With the midterm elections now behind us, the U.S. House of Representatives and the U.S. Senate return to Washington this week to kick off the lame duck session, entering the twilight of the legislative year with a list of must-pass items to be addressed before the conclusion of the 117th Congress.
At the top of the to-do list is funding the government before the current continuing resolution (CR) expires on December 16 and passing the National Defense Authorization Act (NDAA), but there are many other issues that are likely to be taken up in what promises to be one of the busiest and most active lame duck sessions in recent memory. In addition to its legislative priorities, the Senate will continue to process federal judicial nominations and agency appointments that need Senate confirmation. The following is what is likely to be on the agenda for the post-election work period.
At least 20 federal judicial nominations are pending on the Senate's executive calendar, while additional judicial nominations are awaiting action by the Judiciary Committee. The first vote upon the Senate's return on November 14 will be to invoke cloture on a district court judge. Confirmation of as many of President Biden's judicial nominations as possible will be the top priority of Senate Democrats for the remainder of the year. Which executive nominations will be prioritized beyond those are contingent upon attendance and timing. Since the Senate will remain in Democratic hands in the 118th Congress, we expect the upper chamber to continue processing nominations, but not with the urgency we would have seen if the chamber had flipped to Republican control.
House and Senate leaders have been "preconferencing" the NDAA and working out their differences prior to the start of the lame duck session. Thus we expect it to pass after Thanksgiving and before Congress turns to government funding. We are not currently tracking any "poison pills" and expect the final deal to be a bipartisan product, with the more extreme elements from both parties voting against the bill. Likely to "hitch a ride" on this year's NDAA are reauthorizations for the Coast Guard, intelligence agencies, and the Water Resources and Development Act (WRDA).
It is unlikely that we will see a government shutdown, and instead we expect Congress to adopt an omnibus, a CR, or a combination of the two ("cromnibus"). With Republicans more likely than not taking control of the House in January, expect House Republican leadership to express their desire to draft a funding bill in 2023 with their new majority. While political posturing may occur, ultimately a topline agreement is likely to come out of the Senate. House Republicans will likely oppose the deal, leaving Democrats in the House to carry the bill on their own.
Respect for Marriage Act
The House version of the bill, which would provide statutory authority for same-sex and interracial marriages, passed by 267 to 157 in July, with the support of 47 House Republicans. It likely has the 10 Senate Republican votes needed to be sent to the president's desk. While this will likely be a standalone vote, there is a chance it will be added to the NDAA or the appropriations bill.
Electoral Count Act
The bipartisan Electoral Count Reform and Presidential Transition Improvement Act was approved by the Senate Rules Committee 14-1 in October and now counts 15 Republicans as cosponsors, including Minority Leader McConnell and Minority Whip Thune. Majority Leader Schumer, also a cosponsor, has indicated a vote will be held before the end of the year. Republican support in the House for reforming the Electoral Count Act is minimal, so expect a vote count much like what we saw in September when the House passed a similar bill with only 9 Republicans supporting that effort. However, even modest House Republican support would be more than enough for the Senate bill to become law.
Below is a list of healthcare-related provisions that could be addressed before the end of the year. The passage of a clean FDA User Fee Reauthorization Act in September, which included the reauthorization of the Prescription Drug User Fee Act (PDUFA), orphaned a number of these items. While these provisions are likely to garner bipartisan support, individually and collectively they incur a sizeable cost, suggesting that some may be left out or smaller when passed.
- Waive the 4 percent Medicare "PAYGO" sequestration cuts, scheduled to go into effect on January 1, 2023.
- Prevent Medicare physician fee schedule cuts, scheduled to go into effect on January 1, 2023.
- Block Medicare home health cuts, scheduled to go into effect on January 1, 2023.
- Extend the 5 percent incentive performance bonus for Medicare providers participating in Advanced Alternative Payment Models, scheduled to sunset at the end of 2022.
- Renew Medicare rural hospital payment programs.
- Postpone Medicare laboratory payment cuts.
- Extend increased Medicare reimbursement rates for COVID inpatient stays.
