Lame Duck Countdown

Members are back in town after the Thanksgiving holiday to wrap up business for the 117th Congress. They have a long laundry list of “must pass” items and other priorities to tackle before this Congress adjourns sine die. There remain several questions – namely, what can get done before Members leave town and what will next year look like on Capitol Hill? While some of these questions are hard to answer, the November midterms and the parties’ leadership elections paint a clearer picture of the changing dynamics in Congress.

What We Know

With election results mostly finalized, there are two clear takeaways for 2023: Democrats will hold a slim majority in the Senate with a current margin of 50 Democrats to 49 Republicans, and the GOP will hold a slim majority in the House with a margin of 221 Republicans to 212 Democrats, with two races yet to be called. The certainty that there will be a divided government may place extra pressure on getting the “must pass” items – such as the Fiscal Year 2023 (FY23) appropriations and the National Defense Authorization Act (NDAA) – across the finish line this year. 

Democrats won key states in November, and the last race to be called – a victory in Nevada for incumbent Sen. Catherine Cortez-Masto (D-NV) – put the party in the majority and means that control of the Senate will not hinge on the runoff election in Georgia. However, the December 6 runoff creates a hurdle for legislating, as Senate Minority Leader Mitch McConnell (R-KY) has pledged not to agree to FY23 topline figures until the race has been called. Regardless, this hasn’t stopped Democrats from starting to draft appropriations bills or negotiators from beginning talks, as the current continuing resolution (CR) is set to expire on December 16.

The narrower than expected GOP margin in the House of Representatives adds another potential complication to finishing the FY23 appropriations cycle this year, with newly elected Speaker-Designate Kevin McCarthy (R-CA) in a tough spot. In order to get the 218 votes to officially become Speaker, Leader McCarthy must keep his caucus together even as there is an influx of new conference members and demands from the Freedom Caucus. As a result, he has already stated his opposition to doing an omnibus, which may complicate Democrats’ ability to secure 10 Republican votes in the Senate.

Meanwhile, Democrats are now certain to see a major leadership change in the 118th Congress, with Speaker Nancy Pelosi (D-CA), Majority Leader Steny Hoyer (D-MD), and Majority Whip Jim Clyburn (D-SC) stepping down from their current positions. All three will remain in the House, and Rep. Clyburn is expected to fill the Assistant Leader position, while Rep. Hoyer intends to return to the House Appropriations Committee. The House Democratic Caucus will hold its leadership elections on Wednesday. Reps. Hakeem Jeffries (D-NY), Katherine Clark (D-MA), and Pete Aguilar (D-CA) are expected to assume the top three roles.

Leadership changes, election results, and the large number of retirements – over 80 Members not returning next year across both chambers – means the jockeying for committee assignments – including full and subcommittee chair and ranking member slots – will heighten in the coming weeks. Senate Democrats are still determining whether they will observe the Murphy Rule, which prohibits Members who chair full committees from assuming subcommittee gavels until all other Members on the committee have had the opportunity to fill a committee leadership role. This is unlikely to be resolved for the next few weeks, if not months. There are also questions in the House on term limits for committee leadership. For additional information, our latest Senate and House “musical chairs” analyses of committee assignments and leadership can be found here.

Where We’re Going

All eyes are now on the Peach State. If Sen. Raphael Warnock (D-GA) wins his re-election bid against Herschel Walker, there will be several ripple effects for the lame duck and into next year. A Democratic win next week may shift the priorities for the caucus in the lame duck, perhaps alleviating some pressure to confirm nominees who could still be approved by the Democratic Senate majority next year.

In addition to FY23 appropriations and the NDAA, the Senate had two other major initiatives they wanted to accomplish between the midterm elections and the end of the year: the Respect for Marriage Act and the Electoral Count Reform Act. The former, which recognizes same-sex and interracial marriages while still allowing for religious freedom provisions, cleared the first hurdle in the Senate with 60 votes but remains awaiting final passage in the Senate. The House would then have to accept the Senate-passed bill. The latter, which provides modernizations to the Electoral Count Act, also experiences bipartisan support but has not yet been considered by the full chamber.

Beyond these bills, there are a few bipartisan efforts and priorities of retiring Members that could be elevated in the lame duck should Democrats find themselves with floor time to spare. These range from drug pricing proposals for insulin to behavioral health reforms. These measures may need to hitch a ride on the omnibus, another CR, or a “CRomnibus,” where new spending numbers are agreed on for several of the 12 appropriations subcommittee bills with the remaining carrying forward at existing levels. 

What’s more, there is speculation that should Sen. Warnock win next Tuesday, there could be a 1-2 seat increase for Democrats in committee margins. This bump-up could provide Democrats slightly more room to advance their priorities, eliminating the need for extra procedural steps to bring legislation and nominees voted out of committee on a tie vote to the floor. However, what is passed by the Senate next year would likely see resistance in the Republican-controlled House.

While it’s no secret that Republicans will be pushing for oversight targeting President Joe Biden – ranging from administration activities to the president’s family – what form and tenor that oversight remains to be seen. The House is set to elect its next Speaker on January 3. Several GOP Members have announced their intent not to vote for Leader McCarthy, and his efforts to court moderate Democrats have come up empty. The process could take several votes on the floor. Should he walk away with the Speaker’s gavel, Leader McCarthy will be challenged to retain the confidence of the slim Republican majority. Others waiting in the wings to lead the chamber might include Majority Leader-Elect Steve Scalise (R-LA) and the top Republican on the House Financial Services Committee Patrick McHenry (R-NC).

Questions remain regarding the margin of Democratic control in the Senate, leadership in the House, and decisions on committee chair and ranking member slots. We will be monitoring developments closely and look forward to sharing additional insights and analysis on how anticipated changes will influence the environment and impact the agenda in the 118th Congress.