11/08/2010 07:30 pm ET Updated Dec 06, 2017

The Lame Duck Window

Democrats in the 111th Congress may be down, but they are not quite out yet. Due to the quirky nature of our political calendar, the "old" Congress will reconvene in a week or so, and stay in session through December, and then the "new" or incoming Congress will be convened for the first time in January. What, if anything, this "lame duck session" will accomplish is an open question. They certainly won't have any shortage of issues to tackle, and this may well be the last chance Democrats get at moving their agenda forward for the next two years. Whether they will take this window of opportunity to do so or not remains to be seen, though.

Originally, the term "lame duck" was part of a triad of terms used on the stock market. These originated in England, but somewhere along the way over the Atlantic to America, "lame duck" got dropped from the more-familiar "bears" and "bulls" which we still speak of today. The term originally meant a bankrupt investor (insert your own ironic joke here). As it migrated to the world of politics, it changed into the modern meaning of "politicians who have a foreseeable limit to the time they have left to serve." Its meaning is considerably looser when used about presidents, since in the last two years of any president's second term, they are often called "lame duck presidents." In Congress, however, it specifically means the next few months -- the gap between the election and the swearing-in of the new Congress.

The lame duck House will remain the same, under the control of Speaker Nancy Pelosi. The lame duck Senate, however, will change slightly in its balance of power between Democrats and Republicans. The good news for Democrats is that this could have been much worse than it actually is going to be. Four states held Senate "special elections" a week ago, rather than the normal elections dictated by the Senate's calendar. Three of these special elections were to replace seat-warmers appointed after sitting senators left the Senate. Three of the four seats were vacant due to people who essentially got a promotion -- Barack Obama of Illinois, Joe Biden of Delaware, and Ken Salazar of Colorado (who was named to a cabinet seat). The other special election was due to the death (while in office) of Senator Robert Byrd of West Virginia. But all of the winners of these races will be seated not in January, but immediately when Congress returns.

I wrote about this a while back, because all of these seats were tough races for Democrats. At least they were until the Republicans of Delaware nominated Christine O'Donnell, which was an early Christmas present from the Tea Party to the Democratic Party. West Virginia turned out to be not nearly as close as the right-leaning polling operation Rasmussen had predicted. But Colorado and Illinois were very close races indeed. Democrats held on in Colorado (another Tea Party present), but lost Barack Obama's old Senate seat to Republicans. The upshot is that while Republicans could have gotten as many as 45 Senate seats in the lame duck session, they will have to settle for only 42 instead. But that still means it'll be one vote harder for Democrats to get anything done.

Let's be blunt -- this window of opportunity is going to be the last chance for the Democrats to pass any bills on their agenda for at least two years. And it's going to open and close fast. Which means -- given the slow pace of the Senate, chained down by archaic rules -- that most likely only a few things will manage to even be debated (much less passed). And the list of issues vying for this honor is already pretty long, I have to say.

Three important reports are scheduled to come out either in December or just before: a progress report and strategy review of the military effort in Afghanistan, a Pentagon report on how they can best transition away from the "Don't Ask, Don't Tell" (DADT) policy of excluding open gays from serving their country, and the blue-ribbon deficit commission's report on our long-term budgetary outlook and what we should do about it. That's a lot to deal with right there. But there are two other issues which face a deadline of the end of the year as well: energy legislation and what to do about the expiring Bush tax cuts. As well as other problems facing their own deadlines, like extending unemployment insurance payments, and passing some sort of continuing resolution to paper over the fact that Democrats haven't passed even a single budget bill for this year yet.

So far, the Bush tax cuts have garnered the most media attention. Which means they may wind up dominating the lame duck session, to the exclusion of most everything else. Or perhaps not, if a deal is cut early on and passed quickly -- which is indeed a possibility.

The Afghanistan review is likely to be the least contentious, at least legislatively. Republicans mostly support President Obama's actions in Afghanistan, and it is largely a matter of presidential decision-making anyway. The only role Congress will have is in setting the amount of money Obama can spend next year on the war, so while there may be disagreements (with both Democrats and Republicans) over the tactics and strategies involved, they mostly won't play out on the floors of Congress.

