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.