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Legislative Update

Senate. The Senate this week will continue consideration of nominations. On Wednesday, there will be a cloture vote to end debate on legislation codifying protections for same-sex marriage. On Tuesday, Senate Republicans will meet to elect their leadership team for the 118th Congress. Democrats have not yet announced a date for their leadership elections, but it will reportedly be the week of Dec. 5.

House. The House will vote on 29 bills under suspension of the rules and consider legislation dealing with wildfires and disaster aid. Lawmakers are also expected to vote on a Senate-passed bill (S. 4524) that seeks to curb the use of nondisclosure amendments by employers to prevent workers who allege sexual assault or harassment from speaking publicly about the incidents. Newly elected House members are in town for orientation meetings this week, and on Tuesday, Republicans elected to serve in the next Congress will meet to choose their leaders. House Democrats plan to elect their leaders Nov. 30 and Dec. 1.

Lame Duck Agenda. Topping the list of must-pass measures in the lame duck session is legislation to fund the government after the continuing resolution expires on Dec. 16. Lawmakers would like to wrap up legislative activity by then, but no one would be surprised if Congress is still in session the week of Dec. 19. In addition to funding the government and authorizing defense programs, other items on the agenda could address expiring tax provisions, the debt limit, retirement security, modernizing the 1887 Electoral Count Act, same-sex marriage protection, and Medicare physician payments. All of these initiatives will need 60 votes in the Senate to move forward, so bipartisan support is a necessity.

  • Appropriations. If full-year FY 2023 appropriations measures are to be enacted this year, there must first be an agreement between Democrats and Republicans to set the top-line numbers for defense and non-defense spending. Talks on the top-line numbers “will start immediately” among the top House and Senate appropriators, according to staff. Assuming the parties are able to reach an agreement, the next step will be deciding how funds will be doled out among the 12 separate appropriations bills.

The $1.7 trillion question is, Will both chambers agree to pass an omnibus bill that packages all 12 measures into one piece of legislation? There are two schools of thought. One believes that Republicans will gain control of the House and push for a continuing resolution that will fund the government until early next year, when they will ostensibly have more leverage in determining the substance of the appropriations measures. The other school of thought maintains that it’s better to “clear the decks” in the lame duck and pass an omnibus bill. The narrower-than-expected margins for the House and continued Democratic control of the Senate next year could be developments that weigh in favor of the clear-the-decks approach.

  • NDAA. Everyone expects Congress to pass the National Defense Authorization Act this year, but the path to enactment is unclear. It’s not yet known whether the Senate will use floor time to complete action on its version or, instead, move to negotiations with the House and then bring a House-Senate compromise to the floor for consideration. Also, there’s speculation that the final version of the NDAA measure could be added to the year-end appropriations bill.
  • Tax Extenders. The Tax Cuts and Jobs Act of 2017 made two changes to corporate taxes that were effective at the beginning of this year and one that begins phasing in next year. There is a push to delay these three TCJA provisions that affect a company’s deductions for R&D expenses and interest expenses and bonus depreciation of certain business property. Democrats say they are willing to reach an accommodation on business tax benefits but only if Republicans agree to include language benefitting individuals, such as an expanded child tax credit or the temporary increase in the Low Income Housing Tax Credit. If the two parties can reach agreement on the big-ticket tax provisions, they could also approve an extension of other expiring provisions, including the depreciation treatment of certain racehorses and the rum cover-over, which deals with rum excise tax revenue.
  • Debt Limit. Still another unanswered question is whether the lame duck Congress will take up legislation to raise the debt ceiling. The current debt ceiling of approximately $31 trillion is not expected to be reached until the fall of 2023, but Democrats may push for early action, given the expected Republican control of the House next year. Democrats are concerned that next year Republicans will not agree to address the debt ceiling unless there is also an agreement to rein in spending, which could include spending on entitlement programs.

Congress can raise the debt ceiling through passage of a reconciliation bill, requiring only a simple majority in the Senate, but doing so would eat up considerable Senate floor time. In addition to hours of floor debate, the Senate would have to set aside time for vote-a-ramas on both a budget resolution and the reconciliation bill itself. Senate Majority Leader Chuck Schumer said today he’d like Congress to address the debt ceiling this year, but, he added “it should be done in a bipartisan way.”

Committee Action of Note

  • Tuesday, November 15
    • House Homeland Security Committee Hearing: Worldwide Threats to the Homeland
    • House Oversight and Reform Subcommittee on Civil Rights and Civil Liberties Hearing: Developments in State Cannabis Laws and Bipartisan Cannabis Reforms at the Federal Level
    • Senate Banking, Housing and Urban Affairs Committee Hearing: Oversight of Financial Regulators: A Strong Banking and Credit Union System for Main Street
    • Senate Agriculture, Nutrition and Forestry Committee Hearing: Farm Bill 2023: Rural Development and Energy Programs
    • House Financial Services Subcommittee on Investor Protection, Entrepreneurship, and Capital Markets Hearing: Investing in our Rivals: Examining U.S. Capital Flows to Foreign Rivals and Adversaries Around the World
    • Senate Environment and Public Works Committee Hearing: Implementing IIJA: Opportunities for Local Jurisdictions to Address Transportation Challenges
  • Wednesday, November 16
    • House Financial Services Committee Hearing: Oversight of Prudential Regulators – Ensuring the Safety, Soundness, Diversity, and Accountability of Depository Institutions
    • Senate Aging Committee Hearing: Promoting Healthy and Affordable Food for Older Americans
  • Thursday, November 17
    • House Transportation and Infrastructure Subcommittee on Aviation: Accessible Air Travel: Addressing Challenges for Passengers with Disabilities
    • Senate Energy and Natural Resources Committee Hearing to Consider Pending Nominations of Department of Energy Officials

Political Update

Election Results. As of Monday afternoon, Republicans were declared the winners in 212 House races, with Democrats capturing 204 seats.

Turnout. Voter turnout for last Tuesday’s midterm elections was the second highest of any midterm since 1970, according to a Washington Post analysis. An estimated 112.5 million voters cast ballots this year, equating to about 47% of eligible voters nationally. In 2018, roughly 50% cast ballots, the highest share since 1970. The 2020 general election saw the highest turnout in over a century, with more than 66% of the voting-eligible population casting votes.


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