Democrats Frittered Away the Lame-Duck Session
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Author: David Dayen
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The American Prospect

The 117th Congress came down to one final legislative package, and because it was the last train leaving the station in Washington, every significant unfinished activity of the two-year Democratic majority was trying to book passage. The omnibus spending bill released Tuesday, which funds the government through to next September, includes a handful of items that lawmakers had hoped could be forced into the bill, though not everything lawmakers wanted.

The Electoral Count Reform Act, for example, which will cut off one potential avenue of stealing a presidential election by confirming that the vice president cannot reject lawful electors, made it into the omnibus. TikTok will be banned from government phones and devices. There’s $45 billion for Ukraine, above President Biden’s $37 billion request.

The SECURE Act 2.0, which as my colleague Lee Harris has written is generally a series of tax breaks for wealthy retirees, got in there. So did a bill expanding veteran mental health care, alongside a large increase for veteran health care more generally. The Merger Filing Fee Modernization Act, which gives antitrust agencies more resources to protect the public from the consequences of concentration (eventually; the new fees don’t start for two years), while preventing venue-shopping to preferred judges by large firms in multistate lawsuits, is in the omnibus, which supporters have called the first strengthening of antitrust law since 1976. And there are a handful of more minor tweaks, including extensions of health care measures like pandemic-era telehealth for federal programs.

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As a last grab for policy under a Democratic congressional majority in President Biden’s first term, this is frankly a very modest haul. While some last-second proposed deals for the omnibus were far-fetched, others were bipartisan enough that they could have found their way to the president’s desk months ago. That all of them had to jockey for space in must-pass bills was symptomatic of the lackadaisical approach to the lame duck, a stark contrast to the last time Democrats had a lame-duck session before losing their congressional majority.

And the real culprit in that is Senate Majority Leader Chuck Schumer (D-NY), who appears to have thought that the successes of August, when Congress advanced the Inflation Reduction Act, medical care for veterans exposed to toxic burn pits (the PACT Act), and semiconductor manufacturing subsidies (the CHIPS and Science Act), were enough to secure the Democratic majority’s legacy. Though much more was available—like measures on press freedom, tech antitrust, criminal justice, Afghan refugees, and workplace fairness—there just wasn’t much interest from Schumer.

As a result, the sum total of Schumer’s lame-duck legislative accomplishments, outside of a few unobjectionable bills, are the following: the codification of Obergefell in the Respect for Marriage Act, which was delayed until after the elections so Sen. Ron Johnson (R-WI) could avoid an unpopular vote before a re-election race that he only won by one point; forcing rail workers back on the job by congressional decree, under a contract the workers rejected; one important measure that prohibits nondisclosure or nondisparagement clauses from being used to silence sexual assault or harassment victims; various post office and federal building naming bills; and the two must-pass behemoths, the National Defense Authorization Act and the omnibus.

Schumer acted in the lame-duck session as if Democrats won the midterms, with no urgency to get anything done.

In broad strokes, those two bills combine for an $858 billion military appropriation, $45 billion more than Biden requested. The military budget is higher than domestic discretionary spending for the first time in years, something Senate Minority Leader Mitch McConnell (R-KY) called “a strong outcome for Republicans.” Non-military spending rises slower than the rate of inflation in the omnibus, which you could also describe as a net cut, while military spending is at nearly a 10 percent increase.

There are some good things in these bills (the military sexual assault and harassment overhaul in the NDAA is a particular highlight and a hard-won victory) and some confounding things (McConnell demanded only military-related measures in the NDAA but somehow protections for federal judges got in there?), but overall it’s a weak ending to what had been a surprisingly productive congressional session. It seems in Schumer’s mind, it ended months ago.

The Senate spent a good bit of lame-duck floor time confirming executive branch and judicial appointments, which are important but can also resume in the next Congress, since Democrats increased their Senate majority. With the House going under Republican control next year, this is truly it for any bill that Kevin McCarthy doesn’t like. And for whatever reason—whether disinterest or protection of big business—Schumer hasn’t been trying to get legislative wins while the getting is good.

What didn’t make the cut, you might ask. How much time do you have?

There were certainly some Hail Mary deals that were never particularly likely to bear fruit this Congress. A last-minute immigration package negotiated by Sen. Kyrsten Sinema (I-AZ) that would have protected Dreamers who came to America as children while increasing border security and fixing the asylum system predictably went down in flames when McConnell blocked it from the omnibus. A politically charged issue like that was always an extreme long shot, but it overshadowed a more achievable farmworker visa overhaul, which also failed to make the omnibus.

