Congress is back this week, just weeks away from those elections. And the Democrats are trying to do everything they can while they still have the levers of power.
Here’s what they aim to do with the time they know they have left, roughly in order of their priorities.
If it’s fall, Congress is trying to figure out how to keep government open for another year. The deadline for government funding for the next 12 months is still October 1, which is the start of a new fiscal year, but Congress has missed that deadline for years. Instead, they’ll likely pass a spending bill that will keep government open until December, and then after the midterm elections, they’ll come back and fight for a longer-term budget.
Where there is a budget deadline, there is always a risk of government shutdown. In the Senate, all it takes is one senator to stop the process. But Democrats will likely do everything in their power to avoid that, because shutdowns are almost always politically damaging to the party in power.
Enshrine the right to same-sex marriage in federal law
After the fall of Roe vs. Wade this summer, Democrats tried unsuccessfully to pass a law protecting abortion rights across the country.
They also saw an opening to act on same-sex marriage. And they might have just enough Republican votes to pass a national law protecting it.
The impetus for this came when the Supreme Court ended abortion rights protections, and Justice Clarence Thomas suggested that same-sex marriage could be next. The Supreme Court ruled in 2015 that same-sex couples have the right to marry, but Congress has never passed legislation guaranteeing this. In fact, in the 90s, he passed a law that made it difficult for states to recognize same-sex marriage.
House Democrats quickly voted to codify same-sex marriage and interracial marriage, weeks after deer fall. They probably expected it to be a political vote that won’t get any Republican support, but 47 House Republicans joined them, surprising congressional Democrats, the Post’s Marianna Sotomayor reports. The relatively bipartisan success in the House has motivated a bipartisan group of senators to try to cobble together a close coalition. The signs are that they are close: they only need 10 Republicans to join the 50 Democrats.
Senate Majority Leader Charles E. Schumer (DN.Y.) said a vote could take place “in a matter of weeks.” Sotomayor reports that could happen as early as next week.
GOP Sen. Susan Collins (Maine) is one of the bill’s champions. She wrote alongside fellow bill author Sen. Tammy Baldwin (D-Wis.) in The Washington Post this week: “People in same-sex and interracial marriages need and should feel confident that their marriages are legal. These loving couples should be guaranteed the same rights and freedoms of any other marriage.
But after that op-ed, they lost a valuable potential Republican vote. Sen. Ron Johnson (R-Wis.) — who is up for re-election in a state that voted for President Biden — initially said he could support the bill, but this week abruptly said he had concerns about the way it was written.
Appoint more federal judges
Of the two houses of Congress, only the Senate can endorse a president’s nominees to serve as federal judges. It’s an important but normally behind-the-scenes process that got a lot of attention in the Trump era, when President Donald Trump and Senate Republicans rushed to bench more than 200 conservative federal judges in the courts at across the country.
(The fruits of that may have just come out for Trump when a judge he appointed in Florida defied conventional legal wisdom and temporarily halted the FBI’s investigation into secret government documents he took to the White House, while a “special master” sifts through records to see what the government can keep.)
Democrats under Biden are also rushing to shape the courts. Biden has appointed more justices than any other president in decades at this point in his term, according to a recent Pew Research Center analysis. One of them now sits on the Supreme Court.
But if Senate Democrats lose control of the chamber next year, Biden can expect that rapid pace to stop under the leadership of Sen. Mitch McConnell (R-Ky.). McConnell has been ruthless in shutting down Democratic judicial nominees: He once filled a vacant Supreme Court post for nearly a year when Barack Obama was president.
Get money for boosters, monkeypox shots, Kentucky flood victims and Ukraine
Biden wants Congress to approve tens of billions of dollars to help combat the ongoing crises his administration is trying to manage, from pandemics to war abroad to worsening natural disasters at home. He would like Congress to incorporate all of this into the spending bill that must be passed by October.
But Republicans in the Senate see much of that, especially covid money, as wasteful spending. (They may also see a “no” vote as a way to make an election-year argument that Democrats want to spend more and make inflation worse.) Senate Republicans have been blocking additional covid-related funding for months: “To at some point, you have to say no to the alcoholic,” Sen. Bill Cassidy (R-La.) told Politico.
More than a year and a half after the attack on the United States Capitol, Congress has passed no legislation to prevent it from happening again.
It cannot do much, legislatively, since elections are organized by the states. But a bipartisan group of lawmakers has focused on tightening rules on how Congress counts each state’s electoral votes and approves the winner of the presidential election. It’s the final step in the presidential certification process, and an obscure law governing it is one that Trump and his allies have tried to exploit to stay in power.
Weeks, days and even hours before the Jan. 6 attack, Vice President Mike Pence came under enormous pressure from Trump and his allies to reject legitimate voters in states Trump lost.
That would have been illegal under the 140-year-old Voter Count Act, which governs rules on what to do if there are legitimate disputes over which presidential candidate won in a state.
Some lawmakers from both parties want to strengthen this law so that it is clearer that a vice president has no role in unilaterally rejecting voters and raising the bar on how many lawmakers it takes to challenge the results first. (At the moment there are only two, one from each room.)
Collins is leading the bipartisan charge on this, but it’s unclear if or how much momentum there is to make this change.
Complete their survey on January 6
If Republicans regain the House of Representatives, they will almost certainly sideline or disband the committee investigating the Jan. 6, 2021, uprising. House Minority Leader Kevin McCarthy (R-Calif.), the likely next House speaker in such a scenario, fervently defended Trump against the attack and even threatened to investigate Democrats in return. Additionally, committee No. 2 Liz Cheney (R-Wyo.) will lose her job in January because she lost her primary this summer to a pro-Trump denier.
The committee has already interviewed thousands of witnesses, reviewed tens of thousands of documents and held several public hearings this summer to share its findings so far. But committee members say they are still actively investigating the attack and who was behind it – and they still have unanswered questions.
They could release a report on their findings and hold further hearings this fall. A critical part of their investigation will be recommending legislation that Congress can pass, to make sure this doesn’t happen again. But their time for all this is limited.