With just a few weeks left in the 114th Congress and a long list of unfinished business, lawmakers returning to the Capitol next week for the lame-duck session face two choices: Go big or just go home.
Big things can happen in lame ducks, as long-festering legislative issues sometimes find a path into law amid eased electoral pressure and the rush of lawmakers looking to get home for the holidays.
Opportunities are multiplied when the closing session happens at the end of an administration’s tenure, as it did in 1980 during the final days of Jimmy Carter’s presidency.
The Pew Research Center ranks that session as the top lame duck in terms of volume, with a total of 196 bills enacted over 23 days, including the federal Superfund law and the landmark Alaska National Interest Lands Conservation Act, which added more than 40 million acres to the federal government’s public lands roster.
In his final days, Carter also signed lame-duck legislation creating a regional planning council tasked with managing wildlife and coordinating energy policy among Idaho, Montana, Oregon and Washington.
Other major environmental laws have emerged from lame-duck sessions, as well, including the 1974 Safe Drinking Water Act and the Nuclear Waste Policy Act of 1982.
While Congress’ current to-do list includes more routine measures that frequently need to be mopped up at the end of the year, such as appropriations and expiring tax incentives, it also features big-ticket items that are likely to prompt fireworks in the coming weeks.
Those include the stalled nomination of Judge Merrick Garland to the Supreme Court, the landmark Trans-Pacific Partnership trade deal, not to mention the possibility of the first new comprehensive energy law in nearly a decade.
But Hill staff and outside experts say it’s too early to tell whether the upcoming session will be a blockbuster or a bust until it becomes clear who will control the levers of power in both the White House and Congress next January.
"We really don’t know until we see what happens with the election," Norman Ornstein, a longtime Congress-watcher and resident scholar at the American Enterprise Institute, said last week.
One key factor will be the extent of GOP losses tomorrow, Ornstein said.
"If Democrats somehow took the House and the Senate, I’d think you find Republicans would up their game, trying to have more influence over legislative outputs before they would lose a lot of their traction. Now that’s not a likely outcome, but even losing the Senate would kind of change the calculus," he said.
"Having said that, they’re not going to want to stick around for that long," Ornstein said. "Most of the Republicans don’t want to pass legislation, and so they’re going to try to do the minimum necessary."
Top aides from both parties say that discussions on multiple pending issues have continued since lawmakers decamped for the pre-election recess, but the appetite for legislating won’t be clear until they return next week.
That’s in part because of the uncertainty surrounding House Republican leadership elections, which are expected to take place soon after members are back on Capitol Hill.
The conservative House Freedom Caucus has called for delaying those elections, a move that would add pressure on Speaker Paul Ryan (R-Wis.) in lame-duck talks on multiple issues.
"All of that is going to affect the agenda," Ornstein said.
The marquee lame-duck fight will be Garland’s pending nomination to replace the deceased Antonin Scalia as associate justice on the Supreme Court.
Majority Leader Mitch McConnell (R-Ky.) has argued for months that the next president should choose the nominee and has shown no signs of retreating from that position.
But Ornstein said there may be "an interesting sort of fandango" around Garland’s nomination in the coming weeks depending on election results.
"I can imagine if [Democratic presidential nominee] Hillary Clinton wins, [her] calling in Republican senators and basically saying, ‘You can confirm Merrick Garland quickly; if you don’t, I’m going to pick my own nominee,’" he said. "And with that, there’s going to be tremendous pressure from the radical right not to do it, but it still might happen."
Arizona GOP Sen. Jeff Flake has for months said Republicans would be wise to confirm Garland if Clinton wins, given that if Democrats retake the chamber and hold the White House, a far more liberal jurist could be tapped to fill Scalia’s seat next year. Flake reiterated that view last month.
Notwithstanding McConnell’s vow to not give Garland a vote, Democrats could use long-shot parliamentary maneuvers to force the nomination to the floor. Minority Leader Harry Reid (D-Nev.) alluded to that option earlier this year, and Judiciary Chairman Chuck Grassley (R-Iowa) has also acknowledged it’s within the realm of possibility.
Ornstein said it would be "very unusual," noting that it would require Republican senators to vote against their own leader.
"And then it becomes a question of whether Flake has six or seven other colleagues who would come along with him even if McConnell doesn’t want to," he said. "And we don’t know the answer to that."
Ornstein said he was unaware of any precedent for the move, which runs counter to the longstanding tradition of comity that has governed the Senate.
"I think it only happens if you get a deal worked out," he said. "And it may be that McConnell is willing to do that deal tacitly by opposing it publicly but then letting it happen."
Republican senators in recent weeks have also suggested they’ll block any nominee put forth by a President Clinton and are content to leave the court operating with just eight justices, or fewer in the event of new vacancies.
"That’s the right position to hold," Dan Holler, spokesman and advocate for Heritage Action for America, said last week of a potential blockade. "There’s nothing sacrosanct about the number" of justices, he said.
Ornstein said McConnell may be taking the long view on the Supreme Court, sensing political advantage in keeping Scalia’s seat empty if Democrats control the Senate.
