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The not-so-lame duck session

Democrats are eyeing votes on same-sex marriage protections and electoral reforms.

House Speaker Nancy Pelosi talks with Senate Majority Leader Chuck Schumer during the Moms Demand Action Gun Violence Rally on June 8, 2022, in Washington, DC.
Nathan Howard/Getty Images
Li Zhou is a politics reporter at Vox, where she covers Congress and elections. Previously, she was a tech policy reporter at Politico and an editorial fellow at the Atlantic.

Now that Congress is back from its Thanksgiving recess, the lame duck session is firmly underway.

It’s expected to be a busy few weeks. Republicans have retaken the House, so Democrats have until the beginning of January to pass any lingering legislation they’d like to get through before losing unified control.

On top of that, lawmakers still have to address must-pass bills like government funding and the authorization of defense spending, both of which they need to wrap before year’s end. If they don’t, the government could potentially shut down and the military could see major planning delays.

Beyond the routine business on their docket, Democrats are eyeing two big bills: legislation to enshrine protections for same-sex marriage into federal law, and a measure to reform the way Congress certifies election results. Other priorities, including immigration reform and an assault weapons ban, have also been raised, though getting enough GOP support to get them through the Senate is likely to be more of a long shot.

In the last two decades, when congressional power changed hands, lame-duck sessions have been frenetic in large part because they’re the final opportunity for a party to accomplish some of their key priorities. According to Pew, these sessions have accounted for more than a quarter of Congress’s legislative output in recent terms. This year is shaping up to be no different.

Below is a rundown of a few of the bills Congress has on tap for its lame-duck session this year — and where they currently stand.

These bills are likely to advance

Same-sex marriage protections

The Senate is expected to pass same-sex marriage protections this week after 12 Republicans expressed their support for the bill earlier this month. Because of changes that senators made to the legislation in order to win that GOP support, the House will also have to vote on the bill a second time, and is expected to pass it as well.

A procedural Senate vote in November revealed that the legislation has enough support to clear a 60-vote threshold: Republican Sens. Susan Collins (ME), Rob Portman (OH), Thom Tillis (NC), Lisa Murkowski (AK), Mitt Romney (UT), Roy Blunt (MO), Richard Burr (NC), Shelley Moore Capito (WV), Cynthia Lummis (WY), Dan Sullivan (AK), Todd Young (IN) and Joni Ernst (IA) joined with the 50-member Democratic caucus to vote in favor of the bill. Their votes suggest the legislation will pass the Senate when lawmakers vote on final passage later this week following another procedural vote on Monday.

The House approved the bill, with 47 Republicans joining 220 Democrats in voting yes, this past July. The House will vote on the new version of the bill — which contains added language on protecting religious liberties — later this week.

Senate Democrats had postponed a vote on this bill until after the midterms because they believed they’d be able to get more Republican votes once those lawmakers were less worried about alienating conservative Christian voters. Republicans said, in turn, that they would be more open to considering the legislation if it didn’t feel like it was being used for political messaging during the midterms.

The bill would repeal the 1996 Defense of Marriage Act, approved during President Bill Clinton’s administration, which defined marriage as a legal union between a man and a woman, and would guarantee recognition of same-sex and interracial marriages under federal law.

The new legislation is both historic and central to guaranteeing same-sex marriage protections. It became a Democratic priority following an opinion from Supreme Court Justice Clarence Thomas, in which he floated potentially revisiting Obergefell v. Hodges, the judicial decision that established such rights in 2015. The Supreme Court’s decision to overturn Roe v. Wade has raised the possibility that the panel could do the same with other precedents.

The support that the legislation has represents a major shift, though the majority of both House and Senate Republicans are still opposed to the measure. Some Republicans — including Sens. John Cornyn (TX) and Marco Rubio (FL) — have previously said they don’t support the bill because they don’t think these rights are being threatened.

