Legislative Update: What’s Next for Congressional Leadership and Key Legislation

2024 Election Results and Lame Duck Session: What’s Next for Congressional Leadership and Key Legislation

The 2024 elections remain highly competitive, with control of the White House, House, and Senate uncertain as Election Day approaches. Despite the close presidential race, Washington experts anticipate that results may arrive more quickly than in 2020, when states faced delays due to a surge in mail-in ballots prompted by the pandemic, causing a nearly five-day wait for a clear outcome. Changes in state policies and a likely decrease in mail-in ballots this year are expected to streamline the process, though tight congressional races in key states, such as California, may still delay final results and knowing the majority in the House.

When Congress reconvenes on November 11, the Lame Duck session will see a flurry of legislative activity. Key must-pass bills will be affected by which party holds the majority in each chamber. The size of those majorities, will shape how Democrats and Republicans approach final negotiations and political strategy.

Both parties will move to quickly hold leadership elections and determine committee assignments. On the Democratic side, Senator Chuck Schumer (D-NY) and Representative Hakeem Jeffries (D-NY) will likely retain their top leadership positions regardless of whether Democrats lose or flip the majority in either chamber.   Who will top the Republican leadership, however, is less certain.  Senate Republican Leadership announced that they would hold their internal party election on Nov. 13.  Senators John Thune (R-SD) and John Cornyn (R-TX) are prominent candidates to replace Senate Minority Leader Mitch McConnell (R-KY), though Senator Rick Scott (R-FL) is also vying for the position. Some Republicans, eager to install a more conservative figure, may support Scott. Additionally, there is speculation over whether Donald Trump may weigh in and try to influence these leadership elections.  House Republican leadership has scheduled its leadership elections for Nov. 13. It is unknown it factions within the caucus will again push against re-electing Mike Johnson (R-LA).

Appropriations:  The current Continuing Resolution (CR) is set to expire on Friday, December 20th.   It is unclear how exactly Congress will meet that deadline.  Congress could act to pass an omnibus spending measure, funding the government through September 2025, which is what Appropriations leaders from both parties would prefer.  If there is a House Republican majority post-election, they may prefer to pass another CR into early 2025.  Congress could also pass some mixture of both, passing a package or packages of full-year minibus(es) for some bills and a shorter CR for others.  

Disaster Funding:  Following the devastation of Hurricanes Helene and Milton, Congress will have to pass supplemental disaster funding in the lame duck.  This money could be included in whatever year-end CR or omnibus legislation is negotiated to help “sweeten the deal” for potential opponents of the funding bill.  

Debt Limit: Also hanging over the funding fight is the upcoming Debt Limit, which expires January 2, 2025, (though Treasury will be able to enact “extraordinary measures” to delay defaults for some time following January 2nd).  

NDAA: Congress is on track to pass the FY25 National Defense Authorization Act (NDAA) for the 63rd year in a row.  The NDAA leaders are aiming to try and keep the bill “clean” of unrelated legislation that could slow the process but the must-pass-bill could be used as a vehicle for other extraneous measures.  Should President Trump win, Ukraine supporters in both parties are likely to try to push for another Ukraine aid package. Aid to Isreal and/or humanitarian aid to Gaza and the region. 

Farm Bill and Other Extensions: It is extremely unlikely that Congress will pass the Farm Bill this year, meaning the current authorization will have to be extended again. Likewise, various public health programs will have to be extended.  

Permitting Reform: Bipartisan support surrounding the permitting reform bill passed by the Senate Energy & Commerce Committee, led by outgoing Senator Joe Manchin (I-WV) and Senator John Barrasso (R-WY).  There is a possibility this moves, but Senate Democrats aren’t too inclined to do any legacy favors for Senator Joe Manchin. 

Anti-Semitism bill:  Senate Majority Leader Chuck Schumer says he will call up the Antisemitism Awareness Act, which passed the House 320 – 91 on May 1, 2024  for a vote during the lame duck.  

Nominations: With downtime until the government funding negotiations come to fruition, look for the Senate to continue to focus on confirming judicial nominations, particularly if Trump wins in November.  

New Judicial Precedent Spurs Potential Regulatory Overhaul at EPA

In a groundbreaking ruling, U.S. District Court Senior Judge Edward Chen directed the Environmental Protection Agency (EPA) to regulate fluoride in drinking water under the Toxic Substances Control Act (TSCA) despite the agency’s previous refusal to act on a 2016 citizen petition. This decision marks a precedent in TSCA’s citizen petition process, underscoring judicial willingness to challenge EPA’s scientific conclusions and mandate regulatory actions based on public health concerns. Judge Chen’s ruling, the first of its kind, aligns with assertions by anti-fluoride advocates that fluoride levels considered “optimal” for dental health may risk reducing children’s IQ. Although Chen clarified that the findings do not definitively label fluoridated water as harmful, he determined that the potential risk met the threshold for action under TSCA.

The ruling has broader implications for EPA’s regulatory landscape. Historically, TSCA petitions face high dismissal rates, yet Chen’s decision could inspire increased filings, prompting legal experts to predict a surge in citizen petitions from various groups. This shift could exacerbate the EPA’s resource constraints, as the agency, already stretched by responsibilities under recent TSCA amendments, may need to divert limited personnel to address an influx of new petitions. Experts in chemical regulations suggest that the petition process will become a strategic tool for entities seeking EPA action, potentially burdening the agency with additional, unscheduled regulatory demands. Furthermore, Chen’s approach bypasses the comprehensive risk evaluation typically conducted by the EPA, leading to uncertainty regarding the agency’s ability to harmonize judicial mandates with established regulatory processes.

The extent of EPA’s actions following Judge Edward Chen’s ruling remains uncertain, but his decision, Judge Chen emphasized that, regardless of the specific measures taken, EPA cannot disregard the identified health risks associated with fluoride, signaling the agency’s obligation to act on the court’s findings under TSCA.

Supreme Court to Define Jurisdictional Boundaries for EPA Challenges

The Supreme Court will address a pivotal question of jurisdiction over EPA regulatory challenges, focusing on two cases involving distinct issues: Oklahoma and Utah’s smog reduction plans and oil refineries’ ethanol blending exemptions. Both cases raise the question of whether challenges should be heard in regional courts or the D.C. Circuit, the latter traditionally handling “nationally applicable” Clean Air Act cases. The states advocate for the 10th Circuit, while refineries prefer the 5th Circuit. The EPA argues its rejections should be reviewed by the D.C. Circuit, claiming its actions apply uniformly across states. This decision could shape how jurisdiction is assigned for future EPA actions under the Clean Air Act, with Justice Samuel Alito abstaining from participating in the smog-related case review.

Oklahoma and Utah argue their cases belong in the 10th Circuit, while refineries seek review in the 5th Circuit, a conservative court, while the EPA claims that such issues are “nationally applicable” and should fall under the D.C. Circuit’s jurisdiction.

This decision has broader implications for industries such as plastics and chemicals, which often face EPA regulation under the Clean Air Act and other environmental laws. If the Supreme Court rules that regional courts may hear challenges based on local applicability, companies in these industries could have increased flexibility to select jurisdictions perceived as more favorable to their interests. This could lead to a more fragmented approach to environmental litigation, potentially creating opportunities to challenge EPA decisions regionally and strategically. However, if the Court favors a centralized, national jurisdiction, it could consolidate authority and streamline regulatory challenges but limit the avenues available for regional challenges, potentially leading to more consistent but stringent application of EPA regulations across the industry.