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The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

Your guide to Congress's lame duck session

The Early 202

An essential morning newsletter briefing for leaders in the nation’s capital.

Good morning, Early Birds. We hope you had a wonderful Thanksgiving. How did you celebrate? Which “football” did you watch? Tips: earlytips@washpost.com. Thanks for waking up with us.

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In today’s edition …  Tory Newmyer and Peter Whoriskey go inside Sam Bankman-Fried’s courtship of a Washington regulator … High-profile Republicans gain followers in first weeks of Musk’s reign … What we’re watching this week … but first …

On the Hill

The Early’s guide to the lame duck

After Democrats lost the House in 2010, Congress passed a slew of major legislation before Democrats ceded the chamber to Republicans: a bipartisan tax deal, a bill aiding 9/11 first responders and legislation repealing “don’t ask, don’t tell.”

The agenda as lawmakers return to Washington after the Thanksgiving break is almost as ambitious.

But Congress also needs to pass more routine legislation in coming months, which could consume enough time and energy to keep Democrats from taking up other priorities during their final months in control of the House.

Lawmakers’ most important task is to pass a spending bill — either an omnibus or a continuing resolution — to keep the government running. This would be the last such bill hashed out in part by retiring Sens. Patrick J. Leahy (D-Vt.) and Richard C. Shelby (R-Ala.), both of whom are veteran appropriators.

President Biden has also asked for nearly $40 billion in aid for Ukraine and $9 billion worth of covid funding. The Ukraine aid is a priority for most lawmakers, but Republicans have been opposed to coughing up more coronavirus aid money and have blocked it for months.

Congress also needs to pass the National Defense Authorization Act (NDAA), the annual military funding bill that has been passed every year for more than six decades. Lawmakers are way behind this year. The Senate hasn’t voted on its version of the bill yet, and the conference committee tends to be a lengthy process.

But Democrats (and some Republicans) are also eyeing more ambitious targets in the four-week lame-duck session. Here’s a look at what could happen:

