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Lame-duck Congress could have real impact on American foreign policy

Americans hoping for a flurry of legislative activity before the next GOP-controlled Congress swoops into office in January are destined for a letdown.

This is in part because of how little time is left and how little appetite Congress has for working late into December. There is also significant political pressure to punt to the next Congress when voters boot a party out of power, as they did to Senate Democrats on Election Day: Many observers and voters think it is undemocratic to let defeated or retiring lawmakers make major decisions on their way out the door.

But there are still a handful of areas of legislative business between now and the end of the year that the 113th Congress must contend with that will significantly affect American foreign policy.

Funding the federal government

At the top of the lame-duck agenda is
Photo Credit: Getty Images / Win McNamee

At the top of the lame-duck agenda is agreeing on how to fund the federal government for the rest of fiscal year 2015, which began Oct. 1. To avoid a shutdown, Congress passed a stopgap spending measure in September. The continuing resolution, or CR, expires Dec. 11. At a minimum, Congress will have to pass another short-term spending bill.

The preference on Capitol Hill is for passing omnibus legislation — a catchall measure expected to fund most government operations at 2014 levels. That measure may also include new appropriations bills for the Defense, Veterans Affairs, and Homeland Security departments, in addition to perhaps one or two other civilian agencies, before Congress gavels the session closed on Dec. 17, said Todd Harrison, a defense budget expert at the Center for Strategic and Budgetary Assessments.

For 2015, the budget caps negotiated a year ago by the House and Senate budget committee heads, Rep. Paul Ryan (R-Wis.) and Sen. Patty Murray (D-Wash.), still apply. Republicans don't appear interested in reopening that debate in the lame-duck session, Harrison said.

"They'd prefer to keep their powder dry" for the 2016 budget fight, Harrison said. For now, it looks like an omnibus spending measure has a "good chance of passing," he added.

If, however, a spending agreement looks impossible to reach, Congress could try to pass a stand-alone defense spending bill, but it is going to be difficult to get that done with so little time left on the clock, Harrison said. If Congress is close to a deal, but needs a few more days past Dec. 11, the result could be a very short CR. But if a deal is out of reach, lawmakers will be forced to pass a CR that stretches into January or February, if they want to avoid a government shutdown.

Fighting the Islamic State

Flames rise from an explosion in the Syrian
Photo Credit: Getty Images / Aris Messinis

Flames rise from an explosion in the Syrian town of Kobane, also known as Ain al-Arab, after a U.S.-led coalition strike as it seen from the Turkish border in the southeastern village of Mursitpinar, Sanliurfa province, on October 18, 2014. The White House asked Congress Friday for another $5.6 billion to fight against the self-proclaimed Islamic State. The new appropriation will help fund the 1,500 additional troops the Pentagon plans to deploy to Iraq. Increasing the Pentagon's $58 billion overseas contingency operations (OCO) request — the account used to fund operations in Iraq and Afghanistan, among other hot spots — is expected to get broad support on Capitol Hill and pass easily. If lawmakers choose the omnibus route, they will fold the money into that legislation.

That, however, would only resolve the funding issue. There's also the matter of Congress signing off on President Barack Obama's ever-expanding war against the Islamist militant group.

When in August Obama launched his campaign of airstrikes against the Islamic State without seeking congressional authorization, few on Capitol Hill wanted to debate or vote on the issue ahead of midterm elections. But in the aftermath of the November elections, Obama has indicated he may be willing to revisit the legal justifications for carrying out another war in the Middle East. The president now seeks an updated authorization to use military force to give him — and his successors — latitude in fighting the Islamic State, and several key lawmakers have demanded that Congress be given a voice in authorizing the latest campaign.

With the United States faced with a different kind of adversary and still assembling a coalition to counter the group known variously as ISIS, ISIL, and the Islamic State, it "makes sense for us to make sure that the authorization from Congress reflects what we perceive to be not just our strategy over the next two or three months, but our strategy going forward," Obama said the day after the elections.

The discussion could extend into the 114th Congress, Obama added.

Republican Sens. Bob Corker of Tennessee and John McCain of Arizona, who are expected to lead key committees next Congress, have both said they favor a new, expanded war authorization law.

House Speaker John Boehner (R-Ohio) favors a new authorization bill but opposes letting the lame-duck Congress take it up. "Doing this with a whole group of members who are on their way out the door, I don't think that is the right way to handle this," the New York Times quoted Boehner as saying in September.

Retired Marine Corps Maj. Gen. Arnold Punaro agrees. "Why the hurry? Why should the AUMF be done in late November or early December?"

