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Congress Will Have Its Hands Full in Lame Duck Session

By Mark Wolf  |  November 16, 2022

If the midterm elections seemed like a marathon, the lame duck session in Congress is a full-out sprint.

“Time really is the issue here. Both chambers are only in town at the same time for around 15 workdays for the remainder of the year,” Molly Ramsdell, director of NCSL’s State-Federal Relations Program, told an NCSL Base Camp session, “What’s Up in Washington, D.C.: A Federal Overview.”

“We still don’t have a fiscal year 2023 spending bill. We are operating under a continuing resolution that expires in the middle of December. There will be an effort to extend the federal debt limit during lame duck.”

Time really is the issue here. Both chambers are only in town at the same time for around 15 workdays for the remainder of the year.
—Molly Ramsdell, NCSL

Other issues on Congress’ plate include Electoral Count Act reform which would place guardrails on federal elections and make it harder to challenge those results, and whether the Senate Rules Committee, chaired by Sen. Amy Klobuchar (D-Minn.), will consider revising cloture rules on issues like abortion and other Democratic priorities.

“A few other things we know with Democrats continuing to control the Senate, it ensures an easier path for the president’s judicial and executive agency nominees,” Ramsdell says. And if incumbent Democratic Sen. Rafael Warnock wins the runoff in Georgia against Republican challenger Herschel Walker, it will be “more difficult for a single senator to hold up the Democratic agenda,” she says.

“Assuming Republicans do control the House, it’s likely we will see investigations and messaging legislation passed that is unlikely to pass in the Senate. We will see the administration try to rely on regulations to move items on their agenda if they can’t move things in the House.”

Issues Affecting the States

NCSL supports passage during the lame duck session of the Safe Banking Act, which provides protection for banking institutions that choose to offer services to legitimate marijuana businesses operating under state law, says Susan Frederick, senior federal affairs counsel in NCSL’s State-Federal Relations Program.

“It creates a safer environment for states that have legalized cannabis by allowing them to bank at a regulated institution instead of operating in cash, which could encourage illicit behavior,” she says.

The current Supreme Court docket “is chock-full of impactful cases for states,” Frederick says.

Moore v. Harvard involves the independent state legislature theory: “the concept that the Constitution gives state legislatures alone the right to regulate federal elections in their states without the oversight of state courts.”

National Pork Producers v. Ross challenges a California law that restricts the sale of pork, veal and eggs derived from pigs, calves and hens that are confined inhumanely. “It may impact how states can address intrastate issues with interstate affects such as climate change and environmental protection,” Frederick says.

Students for Fair Admission v. Harvard centers on the consideration of race as a factor in college admission. “The Supreme Court would have to affirm or overrule prior precedent that affirmed public higher education institutions could rely on the narrowly tailored use of race as one factor in a holistic process to achieve diverse student bodies,” Frederick says. Based on oral arguments heard this month, “it seems like the prior decision will be overturned.”

Autonomous vehicles have been a recurring agenda item for several years, but “regardless of which party was in the majority, neither was able to get a bill across the finish line,” Ramsdell says. “NCSL has been laser focused that any federal legislation does not further preempt states and will allow states to maintain their existing authority over vehicles on their roadways.”

The most controversial issue facing Congress regarding privacy technology and security “is whether or not to pass federal privacy legislation,” Frederick says. “A couple of pending bills are incompatible and preempt a number of state privacy laws. The biggest sticking point is whether to include a private right of action for individuals and to what extent federal regulation should preempt these state privacy rules, if at all. NCSL wants to protect these state laws, several of which are very comprehensive.”

Mark Wolf is a senior editor at NCSL.

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