Lingering rancor over immigration remains the primary hurdle for wrapping up the 115th Congress, keeping in limbo the fate of spending for EPA and the Interior Department, the expired Land and Water Conservation Fund (LWCF), and key energy tax breaks.
Both chambers are scheduled to be in session today for the first time since Election Day, which handed House Democrats one lever of power to fight back against President Trump’s administration.
In the Senate, which will cast a procedural vote on a Coast Guard reauthorization bill tonight, Republicans will maintain a slim majority next year, with the final ratio hinging on the outcome of vote counting in Florida.
Yesterday, the contested Arizona race was called for Democrat Kyrsten Sinema after days of uncertainty.
Majority Leader Mitch McConnell (R-Ky.) said last week he wants to clear the decks of fiscal 2019 appropriations and the farm bill before Democrats take the reins of the House in January.
Speaking the day after the election, veteran Bracewell LLP lobbyist Scott Segal said he expected the lame duck would probably be "a fairly brief affair."
Lawmakers face a Dec. 7 deadline to prevent a partial government shutdown that Trump has publicly mused remains an option under consideration to secure billions of dollars more in border security funding.
Seven of the 12 annual spending bills remain to be resolved, including funding for EPA and Interior. That measure stalled before the election, despite efforts by Sens. Lisa Murkowski (R-Alaska) and Tom Udall (D-N.M.), to enact the spending that falls under their Interior-Environment Appropriations Subcommittee.
"It’s going to be mixed up with this whole fight for the wall," Udall said of EPA and Interior funding last month, calling the deferred fight over Trump’s border wall an "unfortunate" obstacle.
Appropriators are working on a supplemental spending package of roughly $700 million to address wildfires and other disaster needs, CQ reported.
GOP leaders put off debate on the Department of Homeland Security measure until after the elections, postponing a standoff with the White House regarding billions of dollars for border security.
The standoff will unfold in a political environment still reeling from last week’s elections, in which Trump fanned immigration fears to turn out his supporters.
Speaking before the election, Sen. John Thune (R-S.D.) downplayed the prospects of a shutdown but acknowledged there could be a "big" fight given Democrats’ leverage in the Senate.
"The question is is there enough Democrats to get us to 60 post-election, and we’ll see about that," Thune said.
Another wrinkle could be Trump’s firing of Attorney General Jeff Sessions the day after the election.
Democrats want acting Attorney General Matthew Whitaker to recuse himself from overseeing special counsel Robert Mueller’s investigation into Russian election interference, citing personal connections to a witness and past statements that Mueller’s search should be limited.
Senate Minority Leader Chuck Schumer (D-N.Y.) on Friday questioned the legality of the move, given that Whitaker does not hold a Senate-confirmed position, and Sen. Jeff Flake (R-Ariz.) has signaled he will work to pass a bipartisan bill that would protect Mueller’s investigation. Republican leaders have resisted the idea, calling it unnecessary and certain to draw a veto.
Other Cabinet officials may also jump ship, including Interior Secretary Ryan Zinke, who has been in the spotlight for ethics scandals and will be a target for House Democratic oversight. Zinke, however, got a boost Friday when Trump said he would not ask him to resign.
Farm bill
Congress will return to the 2018 farm bill, which has been stalled in House-Senate negotiations. Top lawmakers on the Agriculture committees say they intend to pass a final bill before year’s end, and stakeholder groups say they believe the odds favor that goal.
The bill authorizes farm and rural development programs for five years, and the 2014 version expired at the end of September.
It’s likely, lobbyists following the bill said, that House Republicans will back away from their bill’s call for tougher employment-related requirements in the Supplemental Nutrition Assistance Program.
That would draw negotiations closer to the Senate’s version of the bill, which Agriculture Chairman Pat Roberts (R-Kan.) has said tightens enforcement of already-existing employment mandates in a more bipartisan fashion.
Roberts has been negotiating with House Agriculture Chairman Mike Conaway (R-Texas), as well as the House committee’s ranking member, Collin Peterson (D-Minn.), and Senate ranking member Debbie Stabenow (D-Mich.), who won re-election last week.
The Senate version is also favored by conservation groups and environmental organizations. That bill would preserve the Conservation Stewardship Program, which the House proposes to eliminate. It turns away some of the House’s more ambitious efforts to thin forests through exceptions to the National Environmental Policy Act.
The National Sustainable Agriculture Coalition, the Environmental Working Group and other organizations believe the Senate version — or something close to it — is the only one that can pass both chambers.
With Democrats poised to take the majority in the House in January, House Republicans may calculate that they’ll be in no better position to press for some of the provisions in the version already passed by the House, lobbyists said. And Peterson, the presumptive incoming chairman of the House Agriculture Committee, hasn’t shown any enthusiasm to re-craft a farm bill next year.
LWCF, taxes
Another key piece of unfinished business includes extending the LWCF, which would be permanently done under a bipartisan Senate bill.
However, the Senate version faces steep opposition due to the inclusion of mandatory spending, which is not in the House version, which was also a bipartisan measure.
Whether or not LWCF and a bicameral push to direct billions of dollars to the national parks maintenance backlog can be sorted out before Congress adjourns is unclear.
Murkowski said earlier this month she would also like to move energy provisions, a public lands package and pending nominations through the chamber before the end of the year if possible (see related story).
Speaking at an event at Stanford before the election, Murkowski said she feared substantive policy could fall by the wayside in the lame duck if Republicans attempt to wrap up the Congress on their own terms while they still control the House.
"If that’s the case, I would fully anticipate that our Democratic colleagues would want to thwart as much of that as they possibly can," she said at the time. "So there you have it, there’s Congress in a nutshell."
Also waiting in the wings is an assortment of expired energy tax incentives, including for biofuels, alternative vehicles and energy efficiency. There’s bipartisan support in both chambers for doing so, but House Republican leaders continue to resist longer extensions sought by congressional supporters (E&E Daily, Nov. 6).
Liam Donovan, a tax expert and Bracewell principal, said he expects some sort of tax package to emerge in the lame duck, but congressional appetite for tacking on a difficult fight over taxes to the year-end to-do list was unclear.
That would depend on the size and duration of the final spending omnibus. "Because once you crack the door for a tax title, everyone wants to get in," he said last week, adding that taxes would likely resurface early in the next session of Congress.
Reporters Marc Heller and Debra Kahn contributed.
