A Return to Divided Government

Republicans Likely to Capture Narrow House Majority while Control of the Senate Remains to Be Determined^[1]

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Although control of the House is not yet decided, as of this writing, Republicans appear poised to regain control of the House with a narrow majority for the 118^th Congress. Republicans currently have a net gain of 6 House seats, with over 35 races still to be determined.

With the current Senate divided 50-50 (48 Democrats and two Independents who caucus with the Democrats and 50 Republicans) and Vice President Kamala Harris breaking tie votes, Democrats control the Senate. Except for John Fetterman’s open seat win in Pennsylvania to replace retiring Republican incumbent Sen. Pat Toomey, Senate Democrats and Republicans have thus far “held serve” in all of the Senate races that have been called. The Senate races in Nevada, Arizona, and Georgia remain too close to call. While the Alaska Senate race has also not been called and may not be for two weeks as a result of Alaska’s ranked choice voting system, the two leading candidates are both Republicans and the results of this race are not expected to impact control of the Senate.

The race in Georgia between Democratic Sen. Raphael Warnock and Herschel Walker, which has received significant national attention, is going to a December 6^th runoff since neither candidate has received 50% of the votes cast in Tuesday’s general election. If the Democratic incumbents in both Arizona and Nevada (Sen. Mark Kelly and Sen. Catherine Cortez Masto, respectively) hold on to their seats, that, combined with the Democratic pickup of the open seat in Pennsylvania, means that Democrats could reach a 50-seat majority without relying on the results of the Georgia race.

The anticipated narrowness of the House Republican margin of control in the incoming Congress will likely present policy and political challenges for Congressman Kevin McCarthy (R-CA) who is expected by many to be elected as the next Speaker of the House. A narrow Republican majority may increase the leverage of individual Republican Members to extract concessions from their leaders in exchange for their support of Republican legislative initiatives.

If Democrats win two of the three Arizona, Nevada, and Georgia Senate races, Senator Chuck Schumer (D-NY) will continue as the Majority Leader (or will become the Minority Leader if the Democrats lose two of the aforementioned races). If Republicans win control of the Senate, Senator Mitch McConnell (R-KY) is expected to return as the Senate Majority Leader (or to continue as the Minority Leader if the Republicans lose two of the three races). However, there is a chance that Senator McConnell could face a challenge from Senator Rick Scott (R-FL), the current Chair of the National Republican Senatorial Committee.

Key Senate and House Race Results

Senate

Four Senate races remain outstanding with Democrats having won 48 seats and Republicans having 48 seats. Thus far, the only pickup is Democrat John Fetterman’s victory in Pennsylvania. Republicans will need to win two of the three uncalled Democratic Senate seats to win control of the Senate (Arizona, Nevada, and Georgia). Republicans are expected to retain control of the Alaska Senate seat.

The Georgia race will go to a December 6^th runoff as neither candidate has reached 50% of the vote, while the Senate races in Arizona and Nevada are not expected to be called until the evening of November 9^th at the earliest. Thus, control of the Senate remains unresolved.

The Georgia runoff race will only matter for control of the Senate if the Republicans win either Arizona or Nevada. If the Democrats win both Arizona and Nevada, the Senate will end up with either 50 seats for each party with Vice President Harris breaking ties or 51-49 Democrats if Senator Warnock wins the Georgia runoff.

Many observers believe the chances increase that Herschel Walker will lose the runoff if a Walker victory won’t result in Republican Senate control, as Tuesday’s results indicate that there are some voters who were prepared to vote for Walker in order to gain Senate control who may not do so (or may not even vote in the runoff) if control of the Senate is not implicated.

House

As of 6 pm today, control of the US House remains to be determined, although Republicans appear more likely than not to achieve the net gain pickup of at least five seats required to win House control. NBC’s decision desk projects that the House will end up with 224 Republicans and 211 Democrats, plus or minus 10 seats, which would be a net Republican gain of 11 seats from the current Congress. However, over 35 House races have yet to be called.

