The keys to the lame duck session of Congress that starts in November won't be the expiring tax cuts, the scope of mandatory spending cuts known as the sequester or a host of other fiscal issues.
The bare of essence of the lame duck session will come down to three important factors: who won the election, who won the election when and how much time remains on the calendar.
That's right. The election results will set a lot of legislative contingencies into motion on November 7. But it's entirely possible we won't know the election results for a while. And everything swings on that.
For starters, we have a presidential election which could be decided by a razor-thin margin. While it might not be as sticky as sorting out whether President Bush or Al Gore won Florida in 2000, it's entirely possible that a number of battleground states may have to resort to counting absentee or provisional ballots to settle the score. Plus, there could be court challenges which take time to resolve as well. So don't expect to wake up on November 7 and expect House Speaker John Boehner (R-OH) and Senate Majority Leader Harry Reid (D-NV) to stroll to the Capitol with an immediate battle plan in mind.
Of course, the presidential election might not even be the closest contest. The battle for control of the Senate is a lot more complicated and certainly could take days or weeks to sort out considering how many nip-and-tuck Senate races exist. Democrats currently hold a 53-47 edge in the Senate when you include Sens. Joe Lieberman (I-CT) and Bernie Sanders (I-VT). There are compelling contests in Massachusetts, Montana, Maine, Nevada, Wisconsin, Indiana, Ohio, Virginia, Connecticut and North Dakota. Democrats are hoping to wrestle away control of one of Arizona's seats amid the retirement of Senate Minority Whip Jon Kyl (R-AZ). Republicans appear to be in good shape when it comes to flipping a Nebraska seat due to the retirement of Sen. Ben Nelson (D-NE). And Rep. Connie Mack (R-FL) is hoping a good performance by Mitt Romney helps him unseat Sen. Bill Nelson (D-FL). Democrats are confident that Sen. Claire McCaskill (D-MO) is returning to Washington after the missteps of Rep. Todd Akin (R-MO).
In 2008, it took until November 19, 2008 for the late-Sen. Ted Stevens (R-AK) to concede his 3,953-vote loss to Sen. Mark Begich (D-AK). Due to a manual recount and legal action by former Sen. Norm Coleman (R-MN), the Senate didn't swear-in Sen. Al Franken (D-MN) until July 7, 2009. In 2006, control of the Senate depended on the outcome of the Virginia Senate contest between then-Sen. George Allen (R-VA) and current Sen. Jim Webb (D-VA). Webb ultimately won by less than half a percentage point. But Allen didn't concede for several days after the election. As a result of Webb's win, Democrats secured 51 seats and control of the Senate for the first time in 12 years. In 2000, Sen. Maria Cantwell (D-WA) finally defeated then-Sen. Slade Gorton (R-WA) by 2,200 votes. The race wasn't decided until December. Cantwell's win resulted in a 50/50 Democratic-Republican Senate split. But Republicans held the majority because George W. Bush was elected president and Vice President Cheney would break ties in favor of his party in the Senate.
Perhaps it's best that Congress isn't coming back just days after the election - because the election might not be finished for a while.
Which takes us to the Congressional calendar issue.
And you thought you only had to worry about the Mayan calendar expiring on December, 21.
The Congressional schedule for this lame duck session is remarkably abbreviated. The House and Senate are both slated to next meet on Tuesday, November 13. That's a little later simply because that Monday is Veterans' Day. The Senate hasn't set any schedule other than a procedural vote at 5:30 pm on "The Sportsmen Act." But the House plans to be in session through the 16th and then take off the next week for Thanksgiving. The House then comes back November 27-30, December 3-6 and December 11-14.
That's an incredible time-crunch. For starters, no one on Capitol Hill is anticipating the House freshman to start arriving until the week of November 13th. Then there are leadership elections in both bodies. House Minority Leader Nancy Pelosi (D-CA) says Democratic leadership elections won't hit until November 29. So in addition to figuring out which party is in charge of what (if electoral disputes linger), it doesn't look like Congress can truly get down to business on the pressing legislative issues until December.