Obama's original plan was to have some sort of energy policy in place by this point, but that hope died in the Senate (the House did pass the "cap and trade" bill, but it went nowhere over on the other side of the Capitol). But the wildcard in this is the Environmental Protection Agency (E.P.A.) who has been given the power (by a court decision, no less) to regulate carbon emissions. The E.P.A. will begin rolling out new regulations to achieve this early next year. Congress was supposed to act before this happened, to give legislators the chance to mold energy policy, but the legislators punted. This is going to seriously freak out the Republicans next year, I should mention, but given the nature and complexity of the issue, it is unlikely they'll have legislation passed before the E.P.A. acts. This could actually be good news for environmentalists, if the E.P.A. goes farther in creating regulations than Congress would assumably have gone. But, again, the issue is large enough that it likely won't even make the list of what the lame duck session tackles, since I really can't see the cap and trade bill from the House suddenly passing in a 42-58 Senate.

Unemployment benefit extensions are also quite likely to also be dropped unceremoniously from the lame duck Congress' "to do" list. This is going to be tragic for millions of people, but Democrats likely won't have the votes to pass anything (especially anything which smacks of "spending" to the Republicans), so the issue will likely die a quiet legislative death. Republicans, it is assumed, will continue to ignore the issue after January.

The continuing resolution to keep the government funded may spur some grandstanding on the part of the Tea Partiers, but most of them won't be in office yet, and the Republican leadership will likely sell the concept to its members as "this is just the handoff to Republicans being in charge, so it's no big deal." The continuing resolution will likely be extremely short in nature, to put the pressure on the incoming Congress to deal with the budget.

The only budget bill I can see making it through the Senate (which doesn't just put the federal spending on autopilot, as the continuing resolution bills will) is the Department of Defense's budget. More on that in a bit, here.

The two big issues likely to dominate the political discourse until the new year are whatever comes out of the deficit commission's report, and the Bush tax cuts. The deficit commission could either (1.) not agree on much of anything, and reflect this division of opinions in their report, or (2.) come out with specific proposals. If they punt (due to the commission's setup, "not punting" is likely going to mean either Republicans approving tax cuts or Democrats approving entitlement benefit reductions, so the deck is stacked against much of any concrete proposals that would solve much of anything), then the discussion will move into next year. If the commission does agree on specifics, though, they are not likely to be agreed upon fast enough for the lame duck session to pass anything. If Democrats do try to pass any legislation based on the commission's report, the Republicans are going to loudly howl that these things should wait until the new Congress is seated. Meaning it will likely crash headlong into that 42-58 Senate wall, even if Democrats were bold enough to try (my guess: they aren't).

The Bush tax cuts are what everyone is focusing on right now. Because of this early attention, the issue is likely to suck the oxygen from the lame duck Congress, in terms of talking about other issues or getting much of anything else done. This issue is so complex, politically, that I can't adequately do it justice here, so I'm not even going to try (my guess is I'll be writing plenty of columns solely dedicated to this issue in the near future anyway).

But I would like to raise one bright red flag here at the beginning of the debate. So far, the compromise being floated by the Democrats is to extend the Bush tax cuts permanently for just about everyone, and to only temporarily extend the Bush tax cuts for the wealthy few. But Obama and the Democrats seem about to step into a giant bear trap -- which they don't even seem aware of at the moment. The Democrats are talking about extending the tax cuts for the wealthy for "one or two years." I shudder every time I hear a Democrat use that phrase, from Obama on down. Because I can read a calendar, and I can add.

A one-year extension would mean the Republicans (in the House, and to a lesser extent in the Senate) would be forced to deal with the issue head-on in the next year, which wouldn't be all that bad a schedule. But extending them for two years virtually guarantees that this will become one of the largest issues in the 2012 election season. And Democrats running on raising taxes hasn't exactly worked out real well in the past -- not even counting this year's midterms. Do Democrats really want to have this giant political fight again in the midst of a presidential election year?

My advice: pick an odd number of years to extend the cuts: one year, or three years. But decidedly not two years. It remains to be seen whether Democrats in Washington figure out this basic addition/calendar problem in time to avoid it, or not.

But if Democrats (and the White House) were smart, they would pick a very winnable fight in the lame duck session -- legislatively repealing DADT. The reasons for doing so are many, both political and practical. Republicans are making a lot of political hay right now over how they're "listening to America" and about to "do what the American people want us to do." Conveniently, over 70 percent of Americans surveyed want to get rid of DADT. Meaning the president and other Democrats could turn this against the Republican opposition to repealing DADT -- "Democrats are doing what a huge majority of the public wants, and Republicans are refusing to listen to The People."

