The results of last Tuesday's election are slowly coming into focus, along with the ways in which those results may impact the legislative agenda in the remaining weeks of the 116th Congress and looking ahead to the 117th Congress. While litigation is ongoing, major news outlets have projected Vice President Joe Biden to be the winner of the presidential race, with more than 270 Electoral College votes. As such, Biden has assumed the title of president-elect.
With both Georgia Senate seats going to runoff elections on January 5, 2021, the president-elect may be working with a narrow Republican majority in the Senate. However, it is still possible there will be a 50-50 split in the Senate next term with Vice President-Elect Kamala Harris able to cast tie-breaking votes, giving Democrats a theoretical, effective majority. Regardless of the outcome of the Georgia runoffs, the president-elect will be working with a narrow Democratic majority in the House of Representatives.
Early Observations on the Election
- It appears many Republican voters were willing to vote against President Donald Trump while supporting other Republican candidates, although further data may reveal voters split their votes in unusual ways in this record-turnout election.
- Republicans picked up as many as ten seats in the House, and only two Republican Senators were defeated. In Georgia, President-Elect Biden received 100,000 more votes than Democratic Senate candidate Jon Ossoff. In the largely suburban Second Congressional District of Nebraska, voters defeated President Trump by eleven points, while sending conservative Congressman Don Bacon back to the House by a six-point margin.
- By beating expectations, the Republican party is, in many ways, energized coming out of this election.
- At least on the House side, Republican members may work harder against the president's agenda than they might have otherwise as they seek to regain control of the House. President Trump will still loom large in the House. Several strong Trump supporters have been newly elected to the House, and few members, if any, lost seats in the House this year over their support for President Trump.
- Democrats are back to the age-old fight between liberalism and centrism. With a narrower majority, however, the centrists have a few more proof points than they otherwise might have had.
- Headlines about tensions between liberals and centrists at a post-election meeting of the Democratic Caucus may have renewed this debate, but there is nothing new about it. This typically emerges after Democrats suffer various unexpected defeats, like following John Kerry's presidential defeat, loss of the House majority in 2010, and Trump's victory in 2016. The players change, but the argument does not.
- Speaker Nancy Pelosi (D-CA) is expected to form and move a liberal agenda, but in a way that can best protect moderates and act more aggressively to tamp down liberal revolts.
- Democratic leadership will work to manage Republican ad makers who continue to label red state Democrats as "too liberal" for their states.
- Democrats have a problem in the "Blue Wall" states but have opportunities in the South and Southwest. Will the latter move fast enough to make up for the former
- President Barack Obama won Wisconsin by 12 points in 2008 and 7 points in 2012, Trump won the state in 2016, and Biden won it by .6% this year.
- Obama won Pennsylvania by 10 points in 2008 and 5 points in 2012, Trump won it in 2016, and based on the votes counted thus far, Biden won it by only .7%
- Biden and congressional Democrats will have to work hard to maintain the "Blue Wall" and/or build upon their extremely narrow victories in Arizona and Georgia if they want to benefit from their success this time around.
- The question remains: Will Biden continue to expand executive power to achieve policy goals?
- Presidents of both parties have increasingly used executive action in the face of congressional gridlock, and President Trump crossed new lines around the use of non-appropriated funds for border wall construction. To what extent will President-Elect Biden, a consummate institutionalist, resist further encroachment on congressional power? Or, rather, will he use precedents set by his predecessors, and expanded by President Trump, to increase executive unilateral authorities?
Finishing the 116th Congress
How do the election results impact the remainder of the 116th Congress?
- We expect Democrats and Republicans to try to compromise on major outstanding issues during the lame duck session. This will enable them to finish as much work as possible with little carryover into the 117th Congress and President-Elect Biden's first 100 days.
The final results of the elections may ultimately yield a divided government. There was political incentive for Democrats to wait until the 117th Congress—when they might have had full control if the election results swept them into control of the White House and both chambers of Congress—before compromising beyond certain political limits this year. With the increased possibility of divided government next year, such a political incentive may have waned. Compounding this, with the losses Democrats took in the House of Representatives, it may be politically easier for Speaker Pelosi to move on these issues now and not with her smaller Democratic caucus in the 117th Congress.
What is likely in play?
The current Continuing Resolution (CR) expires on December 11, 2020, and the National Defense Authorization Act (NDAA) has not yet been sent to the president. Congress also needs to extend several healthcare programs, and there is mounting pressure to pass another COVID-19 relief measure. Senate Majority Leader McConnell (R-KY) will continue to fill judicial vacancies.
