Lame Duck Legislation – What to Expect of a Post-Midterm Congress

Whatever the outcome, the midterms in November decides who holds the reins of power from 2023 through 2024. While its fate is sealed, however, the lawmaking power of the 117th Congress will live on a bit longer. Generally speaking, there are three possible outcomes of this election cycle – but win, lose, or draw, the Democrat trifecta in the Swamp has few more months to pull the levers of power. So, what sort of lame duck legislation might we expect from a post-election Congress, and what lies ahead for the 118th?

This Can Go One of Three Ways

Three major outcomes could result from the vote in November. First – the one most seem to expect – the GOP could take either the House or Senate. With control of one or the other, the legislative agenda of President Joe Biden will likely grind to a halt come January. Should the Senate fall, it would mark an end to the confirmation of Biden’s picks. If republicans take the House, impeachment is almost certainly on the docket.

Should the GOP take the full Congress, all the above would likely occur – not to mention a conviction in the first impeachment should they take enough of the Senate. In the unlikely event that Republicans gain a super majority in both chambers, however, it would mean the ability to turn their bills into laws despite presidential vetoes.

The final possibility is that Democrats either maintain their slim majorities in both chambers or even strengthen them. In that case, expect the next couple of years to go much like the last two. Every senator in the majority beyond 50, however, weakens the filibuster. Should Democrats manage to hold what they have and take another ten – or even close to it – while still holding even a tenuous grip on the House, expect to see the trifecta in action, as considerably more of the president’s legislative dreams will become reality.

Lame Duck Legislation – Nothing Lame About It

Regardless of who occupies what seat come January, however, it’s the current Congress we will have to deal with for the rest of the year. And don’t let the limited time for lame duck legislation fool you. According to the Pew Research Center, the 116th Congress had the busiest post-election session since at least 1973, the first year analyzed. 151 of 344, or 44%, of the bills were passed in the final two months, and that’s with a stronger Democratic majority in the House that we have today and a slight Republican majority – certainly not filibuster-proof – in the Senate. About two-thirds (68%) were “substantive” – meaning they changed written law, spent money, or established policy. The other 32% were ceremonial laws – renaming post offices, authorizing commemorative coins, and the like.

Going back through time, it was a lame duck session of the House that impeached Bill Clinton in 1998. After the Watergate scandal, the 1974 post-election Congress met from November 18 to December 20 and passed 138 bills into law, including the Safe Drinking Water Act and a federal Privacy Act, as well as the nullification of a prior agreement to allow Richard Nixon to retain ownership of his presidential tapes and papers and the confirmation of Nelson Rockefeller as Gerald Ford’s vice president. And it was a lame duck Senate – in a special session called specifically for that purpose – that censured Joseph McCarthy in 1954.

What Lies Ahead?

So, what sort of lame duck legislation might we expect from the 117th? It may be wise to compare President Biden’s agenda to what the Democrats actually accomplished. He promised major gun control, including a new federal assault weapons ban. What was delivered, however, was considerably weaker. The Bipartisan Safer Communities Act addressed many of the individual items on the progressive wish list, from stronger background checks to funding red-flag laws, but it fell just short of actually fulfilling any of them. Democrats struggled for nearly 18 months to pass the Build Back Better Act, which was to be Biden’s economic magnum opus. The Inflation Reduction Act that finally made it through the Senate, while in no way insignificant in its own right, is a mere shadow of the initial demands.

With the votes all cast and nothing left to lose, congressional Democrats might take yet another crack at these measures. Then there’s always the so-called voting rights and equality acts they failed to push through the tied Senate. With Republicans apparently more willing to reach across the aisle lately – and with the normally recalcitrant Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) now toeing the party line – any one of these issues could be on the docket. And if Democrats either maintain or strengthen their holds over both chambers, they’ll have two years, not two months, to push for all of that and more.

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