What to Expect When You Are Expecting Nothing
Matt Glassman | September 4, 2024
Both the House and Senate will return from their annual summer recess next week. Given the paltry amount of legislation produced during the 118th Congress—just 78 laws enacted, almost none of them notable–you might think Members were gearing up for a strong finish to the second session. But almost nobody expects Congress to do much of anything during the remainder of the year, and specifically almost nothing in September and October. The chambers are widely expected to pass a continuing resolution (CR) to provide appropriations for the start of FY25 on October 1st, and then leave town. Why is that?
Other Priorities:
Mostly because the Members don’t want to be here. In an election year, Members would much prefer to be back in their districts campaigning, either for themselves or for other candidates in their party. In recent decades, Congress has tended to adjourn after the passage of a CR in September, and not return to legislative business until the week after the election, when the parties typically hold their caucus/conference organizing meetings for the next Congress.
This year, for instance, both the House and Senate are only scheduled to be in session from September 9 through September 27, which likely means only 13 days of legislative business. And if the CR for the FY25 appropriations passes prior to the last possible moment, they might decide to abandon the remainder of the September session and head out of town early. Once that happens, neither chamber will return before the election. It’s just hard to do anything in Congress under the circumstances.
Campaigning Doesn’t Mix with Compromises:
The second reason little happens in Congress prior to the election is political. With the election so close, individual Members and the parties are wholly focused on seeing everything through the lens of electoral effects, even more so than usual. Party messages are being carefully honed, and partisan attacks are reaching their crescendo. This is a poor atmosphere for the passage of legislation, which usually requires some level of bipartisan agreement. In addition, credit for any legislative accomplishment is likely to be unevenly distributed, meaning one party or the other stands to lose from it.
It’s not literally true that nothing important ever happens legislatively during September and October of an election year. A quick scan of David Mayhew’s landmark legislation—which tracks significant legislation passed by Congress since 1946—finds the occasional piece of major legislation passed in the fall runup to a presidential election, most recently the TARP bill in October of 2008, but also non-crisis policy like the Permanent Normal Trading Relations with China Act, which passed the Senate in September 2000 and was signed into law in October.
But in most presidential election years—2004, 2012, 2016, 2020 included—no major legislation is approved between the August recess and the November election.
Lame-Duck Legislating:
After the election, however, is a different story. Lame-duck sessions of Congress—that is, sessions of a Congress that occur after the following Congress has already been elected but before they are seated—have become a fertile ground for legislating. The combination of maximal distance from the next election combined with a set of retiring or defeated legislators who no longer fear the votes is a strong recipe for productivity.
In the modern era, Congress has regularized lame-duck sessions. Between 1935 (when the 20th amendment went into effect changing the congressional calendar) and 1998, Congress held a lame duck session in only 12 of the 32 Congresses. Since 1998, there has been a lame duck session in every Congress. And the list of important legislation produced in December after the presidential election is striking. The full-year appropriations in 2020. The 21st Century Cures Act and Water Resource and Development Act in 2016. The Magntisky Act / normal trade relations with Russia in 2012.
The corollary to the parties not wanting pass major legislation in the runup to the election is that they also do not want to rock the boat by taking any significant risks that could backfire and have serious blowback in the election. This is why a government shutdown on October 1st is not a serious concern; a shutdown is a highly-volatile political situation, and neither party wants to risk being blamed for it just 5 weeks before the election. A clean CR that extends the deadline for appropriations to December—the lame duck period when so much more is possible!—is by far the most likely outcome this month.
Legislative Challenges Issued are Bluster
This isn’t to say there won’t be challenges. Conservative Republicans in the House—mostly from the right-wing Freedom Caucus—have been advocating for a CR at lower levels than the deal struck in April 2023 in the Fiscal Responsibility Act, as well as for the attachment of the SAVE Act (which requires proof of citizenship to vote) to the CR. And Marjorie Taylor Greene is also threatening to bring a resolution to the floor for the impeachment of President Biden. Many of the Freedom Caucus members would also like the CR to extend into 2025, in the hopes that they can get a more conservative set of FY25 appropriations bills under a President Trump.
None of these things are even remotely likely to happen. The Senate and the White House are focused on a clean CR with attachments, and the House GOP leadership wants to protect its frontline Members in swing districts from tough votes on impeachment or the dangerous politics of shutdown brinksmanship. The Freedom Caucus is mostly just messaging in their distinctive style, waiting for the House GOP leadership to cut a deal with the Democrats that they can complain about as they vote no. But they have succeeded in pushing Speaker Johnson into at least feigning interest in their plan; he’s suggested he will put a conservative CR on the House floor next week with the SAVE Act attached to it.
Unlike with Speaker McCarthy last September, this doesn’t feel like an existential threat for Johnson. If he gives the Freedom Caucus a vote in the House on a conservative CR package and then quickly cuts a deal with the Democrats for a clean CR that passes with a large bipartisan vote as Members race out of town, it is unlikely to cost him his job. But it stands as a good reminder that arranging the politics is still an important feature of congressional action, even when Congress is barely doing anything.
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