Fowl Play in Congress

By Steve Kopperud, Policy Directions, Inc.

Back in the days when Congress was a relatively efficient institution – note the use of the word “relatively” – a “lame duck” session was a rare phenomenon, a work period called after an election, but only once in a blue moon, a time deemed necessary to complete action on important legislation so close to the finish line.

The term “lame duck” derives from an old British description of a stockbroker unable to meet his financial obligations, and hence, disgraced and unable to make a living. My preferred derivation comes from British nautical slang: a damaged ship was considered a “lame duck” because neither a lame duck nor damaged ship could move easily across the water. The nautical derivation fits Congress.

These days, the mere mention of a lame duck session strikes fear and loathing into the hearts of all lobbyists. The only justification for a lame duck session should be to get unfinished business completed, and groups across Washington, DC, who’ve spent the last two years pushing their parochial legislation through the process hear the clock ticking toward adjournment. Keep in mind, bills not enacted prior to what’s called a sine die adjournment of Congress “expire,” meaning they have to be reintroduced and the legislative process begins anew in the next Congress.

So, right now, Washington is full of scared and hateful lobbyists because leadership has all but guaranteed it will call back the House and Senate after the November elections. The Republicans are hoping reelection poll numbers this summer are correct, meaning the current minority becomes the majority, at least in the House. With a risk of being accused of counting his chickens before they hatch, House GOP Minority Leader John Boehner (R-OH) has already warned the Democrat leadership to “guarantee – right now – that they will not bring members back for a ‘sour grapes’ session after the election.”

For their part, Democrat leaders respond that any lame duck session will be held only to take care of “minor unfinished business.” However, the GOP is beating the drum out on the hustings that the Democrats will use the session to ram through massive spending bills, cap-and-trade energy policy, and other “liberal agenda items” that make any good capitalist blanch.

Another complication of these “special” sessions of Congress are that they’re peppered with members who either lost reelection or retired, folks who define a lame duck session as their last hurrah, their final shot at “legacy” legislation without worrying about the consequences of voter retribution. Then there’s the member who, having lost his or her seat, decides to do something seriously nasty, something long opposed, just because he or she can. And if that’s not frightening enough, imagine how scary it gets if the political party in power will no longer enjoy that status come the new session in January 2011.

The bottleneck on legislation is the Senate. Energy, climate change, taxes, food safety, and a host of White House nominations are stuck. At this writing there are fewer than 30 Senate working days remaining before autumn recess in September to allow the entire House and one-third of the Senate to get home and campaign. That drops to 20 or so days given the full week of Senate floor time set aside for Elena Kagan’s Supreme Court nomination vote. The House is hoping to get out of town for its August recess early, returning September 10, with hopes to wrap up before the middle of the month.

More and more we’re hearing about what may or may not be done in a 2010 lame duck session. There are thousands of introduced bills for which champions can argue action is absolutely necessary before adjournment. Some of these have merit, from a timing perspective, and are candidates for what I call “trash can” legislation, as in creation of an omnibus package carrying several totally unrelated issues in need of action. This kind of thing normally passes without even a recorded vote.

But which of the big ticket items are likely candidates for serious lame duck attention? So much depends on Senate Majority Leader Harry Reid’s (D-NV) almost undecipherable system of deciding on which legislation deserves to be priority legislation. However, ever the lover of a good challenge, here’s my prognostications for what to look for come mid- to late-November.

• Energy/Climate – There’s no way the House-passed climate change bill will see the light of day in the Senate, if only because it contains a highly controversial and expensive carbon cap-and-trade provision. The Senate has spent the better part of the last six months trying to come up with some form of legislation it can call an energy bill with a straight face. At best it will likely hammer together a bill that whacks oil companies for ocean spills and provides incentives for green technology, allowing industry to reduce greenhouse gas emissions without caps and without the “price on carbon” President Barack Obama so desperately wants. At worst, it will be an electric utility-only approach – with the green technology component – with a carbon cap, an approach the House can live with.

• Taxes – If Congress cannot come up with a way to renew expired tax credits for everything from biofuels to research and development, and if there’s no solution to the estate tax mess, look for an omnibus tax package designed to provide tax credit relief retroactive to January 1, 2010, along with a new formula for inheritance taxes. Under President George W. Bush, Congress began to phase out the so-called death tax; in 2010, the estate tax rate dropped to zero percent so those who die this year pay no inheritance tax – which has got to make the late George Steinbrenner’s heirs feel a little better. However, on January 1, 2011, the estate tax rate returns to its pre-Bush levels of 35 to 55 percent, which most find unacceptable.

• Food safety – This should have been completed months ago, but Senator Dianne Feinstein (D-CA) has decided the federal government needs to ban Bisphenol-A (BPA), a chemical used in plastics manufacturing and can liners, and she’s demanding her BPA ban be part of the carefully constructed, delicately balanced bipartisan Senate food safety bill. Even the Europeans have deferred action on BPA until after they’ve reviewed “the oceans of science and data” that’s out there. In any event, if a deal with the House can be struck to accept a Senate food safety bill – with or without a Feinstein BPA battle – Senate leadership may decide to push this bill to the floor.

• Immigration – There may be an eleventh-hour push for some form of immigration reform, though the chances of this highly controversial legislation seeing the president’s desk before Thanksgiving are slim and none. This would be more grandstanding for the folks back home.

• Appropriations – Once again leadership is paying lip service to getting all 13 federal spending bills completed by the September 30th deadline given fiscal year (FY) 2011 begins October 1, 2010. This will not happen, at least during regular session. In that case, Congress has two choices: a continuing resolution to fund government programs at FY 2010 levels until a date certain in 2011, or a calculated gamble it can get a FY 2011 omnibus spending bill, rolling all of the appropriations bills into a single piece of legislation, done during lame duck. I’m betting they try the lame duck approach.

View from Washington – August 2010 RENDER | back