September due to procedural hurdles which were slowing its progress.

    The White House will also want the Senate to ratify the START arms-control treaty. It takes a 2/3 vote of the Senate to ratify a treaty. Senator Lugar (R-IN), the ranking member of the Senate Foreign Relations Committee, said last week he expected some members of his party “will argue that the lame-duck session is not a good time” to review and vote on New START.  The White House is also trying to work with Senator Kyl (R-AZ) to get the necessary votes for START.

    Energy Committee Chair Jeff Bingaman (D-NM) and Sen. John Rockefeller (D-WV) are aggressively lobbying Majority Leader Reid to take up a pair of energy bills. Bingaman is pushing for legislation to set a renewable electricity standard, and Rockefeller is hoping for a vote on a bill to prevent the EPA from curbing carbon gas emissions for two years. Given the decreased focus on environmental issues in the election, it appears these issues will be pushed off into the next Congress. 

    Some of the most important legislation being addressed during the lame duck session is a backlog of spending bills. In fact, this is the first time in Congressional history that Congress recessed without finishing a budget, and without passing a single spending bill.

    One of the more controversial bills is the highway funding legislation, which would continue funneling hundreds of millions of dollars into infrastructure projects. Many Republicans are skeptical of this legislation, and particularly with large Republican gains, it is unlikely that a full highway funding bill will be passed. It is much more realistic to expect an extension of SAFETEA-LU beyond its present end-of-December expiration date. Most, if not all, spending bills will probably end up being booted to the 112th Congress, with only a continuing resolution keeping the government funded.

    Possible Lame Duck Legislation

    Below is a list of the legislation which Congress may consider during the lame duck:

    Extension of Bush tax cuts

    Defense authorization

    DREAM Act

    Tax extenders package

    Renewable electricity standard

    Intelligence authorization

    START treaty

    Medicare physician payments

    Child nutrition

    Unemployment insurance benefits

    Cyber security

    Mine safety

    Food safety

    China currency

    NASA authorization

    FAA multiyear authorization

    South Korea trade pact

    AMT

    Elementary and Secondary Education Act authorization

    Spending bills (or stopgap spending measure)

    Estate and Gift Tax

    Rockefeller bill to pre-empt EPA action on carbon emissions