The issue "is too complicated to handle in the lame duck," Punaro added. There isn't enough time to hold committee hearings and approve a bill that's acceptable to both houses, he said. "The complexity of the issue does not lend itself to getting it done in the lame-duck session."

Currently, the president is allowed to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Obama did seek — and receive — Congress's approval on one aspect of the fight against the Islamic State before the election. After months of withholding support for Syrian rebels battling President Bashar al-Assad, the Obama administration finally offered "non-lethal" aid and later allowed the CIA to arm moderate Syrian rebels last year. In September, Congress agreed to arm certain rebels to take on ISIS.

That authority is tied to the CR, and also expires Dec. 11.

The goal of arming Syrian rebels is to help them fight both ISIS and Assad, Obama administration officials have said. But they say dislodging the Syrian dictator can only come about through negotiations.

"Our support for the moderate Syrian opposition in the first instance is going to enable them to fend off ISIL," Obama's national security advisor, Susan Rice, said last month. The Pentagon's backing is also intended "to help create conditions on the ground that are conducive to negotiations" to get Assad out of power, she said.

The administration's policy on Assad and the Islamic State in Syria is one that McCain and his fellow Armed Services Committee Republican, Sen. Lindsey Graham of South Carolina, are likely to attack with renewed vigor now that they're about to assume leadership positions.

Tackling the Ebola epidemic in Africa

Health workers dress in protective clothing before taking
Photo Credit: Getty Images / John Moore

Health workers dress in protective clothing before taking the body of an Ebola victim from the Island Clinic Ebola treatment center on October 13, 2014 in Monrovia, Liberia. Congress also has to debate and approve the White House's request for $6.18 billion to fight Ebola, of which $4.5 billion is for current operations and $1.5 billion would be set aside in a contingency fund. The Department of Health and Human Services would get the lion's share, including $1.8 billion for the Centers for Disease Control and Prevention.

Sen. Barbara Mikulski (D-Md.), chairwoman of the Senate Appropriations Committee, is holding a hearing on the matter on Wednesday.

The House Energy and Commerce Committee has also scheduled two Ebola hearings for next week. On Nov. 18, the oversight subcommittee will continue its investigation into the Obama administration's response to the disease. Centers for Disease Control and Prevention Director Tom Frieden, Assistant Secretary for Preparedness and Response Nicole Lurie, and acting Surgeon General Boris Lushniak have all been called to testify. The next day, another subcommittee will look into possible treatments for the disease.

The White House's Ebola request would fund, among other things, the creation of 50 Ebola treatment centers in the United States. It would also support programs to improve readiness at the state level and would increase monitoring of travelers coming from West Africa.

Congressional scrutiny comes as efforts to stop the disease's spread are showing some signs of success. According to public health officials, Mali has stopped the outbreak there. Liberia and Guinea are slowing the epidemic, but Sierra Leone has not gotten a handle on the situation.

Scrutinizing a nuclear deal with Iran

A view of the reactor building at the
Photo Credit: Getty Images / Handout

A view of the reactor building at the Russian-built Bushehr nuclear power plant as the first fuel is loaded, on August 21, 2010 in Bushehr, southern Iran. Another major flashpoint could arise if negotiations with Iran to curb its nuclear ambitions come to fruition.

The White House reportedly would do everything in its power to keep Congress from intervening if a deal is reached by the self-imposed Nov. 24 deadline. Relying on a confidential Treasury Department study, Obama supposedly concluded that he can suspend most sanctions against Iran without congressional approval. Reportedly, that would be enough for Iran to ink a deal — even though only Congress can fully repeal sanctions — because the restrictions have battered its economy so badly.

White House spokesman Eric Schultz has denied that portrayal of the administration's plan, saying, "The notion that we are trying to avoid congressional input and consultation on this is preposterous."

Even so, some congressional Democrats have joined Republicans in crying foul at the notion that they would be bypassed.

"I disagree with the administration's reported assertion that it does not need to come to Congress at this point during negotiations with Iran," New York's Eliot Engel, the House Foreign Affairs Committee's top Democrat, said last month.

Boehner's spokesman, Kevin Smith, told Business Insider that the House would not "sit idly by if and when the administration brokers a bad deal with Iran that compromises our principles and allows it to continue its nuclear ambitions."

Given the level of mistrust, it's highly likely that lawmakers will insist on examining any brokered agreement immediately.

