With an economic relief package on life support, the US House of Representatives in recess and the US Senate focused on the Supreme Court nomination, Congress seems unlikely to consider any further health policy legislation before the election. Now we can turn to considering what Congress might do after the election in the lame duck session, and how those actions could affect policymaking during early 2021. In this piece, we will consider the scenario of a change election, where Democrats retain control of the House and win both the White House and the Senate. The question to ask is: how would that affect the movement of legislation through the end of the year and beyond?
Conventional wisdom holds that a lame duck session of Congress can produce significant legislative progress. There certainly is evidence of that occurring in the recent past (e.g., the 21st Century Cures Act, which was signed into law in the 2016 lame duck session). Conventional wisdom may not apply in the year 2020, however. The political circumstances we would face in the lame duck after a 2020 change election do not support significant action. Given that there is only one legislative must-do during the lame duck (funding the government), both parties could sit tight in their corners and pursue little legislation. As laid out below, there are few arguments against this prediction.
Under this assumption, Democrats would enter the lame duck knowing they will have control over the executive and legislative branches for the first time since 2008. There is nothing that Democrats have had on the table throughout 2020 that they cannot pass in January 2021. While there may be policies that Democrats would prefer to enact sooner rather than later, Democrats can wait out the two months of lame duck in order to legislate on their terms and under their leadership in January. Republican leverage to seek concessions from Democrats during the lame duck therefore is extremely limited.
On the other side, Republican leaders and the White House might have to work through the stages of grief following what may be a significant election defeat. The key question presented to Republicans during the lame duck is whether they will try to use their limited leverage or simply begin the process of establishing differences between themselves and the incoming governing party. While not impossible (we have stopped using that word in 2020), it is highly unlikely that Republicans will threaten to shut down the government as leverage to achieve lame duck policy goals.
Nevertheless, there is a minimum amount of policy that must get done during the lame duck. Congress must address the issue of funding the government beyond December 11 and several extenders in the healthcare space. It is possible that a deal could be reached on surprise billing, given that the outstanding disagreements (i.e., how to resolve payment disputes between payers and providers) are not partisan. There also is a potential maternal health bill that could be passed during lame duck.
A more likely scenario is for Republicans to make several clear policy demands as a means of laying out their agenda as they transition into the minority. For their part, the Democrats would be poised to rebuff these demands, holding out for the majority in January to pass many of their own priorities. If this is the case, we would expect few policy accomplishments beyond the minimum necessary to be enacted during the lame duck session.
If elected, Joe Biden would be sworn in as the 46th president of the United States on January 20, 2021. Democrats would take over complete control of Congress on January 3. They could immediately begin the process of preparing legislation for the incoming president once they take control. We have every reason to expect a massive bill on the president’s desk within 48 hours of inauguration.
Democrats, especially those in the House, but in the Senate as well, have had an agenda regarding Coronavirus (COVID-19) relief since the passage of the CARES Act. Democrats passed their first version of the HEROES Act on May 15, 2020, and they have mostly stood their ground on these policies for the remainder of the year.
From the moment it becomes clear that a massive lame duck COVID-19 relief deal is unlikely, stakeholders should be prepared to engage in advocacy to advance policy priorities through the bill that would likely hit President Biden’s desk within 48 hours after inauguration. The HEROES Act is certainly expected to be the starting point, but every stakeholder in every space should consider this an opportunity to move provisions in a bill that spends an incredible amount of money. This is especially the case for standalone policies that are less likely to move through the legislative process otherwise. Thus, the time between the election and mid-January will be extremely fast-moving.
The Democrats would then turn to their first-100-days agenda. We would expect this agenda to be dominated by bills that have been blocked by the Republican Senate for the past two years. Democratic policy priorities range from healthcare and the environment to voting rights and criminal and social justice reform. We also would expect this period to be a process of so-called “de-Trumpification.” There likely would be significant legislative action to support the regulatory process of rolling back actions from the previous administration. A prime example would be short-term, limited-duration insurance plans (STLDIs). The ongoing litigation over STLDIs stems from ambiguity in the statute. A Biden Administration could reinterpret the statute to restrict STLDIs, which were expanded under the Trump Administration, but such a change undoubtedly would result in more litigation and ongoing uncertainty. If Congress passed legislation clarifying “short-term” to mean a specific timeframe (e.g., three months), that would end the ambiguity on the subject.
If Democrats gain complete control of the executive and legislative branches, it is difficult to imagine that they would not address the two most significant healthcare policy issues of the day. First priority would be to bolster the Affordable Care Act through a public option, enhanced tax credits and a lowered Medicare eligibility age. Democrats likely also would try to legislate on drug pricing, using the already-passed Elijah E. Cummings Lower Drug Costs Now Act (H.R. 3) as the basis for their approach. All other significant healthcare issues will likely travel on whatever large healthcare bill is created to move one or both of those major issues. For example, the Affordable Care Act included many provisions outside of its core coverage policies. These outside provisions included but were not limited to menu labeling, biosimilars and the Physician Payment Sunshine Act. It is not unreasonable to expect that a similar process for an equally large bill would develop in 2021.
Ending the legislative filibuster is not an “if”—it is a “when.” None of the events described above will happen if Democrats allow the Senate minority to use the filibuster. In fact, if Congress successfully passes long-term funding of the federal government during the lame duck, Republicans could filibuster the 48-hour bill discussed above. Republicans could filibuster the healthcare bills, relief packages, voting rights bills, criminal and social justice reform—you get the idea. Republicans could throw roadblocks at every effort towards de-Trumpification. Republicans could force Democrats to use reconciliation to move the major healthcare legislation contemplated for the balance of 2021. Whether Democrats choose to make an early announcement that they are ending the legislative filibuster in the Senate or wait until a Republican provocation to end it, it remains exceedingly difficult to imagine a Senate with 52 Democrats allowing the Republican minority to stop legislation after a change election.
If Democrats have majorities in the House and Senate and the election goes to Vice President Biden, the 2020 lame duck may have minimal legislative opportunities. Stakeholders instead should set prepare for policy opportunities during the first 100 days of the 117th Congress.
For more information, contact Rodney Whitlock.
