United States: Peeking Around The Legislative Corner: The Landscape Of The Lame-Duck And 2017

Now that the US Congress has resolved the continuing resolution and Zika funding, we look ahead to the anticipated lame-duck session and then to 2017 term. While the exact details of how both of these will play out are dependent on the outcome of the November 2016 elections, there are some broad parameters that should be consistent regardless of the election outcomes and that stakeholders can rely on to start planning now.



In the lame-duck, we expect a large legislative package that would provide comprehensive funding for the federal government through the end of the current fiscal year (September 30, 2017). The commitment to resolve funding for Flint, Michigan, and other water infrastructure funding in the Water Resources Development Act bill will mean that those issues are also addressed, though Congress still needs to determine whether such funding gets rolled into one large bill or rides on its own. Also, either incorporated in one giant omnibus piece of legislation or running alongside the funding bill will be legislation that addresses Medicare and legislation on some tax policy. It is also possible that additional legislation with respect to the fiscal crisis in Puerto Rico could be considered.

The omnibus spending will likely adhere closely to the existing budget caps negotiated by former Speaker John Boehner prior to his retirement. Negotiations will center on which policy riders to include, with the exact nature of those riders heavily dependent on the outcome of the elections. Depending on the outcome of several pending Federal Communications Commission (FCC) proceedings, for instance, the riders could include restrictions on the FCC's authority over video navigation devices and privacy.

The viability of such riders will also depend on whether current House Speaker Paul Ryan needs Democratic votes to pass the funding legislation. If he does, the final legislation will include fewer policy riders.


Congress may also address a pending increase in premiums for Medicare Part B. If so, we expect that Congress will do so in a manner similar to the last time Congress addressed this problem. Premium increases will be put off and, for purposes of meeting congressional budget rules, the difference will be assumed to be made up later in the budget window. We have no expectation that these future premium increases will actually come to pass. Instead Congress will create another perpetual issue: i.e., an ongoing, continuous need to address Medicare payments to providers.

While broadly analogous to the situation Congress previously confronted regarding Medicare payments to physicians under the sustainable growth rate (SGR) formula, the major difference here is that this package will continue to use its own self-contained offsets, therefore limiting the need to find additional offsetting receipts, which was a perennial problem with the SGR. However, the fact that a large Medicare package will be moving in the lame-duck creates the possibility of a vehicle for other healthcare-related legislation.


We expect that there is a good chance for tax legislation to move in the lame-duck session, starting with legislation that addresses severe shortages in pension plans for mine workers. This legislation was marked up by the Senate Finance Committee in September and creates a vehicle for the consideration of other tax legislation.

In addition to the mine workers' pension legislation, members of Congress, especially Senate Republicans including Senate Majority Leader Mitch McConnell and Finance Committee Chairman Orin Hatch, have been fairly forward leaning about their willingness to consider proposals to provide longer-term extensions of a series of energy-related tax extenders (section 48 extenders). There is a general understanding that these provisions should have received longer extensions in the 2015 tax extender bill (the PATH Act), but drafting errors resulted in only two-year extensions. However, many other tax extenders also expire at the end of this year. Historical practice has been for Congress to retroactively renew these policies the year after they expire. Congress may find it difficult to provide longer-term extensions for these energy extenders while leaving other tax extenders for next year.


One additional policy that will likely get considerable discussion during the lame-duck session is consideration of the implementing legislation for the Trans-Pacific Partnership (TPP). We believe the odds of congressional passage of TPP during the lame-duck session are extremely low. There are simply too many significant policy differences between Congress and the Obama administration on the final agreement. Differences in opinion on the treatment of biologics and tobacco in the agreement have cost the administration far more GOP votes than it can afford to lose. And these changes did not increase in any significant way the number of Democrats who would vote for the agreement. When factoring in the toxic presidential campaign rhetoric, it would take an unimaginable external policy shock to get TPP enacted into law this year.


No matter which candidate wins the presidential election, there are some key policy issues that will need to be addressed, and there will be significant pressure on policymakers to address other issues as well.

Debt Limit

Early in the new year, Congress will need to address the debt limit. The legislation that suspended the application of the debt limit expires in March 2017. The timing, from a cash management perspective, is actually good for the Treasury Department. Most tax refunds will have been paid out while the suspension is in place. In addition, the expiration of the suspension will coincide with the time of year when tax receipts are particularly high and the Treasury Department has significant flexibility in terms of the "extraordinary measures" it can take to operate around the debt limit.

Health Care

Several major health care programs expire in 2017, including the Children's Health Insurance Program and other health care extenders. It is quite likely that the debate around these policies will become wrapped up in broader health policy and Affordable Care Act negotiations. High on the list for Democrats and insurance companies is achieving a solution to the restrictions on risk corridor payments.


If tax extenders have not been addressed in the forthcoming lame-duck session, they will need to be addressed in 2017. In addition, both presidential candidates have made infrastructure spending a priority. The tax revenue available to policymakers through international tax reform is considered a highly desirable bucket of money to fund that infrastructure spending. However, we believe that international tax reform alone, despite the increasing pressure on the US international tax system, is not politically viable. This will create significant pressure on policymakers to reach an agreement on reforming a broader swath of business tax policies. This exercise, if successful, would lower the US corporate rate as well as reform the international tax aspects of the US system. In addition, the tax base would be broadened by eliminating tax expenditures and making other revenue-raising changes. Pass-through businesses and high-net-worth individuals would be at a high risk of a net tax increase as a result of such an agreement.


It is quite likely that the next administration will need to make some effort to renegotiate or at least engage with the other TPP countries to address congressional concerns about this agreement and find a path forward on it and the negotiations over the Transatlantic Trade and Investment Partnership (TTIP). The continued progress by other countries to negotiate preferential trade agreements that exclude the United States will put increasing pressure on the next administration to find means to expand US trade programs.


The FCC's creating more controversy by taking an expansive view of its jurisdiction under the Communications Act will increase the impetus for Congress to begin overhauling the nation's communications laws and clarifying the FCC's authority. Reform of the Telephone Consumer Protection Act (TCPA) may be part of this broad reform effort or may proceed separately. But the desire to reign in robocalling while also curbing frivolous TCPA-based lawsuits is creating a bipartisan, bicameral consensus to act. As part of its efforts to update the Communications Act, or simply as a recognition that the United States lacks a national privacy framework governing the Internet ecosystem, Congress may also tackle privacy legislation.

Learn more about our International Trade, Government Relations, Tax and Technology, Media & Telecommunications practices.

Originally published October 18, 2016

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2016. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions