Last night, the United States held its midterm elections. Results are still coming in, so the exact outcome isn’t yet clear. It looks like Democrats did substantially better than expected, but there’s a good chance they’ll nevertheless lose control of the House of Representatives.

Republicans have been far less vocal in their support for US assistance to Ukraine than their Democrat counterparts, so what does the midterm mean if Republicans take control over the House? Does this mean an end to US support?

The short answer is “no”.

The longer answer is “no, but it’ll be more bureaucratically confusing than before”.

First things first, a quick primer. Why does the House matter at all? In the United States, legislation needs to pass both the House and Senate before being signed by the President into law. This is true of all legislation, but is most acute when it comes to funding (“appropriations”) and reauthorization bills. That is, paying for things and ensuring that certain pieces of legislation are renewed rather than hitting their timebomb provision and expiring.

Losing control of the House (or both House and Senate) will make the President’s life much harder, because Republicans will be able to withhold funding or attach conditions to government projects they don’t like, as well as holding government activities hostage that rely on legislation with a timebomb provision by threatening to let the legislation lapse.

After a US election, winners do not take their positions in Congress immediately. There’s a brief window where the previous Congress is still around: the so-called lame duck session. This means that whatever the exact outcome of the election will be, Democrats retain control of the House and Senate until the newly elected Congress is seated in January. It’s entirely normal to use these lame-duck sessions to pass key legislation in anticipation of the next Congress being more hostile to the President’s agenda.

My expectation is that the lame duck will focus on Electoral Act reform, a debt ceiling hike, a Ukraine assistance fund (perhaps via the Omnibus or NDAA), and, depending on how off-the-rails Democrats think a Republican-controlled House will be by late next year, perhaps FISA 702-reauthorization as well.

Electoral Count Act reform

This isn’t a big national security topic, so I’ll keep this brief, but it’ll probably be the big thing discussed during the lame duck session. This is a response to the January 6 riots and fiasco during the counting of the electoral college votes after Biden was elected President. The reforms seek to clarify certain rules about how presidential votes are counted, and specifically that the vice-president has a purely administrative role in counting the votes.

Debt Ceiling Hike

The Debt-Ceiling is a US-specific weirdness that is designed to periodically force a public debate around the size of US debt by imposing a “ceiling” on how large the debt can be. Failing to affirmatively raise this ceiling causes most funding across the US government to abruptly end, causing all non-essential government activities to shut down and government employees to be “furloughed”. “Essential” activities continue, but this is defined relatively narrowly, ensuring widespread chaos if the ceiling is hit.

Over the past few years, Debt ceilings have been used as a way for minority parties to hold the government hostage and extract legislative concessions from the party in power. Democrats will likely want to avoid this by affirmatively raising the debt ceiling during the lame duck.

If this fails, expect a debt-ceiling showdown at some point during the next two years. If that does happen, it’ll be enormously disruptive, but even then since most (but not all) Department of Defense activities are “essential”, a government shutdown won’t directly affect day-to-day support to Ukraine.

Ukraine Assistance Fund

It’s not a secret that public support for Ukraine is not entirely equal between the two main parties in the US. Democrats are, in the main, strongly supportive of assistance to Ukraine. Republicans are far more muted, or in some cases even openly critical of US support to Ukraine.

The perverse reason for this comes down to political incentives. It’s not that leading Republicans actually don’t support assistance to Ukraine. If anything, quite the reverse. Behind the scenes most are very supportive for a series of diverse reasons, ranging from a baseline desire to see Russia defeated, to wanting to support the underdog in a war of aggression, to genuine humanitarian reasons, through to entirely transactional observations like wanting assistance money to be spent in their own district as an economic stimulus.

But publicly, this isn’t the case. As the party in opposition, Republican talking points need to criticize Democrats in power, and US support to Ukraine provides them with an easy rhetorical weapon. The sums of money (especially on paper) look large, and particularly during a rough economic period it’s easy to win political points by saying the money is being spent on foreigners rather than Americans as a mechanism of creating voter resentment and collecting votes.