Electoral Count Act reforms

There’s been a bipartisan push to reform the Electoral Count Act, which lays out Congress’s role in counting electoral votes following a presidential election, but it’s still waiting on a vote in the Senate. This bill would update the ECA in a bid to prevent elected officials from using the process to overturn the election results, like former President Donald Trump attempted to do in 2021. Key reforms include clarifying the vice president’s role in the counting process as purely ceremonial and increasing the threshold of lawmakers it takes to challenge the results of an election. Currently, it takes just one Senate and one House member to object to a state’s outcome in order for Congress to consider and vote on the objection.

In September, the House passed its version of these reforms and the Senate is likely to do the same in the coming weeks. At this point, more than 10 Republicans have expressed their support for the bill, a strong sign that it will pass. As Vox’s Ben Jacobs has explained, these policies aren’t enough to guarantee that another January 6 won’t happen, though they can eliminate some legal loopholes bad actors may try to exploit.

The Senate’s version of the bill differs from the House’s, however, so the lower chamber will probably have to consider the legislation again. One difference includes the threshold for challenging a state’s results: The House’s bill would require one-third of lawmakers in both chambers to sign on, while the Senate’s would require one-fifth of lawmakers.

The House could approve the Senate version after it’s passed, though the process could take longer if the two chambers seek to reconcile some of the differences in the bills. As Politico reported, there’s also a possibility that lawmakers try to attach this legislation to either the must-pass government funding package or the National Defense Authorization Act, given how little floor time Congress has left before the end of the year.

Funding the government

The deadline to keep the government open is now December 16, when a short-term spending bill passed earlier this year is due to expire.

Lawmakers have the option of passing another short-term bill, also known as a continuing resolution (CR), or the full-year appropriations bills that would fund different government agencies and programs. Because they’re still negotiating figures for the larger spending bills, Congress could pass a week-long CR to buy themselves more time and extend their deadline to December 23.

If they fail to approve either a full-year bill or another CR, the government would shut down, furloughing employees and significantly curtailing certain services.

Key appropriations requests include roughly $38 billion more in aid to Ukraine as well as $10 billion in pandemic aid to further the distribution of vaccines and medication. Both could see some Republican opposition, with the GOP split on additional support for Ukraine, and most of the party balking at additional money to address the pandemic.

Authorizing defense spending

Another must-pass bill that Congress has to consider is the National Defense Authorization Act, which establishes funding allocations for the defense department.

There was speculation that Sen. Joe Manchin’s permitting reform bill, which previously garnered opposition from Republicans and progressive Democrats, could be attached to the NDAA. The prospect of that happening is looking less promising due to ongoing GOP pushback.

This bill would streamline the approval process for fossil fuel and clean energy projects, and guarantee permits for the Mountain Valley Pipeline, a natural gas project in West Virginia, Manchin’s home state. Progressives had pushed back on the legislation because of the inclusion of the pipeline and the concern that the approval process Manchin envisions would dilute communities’ opportunities to weigh in on these projects. Republicans, meanwhile, felt the reforms wouldn’t expedite projects enough, and also weren’t interested in giving Manchin a win following his support for the Inflation Reduction Act.

It’s not yet clear whether Manchin will tweak his bill to address some of these concerns, or if it will have to be dropped yet again after it wasn’t able to pick up sufficient votes in September.

In mid-November, House Minority Leader Kevin McCarthy signaled an interest in postponing an NDAA vote until next year when House Republicans will be able to send more of a message with the measure. McCarthy has argued that Democrats were trying to promote “woke” policies with the bill, though he did not detail what he meant by that. As Politico reported, Republican critiques have included policies like mask mandates and diversity initiatives in the military.

Because certain House Democrats often vote against the NDAA in order to express their opposition to defense spending, the party will likely need some Republican support in order to pass the bill. Depending on how aggressively McCarthy sticks by and pushes a potential delay, that support could be tougher to obtain this year.

It would be surprising if Congress doesn’t pass the NDAA before 2023, however, since it’s done so for the past 61 years.

