Same-sex marriage and Democrats’ other priorities before the midterms

Congress is back this week, with just a few weeks before those elections. And Democrats are trying to get as much done as they can while they still have the levers of power.

Here’s what they’re aiming to do with the time they know they have left, roughly in order of their priorities.

Keep the government open

If it’s the fall, Congress is trying to figure out how to keep the government open for another year. The deadline for funding the government for the next 12 months is always Oct. 1, which is when a new fiscal year begins, but Congress hasn’t met that deadline in years. Instead, they’ll probably pass a spending bill that keeps the government open through December, and then after the midterm elections, they’ll come back and fight over a longer-term budget.

Where there’s a budget deadline, there’s always a risk for a government shutdown. In the Senate, all it takes is one senator to stop the process. But Democrats will probably do everything in their power to avoid that, since shutdowns are almost always politically damaging for the party in power.

Enshrine the right to same-sex marriage into federal law

After the fall of Roe v. Wade this summer, Democrats tried and failed to pass a law protecting abortion rights nationwide.

They also saw an opening to act on same-sex marriage. And they might have just enough Republican votes to pass a national law protecting it.

The impetus for this came when the Supreme Court ended protections for abortion rights, and Justice Clarence Thomas suggested that same-sex marriage could be next. The Supreme Court ruled in 2015 that same-sex couples have the right to marry, but Congress never passed a law guaranteeing that. In fact, in the ’90s it passed a law that made it difficult for states to recognize same-sex marriage.

House Democrats quickly voted to codify same-sex marriage and interracial marriage, within weeks of Roe falling. They were probably expecting this to be a political vote that got no Republican support, but 47 House Republicans joined them, surprising congressional Democrats, reports The Post’s Marianna Sotomayor. The relatively bipartisan success in the House motivated a bipartisan group of senators to try cobbling together a narrow coalition. The signs are that they’re close: They need just 10 Republicans to join all 50 Democrats.

Senate Majority Leader Charles E. Schumer (D-N.Y.) said a vote could happen “within weeks.” Sotomayor reports it could come as soon as next week.

GOP Sen. Susan Collins (Maine) is one of the bill’s champions. She wrote alongside fellow bill author Sen. Tammy Baldwin (D-Wis.) in The Washington Post this week: “Individuals in same-sex and interracial marriages need, and should have, the confidence that their marriages are legal. These loving couples should be guaranteed the same rights and freedoms of every other marriage.”

But after that op-ed came out, they lost a precious potential Republican vote. Sen. Ron Johnson (R-Wis.) — who is up for reelection in a state that voted for President Biden — originally said he could support the bill, but this week abruptly said that he had concerns with the way it was written.

Appoint more federal judges

Of the two chambers in Congress, only the Senate can approve a president’s nominees to serve as federal judges. It’s an important but normally behind-the-scenes process that got a lot of attention in the Trump era, when President Donald Trump and Senate Republicans sprinted to put more than 200 conservative federal judges on the bench in courts across the nation.

(The fruits of that may have just born out for Trump when a judge he appointed in Florida defied conventional legal wisdom and temporarily halted the FBI’s investigation into secret government documents he took from the White House, while a “special master” sifts through the files to see what the government can keep.)

Democrats under Biden are racing to shape the courts, too. Biden has appointed more judges than any other president in decades at this point in his tenure, a recent Pew Research Center analysis found. One of them now sits on the Supreme Court.

But if Senate Democrats lose control of the chamber next year, Biden can expect that rapid pace to come to a halt under Sen. Mitch McConnell’s (R-Ky.) leadership. McConnell has been ruthless at stopping Democrats’ judicial nominees: He once held open a Supreme Court vacancy for nearly an entire year when Barack Obama was president.

Get money for booster shots, monkeypox vaccines, Kentucky flood victims and Ukraine

Biden wants Congress to approve tens of billions of dollars to help battle the ongoing crises his administration is trying to manage, from pandemics to a war overseas, to worsening natural disasters at home. He’d love for Congress to fold all this into the spending bill that must pass by October.

But Republicans in the Senate see much of this, especially the covid money, as needless spending. (They may also see a “no” vote as a way to make an election-year argument that Democrats want to spend more and make inflation worse.) Senate Republicans have been blocking additional covid-related funding for months: “At some point you’ve got to tell the alcoholic no,” Sen. Bill Cassidy (R-La.) told Politico.

Election reform

More than a year and a half after the attack on the U.S. Capitol, Congress has passed precisely zero legislation to prevent it from happening again.

There isn’t much it can do, legislatively speaking, since elections are run by the states. But a bipartisan group of lawmakers has zeroed in on strengthening the rules for how Congress counts each states’ electoral votes and signs off on the winner of the presidential election. It’s the last step in the presidential certification process, and an obscure law governing it is one that Trump and his allies tried to exploit to stay in power.

Weeks, days and even hours before the Jan. 6 attack, Vice President Mike Pence came under enormous pressure from Trump and his allies to reject legitimate electors from states that Trump lost.

It would have been illegal under the 140-year-old Electoral Count Act, which governs rules about what to do if there are legitimate disputes about which presidential candidate won in a state.

Some lawmakers in both parties want to tighten this law so that it’s extra clear that a vice president has no role to unilaterally reject electors, and to raise the bar for how many lawmakers it takes to question results in the first place. (Right now it’s just two, one from each chamber.)

Collins is leading the bipartisan charge on this, but it’s not clear if or how much momentum there is to make this change.

Finish up their Jan. 6 investigation

If Republicans win back the House of Representatives, they are going to almost certainly sideline or disband the committee investigating the Jan. 6, 2021, insurrection. House Minority Leader Kevin McCarthy (R-Calif.), the likely next speaker of the House in such a scenario, has fervently defended Trump over the attack, and even threatened to investigate Democrats in return. In addition, the committee’s No. 2, Liz Cheney (R-Wyo.), loses her job in January because she lost her primary this summer to a pro-Trump election denier.

The committee has already interviewed thousands of witnesses, reviewed tens of thousands of documents and held several public hearings this summer to share its findings so far. But committee members say they are still actively investigating the attack and who was behind it — and that they still have unanswered questions.

They may release a report on their findings and hold more hearings this fall. An essential element of their investigation will be to recommend legislation Congress can pass, to ensure this doesn’t happen again. But their time for all this is limited.