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The Democratic Party’s success in securing a 51st Senate seat in the Georgia runoff Tuesday is certainly consequential, but it did nothing to avert an imminent shift in the national political environment: On Jan. 3, Republicans will take control of the House of Representatives, and it will be two years at least — if not much longer, given historical trends — before Democrats again have the power to enact major legislation.
This period between an election and the transition of power is known as a lame-duck session, and in recent years, it’s often when Congress has been most productive. How will Democrats make use of this one? Here are just some of the most pressing legislative priorities on the party’s agenda that could be accomplished without fear of a Republican filibuster in the Senate, or with the possibility of enough Republican votes to block such a move.
Keeping the government — and the global financial system — running
Congress is staring down a Dec. 16 deadline to pass a budget for the 2023 fiscal year. If it doesn’t, the government could be forced to shut down, as it did in 2013 and twice in 2018, depriving hundreds of thousands of government workers of pay and disrupting public services.
But an even more urgent threat, German Lopez of The Times recently wrote, is that Republicans will refuse to raise the limit on how much money the government can borrow, which Congress frequently must do to fund the budget it has approved. If the government hits the debt ceiling, which could happen early next year, it could eventually lose the ability to make debt payments and be forced, for the first time, to default, with potentially calamitous effects for the global economy.
Once a pro forma administrative task, raising the debt ceiling became a matter of high-stakes brinkmanship during the Obama administration, as Republicans repeatedly leveraged the threat of default to push for spending cuts and regulatory rollbacks. In October, Representative Kevin McCarthy, the minority leader hoping to become speaker, suggested that his party would deploy this strategy again to force “structural changes” to programs like Social Security and Medicare.
Democrats have two options to avert financial crisis, Peter Orszag, a former director of the Office of Management and Budget and the Congressional Budget Office, explains: Win over enough Senate Republicans to form a filibuster-proof majority to raise the debt ceiling, or raise it unilaterally through the reconciliation process, which would require only 50 votes.
“Any Democrats averse to taking such a painful vote now should consider how much leverage their party will lose once Republicans control the House — and how much higher the risk of default will be then,” he writes in The Washington Post.
The trade-off, however, is that raising the debt ceiling with only Democratic votes would take much longer — about two weeks — than if Republicans were on board. “This might crowd out Democrats’ ability to pass almost any other legislative priority while they still control both chambers,” notes Catherine Rampell in The Washington Post.
Preventing a repeat of Jan. 6
Given concerns about the integrity of the 2024 presidential election, another major Democratic priority is modernizing the Electoral Count Act, a 1887 law governing the Electoral College counting procedure. The law’s ambiguous language became the legal basis for Donald Trump’s attempt to overturn the results of the 2020 presidential election, culminating in the Jan. 6 attack on the Capitol.
Reforming the law to prevent such schemes has bipartisan support: Nearly 40 senators, including 16 Republicans, have signed on to a bill introduced in the Senate over the summer, and the House passed its own bill in September.
“Both the Senate and House bills are far better than what we have right now, and either one would go a long way to ensuring that the electoral-count law cannot be used as a tool for subverting the election in 2024 or beyond,” the Times editorial board wrote last month. “Congress needs to pass the overhaul now, when it has willing majorities in both houses and well before anyone casts a ballot in 2024.”
Reforming the immigration system
Nearly two years after President Biden proposed the most comprehensive immigration reform since the Reagan administration, Democrats have made very little headway on the issue. But this week, there were signs of a potential breakthrough when a bipartisan pair of senators reportedly drafted a framework for legislation that would create a pathway to citizenship for two million DACA recipients and improve the asylum system. In exchange, it also contains provisions for expediting the deportation of migrants who fail to qualify for asylum and continuing the use of Title 42, a Trump-era emergency public health order that restricts the right to claim asylum.
Some immigration advocates have called on congressional Democrats to seize the opportunity. “House Republicans are not likely to allow any measures to improve immigration matters to reach a vote, preferring to have the political issue for the next elections rather than solutions,” said Vanessa Cárdenas, executive director of America’s Voice. “This year and the remaining weeks in this Congress present the best opportunity to enact legislation.”