Among the particularly noteworthy called races are Republican pickups of FL-7, the seat vacated by Congressman Charlie Crist; NY-17, the seat currently held by Congressman Sean Patrick Maloney, the Chairman of the Democratic Congressional Campaign Committee; VA-2, the seat currently held by Congresswoman Elaine Luria; the defeat of Congressman Tom Malinowski in NJ-7; and Congressman Tom O’Halleran’s loss in AZ-2. Democrat Greg Landsman defeated incumbent Republican Congressman Steve Chabot in OH-1.

Democratic Congresswoman Abigail Spanberger (VA-7), Congressman Frank Mrvan (IN-1), Congresswoman Elissa Slotkin (MI-7), Congresswoman Angie Craig (MN-2), Congressman Matt Cartwright (PA-8), and Republican Congressman Don Bacon (NE-2) were among the Members who survived spirited challenges in races where the margin of victory was less than 6%.

118th Congress – Leadership Elections

The House Republican Conference will decide on its party leadership—including its Leader and Whip and, if Republicans win the majority, the Speaker of the House—during organizational meetings currently scheduled for November 15^th. House Democrats, as well as Senate Democrats and Republicans, are also expected to hold organizational meetings the week after the midterm, although exact meeting dates have yet to be released.

After voters elect the 118^th Congress, the new Congress will then elect its own leadership, and decide who will lead their Committees in both chambers. In the House and Senate, both Democrats and Republicans will vote on their party Leaders and Whips during organizational meetings before the first day of the new session, which will fall on January 3, 2023. The majority party also decides before the start of the session on its nominee for Speaker of the House. On the first day of the next Congress, after electing the Speaker, the House will also adopt its rules package.

Potential Committee Leadership
in the 118th Congress

The newly-selected leadership and steering committees will also recommend nominees to chair the House and Senate committees, which will be voted on by the full chamber after the start of the 118^th Congress.

Republicans and Democrats have different rules and traditions for electing their party’s committee leaders in the two chambers. While Republicans impose term limits on their committee chairs in both chambers, Democrats have no such term restrictions in either chamber. Additionally, while both parties in the House consider merit, seniority, and other factors to decide committee chairs, in the Senate seniority prevails when deciding committee chairs.

Republicans have restrictions on who can serve as committee leaders, including term limits.

• In the House, Republican members are only allowed to serve as the GOP leader on a committee for three terms, or six years.
• In the Senate, Republican members can only serve as the chair of a committee for six years.
  • After serving as a chair for a term, a GOP member cannot serve as the ranking member of the same committee; however, after serving as the ranking member of a committee for a term, a GOP member can serve an additional six years as the chair.
• Republicans also have special rules for nominating committee leaders.
  • In the House, the Republican Leader nominates members to serve as the chair of the Committee on Rules and the Chair of the Committee on House Administration. The Republican Steering Committee nominates members to serve as the chairs for each of the remaining committees. The full Republican conference votes on all of the nominees.
  • In the Senate, Republican committee members nominate a member to serve as the chair of a committee, who is then voted on by the conference. Nominations for committee leadership roles tend to be based on seniority in the Senate.

Democrats do not have restrictions or term limits on committee leadership, but they tend to rely on seniority when picking committee leaders.

• In both the House and Senate, Democratic Committee leaders are not limited by term restrictions. However, there is a push from younger Democratic members to impose term limits on their party’s committee leaders, who tend to be selected based on seniority.

What Might the Election Results
Mean for the Lame Duck Session
of this Congress?

The House and Senate return on November 14^th for the “lame duck” session of Congress. With government funding under the current Continuing Resolution (CR) set to expire on December 16^th, Congress must decide whether it can find a way to fund the federal government for this fiscal year before adjourning the Congress or whether a long-term CR will be the vehicle to fund the federal government and avoid a government shutdown.

