Once the dust settles from the midterm elections, what — if anything — is Congress likely to do over the next two years?
Right now, polls and forecasts suggest the Senate still is a toss-up, while Republicans are more likely than not to win a majority in the House of Representatives. That would mean some form of divided government, with Republicans in charge of one or both houses of Congress while President Joe Biden and his veto pen would be able to stop them from implementing much of their agenda. But it’s still possible, although it currently looks less likely, that Democrats could hold onto the Senate, giving them two more years of a Democratic trifecta.
Those three scenarios — Republicans winning just the House, Republicans winning the House and Senate, and Democrats holding on to control of Congress — differ in important ways. A Republican-dominated Congress could create something like gridlock, leading to potential battles over the debt ceiling and government funding and giving the Senate the power to hold up Biden’s nominees. A split legislature, with Republicans controlling only the House of Representatives, would put a focus on investigations and, potentially, lead to a vote to impeach Biden. And if Democrats retain control, they’ll face many of the same challenges they did over the last two years.
Here are the three possible outcomes of the midterms and what might happen once the new Congress begins in January 2023.
Scenario 1: Republicans control both houses of Congress
What’s at stake? If Republicans win control of the House and Senate, they’ll have the scope to pursue a legislative agenda beyond what they’ve promised on the campaign trail — even if President Joe Biden’s veto could ultimately block most of their ability to make it a reality.
GOP House Minority Leader Kevin McCarthy, who would become House speaker if elected, released a “Commitment to America” agenda in September — mostly a vague, one-page outline of Republican talking points like “curb wasteful government spending” and “create good-paying jobs,” though it was sprinkled with a few specifics, like a pledge to hire 200,000 more police officers and end proxy voting in Congress, which allows members to cast votes remotely. McCarthy also promises to “confront Big Tech” and expand school choice and a “Parents’ Bill of Rights.”
The one-pager and the Republican campaign for controlling Congress mask what are sure to be larger fights within the Republican caucus around fiscal policy. Many House conservatives are interested in using forthcoming debt limit fights to force Democrats’ hands on cutting entitlement programs.
This hasn’t been a center of the midterm campaigns: The Commitment to America agenda says nothing about Medicare or Social Security. But earlier this year, the Republican Study Committee, the House’s conservative caucus that comprises nearly 75 percent of the House GOP, released a 122-page manifesto that pledged to cut Medicare and Social Security benefits by raising the eligibility age as well as pushing beneficiaries to enroll in private Medicare and retirement plans.
In the Senate, Sen. Rick Scott (R-FL) endorsed the idea of forcing Congress to vote on reauthorizing Social Security and Medicare every five years, and Sen. Ron Johnson (R-WI) backed voting on the entitlement programs annually. Some conservatives and even prominent liberals believe Republicans could use the threat of a government default to force Democrats’ hand in these areas, though, for now, Biden has promised to veto any cuts to the programs. Senate Minority Leader Mitch McConnell has also so far rejected these ideas, calling them nonstarters, but the debate is unlikely to die out.
The Republican agenda for abortion rights also hasn’t been something they’ve sought to campaign on in the midterms but could become a top issue if they take control of Congress. The Commitment to America platform states merely that the Republican Party would “defend the unborn, fight for life,” but the RSC manifesto lists nearly two dozen anti-abortion bills the caucus supports codifying, including a bill effectively prohibiting abortions after about six weeks, and one that would provide 14th Amendment protections to fetuses.
Sen. Lindsey Graham (R-SC) introduced a bill in September banning abortion after 15 weeks. When he introduced a bill banning abortion after 20 weeks in 2021, 45 Senate Republicans joined in support. While anti-abortion groups are pressing Republicans to go on the offensive, it seems for now congressional Republicans are waiting to see how the issue plays out in the midterms.
With two years ahead of the next presidential election, it’s likely GOP lawmakers will be keen to avoid giving Biden more big bipartisan wins, like they did in his first two years, compromising on issues like gun control, infrastructure, and competitiveness with China.
Were Republicans able to retake the Senate, they would be able to vote down Biden’s judicial nominees (including any that come up on the Supreme Court), block them wholesale from consideration, and pressure the White House to pick what they perceive as more moderate options. Republican lawmakers have already signaled that they may not consider Biden’s nominees.
In April, McConnell wouldn’t commit to giving a Supreme Court pick a hearing in 2023 if the Republicans retook their majority. It’s something he’s done before: During the Obama administration, McConnell notably blocked Supreme Court nominee Merrick Garland from ever getting a hearing by arguing that his nomination was in an election year.