  • Protecting same-sex marriage rights: This is the easiest lift. The Senate voted 62 to 37 before heading home for Thanksgiving to advance legislation to codify the right to same-sex marriage, months after Supreme Court Justice Clarence Thomas’s concurring opinion in Dobbs v. Jackson Women’s Health Organization suggested it could be at risk. The chamber is expected to pass it this week, sending it back to the House and then to Biden’s desk.
  • Revising the Electoral Count Act: Nearly 40 senators — including 16 Republicans — have signed on to a bill introduced in July by Sens. Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.) to revise the Electoral Count Act, the 1887 law whose ambiguities Donald Trump tried to exploit to overturn the 2020 election results. In theory, that should give the measure enough support to overcome a Republican filibuster. In practice, the Senate is running out of time.
    • The House also passed its own version of the bill in September drafted by Reps. Zoe Lofgren (D-Calif.) and Liz Cheney (R-Wyo.), so the two chambers would need to reconcile the bills — or the House could just pass the Senate bill. In a “Dear Colleague” letter on Sunday, House Majority Leader Steny H. Hoyer (D-Md.) wrote that House Democrats “ought to take swift action to ensure that we secure reforms to our electoral count system” if the Senate passes its bill.
    • Given the time constraints, one way to pass the measure would be to attach it to a must-pass bill like the government funding legislation or the NDAA. (Attaching it to a larger bill would also avoid a messy amendment process.)
  • The House also passed its own version of the bill in September drafted by Reps. Zoe Lofgren (D-Calif.) and Liz Cheney (R-Wyo.), so the two chambers would need to reconcile the bills — or the House could just pass the Senate bill. In a “Dear Colleague” letter on Sunday, House Majority Leader Steny H. Hoyer (D-Md.) wrote that House Democrats “ought to take swift action to ensure that we secure reforms to our electoral count system” if the Senate passes its bill.
  • Given the time constraints, one way to pass the measure would be to attach it to a must-pass bill like the government funding legislation or the NDAA. (Attaching it to a larger bill would also avoid a messy amendment process.)
  • Raising the debt limit: The debt limit won’t need to be raised until next year. But with Republicans warning they plan to use it as leverage for spending cuts or other policy demands, Treasury Secretary Janet L. Yellen and other Democrats are calling for it to be dealt with now while the party still controls Congress. While such a move would deprive House Minority Leader Kevin McCarthy (R-Calif.), who’s in line to be speaker, of a potential weapon, it would also remove the burden of raising the debt limit next year with Democratic votes.
  • Dealing with a potential rail strike: One threat to Congress’s productivity over the next four weeks: the possibility that lawmakers will need to intervene to prevent a crippling railroad strike ahead of the holiday. Negotiations between railroad unions and companies are ongoing, but Rep. Brian Fitzpatrick (R-Pa.) vowed on “Fox News Sunday” that Congress wouldn’t let a strike happen. Passing legislation to prevent a strike would eat up precious time, though. “I think the whole ballgame right now is the rail strike to be honest,” said Rich Gold, the leader of Holland & Knight’s public policy and regulation group. “That’s going to determine how everything else goes, in terms of how much time that sucks out of the air.”
  • Extending tax breaks: Tax extenders — which prevent certain tax breaks from expiring on the books — are traditional lame-duck fare. One of the big ones up for extension this year is known as research-and-development amortization. The 2018 Republican tax law required companies to amortize their expenses over five years as a way to help pay for the costs of the bill’s tax cuts — starting Jan. 1, 2022. Much of corporate America is pushing to delay this change until 2026 (when it can presumably be delayed again).
  • Other K Street priorities: There are only so many must-pass bills to which lobbyists can try to attach their clients’ priorities, so each one is an opportunity. The Coalition for 1099-K Fairness, for instance — members include Airbnb, eBay and Etsy — is pressing for Congress to change a provision in the $1.9 trillion stimulus bill that Biden signed last year. The bill would send a 1099-K tax form to people who have sold as little as $600 of goods online in a year, down from a previous threshold of $20,000 and 200 sales. “Unless Congress acts, this is going to be a significant burden on individual taxpayers and start-ups” said Arshi Siddiqui, a lobbyist for the coalition.
  • Confirming more judges: Confirming as many of Biden’s judicial nominees as possible isn’t as urgent a priority as it would have been if Democrats had lost the Senate, but Democratic senators are still under pressure to move some nominees, in part, because they would have to be renominated in the new Congress.
    • There are about two dozen nominees who have already received Senate Judiciary Committee votes. “We believe the nominees who have been waiting the longest should be prioritized, and it might be possible to confirm all 24 of them, especially since seven even have the support of their Republican home-state senators,” Christopher Kang, the chief counsel for Demand Justice, a liberal judicial advocacy group, wrote in an email to The Early.
  • There are about two dozen nominees who have already received Senate Judiciary Committee votes. “We believe the nominees who have been waiting the longest should be prioritized, and it might be possible to confirm all 24 of them, especially since seven even have the support of their Republican home-state senators,” Christopher Kang, the chief counsel for Demand Justice, a liberal judicial advocacy group, wrote in an email to The Early.
  • Other Democratic priorities: There are other bills Democrats would love to pass before they lose control of the House, such as potential deals to revive the expanded child tax credit and the Deferred Action for Childhood Arrivals program to allow undocumented immigrants who arrived in the United States as children to remain. Biden also said on Thanksgiving that he would try again to pass an assault weapons ban, although the House passed such a bill in July and Sen. Chris Murphy (D-Conn.) said Sunday on CNN’s “State of the Union” that it probably doesn’t have 60 votes in the Senate. All these efforts are long shots.

In the agencies

Inside Sam Bankman-Fried’s courtship of a Washington regulator

Our colleagues Tory Newmyer and Peter Whoriskey dig deep into Sam Bankman-Fried's attempt to woo Commodity Futures Trading Commission Chairman Rostin Behnam, a powerful regulator with a big say over the future of digital currencies.

