Lame Duck or Lively Duck?

The outcome of the midterm election in two weeks will heavily influence not just next year’s lawmaking, but the long list of to-do’s awaiting members when they return for the final few weeks remaining in this Congress. 

Among the more prominent matters waiting to receive attention in the lame duck are:

• Bills on federal spending

• The defense budget

• Ukraine assistance

• Relief for Hurricane Ian and other disasters

• Same-sex marriage, and 

• Electoral reform to prevent another attack on a presidential election. 

Recently, calls have arisen to limit federal borrowing ahead of predictions that the federal government will no longer be able to meet all its obligations at some point next year. Plus, the Senate is also tasked with considering President Biden’s nominees for the executive and judicial branches and regulatory agencies. 

One impact the elections are likely to have on the remainder of this Congress is how Senate floor time will be allocated between moving legislation versus voting on nominees. And that decision could have a big impact on how senators spend their time in the lame duck. 

If the Democrats hold onto at least 50 Senate seats, they will be able to continue to confirm the president’s nominees in the next Congress without Republican support so could dedicate more floor time on legislative priorities this year. 

If Republicans take control of the Senate, Democrats will lose control of the confirmation process starting January and so they will want to prioritize confirming the president’s nominees, especially those he seeks to appoint to lifetime jobs in the judiciary.  

There is reason to be cautiously optimistic Congress will act on some pressing priorities no matter which party wins control in the midterms. 

For example, Congress has passed the defense authorization bill for well over half a century without fail and is likely to do so again this year. Traditional bipartisan support for appropriations bills combined with earmarks, general agreement on the need to provide additional disaster assistance and perhaps more funds for Ukraine should be enough to overcome conservative opposition to processing this package during the lame duck rather than kicking it into the next Congress even if the Republicans win the House and Senate. 

The fate of other items on the list is murkier. While the marriage and election bills enjoyed bipartisan support before the elections, big wins for Republicans on election night could increase the pressure on moderate Republicans to toe the conservative line. 

And the debt limit has already sparked lots of controversy and concern even though it’s not likely to hit until the summer of 2023. Reports indicate Republicans have already been meeting to discuss their strategy. Some Republicans have said they see it as a bargaining chip to extract concessions on entitlements and other issues if they win the House, which has caused many in the business community and the Democratic Party to push for action in the lame duck. 

If the Republicans control both the House and Senate after the elections, it will be hard for them to escape responsibility for a failure to pass a debt limit and avoid a default that could be damaging to both the economy and perhaps their political fortunes.

The Supreme Court will hear Halloween arguments revisiting the fairness of affirmative action practices in university admissions that will have wide-reaching implications on who gets into college.

The case dates back to 2014, when Students for Fair Admissions filed two lawsuitsseeking to eradicate over 40 years of established legal precedent allowing colleges to consider the race of highly qualified applicants in admissions. SFFA has failed so far to win their arguments in lower federal courts to strike down what they view as "race-conscious college admissions."

Harvard College and the University of North Carolina will present their arguments on the same day in separate cases.

Many other universities and corporations —as well as military leaders—have filedbriefs supporting the universities’ policies, arguing a diverse pipeline is critical to their success.  

Should the Supreme Court rule against the use of race-conscious admissions, universities across the country will need to grapple with how to continue promoting diversity without being able to legally consider this factor explicitly in the admissions process.   

Organizations impacted by the ruling should: 

• Consider your audiences with a vested interest in the outcome and tailor your communications to each.

• Before the ruling, emphasize your commitment to continuously fostering diversity no matter the Supreme Court’s decision. Avoid speculating on the decision.

• After the ruling, work closely with your legal counsel and diversity offices to ensure they understand its impact and communicate accordingly. Underscore the importance of diversity and inclusion efforts and tout any still-legal programs that support them. 

Organizations not directly impacted by the ruling can still consider expressing the importance of diversity both before and after the ruling, tying it back to outcomes. 

For support on this issue, reach out to Education@FGSGlobal.com.