Control of Congress Still Unsettled Following Midterm Elections
Lawmakers Return Next Week to Begin Lame-Duck Session
November 10, 2022
Following a hotly contested midterm election cycle, control of the House and Senate for the 118th Congress is yet to be determined. While a number of House races remain uncalled, the results are trending toward a slim Republican majority to begin 2023. Meanwhile, the Senate is very much a toss-up and control of the chamber may not be resolved for several more weeks.
Despite potentially losing control of one or both chambers of Congress, Democrats largely exceeded expectations to avoid what many pundits predicted would be a “red wave.” Historically, the president’s party has performed poorly in midterm election cycles, with the party out of power gaining, on average, 28 House seats and four Senate seats. However, Democrats appear on track to defy that precedent.
As of this writing, several individual congressional contests are still too close to call, but Republicans thus far have netted a gain of 12 seats in the House, bringing their total to at least 208 members. In the Senate, the picture is even cloudier. Republicans Ron Johnson and J.D. Vance notched key wins for their party in Wisconsin and Ohio, respectively. Meanwhile, Democrats reclaimed ground in Pennsylvania, where Democratic Lieutenant Governor John Fetterman defeated Republican Mehmet Oz for the seat of retiring Senator Pat Toomey (R-PA). In another key race, incumbent Senator Maggie Hassan (D-NH) held off a challenge from Republican Donald Bolduc.
There are also three Senate races that have yet to be called in Arizona, Nevada, and Georgia. To take control of the upper chamber, Republicans would need to win two of these contested races. Democrats are best positioned in Arizona. With over three-quarters of the vote counted, incumbent Senator Mark Kelly (D-AZ) has a five-point advantage over Republican challenger Blake Masters. In Nevada, Republican Adam Laxalt holds a slim lead over incumbent Senator Catherine Cortez Masto (D-NV), with nearly 85 percent of the vote counted. In Georgia, no candidate was able to attain 50 percent of the vote needed for an outright victory, so incumbent Democratic Senator Raphael Warnock and his Republican challenger Herschel Walker will advance to a December 6th runoff. If Republicans prevail in either Arizona or Nevada, control of the Senate could come down to the results in Georgia.
Regardless of the outcome, the ruling party will remain far short of the 60-vote supermajority that is needed in the Senate to advance most legislation of consequence. Except in limited cases – such as budget reconciliation (which requires a simple majority) – bipartisan cooperation will be needed for major legislative initiatives to advance.
With regard to the gubernatorial elections, Democrats won several high-profile races in Wisconsin, Michigan, Pennsylvania, Minnesota, Maine, New Mexico, and New York. Democratic candidates also flipped seats in Massachusetts and Maryland. Meanwhile, Republican incumbents cruised to victory in other marquee races in Florida, Georgia, and Texas. In Arkansas, GOP candidate Sarah Huckabee Sanders, a former White House Press Secretary under President Trump, was elected as the state’s first woman governor.
In his post-election remarks, President Biden indicated that he was ready to work with Republicans on issues where it makes sense, though most pundits agree that finding areas of compromise could prove difficult. The anticipated House GOP majority should be able to blunt Biden’s legislative agenda, likely leading to congressional gridlock and partisan friction over the course of the next two years.
California Results
At least 29 members of California’s 52-member House congressional delegation will be returning to Capitol Hill in January, though that number will increase in the coming days as a number of races are still too close to call. However, based on current results, the state will send 41 Democrats and 11 Republicans to Washington in 2023.
Among the races that have yet to be called, Central Valley Republican David Valadao holds a slim lead over Democratic Assemblyman Rudy Salas. In another highly competitive contest, Republican farmer and businessman John Duarte and Democratic Assemblyman Adam Gray are neck and neck for a seat that encompasses portions of Merced, Madera, and Stanislaus counties and much of Fresno County. Farther south, Orange County Democrat incumbent Katie Porter currently has a slight advantage over Republican Scott Baugh, and in a neighboring district, Congressman Mike Levin (D-CA) leads his GOP opponent Brian Maryott by just over one percentage point.
Finally, Governor Gavin Newsom and Senator Alex Padilla (D-CA) both successfully fended off challengers from the right to retain their current positions.
Legislative Outlook for the Remainder of 2022
Lawmakers are slated to return to Washington, D.C, next week for a lame-duck session as congressional leaders will seek to tie up a number of loose ends before the end of the year. The top priority for both chambers is a year-end budget deal. To date, none of the 12 annual spending bills for the fiscal year that began on October 1 have been signed into law. Instead, the federal government has been operating under a stopgap funding measure that is set to expire on December 16.
