During the final weeks of the 113th Congress, lawmakers were able to pass a $1.1 trillion spending package, as well as legislation that retroactively extended more than 50 expired tax provisions for the 2014 calendar year. Additionally, the Senate was able to confirm numerous Obama nominees, including a dozen District Court Judges. However, lawmakers were unable to accomplish certain must-pass priorities, including reauthorization of the Terrorism Risk Insurance Act (TRIA). As the sun sets on the 113th Congress, the 114th Congress is set to convene on Tuesday, January 6.

Now in control of both the House and the Senate, the onus will be on Republicans to change the narrative of a “Do Nothing Congress” to one of a “Do Something Congress.” Since they remain well short of 60 votes and thus cannot easily overcome even a threatened filibuster by Democrats, Senate Republicans will need to reach across the aisle to move legislation in which they have an interest. Congressional Republicans may consider using the Budget Reconciliation process, which requires a simple majority in both chambers, to advance major legislative priorities. (But given the limitations inherent to this procedural option, they may find that their options are limited.) Lacking 67 votes in the Senate, congressional Republicans cannot expect to overcome presidential vetoes if they go too far. The new majority no doubt will look for ways to send legislation to the President, giving him the opportunity to use a veto pen that he has only wielded twice in his first six years. This strategy in particular may be used by Speaker John Boehner (R-OH) and Majority Leader Mitch McConnell (R-KY) as a pressure relief valve for conservatives who want to confront the President. Once vetoes have occurred and been sustained, the Republican leadership could then pursue more moderate legislative options that the President will sign into law. But even those who wish to get to yes will need to overcome the divisions within their own ranks.

History shows that the last two years of a lame duck President can be productive, even for one facing a Congress controlled by the other party. However, little will be possible unless the President and the Republican Congress are prepared to give a little to get a lot. We remain optimistic about the prospects. As Senator Rob Portman (R-OH) recently put it, “It’s very possible to get a number of things done if the president is willing to come to the table, and I believe he will.”

Also worth mentioning is the fact that Minority Leader Mitch McConnell (R-KY) has discussed the importance of returning to “regular order,” including bringing more bills to the floor in which Senators will have real opportunities to offer and debate amendments. But perhaps more importantly, he has suggested that the Senate should return to the precedent of subjecting judicial and agency nominations to the same 60-vote requirement that applies to legislation in order to end debate. This precedent was abandoned when, after long argument between the parties, Majority Leader Harry Reid (D-NV) triggered the “nuclear option,” which reduced the threshold necessary to invoke cloture and end debate on all executive and judicial nominations (other than Supreme Court nominations) from 60 votes to a simple majority vote. Assuming the Senate decides to revert to prior practice, the President will face a much greater challenge in securing confirmation of any of his nominees since he will need the support of many more Republicans than had he needed only a simple majority vote.

For a more complete analysis of the 2014 Midterm Elections and what to expect from the 114th Congress, including a more detailed discussion broken down by industry, please click here.

Senate Legislative Activity

The Senate stands adjourned sine die under the provisions of H.Con.Res.125 until 12:00pm on Tuesday, January 6.  Following the prayer and pledge and following the presentation of the certificates of election and the swearing-in of elected Members, there will be a required live quorum.

House Legislative Activity

Pursuant to the provisions of H.Con.Res.125, the Second Session of the 113th Congress stands adjourned sine die.  The First Session of the 114th Congress will convene at 12:00pm on Tuesday, January 6.