A deal pairing expiring corporate tax measures with an extension of the enhanced Child Tax Credit at least had an internal logic to it, as both sides would get something they wanted: tax breaks for corporations in exchange for money for poor families. But this went aground weeks ago, amid too much opposition to each part of the deal.

Other stranded bills were thoroughly bipartisan. Congress spent several years building a fact pattern that concentration has reached intolerable levels in the U.S. economy generally and in the tech industry in particular. Four bills dealt with aspects of this, but only one, the filing fee and venue bill, actually advanced. The rest failed, including bills that cracked down on aspects of the tech industry, wasting thousands of hours of work and bipartisan coalition agreement.

A bill that would have forced payments from Google and Meta to news organizations for use of their content was stripped from the NDAA after initially being included. Schumer promised a vote this summer on two other bills, one ending self-preferencing by tech platforms on their own products and services, and another blocking mobile phone makers from using app stores as tollbooths for financial enrichment. But he never followed through, though supporters insisted they had enough votes for passage. An errant, later-corrected tweet shows that Schumer’s office was trying to blame McConnell for the lack of a vote, which smacks of dishonesty.

The House has passed the SAFE Banking Act, which simply says that legal cannabis-related businesses in the states can get bank accounts without banks fearing a federal raid for trafficking in substances that are illegal at the federal level, seven different times. It has always fallen short in the Senate despite nine Republican co-sponsors. Schumer led the effort on “SAFE Banking Plus,” which added small-business lending for cannabis businesses, VA access to medical marijuana, and financial resources for state expungement of records for marijuana offenses. These moves brought out more opposition than they did support.

A host of smaller bills that had bipartisan support of one kind or another were also ditched. These include the Afghan Adjustment Act, which would have expanded special immigration status to get permanent legal residency for Afghan evacuees (the omnibus only extends the special visas); a source protection bill that would have blocked prosecutors from targeting journalists (apparently Tom Cotton’s unhinged opposition was all it took to stop this); a pregnant worker fairness bill that would have required reasonable accommodations for expecting employees; the Open Courts Act, which would have made federal court filings free; and a bill ending the cocaine/crack sentencing disparity. (Chuck Grassley torpedoed this after Attorney General Merrick Garland got tired of waiting and took steps to accomplish it through executive action.)

What you see here is a lot of individual Republicans stopping bills with broad bipartisan support, which is a lot easier when it comes to inserting measures into a last-minute omnibus, because (thanks to ludicrous Senate rules) everything has to pass without objection to make the deadline. That situation grants special obstruction leverage to every U.S. senator, when regular order could have passed a number of these bills.

But that would require Schumer to care enough to get them passed. He acted in the lame-duck session as if Democrats won the midterms, with no urgency to get anything done. He wanted to get to Christmas without a government shutdown, and that was about it. This sleepwalking sunk a number of priorities that likely aren’t coming back next year, as House Republicans close the window for governing.

Contrast this with 2010, after Democrats were thumped in Barack Obama’s first midterm. It was widely regarded as the most productive lame-duck session in history, with passage of historic bills ending “Don’t Ask, Don’t Tell,” advancing child nutrition, ratifying a nuclear arms-reduction treaty with Russia, granting health care for 9/11 first responders, and more. There was a recognition that the opportunity for policy advancement was closing, and moreover, these bills were not stuck into an omnibus, but given separate consideration. The legislative Christmas tree approach, applying ornaments to must-pass bills, makes it too easy to bulldoze priorities when any senator can object to inclusion in a year-end package.

Obviously, 2010 had a different dynamic, with 59 Senate Democrats instead of 50. But nearly everything I’ve described that missed the cut had the required votes to break a filibuster.

Maybe it’s understandable, you say. Maybe Congress wasn’t ready for more heavy legislative lifting after the Inflation Reduction Act ordeal. Tell that to pregnant workers, Afghan refugees, small businesses being crushed by Big Tech’s power, farmworker migrants, jailed journalists, medical marijuana shop owners, and many others.

But push that all aside and you still would have to rate the Democratic lame-duck session a net negative. That’s because they decided to do nothing to neutralize the greatest threat to the economy next year: the debt limit, and the crisis House Republicans are sure to create over it. Democrats had every ability to use a party-line reconciliation vote to ensure that Republicans didn’t take the debt limit hostage and demand cuts to Social Security and Medicare. GOP members have stated this intention openly, yet Democrats just haven’t taken seriously the threat to the full faith and credit of the U.S. government, and the catastrophe that would accompany a debt default.

If they did nothing else but defuse the debt limit time bomb, Democrats would have been able to claim a bare minimum of success. But they didn’t even manage that, much less any of the other victories left for dead on the Senate floor. It’s inexcusable.

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