The WasteWatcher: The Staff Blog of Citizens Against Government Waste

Lame-Duck Session, 114th Congress: The Victors, the Vanquished, and the Un-Inaugurated

The WasteWatcher is the staff blog of Citizens Against Government Waste (CAGW) and the Council for Citizens Against Government Waste (CCAGW). For questions, contact blog@cagw.org.


For anyone unfamiliar with the patois of politics, the term “lame duck” may seem like a bit of an odd duck, rhetorically speaking.  As defined in the Merriam-Webster dictionary, the more common understanding of this phrase is “an elected official or group continuing to hold political office during the period between the election and the inauguration of a successor.”  But it is the dictionary’s first definition, one identified as “chiefly British,” that may be more descriptive of the current Congress:  “one that is weak or that falls behind in ability or achievement; an ailing company.”

Officeholders involved in the lame-duck session of the current (114th) Congress will be making decisions after the voters are no longer able (at least for another two years, until the next biennial elections) to hold them politically accountable for any legislative mischief.  Some current members soon to be out of office, whether through voluntary retirement or retirement by the voters (i.e., defeat at the polls), will have no incentive to represent their constituents’ interests:  they are essentially free to wreak untold havoc without consequence.

On top of those factors, the failure to act on major legislation before the election (procrastination being a regular habit on Capitol Hill) is a recipe for messiness.  Critical issues are postponed until the last minute (typically, a few hours before Christmas), and that usually means more spending and bigger government, regardless of which party is in charge before or after the elections.

First and foremost, the continuing resolution funding the government expires on December 9, 2016.  In a September 29, 2016 CQ Roll Call article, Senate Majority Leader Mitch McConnell (R-Ky.) indicated that “funding the government and passing a 21st Century Cures bill (HR 6) are his priorities for the four weeks the Senate is scheduled to be in session after the November elections.”  Leader McConnell expressed his support for Speaker of the House Paul Ryan’s (R-Wis.) approach of passing a handful of so-called “minibuses,” rather than a comprehensive omnibus appropriations bill.

Funding the Government.  As McConnell said to reporters, “I don’t like omnibuses and I don’t like [continuing resolutions (CRs)] either.  And the only other place you could go with this amount of limited time left would be several minibuses.”

The passage of appropriations bills in smaller bundles is feasible because both chambers of Congress succeeded in passing all 12 spending bills out of their respective appropriations committees.  While most have not been considered by the full membership of either chamber, the committee-passed versions constitute viable vehicles for ultimate passage.  Congress can therefore act with some degree of confidence about how taxpayer dollars are to be spent over the next fiscal year, rather than remaining on auto-pilot, as would be the case with a CR that extends past December 9.

Expediting Lifesaving Innovations.  H.R. 6, the 21st Century Cures Act, passed the House (344-77) on July 10, 2015, and has been awaiting action in the Senate since that time.  According to the House Energy and Commerce Committee website, the bill “accelerates the discovery, development and delivery of life saving and life improving therapies, and transforms the quest for faster cures” through a number of bureaucratic reforms.  Of course, the bill is not without controversy, even in the House, where it passed overwhelmingly.  House Budget Committee Chairman Tom Price, M.D. (R-Ga.) said in a statement that, “while the goals of this legislation are laudable, the fact that it creates a new mandatory spending program is both troubling and unnecessary.  There’s no reason that these programs could not be authorized and then made, appropriately, a priority through the discretionary spending process.”

Any movement on this legislation, particularly during the lame-duck session, will need to address this concern from Chairman Price and many other conservatives.

Predicate Date for E-cigarettes.  According to Michael Siegel and Scott D. Ballin in their November 30, 2015 op-ed in The Hill, “Smokers deserve lower-risk alternatives to the deadly cigarette”, the Tobacco Control Act of 2009 established a “predicate date” of February 15, 2007 for products subject to the act (i.e., cigarettes and smokeless tobacco).  Brands that existed prior to that date were “grandfathered” from excessive regulation, while any new brands (including e-cigarettes) introduced into the market after that date would be subject to an onerous application and approval process under the FDA.  Ironic, since the newer, non-combustible electronic products are exponentially less harmful than traditional cigarettes.  To rectify such a perverted result, Reps. Tom Cole (R-Okla.) and Sanford Bishop (D-Ga.) have attached an amendment to the FY 2017 Agriculture Appropriations bill, updating the predicate date for “newly deemed tobacco products, a step needed to preserve potentially harm-reducing innovation and to keep small businesses open.”  In other words, the bill language “levels the playing field so that FDA will not regulate potentially less harmful e-vapor products more harshly than cigarettes.”