By all accounts, party leaders are committed to passing an omnibus spending package that would fund the entirety of the government through next September. In order to move forward, lawmakers will need to agree on top-line spending levels and address several controversial issues that have bogged down this year’s budget process. However, with the chair and ranking member of the Senate Appropriations Committee retiring at the end of the year, there will be a strong push to get an omnibus spending package over the finish line before the end of the year.
In addition to action on fiscal year 2023 spending legislation, Congress will use the lame duck session to resume negotiations on the National Defense Authorization Act (NDAA). The NDAA is an annual bill that authorizes funding levels for the Department of Defense (DOD), nuclear weapons programs of the Department of Energy, and other defense-related activities. It also establishes defense policies and restrictions. As one of the final policy bills that must pass this year, the legislation has been attracting a lot of attention by members looking to move their priorities. In fact, a reauthorization of the Water Resources Development Act (WRDA) is likely to be attached to the final measure.
It should be noted that Senators Mark Warner (D-VA) and Mike Crapo (R-ID) are attempting to attach the text of the Financial Data Transparency Act (S. 4295) to the NDAA. The Warner/Crapo legislation would require state and local governments and other public entities to report financial information using uniform reporting categories, or “data standards,” which could require costly updates to financial systems or extensive workarounds. Local government groups are currently working with bill sponsors to address concerns regarding this unfunded mandate. As of this writing, it remains unclear if Senate leaders will agree to include S. 4295 in the defense measure.
While the fiscal year 2023 budget and the NDAA are the only two “must pass” measures, there could be action on the following legislative issues before the new Congress is seated:
Mental Health Legislation – Earlier today, the Senate Finance Committee unveiled a bipartisan discussion draft of legislation aimed at creating better care integration of mental and physical health care services. The committee has also released separate proposals focused on telehealth policies, youth mental health, and expanding the mental health care workforce. For its part, CSAC has urged congressional leaders to include provisions that would allow Medicaid payment for medical services furnished to an incarcerated individual during the 30-day period preceding the individual’s release; allow pretrial detainees to receive Medicaid benefits at the option of the state; and, remove limitations under Medicaid, Medicare, CHIP and the Department of Veterans Affairs on benefits for persons in custody pending disposition of charges.
Wildfire Resilience – In addition to mental health reforms, there may be an effort in the Senate to advance a wildfire and drought resilience package before the current session comes to a close. Earlier this year, the House approved its own set of reforms – the Wildfire Response and Drought Resiliency Act (WRDRA; H.R. 5118) – that includes several key proposals endorsed by CSAC. While the Senate is not expected to take up the House-passed bill, lawmakers could bundle some of the proposed reforms into a separate forest management measure.
Debt Ceiling – The federal government is currently projected to hit its existing debt ceiling sometime in 2023. While raising the debt limit should be a relatively straightforward process, it’s become a contentious process in recent years. With Republicans likely to take control of one or both chambers in 2023, Democrats are increasingly eyeing the lame duck session to address the nation’s borrowing authority.
Permitting Reform – As part of an agreement with Senator Joe Manchin (D-WV) on the Inflation Reduction Act, Majority Leader Chuck Schumer (D-NY) agreed to hold a vote on a bill that would help accelerate federal environmental reviews for fossil fuels projects, as well as clean energy and power grid projects. While there is talk of attaching the Manchin proposal to the budget or the NDAA, there is also significant opposition to such a move from progressive members of Congress.
Marriage Equality – Earlier this year, the House approved legislation – the Respect for Marriage Act (H.R. 8404) – that would codify same-sex marriage protections into law. While it’s unclear if the measure has enough votes in the Senate to overcome the 60-vote filibuster threshold, Majority Leader Schumer has pledged to bring the measure up for consideration.
National Flood Insurance Program – The current authorization of the National Flood Insurance Program (NFIP), which provides insurance coverage to property owners for damages and losses due to catastrophic flooding, was temporarily extended as part of the aforementioned CR. It’s expected that another extension of the program could be included in a final budget deal.
Cannabis Banking – Earlier this year, Senate Majority Leader Schumer unveiled a comprehensive cannabis proposal – the Cannabis Administration and Opportunity Act (CAOA) – that would legalize and regulate the drug at the federal level. While the bill does not have the necessary support to advance in the Senate, some incremental reforms proposed in the measure are likely to be incorporated into a separate cannabis banking proposal – the SAFE Banking Act (H.R. 1996; S. 910) – that would help state-legal cannabis and ancillary businesses gain improved access to financial services. The SAFE Banking Act is currently included in the House-passed version of the NDAA, though it’s unclear if the provision will survive the final negotiations.