What constraints would the party in power face? The House and Senate will ultimately be limited on what they can enact into law over the next two years, as Biden will remain in the White House with a veto pen he promises to use. The Senate will also lack a veto-proof conservative majority, even if Republicans win control of the chamber. But even if it’s unlikely that Republicans manage to pass very conservative bills into law, a Republican-controlled Congress will certainly be able to stymie Biden’s legislative agenda.
Scenario 2: A divided Congress
How likely is it? Congress could be divided two ways — with a Democratic Senate and Republican House, or the reverse, a Republican Senate and Democratic House. The latter is very unlikely; if Democrats perform well enough to hold on to the House, they’re unlikely to lose Senate control. The Senate is a toss-up while the House leans Republican, so the former certainly could happen.
What’s at stake? In the case of a split Congress, the likelihood of more ambitious legislation passing is exceedingly slim. Instead, the two chambers are poised to focus on their own respective priorities, while facing clashes over must-pass bills like government funding and an increase to the debt ceiling.
As House Minority Leader Kevin McCarthy has made clear, House Republicans are prepared to hold any increase to the debt ceiling hostage in exchange for cuts to other programs like clean energy investments and Social Security. In that case, the House and Senate could face an interminable standoff that could put the United States on the verge of defaulting on its debt, a scenario that could have devastating consequences for the economy.
On the House side, meanwhile, a Republican lower chamber would be able to proceed with its many investigations even if the GOP doesn’t control the Senate. As would be the case if Republicans captured the majority in both chambers, they’d have free rein to hold investigations in the House on everything from Hunter Biden’s financial dealings to the Biden administration’s approach to border security, and they intend to use it.
Investigations and impeachment votes can both proceed without the Senate’s approval or the White House’s signature. Some House members have already said they plan to push for the impeachment of President Biden, and have already introduced at least eight resolutions to do that.
Last week, the Atlantic’s Barton Gellman — who was prescient in predicting that Donald Trump would not admit defeat if he lost his reelection bid — published a piece detailing why he thinks a new House Republican majority would vote to impeach Biden within its first year, largely driven by mounting caucus pressure from election deniers who cast Biden as illegitimately elected.
House Republicans could also push for the impeachment of other high-ranking Biden administration officials, including US Attorney General Merrick Garland, Homeland Security Secretary Alejandro Mayorkas, and Vice President Kamala Harris, and hold a series of House investigations next year if they take power, specifically on areas like Democrats’ handling of the southern border, the DOJ, inflation, and the energy crisis. Rep. James Comer (R-KY) is set to lead the House Oversight and Reform Committee and told Politico he also wants to spearhead investigations into the business dealings of Hunter Biden and the origins of Covid-19.
“Part of our constitutional duty is oversight,” said Rep. Jim Jordan (R-OH), a founder of the Freedom Caucus, who’s expected to wield significant influence in a Republican majority, during the Conservative Political Action Conference earlier this year. “We need to know why the Biden administration has taken the intentional position of not having a border.”
What constraints would the party in power face? With Senate control, Democrats could continue to advance more judges and executive branch nominees. The Senate, after all, retains the critical ability to approve judges for district courts, circuit courts, and the Supreme Court with a simple majority. Filling these vacancies will be a crucial priority for Democrats if they’re able to hang onto the Senate, especially after Republicans spent much of the Trump administration attempting to stack the courts in their favor.
“The main difference between a split Congress and one controlled by Republicans completely would be Biden’s ability to fill judicial and other vacancies,” says Kyle Kondik, managing editor of Sabato’s Crystal Ball at the University of Virginia.
Already, the Senate has confirmed judges at a rapid clip, approving Biden’s faster than any president at this point in their term since President John F. Kennedy. Biden’s nominees have also included a significant number of women, racial and ethnic minorities, and public defenders, all groups that Democrats could continue to prioritize for these roles if they hold the upper chamber. As of early October, there were still 44 judicial nominees pending in the Senate and additional vacancies that did not have nominees yet.
Scenario 3: Democrats keep control of Congress
How likely is it? This is the unlikeliest scenario of the three, according to the polling and election forecasters. The president’s party historically loses ground in the midterm elections, and Democrats hold narrow majorities as it is. But with an unusual political climate — inflation is up, but unemployment is low, while the Supreme Court’s June abortion ruling has animated the Democratic base — they have at least an outside chance to defy one of the most consistent trends in US politics.
