Sorry, everyone, but summer is over. In Washington, that means the doldrums have officially ended. Half of Congress is back in session following its annual August recess. The U.S. Senate returned to action this week while House lawmakers will not reconvene until next Monday (although House committees are meeting this week).
With the 2022 midterm congressional elections just two months away, it will be difficult for Capitol Hill to focus on legislating – everyone is itching to get back to their states and districts and return to the campaign trail. The likelihood that lawmakers finish work on important legislation for which there exists no hard deadline, such as bills pertaining to data security, digital asset legislation, or bills like the SAFE Banking Act, which would prohibit federal regulators from taking punitive action against depository institutions that provide banking services to legitimate cannabis-related businesses, is slim.
The legislative branch does, however, have one outstanding “must pass” piece of legislation: a spending bill to keep the federal government open after September 30, which is the end of the current fiscal year.
Lawmakers, of course, will try to do more than the bare minimum. Before we examine what will happen when it comes to government funding, let’s take a look all of the other matters lawmakers could potentially debate between now and November.
Congress’ Fall 2022 Wish List
Supplemental Spending Legislation. Before Labor Day weekend, the White House issued a supplemental spending request that would help cover fiscal needs related to natural disasters, the ongoing COVID-19 pandemic, the global monkeypox outbreak, and the war in the Ukraine.
The White House said it would like the supplemental to be considered alongside the end-of-fiscal-year spending bill that Congress must pass. While the president’s advisers would like that to happen, the simple fact is there are other ways the federal government can come up with money to cover these priorities absent congressional action. Indeed, at least when it comes to COVID-19, that is what Republicans want the Biden administration to do. Instead of appropriating new pandemic-related funding, GOP lawmakers have argued for months that executive branch agencies should tap unspent COVID funds that Congress already has approved.
There is bipartisan support for new funding for the Ukraine, however, and in an election year, lawmakers are unlikely to want to vote against natural disaster aid funding that could directly help constituents in need. In other words: it is likely that Congress will consider a supplemental spending bill this fall, it just will not likely contain the full $47 billion the White House wants.
National Defense Authorization Act (NDAA). Members of the House and Senate Armed Services Committees are currently working on the annual NDAA. This bill is a package of federal laws that authorize defense programs, policies, projects, or activities at the U.S. Department of Defense and other federal agencies and offers guidance on how appropriated funds should be used. Congress passed the first NDAA in 1961, and, according to the Congressional Research Service, lawmakers have approved an NDAA, and the President has signed it into law, every year since.
This year’s NDAA is expected to include robust new cybersecurity provisions. As Politico explained for example, a provision in the House version of the bill would require software companies that sell to the federal government to certify their products are either free of known vulnerabilities, or will be fixed before they are used.
Serious stuff, especially given heightened global tensions. That means that while lawmakers do not have to pass this legislation by any certain deadline, they almost certainly will by the end of the year, if not sooner.
Permitting Reform. If you thought Sen. Joe Manchin (D-W.Va.) exited stage left after the Democrats’ successful passage in August of the Inflation Reduction Act (IRA), think again. As part of the deal to secure Sen. Manchin’s support for the IRA, Senate Majority Leader Chuck Schumer (D-N.Y.) agreed to advance legislation to streamline the federal government’s environmental review process for energy projects. While legislative language for this bill has not been finalized, Sen. Manchin has provided a framework of priorities.
Sen. Schumer, meanwhile, plans to make good on his promise to bring the bill to the floor and apparently wants to attach it to the end-of-fiscal year, must-pass spending bill.
House progressives are having none of that, however. As E&E News reported, House Natural Resources Chair Raúl Grijalva (D-Ariz.) has circulated a letter to House leadership requesting that Sen. Manchin’s permitting bill be decoupled from spending legislation. “The inclusion of these provisions in a continuing resolution, or any other must-pass legislation, would silence the voices of frontline and environmental justice communities by insulating them from scrutiny,” Rep. Grijalva wrote.
But as E&E News also reported, Democrats may suffer Sen. Manchin’s “wrath in a 50-50 Senate that requires unanimous Democratic support to advance contentious nominations and judicial picks” if they do not advance permitting reform. Indeed, Sen. Manchin told West Virginia Metro News last month, “It either keeps the country open, or we shut down the government. That’ll happen Sept. 30, so let’s see how that politics plays out.”
Codifying Same Sex Marriage. In July, one month after the U.S. Supreme Court’s ruling overturning Roe v. Wade, House lawmakers approved the Respect for Marriage Act, a bill that would codify protections for same-sex marriage into federal law. The legislation received support from several House Republicans and appears to have support from a number of GOP senators as well. The question is: will there be enough GOP lawmakers willing to vote for the bill to prevent a filibuster?
Even if there aren’t, as Vox reports, Sen. Schumer has some incentive to bring the bill to the Senate floor since it would require Republicans to cast a difficult vote. Nearly three-quarters of voters now say they support same sex marriage. A “no” vote could put GOP candidates one the opposite side of most of the people who plan cast ballots this November.
Related to this issue is judicial nominations. While the polling suggests that Democrats are not expected to lose the Senate if the midterm elections were held today, Vox also reports that, with the election looming, the White House and Sen. Schumer are under increased pressure “to expedite the nominations of additional judges … hold more confirmation hearings, and consider more nominees in those hearings.”
A Bipartisan Election Reform Bill. Lawmakers also could vote this fall on a bipartisan bill to reform how Congress certifies presidential election results. Specifically, this legislation would “prevent lawmakers and presidents from taking advantage of existing law’s vague phrasing outlining the certification of Electoral College votes after presidential elections.” The bill has the support of 10 Republicans, which means it could overcome a Senate filibuster.
The potential for action here is high. Especially since, as NBC reports, Democrats – and some Republicans – worry “that a potential GOP-controlled House would throw [the bill] in the trash can next year.”
Will There Be a Federal Government Shutdown?
As readers are aware, Congress must approve, and the president must sign, spending legislation before midnight on September 30 to keep all of the federal government’s discretionary programs open.
House lawmakers have approved six of the 12 annual appropriations bills, but the Senate has not voted on a single one. And they are not likely to do so by the end of this month.
Sound dramatic? Perhaps, but lawmakers already are working to hash out the parameters of a continuing resolution, or CR, which keeps current funding levels in place for various government agencies when the new fiscal year begins on October 1. A CR likely would extend through mid-December, at which point lame duck lawmakers must decide whether to pass another short-term funding bill or bundle all of the appropriations bills into one omnibus spending package.
If the past is precedent, after the election we expect another CR to be enacted that will fund the government until sometime in March, at which point the newly elected Congress will be tasked with keeping the government open.
With divided government expected at that point — Republicans still are favored to take back the House from Democrats — that is when the real fireworks will happen. Especially since next spring also is when House and Senate lawmakers will need to raise or suspend the federal debt limit to avert a catastrophic default.
There is growing concern that, in a divided Congress, it will be nearly impossible to enact a debt ceiling increase or suspension. If lawmakers cannot, the U.S. government would default on its obligations. There is, therefore, some consideration among Democrats about advancing debt ceiling legislation sooner rather than later. Getting something done this month is an all-but impossible task, but Democrats could try in the post-election lame duck session.
In other words: while looking forward to election day, don’t take your eyes off Capitol Hill.