But obstacles to a bipartisan immigration deal are formidable. Republican senators “might decide that the G.O.P. won’t get any credit even if the effort succeeds — that credit might go to President Biden — and that it’s better to retain the permanent ‘border crisis’ as an issue,” writes Greg Sargeant of The Washington Post. On the Democratic side, he adds, “the continuation of Title 42, which has been a human rights disaster, and the beefed up removal process might make it a nonstarter among progressives in both chambers.”
De-escalating the war on drugs
As overdoses soar and public opinion turns against the war on drugs, proponents of drug law reform say there may be an opening for Congress to save lives by passing bipartisan measures like the Mainstreaming Addiction Treatment Act, which would increase access to medication used to treat opioid addiction, and the Medicaid Re-Entry Act, which would reduce disruptions in medical care for people who have just been released from jail or prison.
Another bill called the EQUAL Act, which would end the federal sentencing disparity between crack cocaine and powder cocaine offenses, already has more than 10 Republican co-sponsors, “so it can withstand a filibuster and seems ripe for some action this lame-duck session,” Udi Ofer, a professor at Princeton’s School of Public and International Affairs, said last month.
Staying ahead of the coronavirus
The Biden administration last month asked Congress for an additional $9 billion to fund its response to the coronavirus pandemic, which is still killing more than 280 Americans per day and remains a leading cause of death in the United States.
Some of the $9 billion would go toward researching long Covid and ensuring continued access to vaccines and treatments, which have fallen out of reach for more and more uninsured Americans as federal money has dried up.
About $5 billion would go toward creating a program in the mold of Operation Warp Speed, to develop next-generation therapeutics and vaccines, like nasal sprays that could block more infections and universal, variant-proof coronavirus shots.
Many scientists believe that nasal vaccines could be crucial to reducing Covid’s disease burden, but the United States has lagged other countries in developing one because of underinvestment. Congressional Republicans have rebuffed requests for more pandemic funding, having accused the administration of mishandling previous allocations. They have also questioned the necessity of more aid, pointing to Biden’s declaration in September that “the pandemic is over.”
Democrats now find themselves in the awkward position of trying to make the case for more funding without admitting error: “While COVID-19 is no longer the disruptive force it was when the president took office,” the White House wrote in a November letter to Congress, “we face the emergence of new subvariants in the United States and around the world that have the potential to cause a surge of infections, hospitalizations, and deaths, particularly as we head into the winter months.”
Protecting marriage equality
One major legislative effort that is likely to advance is the Respect for Marriage Act, which would enshrine federal protections for same-sex and interracial marriage. The issue took on newfound importance this summer after Supreme Court Justice Clarence Thomas wrote that the court “should reconsider” the 2015 precedent establishing the right of gay couples to marry.
Some conservatives have dismissed the bill as a response to an imaginary threat and one that endangers religious liberties; many liberals argue the bill doesn’t go far enough, since it wouldn’t prevent states from refusing to issue marriage licenses to same-sex couples. Nonetheless, the measure attracted enough Republican support to pass in the Senate last week and is expected to win final approval in the House.
To some, the success of a bill that was considered just a few months ago to be dead on arrival suggests there might be opportunities for more congressional breakthroughs, albeit within a very limited window. “As with the same-sex marriage bill, bipartisan legislation revising the 19th century Electoral Count Act wasn’t politically possible before the midterm elections and wouldn’t be once Trumpian Republicans are in charge of the House schedule in four weeks,” writes Jackie Calmes, a columnist for The Los Angeles Times. “Enjoy these few weeks of what passes for bipartisanship as Congress waddles to its end. You won’t be seeing much of that over the next two years.”
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“Can Republicans and Democrats Find a Way Forward on Immigration?” [The New York Times]
“What should Democrats do in the lame-duck Congress?” [The Economist]
“Same-Sex Marriage Bill Passes Senate After Bipartisan Breakthrough” [The New York Times]
“Here’s how Congress can make the lame-duck session a mighty one”[The Washington Post]