This leads to a relatively uncomfortable political situation where Republican leadership does genuinely support Ukraine assistance, but at the same time, wants to loudly oppose it.

To hedge against this and keep everyone happy, Democrats will likely want to pass an enormous appropriation for a Ukraine assistance “trust fund” that the President can draw down over the next year to fund as-yet-unknown tranches of military, financial, or humanitarian assistance. The number they choose here will be very large, but it’ll be functionally an upper-bound; the actual assistance will be defined during the tranches across the year as and when required.

In practice, this will probably be done via attachment to the Omnibus bill, or perhaps the National Defense Authorization Act (NDAA), which needs to be passed later this year.

That will cover US assistance until the end of 2023, but what about afterwards? Will US support dry up in January 2024?

No.

This comes back to the fact that Republicans (at least Republican leadership) actually does support Ukrainian assistance, even if they find it politically useful to publicly oppose it at the same time. In practice what this means is that the NDAA next year will do the same thing. Republicans will loudly complain, but quietly be happy that the assistance isn’t disrupted.

FISA 702 reauthorization

This one might just me getting on my hobby-horse, but Section 702 of the Foreign Intelligence Surveillance Act is set to expire in December 2023. That’s a long time away, but it’s also before the next election. It’ll need to be reauthorized either in the lame-duck session, or late next year during the next Congress.

Section 702 is one of the US intelligence community’s primary pieces of enabling legislation. It’s not an exaggeration to say that it is absolutely critical to the current functioning of the US IC.

Its last reauthorization, in 2019, was also an absolute car-wreck.

Section 702 has always been a bit controversial, and has serious nuanced criticisms from across the political spectrum, especially around law-enforcement access to 702-collected information that was originally collected for intelligence purposes, and which collaterally impacted the Fourth Amendment rights of a US person, but which is later repurposed into a law-enforcement investigation of that US person. This is a very complicated issue, but this is simply to say that there really are serious, nuanced, and good-faith discussions about 702 reform.

But the 702-reauthorization carwreck of 2019 was not about any of that. That saga centered on the then-raging discussion over FISA surveillance of Carter Page. But the surveillance of Page was conducted under FISA Title I, which has nothing whatsoever to do with Section 702, and Title I wasn’t going to expire.

Alas, sense did not prevail, and after 702 was reauthorized by Congress and sent to the president, the president, no doubt in response to misinformed TV punditry conflating 702 with Title I, tweeted his intention to veto it, causing all hell to break loose. Section 702 was later reauthorized, but not before lapsing for several days and causing collosal problems for the IC.

Whether or not 702 is reauthorized in this lame-duck essentially depends on whether Democrats believe they can avoid this cycle-of-stupid occurring in the next Congress. Passing it now would hedge against potential chaos late next year. Either way, I expect DOJ will quietly raise the issue to ensure this key legislation doesn’t suffer the same fate that it did in 2019.

There’s probably a lot of other stuff that will get pushed during the lame-duck session too—some more successful than others—but these are the four main things I’ll be looking for.

For Ukraine assistance in particular, the midterms are unlikely to change US support in any material way, but you’ll need to be a bit careful to not trip up over the way it is structured. The number passed in the Ukraine Assistance Fund will be large, but it won’t be a single tranche of support like previous iterations, but rather a trust fund providing an upper-limit dollar amount for all tranches of support next year.

Continuing support in 2024 will be a more difficult fight late next year, but ultimately I expect that to pass too without too much real difficulty, even if the rhetoric gets loud.

All in all, US support to Ukraine is likely to remain strong and well-funded, in terms of diplomatic assistance, military assistance, financial assistance, and humanitarian assistance right through the end of this presidential term in January 2025.

Beyond that? Who knows. But that’s a very long time into the future, and a lot will change before then. We’ll cross that bridge when we get there.

PwnAllTheThings

What do the midterms mean for US support to…