The U.S. House and Senate have convened for a lame duck session of Congress, during which they must compromise on legislation that funds the government or face a shutdown. They may also endeavor to move additional legislation and continue to confirm Trump administration nominees before the end of the 115th Congress later this month.

The most important order of business is appropriations. Currently, the government is funded through Dec. 7. After that, absent agreement, the government will shut down. Before the midterm elections, Congress completed and sent to the president’s desk about half of the appropriations bills for fiscal year 2019. Now, in the lame duck session, Congress appears to be just about done with the other half, except for the bill that funds the U.S. Department of Homeland Security.

That bill has gotten hung up on President Donald Trump’s demands to fund a southern border wall. It is unclear if those supporting a wall and those opposed to one would be willing to shut down the government over this issue, or whether something can be worked out which allows Trump to show progress on a border wall, a critical campaign promise, and perhaps in exchange makes immigration-related concessions to his opponents.

One possible way forward would be a short-term continuing resolution that keeps the government functioning for a few days after Dec. 7, and gives negotiators some valuable extra time to finish off a compromise. Should the parties get stuck at an impasse, they might choose instead to pass a continuing resolution that lasts well into the new year.

While appropriators work on the omnibus, Senate Majority Leader Mitch McConnell, R-Ky., is taking advantage of the time in session to continue bringing up Trump administration nominations, both for executive branch positions and those that fill vacancies in the federal judiciary, including for posts at the U.S. Department of Commerce, the U.S. Department of Agriculture and the Consumer Financial Protection Bureau. Senate Democrats, in the minority and without the ability to filibuster the nominations, have little leverage in the process.

One of the judicial nominations — that of Thomas Farr to serve on the federal district court for the Eastern District of North Carolina — is especially controversial, and the Senate appears unlikely to approve it. Farr’s record on civil rights issues has been called into question. After clearing a cloture hurdle in the Senate 51-50, with Vice President Pence casting the tiebreaking vote, Sen. Tim Scott, R-S.C., indicated he would not support final confirmation, apparently dooming the nomination.

Key negotiators from the agriculture committees of both houses have struck a deal that would reauthorize farm programs. All four negotiators — Sen. Pat Roberts, R-Kan., Sen. Debbie Stabenow, D-Mich., Rep. Colin Peterson, D-Minn., and House Agriculture Committee Chairman Michael Conaway, R-Tex. — appear to have signed off on a compromise conference report, after Conaway joined the others in approving a package without certain House Republican priorities. A full 56 members of Congress served on the conference to resolve differences between the two bodies.

Some House Republicans had been seeking more concessions. In particular, one sticking point that had held the bill up for months was a proposed work requirement provision for the Supplemental Nutrition Assistance Program, which provides recipients with food stamps. Another sticking point that emerged more recently was the Trump administration’s insistence on certain Republican-included forestry provisions relevant to the California fires. Those provisions are in the House version of the bill, but not in the Senate version. It is unclear whether the administration is satisfied with the final conference report.

Both house have lately turned their attention to the bloody conflict between Yemen and Saudi Arabia. Secretary of State Mike Pompeo and Secretary of Defense James Mattis briefed the Senate on the matter on Wednesday, Nov. 28. Legislative action on the Yemen issue is possible in both bodies, with the Senate likely to consider a War Powers Act resolution introduced by Sen. Bernard Sanders, I-Vt.

Senators wishing to fortify the work of Special Counsel Robert Mueller to investigate Trump campaign activities around the 2016 presidential election have been trying to bring legislation to the Senate floor. That bill, S.B. 2644, The Special Counsel Independence and Integrity Act, does have bipartisan support, but Republican leadership has prevented the bill from being considered.

The tax writing committees have been working on legislation that would extend certain tax provisions affecting energy and other sectors, and providing for disaster relief. House negotiators introduced tax legislation, and are planning to bring it to the House floor in short order, where it is expected to pass. Early indications are that Senate negotiators were not initially read into some of the provisions in the bill, and the legislation does not have a clear path forward in the Senate. That said, tax extender legislation historically has fared well in lame duck sessions of Congress. The prospects for something passing in this lame duck session still appear to be good.

Two special committees established by Congress earlier this year, the Joint Select Committee on Solvency of Multiemployer Pension Plans and the Joint Select Committee on Budget and Appropriations Process Reform, were directed to make recommendations to the full Congress by Nov. 30, and the latter has been marking up a legislative framework. The pensions panel’s work overlaps with work on a retirement security package entitled the Retirement Enhancement and Savings Act of 2018, S.B. 2526, that passed the Senate Finance Committee unanimously in March of this year.

A number of other pieces of legislation could move in the lame duck, including an intelligence reauthorization bill, criminal justice reform, a bill reauthorizing the Violence Against Women Act, a bill relating to the Land and Water Conservation Fund and a bill relating to Medicare Part D payments. It appears likely that Congress will adjourn for the holidays as soon as it resolves how to fund the government into the new year. Swearing in for the 116th Congress will take place on Jan. 3, 2019.


This article also was published in Law360.