Though several races remain uncalled, it appears Republicans will likely gain control of the House. And that means the next two months — also known as the lame-duck session — could well be Democrats’ last chance to use their unified control of Congress.
Beyond must-pass bills like funding the government and authorizing defense spending, Democratic lawmakers are eyeing two big bills: legislation to enshrine protections for same-sex marriage into federal law, and a measure to reform the way Congress certifies election results.
In the last two decades, when congressional power changed hands, lame-duck sessions have been frenetic in large part because they’re the final opportunity for a party to accomplish some of their key priorities. According to Pew, these sessions have accounted for more than a quarter of Congress’s legislative output in recent terms.
Below is a rundown of a few of the bills Congress has on tap for its lame-duck session this year.
Same-sex marriage protections
The Senate is expected to vote on same-sex marriage protections this week, Senate Majority Leader Chuck Schumer announced on Monday.
Democrats postponed a vote on this bill until after the midterms because they believed they’d be able to get more Republican votes once those lawmakers were less worried about alienating conservative Christian voters. Republicans said, in turn, that they would be more open to considering the legislation if it didn’t feel like it was being used for political messaging during the midterms.
The bill would repeal the 1996 Defense of Marriage Act, approved during President Bill Clinton’s administration, which defined marriage as a legal union between a man and a woman, and would guarantee recognition of same-sex and interracial marriages under federal law. The latest version of the Respect for Marriage Act also includes language intended to address Republican concerns about religious liberties.
The new legislation is both historic and central to guaranteeing same-sex marriage protections. It became a Democratic priority following an opinion from Supreme Court Justice Clarence Thomas, in which he floated potentially revisiting Obergefell v. Hodges, the judicial decision that established such rights in 2015. The Supreme Court’s decision to overturn Roe v. Wade has raised the possibility that the panel could do the same with other precedents.
“We’re very confident the bill will pass, but we will need a little more time,” Sen. Tammy Baldwin (D-WI) told reporters in September. Prior to leaving for recess, three Republicans — Sens. Susan Collins, Thom Tillis, and Rob Portman — had publicly signed on to the legislation, with Sen. Lisa Murkowski likely to do so, putting the bill shy of the 60-vote threshold it would need to clear a filibuster. A person close to the negotiations, however, told Semafor that they expect the bill to have enough votes to pass when it’s brought up.
A handful of Republicans including Sens. John Cornyn (R-TX) and Marco Rubio (R-FL) had also previously said they would vote against the bill because they didn’t think these rights were being threatened.
Electoral Count Act reforms
There’s been a bipartisan push to reform the Electoral Count Act, which lays out Congress’s role in counting electoral votes following a presidential election, though it’s still waiting on a vote in the Senate. This bill would update the ECA in a bid to prevent elected officials from using the process to overturn the election results, like former President Donald Trump attempted to do in 2021. Key reforms include clarifying the vice president’s role in the counting process as purely ceremonial and increasing the threshold of lawmakers it takes to challenge the results of an election. Currently, it takes just one Senate and one House member to object to a state’s outcome in order for Congress to consider and vote on the objection.
In September, the House passed its version of these reforms and the Senate is likely to do the same in the coming weeks. At this point, more than 10 Republicans have expressed their support for the bill, a strong sign that it will pass. As Vox’s Ben Jacobs has explained, these policies aren’t enough to guarantee that another January 6 won’t happen, though they can eliminate some legal loopholes bad actors may try to exploit.
The Senate’s version of the bill differs from the House’s, however, so the lower chamber will probably have to consider the legislation again. One difference includes the threshold for challenging a state’s results: The House’s bill would require one-third of lawmakers in both chambers to sign on, while the Senate’s would require one-fifth of lawmakers.
The House could approve the Senate version after it’s passed, though the process could take longer if the two chambers seek to reconcile some of the differences in the bills.
Funding the government
The deadline to keep the government open is now December 16, when a short-term spending bill passed earlier this year is due to expire.
Lawmakers have the option of passing another short-term bill, also known as a continuing resolution, or the full-year appropriations bills that would fund different government agencies and programs. If they fail to do either, the government would shut down, furloughing employees and significantly curtailing certain services.
Key appropriations requests include more aid to Ukraine as well as pandemic aid to further the distribution of vaccines and medication. Both could see some Republican opposition, with the GOP split on additional support for Ukraine, and most of the party balking at additional money to address the pandemic.
Authorizing defense spending
Another must-pass bill that Congress has to consider is the National Defense Authorization Act, which establishes funding allocations for the defense department.
One issue that could come up related to the NDAA is the possible attachment of Sen. Joe Manchin’s permitting reform bill, which previously garnered opposition from Republicans and progressive Democrats.
This bill would streamline the approval process for fossil fuel and clean energy projects, and guarantee permits for the Mountain Valley Pipeline, a natural gas project in West Virginia, Manchin’s home state. Progressives had pushed back on the legislation because of the inclusion of the pipeline and the concern that the approval process Manchin envisions would dilute communities’ opportunities to weigh in on these projects. Republicans, meanwhile, felt the reforms wouldn’t expedite projects enough, and also weren’t interested in giving Manchin a win following his support for the Inflation Reduction Act.
It’s not yet clear whether Manchin will tweak his bill to address some of these concerns, or if it will have to be dropped yet again after it wasn’t able to pick up sufficient votes in September. But if he does want to put it forward again, trying to attach it to the NDAA may be his best shot to do so.
(Maybe) raising the debt ceiling
Democrats also have the chance to raise the debt ceiling and stave off a potentially calamitous stand-off that could happen next year if Republicans take the House.
Increasing or suspending the debt ceiling (basically, the amount the US is able to borrow) is a routine action Congress has to take because if it doesn’t, the US could default on its bills and destabilize the country’s economy. Despite that, it’s a moment Republicans have indicated that they will use for leverage to secure cuts to funding for social programs and clean energy initiatives.
Democrats could prevent this from happening by approving a massive increase while they still control both the House and the Senate this year, though the US is not projected to hit the debt ceiling until sometime in 2023.
Because of that timing, as well as Congress’s packed schedule, it’s not clear if they will get to that priority before next year.
Recent lame ducks have been pretty productive
Lame-duck sessions were once pretty sporadic affairs, though they’ve become much more common, and productive, in recent years.
Since 2000, especially, a decent chunk of Congress’s output has actually taken place during lame-duck sessions, per Pew. During the last Congress, nearly 44 percent of what it passed — including a major coronavirus relief package — was approved during this session.
Other active lame-duck sessions include 2010, when Democrats lost control of the House, and passed several major bills before they handed it over to Republicans. They repealed “Don’t Ask, Don’t Tell” and passed a nuclear arms reduction treaty with Russia and an extension of tax cuts established during the Bush administration, according to the Atlantic. Prior to the shift in congressional power in 2019, Republicans also used the lame-duck session to approve the First Step Act, a groundbreaking criminal justice reform bill, as well as a reauthorization of the farm bill, which authorizes spending for Agriculture Department programs.
This year is poised to be another busy lame-duck session, particularly as Democrats consider the looming change in House control that could be on the horizon.
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