Immediate Reaction

With Republicans only holding a slim majority in the House and the Democrats keeping their majority in the Senate, there is almost universal agreement that President Biden and the Democratic Party as a whole have outperformed expectations.  The President and the White House surely view these results as validation of his approach, his agenda, and his work so far.  A key part of this, which is at the core of his unity agenda and something he reiterated in his speech following this election, is his long-standing commitment to reaching across the aisle.  We can therefore expect the Administration to continue to seek out opportunities to work with Republicans, particularly in areas that garner bipartisan attention such as technology, children, and veterans.  We can also expect judicial nominations to remain a priority, both in the lame duck and in the next Congress, and for the President to continue advancing his agenda by taking Executive action when legally able.

Meanwhile, agencies will continue their work implementing key laws passed by this Congress—including the Bipartisan Infrastructure Law, the Inflation Reduction Act, and the PACT Act—at the same time that they look for new ways to implement the President’s agenda through rulemaking and enforcement.  In particular, it seems likely that the Federal Trade Commission and the Justice Department’s Antitrust Division will become even more active consistent with the Administration’s larger competition agenda. 

A key question moving into the next Congress is how those agency actions will interact with the strain of populism that partially animates efforts in both parties to regulate “Big Tech.”  The push to move certain antitrust legislation during the lame duck is unlikely to materialize; instead, it is likely to morph in the next Congress into a focus on content moderation and amending Section 230 of the Communications Decency Act.  Other priorities—like privacy and child protection, including bills like the Kids Online Safety Act—will almost certainly remain at the top of next year’s agenda if they do not pass as part of a larger spending bill this Congress.    

Oversight

It is no secret that Republicans have been preparing for intense oversight of the Biden Administration for months.  But the Administration has been preparing as well, beginning as early as the transition when it was unclear whether Democrats would have a majority in either chamber.  And as the White House Chief of Staff recently remarked, the Administration is “always ready for fair and legitimate oversight.”  Moreover, this is not the first time an Administration has had to deal with intense oversight while continuing to pursue its own agenda.  One thing that is notable, however, is the expressed interest in heightened oversight of agencies like the FTC that have historically received less Congressional attention.  It will be interesting to watch Members walk a line of pursuing increased regulation of Big Tech while simultaneously going after the regulators.

Foreign Policy

Even before the election, there were intense discussions about Russia’s invasion of Ukraine, and the continuing role of the United States, including with respect to requests for further aid.  A key question going forward is whether the potential change in Congress will change the Administration’s approach. 

The answer likely comes down to which Republicans have the gavels on Committees that control defense spending.  But with only a slim majority in the House, this could be an additional area where we see bipartisan cooperation—as we have in the past.  Regardless, we can expect the President to continue his efforts to bring aide to Ukraine.  He recently pushed Republicans on this issue, emphasizing that it is about more than Ukraine; it is about NATO and the European Union.  This is also an area where we have already seen disagreement within the Republican party, quite publicly between Leader McConnell and Leader McCarthy.     

China will also continue to be a foreign-policy focus of the Administration, as evidenced by the recently released National Security Strategy.  The Strategy outlines three pillars of the U.S. approach: (1) competing responsibly with China to defend our interests; (2) investing in domestic efforts focused on competition and innovation; and (3) aligning efforts with allies.  Importantly, the Strategy suggests that the Administration may be willing to step back from free trade if it hinders the United States’ ability to compete with China or endangers United States privacy interests.

Economy and Legislative Compromise

President Biden has always focused on the economy and issues of the middle class, and the Administration has already taken significant steps to help ensure that our economy will thrive into the future, including through legislation like the Inflation Reduction Act.  The election will not change this focus, though it may shift the Administration’s approach.  Lacking a majority in the House, the Administration will likely look to Executive actions, including agency rule-makings, to address cost concerns.  The competition council will also continue its work.

On the economy and elsewhere, bipartisanship in a divided Congress will undoubtedly be challenging.  In the last few divided Congresses, we only saw bipartisanship with crises and must pass legislative vehicles, so we should  be clear eyed about the challenges ahead.  Republicans likely believe their best chance to win back the Presidency in 2024 turns on continuing to depict President Biden and other Democratic leaders as extremists.  So when it comes to major issues that Republicans see as political, such as immigration, the chance of compromise is quite small. 

That said, there are a few areas where Congress could see agreement.  Child protection and technology is one, privacy is another, defense, and there is still a strong bipartisan belief that America needs to remain competitive with China on a variety of fronts.  Moreover, if anyone can forge bipartisan compromise it is this President, as evidenced by the accomplishments of the last two years.  His deep commitment to bi-partisanship and his longstanding relationships to back it up have been borne out in the passage of bills that have been stalled for years, like the reauthorization of the Violence Against Women Act, which was accomplished with strong bipartisan support. Finally, we should not forget that Congress can and does accomplish important things quietly, through procedures like unanimous consent in the Senate and the suspension calendar in the House.  We should remain hopeful that even a divided Congress will use these procedures, which do not garner much fanfare, to achieve compromise even on important issues.