As we move past Labor Day, little time is left before both chambers leave again for the November elections. The House of Representatives is slated to be in town for only 11 days in September before breaking, and though the Senate is currently slated for a four-week work period and then an additional two-week work period, we expect weeks to be given back so senators can campaign.
Expect little legislative action beyond passage of a continuing resolution (CR) to keep the government funded until after the election, although Senate consideration of the National Defense Authorization Act (NDAA) and/or the House-passed Respect for Marriage Act (H.R. 8404) is also possible. Otherwise, Leader Schumer is expected to use the September-October work period to confirm pending nominations (there are currently 18 judicial nominees awaiting floor votes).
The House will wait another week before returning on Tuesday, September 13, and is currently scheduled to be in session only 11 days before the midterms. Passage of a CR and votes on a handful of messaging bills are likely the only things the House will take up before wrapping up on September 30.
Speaking of the CR, we should see action the week of September 12 to fund the government through December 16, leaving the Senate a couple of weeks to act. Neither party is eager for big fights or compromises before the midterms, so action on legislation—other than the CR—is likely to slip to the lame-duck session after the midterms. On Friday, the White House sent Congress a request to include an additional $47 billion in the CR for various priorities, including Ukraine, COVID, monkeypox, and energy subsidies. It is unclear whether any of those provisions can be included in the CR, but they will certainly be part of the broader legislative discussion this fall.
House Republicans will continue to push their message on the economy through the midterms, and we expect Leader McCarthy to roll out his vision for a potential 2023 Republican majority, including a preview of what would be House Republicans' top 10 (H.R. 1-10) bills in the new Congress and the first 100 days in 2023 if they win the majority.
As part of the agreement Senator Manchin reached with Leader Schumer on the Inflation Reduction Act, they intend to attach to the CR a package of permitting reforms for certain energy projects. However, concerns of progressive Democrats in the House and Republicans in both chambers make it more likely that any action on permitting reform will slip to after the midterms.
What could be on a lame-duck agenda?
This is all predicated on the outcome of the November elections, and while the GOP is still favored to win the House of Representatives, many political pundits have downgraded how many seats they might win. The Senate is a pure toss-up. With that in mind, the following are some potential issues still on the table that could be considered in a lame-duck session.
Fiscal Year 2023 Appropriations – Passage of an omnibus appropriations bill in the lame-duck session is likely, regardless of the midterm results. The parties still need to reach an agreement on overall spending levels, but the retirements of Senate Appropriations Committee Chairman Leahy and Vice Chairman Shelby could help provide some goodwill to reach such an agreement. If Republicans take the House, the incoming majority may not have complete party unity and therefore may need to rely on some Democratic votes to fund the government. House Republicans may be incentivized to "clear the decks" before the end of the year, by not only cooperating with Democrats to fund the government, but also extending specific expiring provisions for a set period.
NDAA – The House passed its version of the FY23 National Defense Authorization Act (H.R. 7900) in July, and the Senate Armed Services Committee approved the Senate version (S. 4543) in June. Whether Leader Schumer will bring the Senate bill to the floor remains unclear, but either way, a House-Senate conference report will be considered by both chambers after the midterms.
Kigali Treaty – Sometime before the end of the 117th Congress, the Senate is expected to vote on the ratification of a treaty to gradually reduce the consumption and production of hydrofluorocarbons. It was approved by voice vote in the Senate Foreign Relations Committee in May and will likely have the votes for passage in the full Senate.
Data Privacy Legislation – In July, the House Energy and Commerce Committee voted 53-2 to pass H.R. 8152, the American Data Privacy and Protection Act (ADPPA). However, concerns of the state of California and many in the California congressional delegation, including Speaker Pelosi, have made the prospects for a vote in the full House uncertain at best. And even if the House were to move forward, Senate Commerce Committee Chair Cantwell and Leader Schumer have raised concerns with the House bill. There still could be an effort in the lame-duck session to reach an agreement on comprehensive data privacy legislation or turn to something narrower, such as S. 3663, the Kids Online Safety Act (KOSA), which was unanimously approved by the Senate Commerce Committee in July.
Nominations – The Senate will continue its confirmation of executive and judicial nominations regardless of the midterm results, but, should Republicans win the Senate majority, Democrats should be expected to push especially hard to confirm as many nominees as possible in November and December, perhaps even expanding the number of days they plan to be in session during that time.
Tax Extenders – Congress will be working on a package to extend certain taxes through 2022. A long list of provisions has expired over 2021 and 2022, leaving numerous opportunities on the table for Congress to throw everything into a year-end extender package, but the scope of any possible package will be dependent on the outcome of the election.