What’s at stake: Democrats would have two more years of complete control in Washington (outside of the Supreme Court). The legislative agenda is theirs to set. What do they want to do?
Based on interviews with current and former congressional staff, as well as lobbyists and progressive advocates, two items would almost surely be the subject of legislative debate and possible action: abortion rights and election integrity.
The consequences of the Supreme Court’s Dobbs decision and anti-democratic radicalism within the Republican Party have been the two of the most consistent themes in Democratic campaigns this cycle.
Both would likely require modifying the filibuster in the Senate, presuming (as we safely can) Democrats are still short of a 60-vote supermajority. That is where the difference between a 50-seat Democratic majority and a 52-seat one matters; Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) are resolutely opposed to weakening the filibuster, but incoming Democratic senators will have signaled an openness to it on the campaign trail.
Some bills — the Women’s Health Protection Act on reproductive rights, the Electoral Count Reform Act (if it doesn’t pass this Congress), and the John Lewis Voting Rights Act for election integrity — could serve as a starting point for those efforts, if the filibuster were no longer an obstacle. But they are only starting points and far from finished products, as earlier Senate Democratic disagreements about the WHPA and voting rights laid bare.
Democrats would also have a chance to pass budget reconciliation legislation without having to worry about the filibuster (though they would be limited in what they could do).
“The good news is it’s highly unlikely the government is going to shut down and you can still pass a lot of stuff using the reconciliation process,” said Jim Manley, a longtime strategist for former Senate Democratic leader Harry Reid. “Nothing comes easy on Capitol Hill these days, but it helps your odds of getting something done besides continuing to fund the government.”
The contours of any reconciliation bill would depend on the macroeconomic situation. Is inflation still at historic highs? Has the economy entered a recession and sent unemployment soaring? That would dictate, at least in part, how much Democrats might be willing to approve new spending or hike taxes to pay for their spending plans.
The leftover pieces of Biden’s Build Back Better plan would likely be the starting point for any reconciliation bill that the next Congress might decide to pursue in 2023. Democrats passed climate provisions as well as fixes to the Affordable Care Act as part of the Inflation Reduction Act. But entire swaths of the BBB agenda focused on child care, pre-K, and long-term care for seniors and people with disabilities were cut out during the 18-month negotiations that were largely driven by Manchin and Sinema’s desires.
What constraints would the party in power face? The 2024 election looms, with either Joe Biden preparing to run for reelection (more likely if Democrats win a historic victory in the midterms) or a swarm of possible successors jockeying for a position from Capitol Hill. The Senate map in 2024 is much less favorable to Democrats than it was in 2022, which may make Senate leaders reluctant to put their most vulnerable members (in states like Montana, Arizona, and Wisconsin) through a messy legislative debate or force them to take difficult votes.
“If you’re just thinking of it from that perspective, with all those Democrats up for reelection, I question how much of an appetite there’s going to be for a progressive agenda,” Manley said.
It would also make a difference whether Democrats continue to cling to 50 seats in the Senate, leaving Manchin and Sinema (who are up for reelection themselves in 2024) with an effective veto pen over the legislative agenda. If they can expand their majority to, say, 52, that would give party leadership some wiggle room in deciding which policies to pursue.
Those would likely be difficult debates, on both the particulars of the policy and the prospect of changing the Senate’s rules for good. But progressives argue Democrats would have a mandate to act.
A Democratic victory would reflect “overreach by the GOP in terms of extremism, plus Democrats competently governing in some difficult terrain,” said Mary Small, national advocacy director for Indivisible. “Codifying abortion rights has also been a galvanizing issue for voters.”
Still, progressives hope Democrats feel emboldened if they wake up one morning in November (or December, depending) and learn they are still in control of Congress. They will have passed two major bills (the American Rescue Plan and IRA), weathered soaring inflation, and still earned the trust of voters.
They will also try to learn from the mistakes of the past two years, where they feel a lengthy legislative debate reduced the urgency to get something done as the immediate concerns of voters and lawmakers transitioned from the economic recovery of early 2021 to the inflation crisis of 2022. They are hoping they can tell a more consistent story about how the policies that Democrats are proposing will materially improve voters’ lives.
“Doing nothing is not going to help us make the argument in 2024,” Small said. An unlikely victory in 2022, she said, would call for “repeating their work to call out the extremism of the GOP and to competently deliver on ways that improve people’s lives materially.”