Tax Extenders.  A package to extend certain tax breaks is often a perennial candidate for year-end legislative fixing, and this year is no different.  As noted in Reason magazine by Veronique de Rugy, a senior research fellow at the Mercatus Center, “the stakes are high for interest groups and lobbyists because some $19.4 billion in tax extenders – privileges granted to politically favored special interests – are set to expire.”

The threat of ill-advised tax favors was confronted by CCAGW and others in a letter to Congress on October 26, 2016, which stated, in part:  “The $1.4 billion in expiring tax provisions currently under consideration – pertaining to wind power, geothermal heat pumps, fuel cell facilities, and combined heat and power (CHP) properties – are a distortion of the tax laws for special interests in the renewable energy industry and were wisely left out of [the $680 billion package signed into law in December].”

The caution encouraged in the letter is a critical one, especially for a federal government already drowning in wasteful expenditures:  “Government subsidies, loans, mandates, and tax policies regarding renewables have consistently failed to deliver on their promises of long-term job creation and economic viability.  Americans deserve access to energy solutions that are affordable and reliable—ones that should be able to stand on their own in the marketplace.”

Criminal Justice Reform.  Speaker Ryan has been an outspoken advocate for criminal justice reform, described on September 27, 2016 in Politico as “a chance for Republicans to show racial minorities they care about issues of social justice – plus a salient, positive message countering Donald Trump’s racially charged bid for the White House.”  According to the article, Speaker Ryan hopes to move a “bipartisan package that would include allowing well-behaved nonviolent prisoners to be eligible for early release and easing some drug-related sentencing requirements,” but his GOP conference is a bit more wary, particularly of being deemed as softening on crime.  The prediction from Politico is that “if Ryan wants to make a push for criminal justice reform after the election, he will have his work cut out.”

Undeterred, the Speaker (for whom this a priority) reiterated his commitment during a September 19 speech at the Economic Club of New York:  “I’m trying to get criminal justice reform done this session of Congress.  That train is on the tracks, and I’m hoping we can get that done sooner rather than later.”

Trans-Pacific Partnership (TPP).  Despite opposition from both major-party presidential candidates, TPP, the 12-nation free trade agreement that is considered a top priority for achievement by President Obama before he leaves office on January 20, 2017, might be ripe for passage during the lame-duck session.  Indeed,, U.S. Trade Representative Michael Froman predicted that it will have enough votes for ratification by Congress after the election:  “If they bring it forward, I think we can get the votes there.”  The signatories to the agreement include the United States, Canada, Mexico, Peru, Chile, New Zealand, Australia, Brunei, Singapore, Malaysia, Vietnam, and Japan; China is not part of TPP.

The anti-trade rhetoric that has permeated this campaign makes any vote on TPP, particularly one taken shortly after the electorate will have effectively ratified opposition to the concept by voting for either Hillary Clinton or Donald Trump, a risky proposition.  The consequences would not be felt until the next election cycle, if at all, but the perception of flouting electoral preferences might leave a bad taste with constituents who have long memories.  That said, if the trade pact is to survive at all, the upcoming lame-duck session may be the best opportunity for it to pass and be signed into law.

National Defense Authorization Act (NDAA).  The Fiscal Year (FY) 2017 NDAA is almost certainly going to become law during the lame-duck session, despite a veto threat from President Obama.  While the NDAA conferees have tentatively agreed to increase the base budget for defense by $9 billion, the president has signaled that he might veto the bill if equivalent increases in non-defense spending are not realized. 

Water Resources Development Act (WRDA).  When WRDA was enacted in 2014, it provided authorization for two years to address the nation’s water infrastructure needs, such as harbors, locks, dams, and flood protection.  On September 15, 2016, the Senate passed its $220 million version of a new two-year authorization bill by a vote of 95-3, while the House passed its $170 million bill on September 29 by a vote of 399-25.  These bills authorize “infrastructure improvements that have been proposed at the local level, reviewed by the U.S. Army Corps of Engineers, and submitted to Congress for consideration.”  During the recess, congressional staffers have been working to reconcile differences between the two versions, with the goal of presenting an informal conference report for consideration by the members shortly after their return in mid-November.

Given the relatively few days available during the remainder of the current Congress, these priorities will definitely be jockeying for attention, against the backdrop of a presidential transition.  Beyond the almost-certain funding of the government and passage of the NDAA, which by themselves could consume all available oxygen, it is possible that little else will get done.

And quite frankly, given the results of the 2016 elections, with Republicans capturing the White House and retaining both chambers of Congress, getting little else done during the next few weeks is almost certainly a good thing, particularly for taxpayers.  The voters have rendered their verdict on the country’s preferred direction.  In CAGW’s view, other than funding the government beyond December 9, 2016, the outgoing members of Congress should leave well enough alone.

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