The Last Helicopter from Capitol Hill

The last time the Democrats had control of both Houses of Congress and the Presidency was in 1995 and it may be at least that long before they win the Big Trifecta again.

Consequently, the panic of those scrambling to get on the last American helicopter out of Saigon is going to look orderly compared to what will be happening on Capitol Hill as Democratic lawmakers try to get their favored pieces of legislation voted upon in the Lame Duck Session that begins on November 15th.

The Hill, a Washington insider paper, reports that the Democratic leadership is going to try and ram 20 pieces of legislation through this post-election session.

The highest priority bill will be an attempt to extend the Bush tax cuts which expire at the end of December. Second on the list will be the Defense Authorization Bill that includes a repeal of the "Don't Ask, Don't Tell" policy that bans gays from the military.

Senator Richard Durbin (D- Ill.) has promised to get a vote on the President's Dream Act, which helps children of illegal residents to get citizenship.

Unemployment benefits will expire for millions of workers at the end of November unless they are extended and Medicare will cut reimbursements for doctors by 23 percent unless the existing law is changed.

All this, of course, makes one wonder what was Congress doing over the past two years. Dithering and politicking seems to be the answer.

Yet, there is much more unfinished business awaiting Congress when they return. Secretary of State Hillary Clinton is pushing the Senate leadership to ratify an arms reduction treaty (START). Senator Tom Harkin (D- Iowa) wants his food safety bill enacted and Senator Charles Schumer (D- N.Y.) wants his Chinese currency manipulation legislation approved.

Appropriations have yet to be made for Labor, Financial Services, the Military and Veterans, the State Department and Foreign Aid.

What were these people doing in the 111th Congress?

These are bills that we know about. One of the oldest tricks in politics and lobbying is to wait until such a moment of panic and chaos comes along and then slip into some "must pass" bill special interest provisions that could never stand the light of day on their own merit. Moreover, the public is unlikely to ever find out what happened until the legislation directly affects them. Indeed, most Members won't know what they did because neither their staff or they will have time to even read the summaries of these bills.

One that we do know that advocates will probably try to tuck into some bill will be S. 515, the Patent Reform Act. The big tech advocates have unsuccessful tried to get this legislation enacted on its merits since 2006. Faced with a similar situation a decade ago, these advocates slipped the Patent Act of 1999 into the Appropriations legislation. Most Senators never even knew that their vote on appropriations also included major changes in U.S. patent law.

Another legislative orphan is already in the Financial Services Bill. In the summer of 2010, the leadership of the Federal Trade Commission tried to slip this into the War Supplemental Funding Act, but failed. The law would prohibit brand and generic medicine makers from settling lawsuits that challenge the brand's patent. The FTC thinks this will lead to more generics coming to market earlier. Most experts, however, have concluded that it will produce exactly the opposite result -- that generic makers will be less inclined to sue over patent rights and without a settlement option less able to introduce inexpensive generic medicines. Aborting the normal legislative process on something so significant is a bad idea, at best.

A troublesome aspect of this lame duck chaos is that an unusually large number of Senators, Representatives and their staff will be returning to private live at the end of 2010. In my book Dangerous Business (Knopf 2008), I tracked the number of former lawmakers who went through the revolving door and then registered as Washington lobbyists. Almost half of the retiring Senators did as well as more than 40 percent of the retiring Members of the House.

In 1994, the last lame duck totally controlled by the Democrats, one Senator who was involuntarily returning to private life said of the votes he was going to make in those last few days, "In the past, I took care of the country, now I'm going to take care of me." All the votes coming up in this lame duck Congress offer innumerable opportunities to develop a grateful client list.

For those who will be serving in the 112th Congress, I have a few thoughts.

For the Republicans, these votes will undo much of what you campaigned against and what gave you control of the House and more influence in the Senate. You have the power to run out the clock and your constituents would probably wish you to do so.

For the Democrats, postponing the tax bill until 2011 will give you an unprecedented opportunity to force the Republicans to fight day-after-day to get the tax break for the super rich they are so ardently seeking. That battle could define the 2012 election, but if you do anything now, you will throw away that chance. To protect the Middle Class, you can always make a deal in 2011 that makes any cuts retroactive to January 1, 2011.

As an onlooker, the best outcome would be for the Congressional leadership to put forth a continuing resolution to fund until March or April 2011 those agencies whose appropriations had not yet passed, provide unemployment benefits to the jobless and then go home.

The American people's message was clear in the 2010 election -- they want the incoming Congress to make their laws. The voters' wish should be respected.