January 19, 2021

Volume XI, Number 19

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January 19, 2021

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January 18, 2021

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What Does the Lame Duck Session of Congress Hold for US Federal Appropriations and COVID Negotiations?

Will former Vice President Joe Biden prevail in his quest to become president, or does President Trump once again defy conventional wisdom as he did in 2016?  

Do Democrats attain majority status in both chambers of Congress, or will Republicans maintain a Senate firewall?  

What lies ahead with regard to fiscal year 2021 appropriations?  Does Congress complete fiscal year 2021 spending bills in December, or punt final funding decisions into the new year?  How does a potential COVID-19 relief and economic stimulus package play into the appropriations end-game? 

Tuesday’s election is consequential, determining the balance of power in Washington, and shaping short- and long-term funding and policy decisions affecting the future of the United States and the world.  Much is at stake.

The United States is now entering the fifth week of the new fiscal year – fiscal year 2021 – which began on October 1.  Under ideal conditions, Congress would have passed – and the President would have signed by September 30 – final negotiated spending bills allocating discretionary spending to the US government for the coming year.

To date, however, Congress has not passed or enacted any of the 12 annual appropriations bills.  The House of Representatives was successful in passing 10 of 12 spending bills in July.  Thus far, the Senate has not advanced any of its bills through Committee or across the Senate floor largely because of philosophical differences over COVID spending and social justice issues, which have been central to many election contests.  Congress resorted to a stop-gap funding measure, signed into law by President Trump in the early morning hours of October 1, to extend government funding at current levels.  The US government will continue to operate under a so-called Continuing Resolution (CR) through December 11.

The decision to pass a short-term CR through the presidential election and into December reflected a bipartisan desire to avoid a government shutdown during an election year, and a period of great economic uncertainty, with the United States and the rest of the world in the midst of a global pandemic.  Both political parties were determined to avoid a reprise of the 35-day US government shutdown – the longest in US history – that occurred from December 22, 2018 – January 25, 2019.

The failure to pass and enact regular appropriations bills before the beginning of a new fiscal year has become a common occurrence.  Congress has managed to pass appropriations measures signed into law on time only four times since 1977.  The last time each of the annual spending bills were enacted into law – on or before October 1 – was 1997.

According to the Congressional Research Service (CRS), 12 of the past 13 Congresses over the period spanning 1994 – 2018, have concluded with a lame duck session.  A lame duck session of Congress historically occurs during the time period between a November congressional election and January 3, when a newly elected Congress convenes.  These sessions are frequently used to address unfinished legislative business, including appropriations measures.  As CRS points out, a total of 25 regular appropriations proposals and 19 continuing resolutions have been enacted since 1994, over eight lame duck sessions.

Shortly after the election, the bipartisan congressional leadership will determine which legislative path to pursue for extending government funding beyond December 11.  Some Democrats, anticipating a “blue wave” election resulting in a Democratic majority in both the House and Senate, and a Democrat in the White House, have urged the extension of stop-gap funding into February.  This would allow a new governing majority to write and negotiate fiscal year 2021 spending measures early next year, largely reflecting its own funding and policy priorities.

Others, however, including bipartisan members of the Appropriations Committee, would prefer completing this year’s appropriations business in December.  House Speaker Nancy Pelosi, who served on the House Appropriations Committee for many years, recently offered a glimpse into one possible scenario while addressing potential legislative action on a COVID-relief proposal during the lame duck session.  “We have plenty of work to do in the Joe Biden administration,” she said last week.  “We want to have as clean a slate as possible going into January.”

Ongoing negotiations over the next phase of COVID-19 funding and economic stimulus are likely to loom large over the timing of completing this year’s appropriations business.  The list of potential legislative items for this year’s lame duck session includes not only COVID-19 relief and fiscal year 2021 spending, but also completion of the annual National Defense Authorization Act, which has been enacted for 49 consecutive years.  In recent weeks, negotiations between the White House and Speaker Pelosi had narrowed the parameters of a potential COVID agreement.  Senate Majority Leader Mitch McConnell, however, voiced caution about addressing economic stimulus in the lame duck session.  “I think that’ll be something we’ll need to do right at the beginning of the year,” he said.

The outcome of tomorrow’s election will be pivotal in determining the outcome of COVID-19 negotiations and the conclusion of this year’s appropriations process.  Republicans may voice reticence about supporting trillions of dollars in additional federal spending given that the U.S. federal budget deficit surpassed $3 trillion in fiscal year 2020, almost three times the level from one year ago.  Overall, the deficit as a share of the gross domestic product (GDP), rose to 16 percent, the highest level since 1945.  Federal spending exceeded $6 trillion in the fiscal year that concluded on September 30, more than any other single year in history.

The ceiling for annual discretionary spending is fiscal year 2021 is set in statute at $1.375 trillion.  This is a modest $5 billion over last year’s spending levels, equally divided between defense and non-defense programs.  House-passed spending bills, however, included more than $245 billion in additional emergency spending outside of the statutory caps, as well as dozens of policy provisions taking aim at Trump administration policies addressing climate change, community policing and law enforcement, second amendment rights, foreign policy, among other issues.

Should bipartisan congressional leaders resolve to complete appropriations bills during the lame duck session, it’s anticipated that the Senate Appropriations Committee would post its draft bills and reports to use as the basis for bicameral negotiations with the House.  Every funding and policy difference across each of the 12 spending measures would have to be skillfully negotiated – and consensus reached – prior to House and Senate passage of final bills, and enactment into law by presidential signature.  Observers in both parties have noted, however, that if he loses the election, President Trump may have little interest in negotiating final fiscal year 2021 spending bills before the end of the calendar year.

On this Election Eve, much is at stake.  Consistent with the unpredictable events of 2020, a great deal of uncertainty remains.  Last year, incentivized by a bipartisan desire to complete its work and be home for the Christmas holidays, Congress sent final fiscal year 2020 spending bills to President Trump’s desk, which he signed into law on December 20.  If, as Shakespeare mused in The Tempest, “what’s past is prologue,” then this recent legislative history may provide a useful – albeit hopeful – guide to the forthcoming lame duck session of Congress.

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© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 307
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About this Author

David LesStrang Public Policy Squire Patton Boggs Washington DC
Principal

Dave LesStrang is a principal in our Public Policy Practice who provides strategic advice to clients on a wide range of policy matters, with an emphasis on public policy development, coalition building and the federal appropriations process.

Prior to joining the firm, Dave served as senior staff on the US House of Representatives Committee on Appropriations for 14 years. Since 2011, he has been the majority clerk and staff director of the House Appropriations Subcommittee on Interior, the Environment, and Related Agencies – one of 12...

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