Lame Duck Congress Could Be One Ugly Fight After Another
Policy + Politics

Lame Duck Congress Could Be One Ugly Fight After Another

  • Congress will have one piece of must-pass legislation when it returns.
  • Six other important issues could be grounds for post-election battles.
  • Some GOPers already condemn lame duck action if Senate changes hands.

Republicans look likely to win control of the Senate in next month’s mid-term elections, setting the stage for a lame duck session that’s nearly certain to be marked by confusion, disinformation, and frustration on the parts of members of both parties. 

One problem is that even if the GOP does take the Senate, it may not be clear they have done so until December or even January. The Louisiana Senate race is all but assured to go to a runoff in December, and close races in Alaska and Georgia could take even longer to decide. 

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Already, a number of Republicans, particularly Senators Ted Cruz and Mike Lee, have been furiously declaring to the press, all evidence to the contrary, that any actions taken in the lame duck will be illegitimate if the Republicans do take control of the Senate.

With the table set for acrimony and discord, lawmakers have a single piece of must-pass legislation awaiting them when they come back: a spending bill that will keep the government running after the current funding expires in December. Now, at least, it seems clear that neither party is interested in another government shutdown.

Beyond that necessary spending bill, how much Congress will accomplish in the lame duck is anybody’s guess. This Congress has set the bar remarkably low when it comes to legislative accomplishment, but it seems hard to believe that, even safe from elections for two years, lawmakers could return to Washington and ignore all of the major crises facing the country and the world. 

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Here, in rough order of their likelihood of happening, are some of the major pieces of unfinished business awaiting lawmakers. 

Presidential Nominees

Senate Majority Leader Harry Reid (D-NV) has already promised that the Senate will work during the lame duck to reduce the backlog of executive branch nominees awaiting confirmation. Obviously, a GOP takeover of the Senate would slow confirmations to a trickle in 2015, meaning that Reid would want to get as many of the president’s picks in place as possible. But even if the Democrats hold the chamber, Reid has a strong incentive to push through nominees. His invocation of the “nuclear option” in the 113th Congress, allowing Democrats to bypass Republican filibusters of many executive branch nominees, will expire in January. While he could, in theory, invoke the rule change again, he may wish to avoid the fight and try to start the 114th Congress on more collegial terms. 

Tax Extenders

Congress allowed dozens of popular tax breaks, collectively known as “tax extenders,” to expire in 2014, and if they aren’t renewed for 2015, there will be angry constituents as diverse as the business community and teachers unions.

Related: The Ignored Congressional Crisis that Could Raise Your Taxes 

The extenders include a wide array of programs, including the research and development tax credit enjoyed by corporations and a tax credit available to teachers who purchase classroom supplies out of their own pockets. Last week, Internal Revenue Service Commissioner John Koskinen warned Congress that failure to come to a decision on the tax extenders in November would result in millions of Americans having to file amended tax returns next year, and substantial delays in the processing of tax refunds.

The Next Attorney General

Attorney General Eric Holder had telegraphed his intention to resign by year-end well in advance of making it official with an announcement on September 25. However, it did take some by surprise that Holder left President Obama and Senate Democrats the unappealing choice between confirming a successor with the Democrats in control of the Senate in a lame duck or taking their chances with the 114th Congress. 

While the administration has not made a formal announcement at this point, many expect the president to name his choice soon.

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A nominee confirmed during the lame duck will certainly be decried as illegitimate by Republicans, but given the antipathy of the Senate Republicans to President Obama, the administration may well find that route preferable to trying to find a candidate who could get past a Republican-controlled Senate.


Creeping downward on the ladder of likely subjects of action during the lame duck, we come to the Ebola virus. The disease currently ravaging parts of West Africa has made only a limited appearance in the U.S., but judging from the public outcry from lawmakers, you would never know it.

It would not be at all surprising to see Congress try to pass some sort of fig-leaf legislation, such as upping the funding for public health research, in order to be able to claim that members took action on Ebola.

The real trick, though, will be finding a measure the House and Senate can agree on. There have been increasingly loud calls from the GOP to ban air travel from affected nations. It’s a tactic public health officials believe is counterproductive, but the idea also carries a lot of gut-level appeal to frightened people. Anything that gets through the Republican-dominated House may well have a travel ban attached to it, which would make it difficult to square with the less extreme response likely to find a way through the Senate.

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There have been many pre-election calls from Republicans for Congress to pass some sort of bill to forestall or negate the executive actions that the president is expected to take at the end of the year.

That said, immigration reform means such diametrically opposite things to key segments of the Republican base that the likelihood of getting any sort of immigration reform through the House, let alone Congress, is vanishingly small. To the Tea Party element of the GOP, immigration reform means slamming the door shut on the borders and keeping them that way. The business lobby, by contrast, would like to see increased immigration — something hard to sell to the Tea Party. That circle isn’t getting squared any time between now and January. 

War Powers

U.S. forces are currently engaged in fighting in Iraq and Syria (though no boots on the ground!), and many members of Congress are adamant about the need for the House and Senate to take a position on the war against ISIS. None of those members, however, happen to be in positions of leadership with the authority to force a vote on what is arguably Congress’s most important responsibility.

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