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Another lame duck session looms on the Hill

Analysis

WASHINGTON – Congress runs on a two-year cycle. On committees where the chairmen are engaged with the issues and determined to make law, the first year is for hearings and focus on the fine points, for General Accountability Office studies, for wrestling some issues into the committee and pushing others out of committee to the full Senate or House of Representatives for a vote that will send it to the other chamber. The second year is for changing bills, making deals with other members on their priority bills, overcoming objections, appointing conference committees to harmonize differences between House and Senate versions of a similar bill, and when all the stars line up right – getting final bills to the president for a signature.

As a practical matter, especially for the majority of bills concerning Indian country that are enacted under unanimous consent votes, the cycle ends in a well-known flurry of activity prior to November elections. Lawmakers and their staffs race the calendar to get their bills to a validating vote before the two-year cycle comes to an end, consigning all bills not enacted to either oblivion or a new start from scratch in the next Congress. In a sense, a two-year Congress is compressed into September, the single month following the traditional long August recess and the pre-election recess in October.

The flurry of activity can always be counted on to take place. It is always interesting and sometimes perilous. Good legislation gets passed in the regular order of congressional business – through open debate, the compromises of the conference committees, and the up or down vote of unanimous consent. And bad legislation, as it seems to opponents, gets attached in relative secret, as “rider” amendments, to larger bills that looked good before they came out of conference for a quick vote on new items that were on no one’s radar screen before someone pulled them apart.

Indian country has countless gains to show for the flurry of activity, but in recent years a fair amount of garbage has been included with good law, from the Section 1813 study on tribal energy rights of way in the Energy Policy Act of 2005 to the shackling of Oklahoma tribes to state authority in a transportation bill from the same year.

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But in advance of a lame duck session of Congress, the flurry may trump the activity. At the end of September this year, Republicans passed more than 150 laws that were costumed – designed to assist members who might need a hand convincing their constitutes to vote for them. Lame duck sessions take place after the national November elections, taking their name from the turned-out members who trek back to Washington hoping for a last hurrah before they yield up their power in the first days of the ensuing January, when a new Congress commences. But between the election and the start of that next Congress, the unseated members can still cast votes on any issue that comes before Congress. They can trade votes on the issues in order to enact their own priorities. They can score minor victories for their friends and constituents back home, sometimes at the expense of tribes.

And if the November elections have changed majority control in either chamber, as is certainly possible this year, then the party that has lost its majority at the polls beginning next January will enact all the legislation it can during the lame duck session, while it still enjoys a majority. Issues that would have waited until next year will be brought forward; issues that weren’t a source of aggravation will become high-anxiety items; issues that had some steam behind them may lose it, sometimes to the benefit of Indian country.

Lame duck sessions aren’t supposed to sprawl all over the issues. The leadership in the House and Senate appoint the priority issues the lame duck session will deal with. Depending on the priorities, members may stay home post-election. But this year, the lame duck session will take up 11 unpassed spending bills, attracting many members back to Capitol Hill. These bills, or in their stead either a continuing resolution on the budget or an “omnibus” budget bill, will have to go to the president, making them attractive vehicles for amendments that would render less important bills unpassable.

Look for the coming lame duck session to be one large horse-swapping session, more so than usual. The word on Capitol Hill is that heading into the lame duck session, “all bets are off.”

Among the Native-specific issues that linger in the lame duck session, either as distinct bills or as amendments, are settlement of the trust fund lawsuit known as Cobell, federal recognition for Native Hawaiians, reauthorization of the Indian Health Care Improvement Act, reform of the Indian Gaming Regulatory Act, authorization of Native language immersion school funding, small business contracting, tribal energy rights of way, and lesser items beyond naming.

The lame duck session of the current 109th Congress is scheduled to begin Nov. 9. It will be the fifth consecutive Congress to end with a lame duck session, more in a row than at any time since the Depression.