But that's just a talking point. The real driving factors here will be twofold. First, the Pentagon's report is likely to surprise some Republicans. The Pentagon was told to report not on whether to repeal DADT, but how best to manage the transition. This fact is lost on a lot of people, both in the media and politicians themselves. Anyone expecting the Pentagon to put out a harshly critical report which slams the idea of getting rid of DADT is quite likely going to be very disappointed. This is going to make the politics a lot easier for the lame duck Congress. Democrats can frame the issue as "the Pentagon has a solid plan to do this, and we're standing with the brass on this one." Republicans, up until this point, have gotten away with splitting hairs on this issue, which is soon to be shown to be the hypocrisy it truly is. John McCain, for one, has been saying for a while that he'd be willing to repeal DADT "if the Pentagon agrees to it." This, conveniently, means McCain doesn't have to stand in opposition to the brass. But if the Pentagon does indeed agree to it, McCain (and all the other Republicans using this reasoning) are going to have the rug pulled out from under their position.

The second driving factor to all of this is that if Congress doesn't act, either the White House or the courts may soon act anyway. Obama, so far, has said repeatedly that Congress should really be the one to overturn the policy. But if Congress refuses to do so, Obama could essentially overturn it himself with an Executive Order. Obama is not likely to use this route to completely change the policy, he is much more likely to do so as some sort of stopgap incremental measure -- such as ordering the military to stop enforcing the DADT policy. This would leave the policy technically "on the books," but would effectively end it for the time being. This would be one of the least satisfying routes to ending the policy, though, because it would not answer the many questions the Pentagon is currently grappling with (such as benefits, spousal rights, etc.), and instead would leave everything in legal limbo. Also, what one president does with an Executive Order can easily be undone by another president.

But the courts are really driving the calendar on the issue. There are several cases wending their way through the court system, and the most prominent of these has already scored an enormous victory. The appeals court will hear the Obama administration's appeal, and the case could eventually (in the next year or so) make it to the Supreme Court. But Obama does have another route he can take with this effort, as well. If Obama loses his appeal, instead of taking his chances in the Supreme Court, he can simply refuse to appeal the case further, and say: "The courts have ruled this unconstitutional, and I agree with the courts -- therefore the federal government will abide by the judge's order to end the policy immediately, and will not file further appeals."

The chances of this happening are probably not all that great. Politically, it would be the least appealing route for the president to take, as it would be portrayed politically as the courts being in charge of military policy. But Obama could point out to recalcitrant senators unwilling to repeal DADT in the next two months that the courts may wind up making the decision anyway (instead of Congress) -- which may be an effective goad to use on them.

Perhaps even this is too optimistic. The safe betting, right now, would be on the lame duck Congress addressing only one major issue -- the Bush tax cuts. Even on this issue, getting anything passed is still very much up in the air. All other issues will likely be punted past New Year's Day, for the next Congress to deal with. But perhaps Democrats will realize that this is their last, best chance to get much of anything done until after the 2012 elections. Democrats will be frozen out of the House completely for the next two years, due to being in the minority in a chamber where the majority definitively rules. And if you thought the last two years were epic years of gridlock in the Senate, you ain't seen nothin' yet. With both parties able to successfully filibuster at will, I would personally be surprised if the Senate could pass a resolution stating that the sky is blue in the next two years (much less anything even slightly more contentious).

The lame duck Congress window is about to open. It won't be open for very long. And Congress has to (of course) take a few weeks off for the holidays in the midst of this time period, making it effectively even shorter. Democrats have the choice of making a final push to see some of their agenda items pass before Republicans take over the House, or they can shrug their shoulders and not even try. Democrats can allow the Bush tax cuts to be the sole issue on the table during the lame duck, or they can put a few other things on the table as well. At this point, it is entirely their decision whether to do so or not. Obama could get out there and publicly and repeatedly call on Congress to get something done on DADT (or any of the other issues at hand), or he could remain on the sidelines and hope that congressional Democrats do so on their own initiative. The lame duck window is about to open, so here's hoping Democrats are ready for it and make use of it before it slams shut.


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