Over the next few weeks, the 2020 election will be mostly behind us (except in Georgia, which has two runoff U.S. Senate races to go). Court challenges will be brought and adjudicated. Votes will be certified. Winners and losers will become more apparent. Congressional leadership elections will be held and committee assignments made. Everyone will take some time for Thanksgiving.
Then Congress will turn to the year-end lame-duck session, when it finishes up some items left undone and leaves others forever unaddressed by the 116th Congress. A general rule of thumb in Washington is that lame-duck sessions of Congress end up accomplishing a lot less than people think they will before they begin (especially those held after a presidential election). This year, it’s in the best interest of taxpayers that the events follow this old saw.
An important consideration for lame ducks is that they tend to work the opposite of what is referred to as “regular order.” They are the product of a soon-to-be-defunct set of legislators (many of whom won’t even show up because they were just defeated for reelection) and of those still in town who increasingly smell the jet fumes of their Christmas vacation airplanes.
Lame ducks are an oligarchy run by the “four corners” — the speaker of the House, the Senate majority leader, the Senate minority leader (because 60 votes are needed in that body), and staffers representing the president. The House minority leader is usually consulted, but unless his conference’s votes are needed, his role is mostly advisory (which is why Freedom Caucus revolts against GOP House speakers were so costly, as they gave Minority Leader Pelosi a seat at the table). In practice, key leadership and White House staff negotiate what happens, and members of Congress find out what it is they are expected to vote on.
Very few things have to happen in this lame duck. Congress previously voted to put federal spending on auto-pilot until Dec. 11. If Congress takes no action, the government will shut down. To head this off, Senate appropriators recently released their draft version of fiscal year 2021 spending packages. As a result, one of three things will happen: Congress might take up an omnibus spending bill to fund the government for the remainder of the fiscal year (through next September); Congress might pass a continuing resolution to move the Dec. 11 date to early on in the next Congress; Congress might pass a “minibus” of some appropriations bills for the whole fiscal year while doing a continuing resolution for the rest.
In addition, Congress will have to vote on a few other cats and dogs that are part of the basic architecture of federal spending (national defense authorization, water resources authorization, some healthcare laws that need to be extended, and so forth). There’s a decent chance Congress may want to help companies by “smoothing” their pension contributions over a longer period of time (a reflection of how low interest rates have gotten, which mathematically increases the required pension contribution artificially) — a revenue raiser which is not a tax increase.
Beyond that, nothing is truly mandatory. Congress ought to consider a lowest common denominator “skinny” package of COVID-19 relief that is not controversial in either party, and let the new Congress deal with the rest in January. Items in here might include extending CARES Act tax relief, reopening the Paycheck Protection Program for businesses that wish to apply, and approving additional funding for vaccine deployment. Beyond that, you run into a brier patch of Democratic objections to liability protection and Republican objections to state and local government aid and extra unemployment benefits.
There are a number (33 to be exact) of tax provisions set to expire on Dec. 31 that are known as “tax extenders.” Along with the CARES Act tax provisions, which also expire on that date, Congress might choose to extend these tax items by another year. However, failure to do so is not the end of the road for them. Because tax returns for 2020 are usually filed in March (for businesses) and April (for households), Congress might retroactively extend these early in the next Congress. A tax extenders bill might also contain a fix for conservation easement charitable tax deductions, a sticky issue that has vexed the tax-writing committees for years.
Then there are the things that Congress should avoid in a lame duck, either because they are bad ideas or are simply beyond the pale. A good example here that’s making a push is the Contact Lens Rule Modernization Act, sponsored by Republican Sen. John Boozman of Arkansas, which is making a run up through the Senate Commerce Committee. The legislation would eliminate signed acknowledgments for prescription releases to customers, undermining prior legislation that allowed online sellers to compete with optometrists. Optometrists have the power to issue prescriptions, and they are one of the few occupations where one sells what he prescribes. This is a good example of a special interest effort and is exactly the type of bill that is not an urgent crisis deserving attention in a lame-duck environment.
Another idea that won’t seem to go away and is making a last-minute lame-duck attempt is fixing surprise medical bills by imposing government price controls on doctors, ambulance services, and other medical specialists. A surprise medical bill occurs when a patient receives medical care at a hospital that is in your health insurance plan’s network, but, unbeknownst to you, services were received by a doctor or other provider who is not in your network. The result is that the innocent patient receives a giant bill out of nowhere. Senate HELP Committee Chairman Lamar Alexander of Tennessee is retiring and badly wants a price control fix as his legacy. Conservatives have made it clear that they believe price controls are an unacceptable answer to the very real surprise medical bill problem and will work to ensure this doesn’t come up in the lame duck.
Beyond that, there are many other bad ideas that will be floated and will very likely die on the rocks and shoals of the lame duck’s brief life and rigid structure. All in all, that’s a good thing. As George Will was once fond of saying, the sweetest words in the Constitution are, “Congress shall make no law.”
Ryan Ellis (@RyanLEllis) is the president of the Center for a Free Economy.