McConnell, Ornstein said, may want Democrats to limit or scrap the filibuster for high court nominees, just like they did for other judicial appointments.
"Believing that over the long run that once the Republicans took back the White House, they would then have the ability to jam through some of their own and that he could blame then the Democrats and use that as another reason for more obstruction," he said. "It’s possible that it’s as Machiavellian as that."
Even though the Supreme Court fight is likely during the lame duck, debate over spending is essential, unless lawmakers want to risk a government shutdown.
The current continuing resolution expires on Dec. 9, but top aides are already warning that short-term extensions may be necessary to allow for negotiations, likely pushing the end of the session closer to Christmas.
Ryan has signaled he’d like to combine several spending bills into "mini-buses," although House Minority Leader Nancy Pelosi (D-Calif.) has expressed reservations about the plan.
Kevin Book, managing director of ClearView Energy Partners LLC, predicts "some brinkmanship" on appropriations but said election results may temper the GOP’s appetite for confrontation.
"If it’s after the fact that Republicans have taken a beating, don’t expect them to care that much," he said last week. "They’re not probably going to be excited about fighting till the brink of Christmas if some of them are going home without their jobs."
Ornstein expects a push by some conservatives to punt appropriations into the new Congress, where the March 15 expiration of the debt limit suspension would give them a "weapon" in negotiations if Clinton wins.
One wild card in the spending debate will be the possibility of a new supplemental request from the White House, which Bloomberg last week reported may seek an additional $6 billion for overseas military activities.
Additionally, Florida lawmakers last week urged the president to quickly submit a request for more funds for flood recovery if the administration deems it necessary.
North Carolina Gov. Pat McCrory (R) last week also signaled that the state’s delegation is preparing its own request for aid to help the state recover from flooding associated with Hurricane Matthew’s landfall in October.
Louisiana’s delegation has already made clear that it will push for more funds to help recover from that state’s devastating flooding. Texas and West Virginia lawmakers are expected to seek similar aid.
Plus, Democrats have eyed a supplemental to help the residents of Flint., Mich., cope with the city’s lead-contaminated water supply.
Paul Winfree, director of the Thomas A. Roe Institute for Economic Policy Studies at the Heritage Foundation, told reporters last week that a supplemental could end up totaling between $10 billion and $20 billion.
"People will be made whole for whatever reason," he said during a briefing about the lame duck, adding that a supplemental could move separately from and grease the skids for an omnibus spending package.
Also on the lame-duck agenda is bipartisan efforts to reconcile the House and Senate’s competing energy bills, which, if fruitful, would result in enactment of the first major energy bill since 2007.
Senate conferees last month sent the House a compromise proposal, and discussions are expected to step up once members return next week (E&ENews PM, Oct. 27).
ClearView’s Book assigned 60 percent odds that the conference would agree to a final product that closely resembles the Senate’s S. 2012 rather than the House’s H.R. 8 — under a best-case scenario in which Clinton wins the White House, Democrats retake the Senate with a slim majority and the House stays in Republican hands, although with a smaller majority.
"Anything that isn’t in both bills probably can’t make it, and S. 2012 has the largest consensus subset," he said. Some issues will be jettisoned, "but you can see a way to consensus with S. 2012 as a starting point a lot better than the House bill."
Democrats, however, could also decide to sit on the energy bill to hand an early bipartisan victory to a President Clinton in the next Congress, Book said.
"It’s ammo for the next Congress that they would be spending prematurely and giving credit to the last Congress," he said. Still, Book thinks it’s more likely lawmakers will finish the energy bill before the end of the year.
"Republicans have a lot of incentive to try to get a deal done before they leave if they can, just out of concern that there wouldn’t be a deal," he said.
Conservative critics of the Senate bill have expressed a decidedly pessimistic view of the conference process in recent days.
"It would be pretty remarkable to see something come out on that," said Heritage Action’s Holler.
The fate of several expired or expiring energy tax breaks is less clear. McConnell in September said he would "take a look" at the issue in the lame duck, including a fix sought by Democrats to extend the investment tax credit for qualifying sources that were left out of last year’s broad bipartisan deal (E&ENews PM, Sept. 29).
That agreement extended the production tax credit for wind and the ITC for solar for five years, with phaseouts, but left out a handful of other ITC sources because of what Democrats say was an honest error.
Book said the fact that the two biggest renewable sources, wind and solar, aren’t in danger of expiring reduces the political urgency of the issue this year. Further compounding matters is the fact that neither of the tax-writing panels have put forth an extenders package.
"It doesn’t make it impossible, but usually by September or October, there’s a template to work from in one of the tax-writing committees, and that’s why we think there’s room for a lapse," he said.
With both Ryan and McConnell signaling that a lame-duck vote for the TPP trade deal — opposed by Clinton and GOP nominee Donald Trump — isn’t in the cards, the Obama administration continues to push for congressional approval before the end of the year.
Despite anti-trade deal sentiment in both parties, Book said it was still possible Obama could notch a win on TPP in the final days of his presidency.
"The Republicans on their way out might be willing to support TPP more than they otherwise would if they were going to maintain power, but it’s by no means guaranteed," he said.
Reporter Manuel Quiñones contributed.