Addressing the conflict in Ukraine

A pro-Russian gunmen patrol the centre of Donetsk
Photo Credit: Getty Images / Menahem Kahana

A pro-Russian gunmen patrol the centre of Donetsk in eastern Ukraine on November 12, 2014. Given the tight legislative schedule, Congress is unlikely to pass legislation related to the crisis in Ukraine, despite the recent uptick in violence in the country's east. In September, Corker and Senate Foreign Relations Committee Chairman Robert Menendez (D-N.J.) introduced the Ukraine Freedom and Support Act, which would impose new sanctions on Russia's energy, financial, and defense sectors while also boosting assistance, including military aid, to Ukraine. However, there is no corresponding legislation pending in the House and sources say movement on the issue is unlikely during the lame-duck session.

Monitoring key committees

The U.S. military Joint Chiefs of Staff testify
Photo Credit: Getty Images / Chip Somodevilla

The U.S. military Joint Chiefs of Staff testify before the Senate Armed Services Committee on Capitol Hill May 6, 2014 in Washington, DC. Looking to January, both the House and Senate Armed Services committees will get new chairmen. Rep. Howard "Buck" McKeon of California is retiring. His most likely successor is Texan Mac Thornberry, the committee's vice chairman, but Virginia's Randy Forbes has also thrown his hat into the ring. The matter will be settled when the Republicans' Steering Committee meets Nov. 19 to dole out chairmanships. Don't look for a radical shift in leadership either way: Both men share McKeon's general hawkishness and antipathy for across-the-board spending cuts known as sequestration.

Expect a much bigger change of tone and substance on the Senate side, when Carl Levin of Michigan, who is retiring, hands over the reins to McCain — perhaps the most vocal opponent of the Obama administration's foreign and national security policies on Capitol Hill.

Empowered by a committee staff and a high-profile venue for public hearings, the one-time Obama opponent for the presidency is likely to step up his hawkish rhetoric on the crises in Ukraine, Iraq, and Syria — his primary passions.

"If you remember, Sen. McCain visited [Kiev's central square] the Maidan, so I imagine him certainly taking a vocal hard line on issues related to Russia," said Peter Van Praagh, a longtime McCain watcher and president of the Halifax International Security Forum. "And given all that's happening with the Islamic State, I imagine him talking about Iraq and how it cannot be separated from what's happening in Syria."

Although viewed as hawkish, McCain is publicly hostile toward military brass, including Joint Chiefs of Staff Chairman Gen. Martin Dempsey and Pentagon spokesman Rear Adm. John Kirby. He's not exactly beloved by the defense industry, either. He's famous for his tirades against the F-35 Joint Strike Fighter, built by Lockheed Martin, and is equally critical of the Navy's Littoral Combat Ships. Stay tuned for more explosive confrontations and frequent pressers from the "Three Amigos": McCain, Graham, and New Hampshire's Kelly Ayotte.

Meanwhile, Sen. Jack Reed of Rhode Island will become the committee's top Democrat.

Because Levin and McKeon are retiring, passing the National Defense Authorization Act, which is expected to be named after them, will become even more of a priority, Punaro said.

On the money side, Mississippi's Thad Cochran is expected to win the Appropriations Committee chairmanship, and most likely the defense subcommittee's gavel as well, when Republicans take control of the Senate in January.

The Senate Intelligence Committee's direction on drone warfare and aggressive government surveillance is likely to remain steady when North Carolina's Richard Burr takes control. However, when it comes to torture, expect a 180 as he charts an opposite course from the current chairwoman, Dianne Feinstein. If the California Democrat can't get her committee's damning 6,300-page report on Bush-era torture practices released this Congress, Burr could do much to water down the document.

In the Senate Foreign Relations Committee, Corker is expected to assume the chairmanship. An outspoken advocate for military aid and support to Kiev, Corker will likely use his new platform to advocate for House passage of his signature bill, the Ukraine Freedom and Support Act. He's also reliably hawkish on a range of issues related to the Middle East.

Debating White House nominees

President Barack Obama looks on as his nominee
Photo Credit: Getty Images / Jim Watson

President Barack Obama looks on as his nominee for US Attorney General, Loretta Lynch, the U.S. attorney in Brooklyn, NY, speaks during an event at the White House in Washington, DC, November 8, 2014. Senate Majority Leader Harry Reid (D-Nev.) will want to keep the Senate in session as long as possible so he can push through the maximum number of judicial and ambassadorial nominations. But he'll be in near-constant conflict with Senate Republicans.

The most high-profile foreign-policy-related nominees awaiting confirmation are Loretta Lynch, tapped for attorney general; Tony Blinken, for deputy secretary of state; Adewale Adeyemo, assistant secretary for international markets and development at the Treasury Department; Marisa Lago, deputy United States trade representative; and Nicholas Rasmussen, director of the National Counterterrorism Center for the Office of the Director of National Intelligence.

