Ken Cedeno/Sipa USA
Sens. Joe Manchin (D-WV) and Chuck Schumer (D-NY) chat after President Joe Biden signed the Inflation Reduction Act into law on August 16, 2022.
The fall congressional session right before elections is often a sleepy time, but not always. The financial crisis bank bailout passed on October 3, 2008, and the Iraq war authorization passed October 16, 2002. Democrats could take advantage of what could be a final opportunity with full governing power to add to their record and improve the country. Will circumstances converge on some consequential lawmaking in this pre-election period?
The first possibility won’t necessarily be seen by progressives as an improvement. When Chuck Schumer and Joe Manchin reached agreement on the Inflation Reduction Act, they committed to a side deal deregulating the permitting process for environmentally sensitive projects. A leaked draft of this bill literally had the watermark of the American Petroleum Institute, to give you a sense of who it might favor.
Schumer has said that the permitting bill would be attached to a continuing resolution to fund the government, which must be authorized by September 30. Since the continuing resolution is seen as must-pass, opponents of weakening environmental laws around permitting would have to hold their noses and vote for it rather than risk an unpopular government shutdown before facing the voters, the theory goes.
That is why progressive Democrats opposed to permitting changes have been trying to separate the measure from the CR. But even putative allies of leadership, like Senate Environment and Public Works Committee chair Tom Carper (D-DE), are skeptical of the measure itself, whether it stays in the CR or not. “I just don’t want us to make the changes in permitting that will undermine our ability to fight climate change,” Carper told reporters in late August. Likewise, Sen. Tina Smith (D-MN) told me that her red line was whether the changes would increase or decrease net emissions reductions. “Looking at how to reform or improve the permitting process does not mean you are reducing environmental standards,” she said.
There are definitely some climate hawks who hold out hope that permitting changes will expedite the build-out of clean energy. “We can’t have clean energy projects languishing for years,” Sen. Ron Wyden (D-OR) told me in an interview. Permitting reform could help with the important work of modernizing the grid, as well as accelerating projects to source minerals that are critical to electric vehicles.
But expecting an actually existing permitting bill, which apparently will require approval of the natural gas Mountain Valley Pipeline, to uniformly speed up solar and wind projects neglects the fact that Republicans will have to agree to it for it to pass a 60-vote filibuster threshold. Their condition will almost certainly be what they unanimously supported in August: banning consideration of climate change in permitting reviews. That won’t fly with most Democrats, who unanimously (except for Manchin) opposed that same vote last month.
I see the leadership falling short on this one. The pressure to complete a stopgap funding bill, the universal opposition from environmental groups, the grumbling from some Republicans infuriated by Manchin, the lack of specifics just a few weeks from the deadline, and the disinclination to even get close to a government shutdown could lead them to not risk a pre-election shutdown and postpone a permitting vote. That doesn’t satisfy Manchin’s demand, but he was only promised a vote, not success. That vote could easily fail, or Manchin could be told: “Your vote will fail, so you could watch that happen or keep working on it in the lame duck session.” My money’s on the latter.
Even optimists on Democratic fortunes in the midterms concede that a Republican House takeover is fairly likely.
Another major bill given promises for a September vote is the Big Tech antitrust measure called the American Innovation and Choice Online Act (AICOA). “Sen. Schumer is working with Sen. Klobuchar and other supporters to gather the needed votes and plans to bring it up for a vote,” was the language of the promise, and this is significantly less than “We’re going to vote on it on this day.” The probability of the bill getting a vote is further tempered by the fact that Schumer initially promised a vote on AICOA in “early summer,” and that a couple months back he told high-level donors at a fundraiser that the bill didn’t have the votes.
The last big dust-up on AICOA, which would bar tech companies from “self-preferencing” their own products over rivals on their platforms, was over a somewhat spurious question of whether it would prevent firms from content moderation. Since that time, one of the four Democrats who wrote a letter expressing that concern, Sen. Brian Schatz (D-HI), has come around. “Senator Schatz has met with Senator Klobuchar and has been assured that modifications to the bill will be made to address his concerns,” according to a statement from a spokesperson. “He now plans to vote for the final bill, assuming those changes are included.”
That doesn’t mean AICOA will get past Schumer and a dense thicket of tech industry lobbying to reach the floor. Republican supporters may also back off the bill if changes to the content moderation piece are made. We’ll find out soon how real that promise was.
One bill that Democrats should put to a vote is the House-passed bill codifying same-sex marriage, if only to make it tough for Sen. Ron Johnson (R-WI), who is struggling in his re-election effort. It’s a difficult wedge issue for the far-right Johnson: he could vote for gay marriage and anger his base, or vote against it and anger the majority of Wisconsinites. Smart political parties force their opponents into these situations, yet a Senate vote has yet to be scheduled.
Other items could fill floor time. There are certainly mounds of judicial and executive branch confirmations; Senate Democrats could spend every minute on them through the end of the year and still not make much of a dent. There’s a tech data privacy bill but Speaker of the House Nancy Pelosi (D-CA) just made clear that she opposes it because it would compromise California’s state privacy law. The nation desperately needs more appropriations to deal with COVID-19, but Republicans have pretty much shut the door on that.
Last Friday, Rep. Raja Krishnamoorthi (D-IL) released principles for a Congressional ban on stock trading and ownership of individual stocks, which had some momentum earlier this year, and requested a floor vote by September 30. Banning stock trading is enormously popular—several Democrats, like John Fetterman, are running on it in the midterms—and the consensus principles spans the entire caucus, from AOC to centrists Jared Golden and Abigail Spanberger, along with one Republican (Brian Fitzpatrick of Pennsylvania). Though leadership has been cool to allowing a vote, they may find it impossible to delay.
After the elections, there’s the annual “tax extenders” bill, a selection of mostly minor business tax breaks that gets rammed through every year. This year, it could have more import if Democrats push to include the expired increase to the Child Tax Credit and other family tax provisions. An aggressive Democratic majority would make those extensions the price of extending the business tax breaks.
Also, there are changes to the Electoral Count Act. The bill just picked up its tenth Senate Republican co-sponsor, Iowa’s Chuck Grassley, yesterday, which would seemingly give it a lock on Senate passage. The talk has been that Congress will get to that in the lame duck session, after the midterms are out of the way; after all, we wouldn’t want to upset the delicate MAGA flowers by closing off one avenue of potential coup attempts.
Even optimists on Democratic fortunes in the midterms concede that a Republican House takeover is fairly likely. The session that begins today and the ensuing lame duck could be the last chances for a legislative record before the next presidential election. Democrats ought to take that seriously.