What does that mean?
In 2010, Congress finally shuttered the windows for the holidays on December 22. Last year, Boehner took to the floor practically by himself to pass an interim extension of the payroll tax break on December 23. On Christmas Eve, 2009, the Senate held a vote at dawn on the initial version of health care reform.
So it's nothing for lawmakers and Congressional staff to sneak nips of eggnog in between big votes running right up until the holidays. But the question lands squarely on what exactly Congress can accomplish with an abridged schedule. President Obama has said in recent days that if re-elected, he'd again push for a "grand bargain" on spending cuts and entitlements. That outcome is predicated on the ability of lawmakers to shut off the sequester and reach some sort of an interim agreement on taxes set to expire December 31. If Romney wins the White House and the GOP takes back the Senate, Republicans plan a big overhaul of the nation's tax code. Such an enterprise would take months. The thought is Congress might do what it does best: forge an interim solution and kick the controversial stuff to next year.
Ray Guy wasn't asked to punt as much as the folks on Capitol Hill. But Congress sure knows how to repeatedly find itself backed up in the coffin corner.
About the only major legislative item that seems to have a thorough commitment from Congressional leaders in the lame duck is the farm bill. Boehner told reporters in mid-September that the House would "deal with the farm bill after the election." But he conceded he didn't know how. Speaking this week in Idaho, House Majority Leader Eric Cantor (R-VA) said he was "committed to bringing the (farm) issue to the floor and then to see a way forward so we can get the votes."
But what may emerge as the story of the lame duck could be lawmakers finally getting a crack at administration officials about the attack on the U.S. consulate in Benghazi, Libya. Many key lawmakers want answers as to what went wrong. Some are privately outraged at the information provided by CIA Director David Petraeus during a September briefing. Diplomatic email traffic is now emerging that demonstrates a much different assessment of what the administration knew about the attack as it played out in real time. The Senate Intelligence Committee scheduled a closed hearing on the assault for November 15.
Then there are the sideshows. There's the "coming and going" phenomenon as lawmakers who lost or are retiring make their final appearances on Capitol Hill as members of Congress. New lawmakers will descend on Washington for the freshman orientation, start to hire staff and get their office and committee assignments.
Another feature is "What will Pelosi do?" There's speculation that Nancy Pelosi could step aside as Democratic leader or even resign after the election. Pelosi's staff scoffs at this suggestion. But that hasn't tamped down speculation that Pelosi wants to hand-pick a successor or contemplate staying, contingent upon the election results. One theory is that the California Democrat would stay if the voters return Mr. Obama to the White House. Others suggest she's out the door if Romney wins.
Those may be sideshows. But then there are the pure carnival acts which will make the Congressional circuit during the lame duck.
For starters, Todd Akin will be back at the Capitol, either in his final days as a Congressman or as a senator-elect. Akin made national news in August as Missouri's GOP Senate nominee after he espoused unique views on reproduction after rape. The Capitol Hill press corps is sure to dog Akin during the lame duck.
That is, unless the scribes are hotfooting it through the Cannon House Office Building in pursuit of Rep. Scott DesJarlais (R-TN). A pro-life physician, DesJarlais found himself in hot water after a 12-year-old transcript surfaced earlier this month of a recorded conversation the Congressman had with his then-mistress. The transcript shows that DesJarlais pressured the woman to get an abortion.
And finally, everyone will want be on the lookout for Rep. Jesse Jackson Jr. (D-IL). The Congressman hasn't voted since June and recently returned to the Mayo Clinic in Minnesota for treatment of a "mood disorder." Jackson's father told FOX in September that he wasn't sure if his son ever would return to Congress. Jackson had been spotted around Washington's Dupont Circle neighborhood and initially put his house on the market to cover his medical bills.
So that's the skinny on the lame duck session. There's not a lot of time for Congress to accomplish much. And what Congress does tackle hinges on when everyone knows the election results.
That's why the sideshows and carnival acts may make for more intriguing news copy in November and December.