They Call it a Lame Duck Session for a Reason

To the chagrin of many, the 115th Congress is returning to see if it can do more damage following the midterm election.

There’s a fair amount of unfinished business, which may remain unfinished following the so-called lame duck session. But some of it must get done between now and the official end of the 115th Congress.

The expression “lame duck” originated in 18th Century Britain as a reference to bankrupt businessmen who were considered “lame,” like a game bird that had been injured, according to the Congressional Research Service.

By the 1830s, the term came to mean officeholders whose service had a known termination date. Of course, many members of Congress routinely get reelected, so they’re technically not lame.

On the other hand, some folks may consider some members of Congress perpetually lame, but that’s a story for another time.

Often Congress returns in lame duck sessions to complete the annual appropriations bills, since they usually aren’t finished by the time members leave Washington to campaign for reelection.  And that’s the case this year.

However, some big business has been conducted during lame duck sessions. For instance, the Senate censured Sen. Joseph McCarthy (R-Wis.) during a lame duck session. The House also approved Articles of Impeachment against President Clinton during a lame duck session.

There isn’t anything that big on the lame duck agenda this year, but there is still some heavy lifting for Congress to do.

As previously mentioned, Congress has to finish the funding measures for parts of the federal government. Before leaving town, Congress enacted appropriations measures for several federal departments, including the departments of Education, Labor and Health and Human Services, and the Pentagon.

Still, there’s more work to do, including the Financial Services appropriations measure. The House version of that bill contained various Dodd-Frank overhaul provisions of House Financial Services Chairman Jeb Hensarling’s (R-Texas) Financial CHOICE Act.

Senate appropriators have made it clear that they are not willing to accept controversial legislative riders on appropriations bills, so those provisions aren’t lame; they’re dead.

Then there’s the two-year Risk-Based Capital rule delay that’s attached to the bipartisan capital formation bill the House has passed.

That bill is sponsored by the unlikely duo of Hensarling and Financial Services ranking Democrat Maxine Waters of California.

The NCUA board has approved a one-year delay of that rule, but many credit unions are still pushing for a two-year delay.

Senate Majority Leader Mitch McConnell (R-Ky.) has promised a vote on that bill.

We’ll see.

Here’s one thing that probably won’t get done – major tax legislation that President Trump has talked about. As a matter of fact, Trump originally talked about getting it done while Congress was out of town.

Now, the president has a high opinion of himself and may believe he can accomplish a lot through executive orders, but even he can’t deliver the middle-class tax cut he talked about without Congress’ approval.

And that quite simply is not going to happen between now and the end of the year.

The credit union community goes on high alert anytime someone talks about tax legislation, since opponents of the credit union tax exemption (most notably the bankers) use the opportunity to target the exemption for abolishment.

But the House and Senate neither have the time nor the desire to take up major tax legislation during the lame duck session. Congress could try to pass “extender” legislation that includes some popular tax benefits that may expire at the end of the year.

However, no controversial tax legislation is going to pass. Tax legislation usually goes to the Senate floor with a protection against a filibuster. That protection is included in the congressional budget resolution.

But Congress has not enacted a budget resolution this year. As a result, there is no filibuster protection for a tax bill.

So, that means no major tax bill.

Credit union officials shouldn’t rest too easy, though. Somebody is likely to try and push a tax bill next year. And the bankers are certain to continue trying to make their case that the tax exemption is outdated.

Then, there’s the main event: Nominations.

First, there’s the NCUA, which seems to be in a state of perpetual flux.

Debbie Matz’ seat on the board became vacant in April 2016. It has remained vacant since then – leaving the board with two members.

Rick Metsger’s term on the board expired in August 2017. Metsger is a Democrat. Trump has nominated Republican Rodney Hood to succeed Metsger, but Hood’s confirmation remains untouched in the Senate.

So far, Metsger has continued to serve on the board.

Chairman J. Mark McWatters’ term expires in August 2019.

Hood’s nomination has remained untouched because … well, it’s the Senate.

But there’s more to it. The easiest way to confirm someone in the Senate is to pair a Democratic nomination with a Republican nomination.

But Trump hasn’t nominated a Democrat yet. And it’s going to be extremely difficult to get Hood and someone else through the entire nomination process (a review by the Banking Committee, a hearing, written questions submitted by members of the committee and floor action) during the lame duck session.

To make matters even more complicated, if he is not confirmed by the end of this year, when the 115th Congress ends, Hood’s nomination will expire.

That means the 116th Congress is likely to start with two vacancies on the board. Metsger continues to serve but could decide to leave at any time.

Adding a bit of intrigue to the situation, Sarah Vega, McWatters’ chief of staff, accepted a job as chief of the Cooperative Credit Union Association. A short time later, she reconsidered and decided to stay with the NCUA.

There’s been speculation in the credit union community that Vega could be nominated for a seat on the NCUA board.

In any event, Trump will likely have the chance to leave his imprint on the NCUA board.

The question is … when?

Then, there’s the CFPB. Office of Management and Budget Director Mick Mulvaney has been acting director of the agency since Richard Cordray resigned.

Trump has nominated Kathy Kraninger, an OMB associate director, to become the permanent director. The Senate Banking Committee narrowly recommended that the Senate confirm Kraninger.

But the nomination has not gone to the Senate floor.

The Mulvaney appointment and Kraninger nomination will both die at the end of the year.

And so, Congress has a potentially busy agenda for the lame duck session. But don’t count on the nominations moving forward.

David Baumann is a correspondent-at-large for CU Times. He can be reached at dbaumann@cutimes.com.