The only so-called “must pass” items for the lame duck are to fund the federal government and continue Congress’ record of passing the National Defense Authorization Act (NDAA), the annual defense policy bill that authorizes funding and sets policy for the Department of Defense, before the current Congress concludes. An effort may be made to pass a modest number of tax extender provisions such as the research and development (R&D) tax credit. Democrats will seek to pair the tax credit with an extension of the child care tax credit, but given the concerns of many Congressional Republicans about the cost of the child care tax credit, such an extension is unlikely.

Because government funding legislation and the NDAA conference report are likely to be the last two major pieces of legislation to pass in this Congress, efforts will be made to have other bills “hitch a ride” on these bills given the low probability that many freestanding bills will become law before the current Congress concludes. However, given the potential changes in control of the House and possibly the Senate in the next Congress, most observers believe that the NDAA and legislation funding the federal government will end up being relatively clean and not carry a lot of extraneous provisions.

Especially if they end up losing the Senate majority, Senate Democrats will also attempt to confirm as many nominees as possible for the federal courts and for executive branch vacancies as it will be far more difficult to confirm such nominees if Republicans control the Senate. Given the expressed interest of Congressional Republicans in using an extension of the debt limit as a way to limit federal spending and extract other concessions from Democrats, Congressional Democrats may seek to bypass the filibuster by using reconciliation procedures in this Congress to pass an extension of the debt limit if they wind up losing the Senate majority.

Senate Appropriations Committee Chairman Patrick Leahy (D-VT) and Ranking Member Richard Shelby (R-AL) are both retiring at the end of this Congress. As the appropriations bills that they have released contain lots of earmarks for their respective home states, as well as for other Senators and Members of Congress, both Senators will do everything within their power to arrive at a solution that will preserve their earmarks rather than agree to a long-term CR.

Congressional Republicans, as a group, are much less supportive of earmarks and increased federal spending than Congressional Democrats. If Republicans end up controlling both the House and the Senate in the next Congress, the chances of a long-term CR materially increase as Congressional Republicans will figure that they can achieve a much more favorable resolution of the levels of federal spending if they wait for the next Congress rather than pass appropriations bills in the current Congress.

How Might the Election Results Impact Policymaking in the 118^th Congress?

A likely change in control of the House and potential change in control of the Senate will have an enormous impact on the viability of various legislative initiatives. If the House and the Senate end up being led by separate parties, the likelihood of legislative gridlock increases substantially. While Republicans will still need 60 votes to overcome a filibuster for most bills to become law, to the extent that Congressional Republicans manage to send bills of consequence to the Senate, President Biden is likely to spend far more time vetoing bills than signing bills into law.

Obviously, if Congressional Republicans end up controlling both the House and the Senate, the chances increase considerably that Republican bills will be sent to the President’s desk. Should the Democrats retain control of the Senate, legislative gridlock in the next Congress is likely, although we anticipate opportunities for some bipartisan legislating nevertheless. Congressional Republican policy priorities during the next Congress could include:

• Efforts to extend the 2017 Trump tax cuts
• Attempts to limit federal spending, including the likelihood of increased scrutiny of aid to Ukraine
• Elimination of additional pandemic aid and rescission of much of the funding approved in the Inflation Reduction Act to fight climate change
• Increased defense spending
• Potential rescission of measures designed to increase police accountability
• Various bills to prohibit affirmative action
• Various bills to limit immigration and increase funding for a wall at the Southern border
• Bills to set a national federal standard prohibiting all abortions after 15 weeks
• Bills to rescind gun control measures including funding of gun control initiatives
• Potential efforts by the most conservative members of the Republican Conference to impeach President Biden and/or various Cabinet members and executive branch officers

Finally, with an eye toward the 2024 presidential elections, if Republicans end up in control of either or both chambers, they will likely pursue a robust oversight and investigations agenda that could include:

• Various investigations of the Justice Department, the FBI, and the Secret Service
• Oversight of federal spending and waste, fraud, and abuse
• Investigation of the origins of COVID-19 and of all aspects of the White House’s pandemic response

[1] Given the number of races and issues that remain unresolved, we will post blog updates here on an ongoing basis in real time as developments warrant.