- Spending measure – Senate Appropriations Chairman Richard Shelby (R-AL) and Ranking Member Pat Leahy (D-VT) would like to move all 12 appropriations bills in an omnibus package—not another CR—before December 11. This will be a significant lift, requiring substantial political cooperation, since any such omnibus package will need to be drafted, vetted, and approved approximately a week before December 11 before being brought for a vote on the floor of both the House and the Senate.
- NDAA – Earlier in the year, both chambers passed their own versions of a FY 2021 NDAA and the differences are being worked out in a joint House-Senate conference committee. The "four corners" (chairmen and ranking members of the Senate and House Armed Services Committees) are very close to a conference committee agreement.
- Healthcare extenders – The lame duck session was always going to require Congress to address the funding of several expiring Medicare, Medicaid, and public health programs known as "healthcare extenders." This will likely include direct spending for community health centers, teaching health centers, special diabetes programs, community mental health services demonstration programs, and others.
- COVID-19 – Many members in both chambers, as well as leadership, see the need to pass a COVID-19 response measure. The measure will likely not be as robust as Speaker Pelosi was seeking before the election but could still be in excess of $1.5 trillion. Issues on which Republicans and Democrats have agreed, in general, include another round of direct payments to individuals, aid for airlines, enhanced unemployment insurance (UI), and extension of the Paycheck Protection Program (PPP). They remain divided on the amount of UI compensation, state and local funding, liability protection, the amount of money for testing, training and treatment, and funding for schools and childcare.
- Judicial nominations – Leader McConnell has 12 district court judges remaining on the executive calendar.
How will Congress move these measures?
It is very likely that one major package could be assembled and passed in both chambers. Passing an omnibus, NDAA, and a COVID-19 stimulus package would be a massive undertaking. However, the inclusion of all of these measures in one bill might provide a political impetus to get it passed and enacted into law. Another option is to separate the NDAA from everything else and send two measures to the president.
What could stop action on these measures?
It is unclear how cooperative the administration will be on all of these measures. A possible scenario is one where the president is unwilling to sign a massive measure as he leaves office. It is also unclear whether a large bipartisan vote is attainable for these measures, but appropriators and defense authorizers maintain a massive bloc of votes in both chambers. If they compromise on a deal, they will comprise a significant portion of the votes needed to pass.
The 117th Congress and the Biden Transition
While the 116th Congress looks to wrap up, it will simultaneously plan for the 117th Congress, and President-Elect Biden will ramp-up his transition team in preparation for his first 100 days.
U.S. Senate
The election is not over for the United States Senate. North Carolina has still not been called but Republicans are favored to win. Georgia has two Senate races in which neither candidate was able to attain 50% of the vote to avoid a runoff on January 5, 2021. As things stand today, Republicans are likely to control 50 Senate seats and Democrats 48 Senate seats; should Democrats sweep the Georgia races, control of the chamber would be evenly split. That would be the best-case scenario for Democrats, as an outright majority for them is not possible unless they are able to beat significant odds and win in North Carolina.
Who is favored in Georgia?
Georgia is traditionally a Republican voting state but President-Elect Biden looks to have defeated President Trump in the Peach State with traditional Democrats and suburban voters. In both Senate races, however, the Republicans ran ahead of the president, suggesting that many traditional Republican voters in the state did not have an issue with Republicans but rather an issue with the president specifically. The major unknowns in these races will be how President Trump handles the next 60 days with respect to the election results, the amount of money that will pour into the state, and whether the two Democratic nominees can carry over the disapproval of President Trump and tag their opponents to him (and, perhaps, a desire to complement President-Elect Biden's agenda with an effective Democratic majority in the Senate).
Leadership and committees
Regardless of the outcomes in Georgia, Senate leadership for both Republicans and Democrats looks to be steady.
Should Republicans hold the Senate, several changes are expected in chairmanships because of retirements and Republican rules limiting the terms of chair and ranking member. The only expected change in Democratic committee leadership will be triggered by the retirement of Sen. Tom Udall (D-NM), resulting in Sen. Brian Schatz becoming the top Democrat on the Senate Committee on Indian Affairs.