These bills have also been floated

(Maybe) raising the debt ceiling

Democrats also have the chance to raise the debt ceiling and stave off a potentially calamitous stand-off that could happen next year if Republicans take the House.

Increasing or suspending the debt ceiling (basically, the amount the US is able to borrow) is a routine action Congress has to take because if it doesn’t, the US could default on its bills and destabilize the country’s economy. Despite that, it’s a moment Republicans have indicated that they will use for leverage to secure cuts to funding for social programs and clean energy initiatives.

Democrats could prevent this from happening by approving a massive increase while they still control both the House and the Senate this year, though the US is not projected to hit the debt ceiling until sometime in 2023.

Because of that timing, as well as Congress’s packed schedule, it’s not clear if they will get to that priority before next year.

Immigration reform

Congress is trying, once again, to pass immigration reform, an ambition that’s been thwarted repeatedly in the last decade.

Some Democrats are pushing legislation that would provide DACA recipients — undocumented immigrants who came to the US as children — a pathway to citizenship, after members of the program have been stuck in limbo for years. The program has faced numerous court challenges, though the Biden administration has sought to keep it intact. Legislation from Congress would help provide DACA recipients with more permanent status and offer a pathway to citizenship that doesn’t currently exist.

The main holdup for this legislation is in the Senate, where it needs 10 Republicans to sign on in order to pass. Sen. Dick Durbin (D-IL), a longtime leader of immigration negotiations, has said he knows of four or five Republicans who’d be open to the bill, but the legislation would require more to actually advance.

An assault weapons ban

In the wake of a series of mass shootings in recent weeks, Democrats have raised the possibility of approving an assault weapons ban, though the measure isn’t likely to have sufficient Republican support in the Senate.

Such a ban would bar the sale of semi-automatic firearms, which are able to fire off many rounds of ammunition extremely quickly. As the Associated Press’s Colleen Long, Mary Clare Jalonick, and Lindsay Whitehurst write, these weapons include “a group of high-powered guns or semi-automatic long rifles, like an AR-15, that can fire 30 rounds fast without reloading.” In November, a shooter used an assault-style rifle to kill five people and injure several others at an LGBTQ night club in Colorado Springs, Colorado.

Sen. Chris Murphy (D-CT), a leading architect of Congress’s bipartisan gun control package, noted Senate backing would be the primary obstacle, but that Democrats would continue to push the issue. Previously, Congress passed an assault weapons ban in 1994, but lawmakers were unable to renew it after it lapsed a decade later.

“The House has already passed it. It’s sitting in front of the Senate. Does it have 60 votes in the Senate right now? Probably not,” Murphy said in an interview on CNN’s State of the Union. “But let’s see if we can try to get that number as close to 60 as possible.”

Recent lame ducks have been pretty productive

Lame-duck sessions were once pretty sporadic affairs, though they’ve become much more common, and productive, in recent years.

Since 2000, especially, a decent chunk of Congress’s output has actually taken place during lame-duck sessions, per Pew. During the last Congress, nearly 44 percent of what it passed — including a major coronavirus relief package — was approved during this session.

Other active lame-duck sessions include 2010, when Democrats lost control of the House, and passed several major bills before they handed it over to Republicans. They repealed “Don’t Ask, Don’t Tell,” passed a nuclear arms reduction treaty with Russia and approved an extension of tax cuts established during the Bush administration, according to the Atlantic. Prior to the shift in congressional power in 2019, Republicans also used the lame-duck session to approve the First Step Act, a groundbreaking criminal justice reform bill, as well as a reauthorization of the farm bill, which authorizes spending for Agriculture Department programs.

This year is poised to be another busy lame-duck session, particularly since this is Democrats’ last chance to shepherd bills through before Republicans regain House control.

Update, November 28, 2:45 pm ET: This story was originally published on November 15 and has been updated to reflect developments regarding specific bills.

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