[A lackadaisical approach led to failure for numerous bipartisan
bills, and kept alive Republican goals to take the debt limit hostage
in 2023. ]
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DEMOCRATS FRITTERED AWAY THE LAME-DUCK SESSION  
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David Dayen
December 21, 2022
The American Prospect
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_ A lackadaisical approach led to failure for numerous bipartisan
bills, and kept alive Republican goals to take the debt limit hostage
in 2023. _

Senate Majority Leader Chuck Schumer (D-NY) and Speaker of the House
Nancy Pelosi (D-CA) conduct a bill enrollment ceremony after the House
passed the Respect for Marriage Act, December 8, 2022, at the U.S.
Capitol., Tom Williams / CQ Roll Call Via AP Images

 

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
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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
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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
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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.

_MORE FROM DAVID DAYEN
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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
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building
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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
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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
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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
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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
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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
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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
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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
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ago, amid too much opposition to each part of the deal.

Other stranded bills were thoroughly bipartisan. Congress spent
several years
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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
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the NDAA after initially being included. Schumer promised a vote
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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
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though supporters insisted they had enough votes for passage. An
errant, later-corrected tweet shows that Schumer’s office
was trying to blame McConnell
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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
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It has always fallen short in the Senate despite nine Republican
co-sponsors. Schumer led the effort on “SAFE Banking Plus
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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
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which would have expanded special immigration status to get permanent
legal residency for Afghan evacuees (the omnibus only extends the
special visas
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protection bill that would have blocked prosecutors
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targeting journalists (apparently Tom Cotton’s unhinged opposition
was all it took to stop this
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a pregnant worker fairness bill
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would have required reasonable accommodations for expecting employees;
the Open Courts Act
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which would have made federal court filings free; and a bill ending
the cocaine/crack sentencing disparity
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(Chuck Grassley torpedoed this after Attorney General Merrick Garland
got tired of waiting and took steps to accomplish it through
executive action
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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
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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
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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
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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
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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.

_DAVID DAYEN is the Prospect’s executive editor. His work has
appeared in The Intercept, The New Republic, HuffPost, The Washington
Post, the Los Angeles Times, and more. His most recent book is
‘Monopolized: Life in the Age of Corporate Power.’_

_THE AMERICAN PROSPECT is devoted to promoting informed discussion on
public policy from a progressive perspective. In print and online,
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_Founded by Robert Kuttner, Paul Starr, and Robert Reich, read the
original 1989 prospectus for the magazine.
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_To learn more about our history, check out this 2015 piece by Starr
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* Politics
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* Congress
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* Democrats
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* Chuck Schumer
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* Immigration
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* Child Tax Credit
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* Big Tech
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* Debt Limit
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