U.S. House of Representatives
The election results in the House of Representatives were unexpected for Democrats and Republicans and put Republicans in a much better position for the 117th Congress than they were in the 116th Congress. It is likely that when all the results are in, Republicans will have between 205 and 210 seats (up from a current 197) plus one Libertarian. Under this scenario, Democrats would have a very narrow majority that puts tremendous pressure on House Democratic leadership to keep the caucus together on major issues or potentially face diminished political power, similar to the scenario when House Republicans had narrow majorities under John Boehner's (R-OH) tenure as Speaker of the House.
Leadership and committees
In the House, Republican leadership elections are slated for November 17 and the Democratic leadership elections are set for the next day. The parties will then populate their steering committees by way of internal party rules and begin selecting committee chairs and ranking members. This process should be completed the week after Thanksgiving. The majority usually populates exclusive committees prior to the Christmas recess, but when the minority in the House is the opposition party to the president, past practice has been to delay until the new year before minority committees are populated.
Speaker Pelosi has announced her intention to seek another term as speaker, and no other candidate has announced an intention to challenge her. Similarly, the other top House Democratic leaders are expected to retain their posts.
The senior House Republican leadership team members have all announced their intent to run again for their current positions. Because the House GOP outperformed expectations, it is unlikely that the existing leadership team will be challenged.
There are several key committee leadership races worth noting:
- House Democrats will select new chairs of the Agriculture, Appropriations, and Foreign Affairs committees, while Republicans will select new ranking members of the Agriculture, Armed Services, Energy and Commerce, Ethics, and Natural Resources committees.
- The retirement of House Appropriations Committee Chairwoman Nita Lowey (D-NY) sets off a race for the chairmanship. Congresswomen Marcy Kaptur (D-OH), Rosa DeLauro (D-CT), and Debbie Wasserman Schultz (D-FL) are seeking to lead that committee.
- Energy and Commerce will see a new ranking member with the retirement of Greg Walden (R-OR). Representatives Michael Burgess (R-TX), Cathy McMorris Rodgers (R-WA), and Bob Latta (R-OH) are all actively competing to become the committee's Republican leader.
Several committees will see new members added to their ranks.
- Energy and Commerce Democrats will have four open slots, assuming the majority/minority ratios remain constant. Members in the mix to join the committee include Representatives Lucy McBath (D-GA), Lori Trahan (D-MA), Sylvia Garcia (D-TX), Deb Haaland (D-NM), and Anthony Delgado (D-NY).
- The Energy and Commerce Republicans are slated to have six openings (25% of their total). Members interested in joining include Representatives John Curtis (R-UT), Debbie Lesko (R-AZ), Dan Crenshaw (R-TX), Ron Wright (R-TX), Greg Pence (R-IN), Russ Fulcher R-(ID), Kelly Armstrong (R-ND), and Pete Stauber (R-MN).
- Ways and Means Democrats do not have any openings; Ways and Means Republicans have two. Interested members include Representatives Carol Miller (R-WV), Lloyd Smucker (R-PA), Kevin Hern (R-OK), and Greg Murphy (R-NC).
Depending on the final results of the House races, there may be changes to the committee ratios.
President-Elect Biden and the Transition
- Near-term appointments. President-Elect Biden will move quickly to appoint members of his White House staff, including chief of staff, deputy chiefs, national security advisor (NSA), head of the National Economic Council (NEC), and domestic policy council (DPC). Well-reported names for senior White House positions include long-time Senate chief of staff and former Senator Ted Kauffman (D-DE), long-time aide Steve Richetti, economic adviser Jared Bernstein, former chief of staff Ron Klain, former Commodities Futures Trading Committee (CFTC) chair Gary Gensler, and economic adviser Ben Harris.
- Cabinet. Key Cabinet members will likely be named in December. The attached Politico article offers an excellent rundown of top candidates. Clearly President-Elect Biden will have some constraints on appointments if Senate Republicans maintain majority control, but Leader McConnell is likely to give him a certain level of leeway, as most senators believe that a president should be able to pick his cabinet. As for timing, it has taken progressively longer for each administration to fill out its cabinet. President George W. Bush's cabinet was filled out by January 30; President Obama and President Trump did not have their cabinets completed until the end of April. Every one of the last five presidents has had at least one cabinet appointment failure, for either political or personal reasons.
- Initial policy moves. We expect President-Elect Biden, upon swearing in, to immediately use his executive authority to address a further COVID-19 stimulus, reengagement in the Paris Climate accord, immigration, and DACA, and roll back Trump administration actions related to the environment and healthcare.