- Extend the Medicare hospital-at-home program.
- Extend telehealth flexibilities and waivers that allow for Medicare reimbursement. Under current law, a subset of telehealth-related policies will be extended only for 151 days past the end of the federally declared Public Health Emergency. A bill to extend these policies through December 31, 2024 passed the House in July.
- Authorize FDA regulations for in-vitro diagnostics and lab-developed tests (VALID Act).
- Enact accelerated FDA approval program changes.
- Authorize new FDA regulatory authorities related to cosmetics and dietary supplements.
Other Items Being Discussed
China Competition Leftovers
While the biggest components of the China competition conference (United States Innovation and Competition Act (USICA) in the Senate; America COMPETES Act in the House) were included with enactment of the CHIPS and Science Act, numerous items were left out, and technically the chambers are still in conference. The trade and sanctions pieces, for example, are still pending. However, we have heard that a deal is not imminent.
Expired and Expiring Temporary Tax Provisions (Including "Tax Extenders")
There are several tax provisions that expired at the end of 2021 that were not included in the Consolidated Appropriations Act, 2021 or, in the case of energy-related provisions, the Inflation Reduction Act (IRA). Many of these provisions are temporary provisions that are extended for a couple years at a time and have been extended on multiple occasions (e.g., the IRC Sec. 45A Indian employment credit has been extended 11 times since its enactment in 1993). Of particular note are provisions related to the 2017 Tax Cuts and Jobs Act (TCJA), whose changes affecting the amortization of Research and Experimental Expenditures (IRC Sec. 174) and limitations on business interest expense (IRC Sec. 163(j)) took effect on January 1, 2022. The conversation surrounding a tax policy agreement is all downstream from getting an overall deal during the lame duck session to which anything can be attached. A CR may not be robust enough to carry a tax title, which would also have to address or elide demands among House Democrats to include relief for working families (e.g., enhanced child tax credit). In that case, the tax conversation would be punted to the next Congress.
Action in either chamber on broader antitrust reforms, such as Sens. Klobuchar and Grassley's American Innovation and Choice Online Act or its House counterpart, remains unlikely this year, given the limited calendar, lack of interest from leadership, and unclear whip count. However, the three-bill package passed by the House in September—or at least pieces of it—are likely in play to ride on other end-of-year vehicles. That package included versions of the Merger Filing Fee Modernization Act, the Foreign Merger Subsidy Disclosure Act, and the State Antitrust Enforcement Venue Act. Versions of the filing fee and venue provisions have previously passed the Senate this Congress, and the Department of Justice (DOJ) is said to be pushing hard for the merger filing fee provision before the end of the year.
Consumer Financial Protection Bureau (CFPB) Funding Mechanism
The recent decision by the United States Court of Appeals for the Fifth Circuit finding the funding mechanism for the CFPB to be unconstitutional will be a call to action for Democrats in the lame duck session. However, Republicans are unlikely to move any bills reforming the CFPB until the process has worked its way further through the courts and the Republicans have official control of Congress. Despite calls for its abolition, we believe we would be just as likely to see bills putting the agency under the control of a commission and subjecting it to the appropriations process. In the meantime, agency operations will continue, and the payday lending rule is on hold in the Fifth Circuit. You can learn more from our colleagues here, including a full background on the issue and what else the future may hold for the agency.
In December 2021, Congress passed and President Biden signed legislation to raise the nation's debt limit by $2.5 trillion to approximately $31.4 trillion. Current projections expect that limit to be reached in the first half of 2023, but, through the use of "extraordinary measures," Congress likely would not have to act to further raise the debt limit until late summer or early fall of 2023. However, with House Republicans—including Leader McCarthy—threatening to use the debt limit as leverage to extract spending cuts and/or reforms to entitlement programs from Democrats, there is some indication that Democrats are at least considering using their congressional majorities to raise the debt limit again before the end of the year. Democrats can do so unilaterally by using the budget reconciliation process, which likely would require the unanimous support of Senate Democrats and near-unanimous support from House Democrats. We expect to hear about this possibility in the days and weeks following the election.
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