It's all but guaranteed that Republicans will successfully block confirmation of at least some of these nominees. In fact, Reid has already given up on the idea of confirming Lynch in the 113th Congress. "It's difficult to process an [attorney general] that quickly," a Democratic congressional aide told the Hill newspaper.

One pick the administration will be pushing hard for is Frank Rose, the longest-waiting State Department nominee, clocking in at 481 days since the president tapped him as assistant secretary of state for arms control, verification, and compliance. Despite Rose's service in important roles in Republican administrations, Sen. Marco Rubio (R-Fla.) has moved to block his confirmation out of concern about the administration's "unwillingness to definitively pledge that militarily significant reductions to the U.S. nuclear arsenal would only be carried out through a treaty subject to the advice and consent of the Senate."

When asked if Rubio's "hold" on Rose still stands, a spokesman said: "There's nothing new to report on this."

Though Rose's time in confirmation purgatory is the most stark, there are 60 other State Department nominees awaiting confirmation in either the Foreign Relations Committee or on the Senate floor. According to a State Department official, Secretary of State John Kerry wants Congress to confirm all the career nominees en bloc, such as the 39 foreign service officers who have been waiting for months on end. "A huge majority of these folks have no objection to their nomination," said the official.

In a statement last week, Kerry called on Congress to clear "the 60 outstanding nominees who have been the prisoner of the political process for these past — over a year now."

Releasing the Senate interrogation report and reforming the NSA

According to a senior Senate aide, Feinstein and
Photo Credit: AP

According to a senior Senate aide, Feinstein and Reid will release the Senate Intelligence Committee's torture report before Congress adjourns. The report is said to criticize the program and make the case that torturing detainees did not result in the collection of any vital intelligence. Senate Democrats have been trying to release the report for more than a year, but the CIA heavily redacted it earlier this year, making many parts of it unreadable, according to one aide familiar with the report. Now, Democrats are determined to release it for fear that Republicans would bury it once they take control in January.

Meanwhile, the fate of an NSA reform bill that has widespread backing from lawmakers, the intelligence community, and the technology industry is unclear, as the White House and Reid have made clear that passing the bill isn't a priority.

Sen. Patrick Leahy (D-Vt.) is championing the USA Freedom Act in the Senate. In the past, he has made clear that passing the bill by the end of the upcoming lame-duck session would be a priority.

"When the Senate returns next month, it must swiftly take up and pass the USA Freedom Act," Leahy said on Oct. 10. "There is no excuse for inaction, as the important reforms in this bipartisan bill are strongly supported by the technology industry, the privacy and civil liberties community, and national security professionals in the intelligence community."

However, both Reid and the White House have more pressing items on their agenda. According to the Hill, Reid wants to prioritize the Defense Department authorization and an omnibus spending bill. White House spokesman Josh Earnest also said the president had priorities that trumped NSA reform.

That leaves Leahy, who is continuing to push the bill.

"He's invoking his chairman's authority and pushing back on the White House," a senior Senate aide told the Hill.

A House source familiar with efforts to pass the bill said that it is up to the veteran Leahy to find a way to get the bill through.

"As of right now, we're waiting to see what the Senate does," the source said.

Passing a defense policy bill

Senate Armed Services Committee Chairman Carl Levin (D-MI)
Photo Credit: Getty Images / Chip Somodevilla

Senate Armed Services Committee Chairman Carl Levin (D-MI) talks to reporters after a hearing in the Hart Senate Office Building on Capitol Hill September 16, 2014 in Washington, DC. Congress also has a lot of work left to do on its annual defense policy bill, which has come down to the wire for the past several years. The House passed its version in May and the Senate Armed Services Committee completed its work on the measure in June, but the full Senate has yet to debate it.

Congress is expected to take the same approach it did last year when the House and Senate informally ironed out policy differences before the Senate debated it to accelerate passage. The legislation would then go to the Senate, where the opportunity to introduce amendments would be limited. To get the policy bill — known formally as the National Defense Authorization Act — through quickly, it would need to be fairly uncontroversial, like its spending counterpart.

Because Levin and McKeon — chairmen of the committees that write defense policy — are retiring, passing the National Defense Authorization Act, which is expected to be named after them, becomes even more of a priority, said retired Maj. Gen. Punaro, who now leads the National Defense Industrial Association.

Punaro's overall assessment of post-election legislative activity is pessimistic: "The lame duck will be pretty lame, in keeping with tradition," he said.

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