"[A]s the financial world examines why major firms threw hundreds of millions of dollars at the 30-year-old Bankman-Fried, the capital is looking anew at his courtship of Washington and why he sought to build ties with Behnam and the agency he leads, the Commodity Futures Trading Commission.

The most ambitious of the two initiatives entwining the two men is a bill in Congress — one outlined by Behnam’s agency and then loudly backed by Bankman-Fried, who commanded a phalanx of lobbyists and public relations people. The bill would put the CFTC largely in charge of crypto exchanges like FTX.

As the overall value of digital currencies swelled in recent years to as much as $3 trillion, some members of Congress and consumer advocates have clamored for clearer rules and stronger oversight of crypto trading. But many of the same advocates calling for regulation oppose the regulatory bill favored by Behnam and Bankman-Fried because, they say, the CFTC is too small, too lenient and less prepared than the Securities and Exchange Commission to undertake oversight of the burgeoning realm of digital currencies …

The second initiative to join the two was Bankman-Fried’s novel proposal to the CFTC last year. The proposal forced regulators to rethink how risk is handled in all commodities trading — not just crypto exchanges — and could have had profound economic implications, supporters and detractors agreed. For FTX, the proposal would have allowed customers to make sophisticated cryptocurrency bets with borrowed money directly through its exchange website FTX.US, rather than making such trades through brokers.”

The Campaign

High-profile Republicans gain followers in first weeks of Musk’s reign

Twitter famous: “High-profile Republican members of Congress gained tens of thousands of Twitter followers in the first few weeks of Elon Musk’s reign over the social media network, while their Democratic counterparts experienced a decline,” according to an analysis by our colleagues Gerrit De Vynck, Jeremy B. Merrill and Luis Melgar.

  • “Sen. Elizabeth Warren (D-Mass.), Rep. Adam B. Schiff (D-Calif.) and Sen. Bernie Sanders (I-Vt.) all lost about 100,000 Twitter followers in the first three weeks of Musk’s ownership of Twitter, while Republican Reps. Marjorie Taylor Greene (Ga.) and Jim Jordan (Ohio) gained more than 300,000 each. … On average, Republicans gained 8,000 followers and Democrats lost 4,000.”
  • “The pattern suggests that tens of thousands of liberals may be leaving the site, while conservatives are joining or becoming more active, shifting the demographics of the site under Musk’s ownership. The changes are in line with a trend that began in April, when Musk announced his intention to buy the company.”

What we're watching

Monday:

This afternoon House Democratic members will present a number of caucus rule change proposals to the Committee on Caucus Procedures, including implementing a waiver if a committee chair wants to serve for more than six years and for leadership to nominate the Democratic Congressional Campaign Committee chair. This step is preliminary, and any rule change presented to the caucus would receive a vote on Wednesday or Thursday.

Biden is also expected to sign a memorandum today directing U.S. agencies like the State and Treasury departments to bolster their response to sexual violence in conflict areas, including Ukraine. The move ensures that conflict-related sexual violence is treated equally to other human rights abuses.

Tuesday:

Capitol Christmas Tree Lighting.

Wednesday:

House Democrats will host their leadership elections on proposed rule changes and contested races. (We’ll have more on this later in the week.)

Biden and Vice President Harris will speak at the White House Tribal Nations Summit.

The White House Christmas Tree lighting. (Warning: Downtown is pure gridlock on this day every year. Do. Not. Drive. Downtown.)

Thursday:

Biden will host the first state dinner of his presidency for French President Emmanuel Macron.

The Democratic National Committee’s Rules and Bylaws Committee will begin their meeting to discuss a new presidential nominating calendar. If you missed it over the long weekend, here are our colleagues Michael Scherer and Tyler Pager on the latest.

The Media

Early reeeads

From us:

From across the web:

Viral

We hope everyone’s safe! 

Thanks for reading. You can also follow us on Twitter: @theodoricmeyer and @LACaldwellDC.

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