November 15, 2018

Moving Forward in a Divided Washington: Agenda for the 116th Congress and President Trump


The 2018 election was a wave election, but it was a smaller wave than Democrats had been hoping for in the summer of 2018.1 No matter the size of the wave, the reality heading into 2020 is that Democrats have regained political momentum in the wake of losing the Senate in 2014 and the White House in 2016. President Trump and Republicans face meaningful headwinds for their respective 2020 reelections.

Overall, the 2018 election illuminated a country that is largely at odds with itself on the most important policy questions it faces at the federal level. The 2016 election exposed many of these fault lines, and the 2018 election realigned some of those fault lines but reinforced others. While there is bipartisan hope Congress and President Trump can tackle the big problems facing the nation, there is little clarity on which solutions actually can garner bipartisan support amongst the American public.

The following post-election assessment and forecast for the next two years in Washington is based on a deep dive into several interrelated questions:

  1. What are the priorities of the 116th Congress, and how will President Trump respond to those priorities?
  2. What demographic changes do the newly elected Senators and Representatives represent?
  3. Who will be the leaders in the new Congress?
  4. Does a divided Congress mean gridlock, or is there evidence that a divided Congress can still pass major legislation?

We have a separate memo that delves into four key questions about the election results and political conditions from today forward through the 2020 presidential election.

We are available to provide more in-depth analysis of specific policy areas for those who want to have discussions on particular policy sectors or areas.

The Agenda for the 116th Congress and President Trump

The Democratic Agenda

In the 116th Congress, House Democrats will split time between (1) using their oversight powers, including the ability to subpoena, to restrain the Trump Administration, and (2) legislating on major policy priorities. On the legislative front, as we discuss below, we expect the House to focus on healthcare, environmental protections and climate change, transportation, competition and privacy, trade, education, and infrastructure development.

Investigations and Oversight

From an oversight and investigations perspective, we expect House Democrats to look into a broad range of matters, including healthcare policy, environmental compliance, foreign policy, competition and antitrust, prescription drug prices, disaster relief efforts, national security policies, and election security. Already, Democrats have announced they will request that the Internal Revenue Service turn over President Trump's tax returns. Other House Committees will want to investigate President Trump's business dealings in a variety of ways. We can expect the House Judiciary Committee to delve into the resignation details of Attorney General Jeff Sessions and the constitutionality of the president appointing as Acting Attorney General an official who has not been Senate-confirmed. Democrats also have made clear they intend to compel Administration officials, such as Interior Secretary Ryan Zinke, to testify on a variety of ethical controversies.

Of course, there are a number of newly elected House Democrats who favor filing articles of impeachment against President Trump, but the expected House Democratic leadership team has consistently played down that possibility. We do not expect that to change unless the Mueller report demonstrates illegal coordination between Russia and the Trump campaign in the 2016 elections. If there are clear threats to the independence of Special Counsel Robert Mueller's investigation into President Trump, House Democrats may pass legislation that limits the president's ability to fire Mueller or bury the findings of his final report.

What It Means: Democrats know that a House focused on investigations and impeachments creates political risks as they set their sights on the 2020 election. Therefore, Democrats will enter the 116th Congress with an aggressive legislative agenda that prioritizes must-pass legislation and legislation that appeals directly to their base, such as immigration reform, gun reform and voting rights reform. The Democratic agenda also will place a strong emphasis on consumer protections.

Democratic Legislative Priorities

Among the first acts of each new House is passage of the chamber's rules. The new rules may restore "Pay-Go" rules that require new spending and tax cuts to be paid for with new revenue or budgetary cuts elsewhere.

The expected incoming House Democratic leadership team intends to pass a package of ethics and election reform legislation early in 2019. This will likely include restoring elements of the Voting Rights Act invalidated by recent Supreme Court decisions, requiring public disclosure of all donors to entities involved in political advocacy, a reversal of the Supreme Court's Citizens United decision allowing political advocacy by corporations, and stricter controls over the lobbying industry. We do not expect the Senate to pass such legislation.

The recent tragic mass shootings in Pittsburgh (PA) and Thousand Oaks (CA) may create pressure for the new Democratic majority to pass gun control legislation early in 2019, even if such legislation was unlikely to move in the Senate.

What It Means: A new House majority always frontloads its legislative calendar with items that demonstrate how it differs from the prior majority. Ethics reform and broad gun control legislation was not going to happen under a Republican House, so quick passage of popular legislation on these issues are clear signals Democrats are headed in a different policy direction.

The Return of Core Democratic Policy Priorities

A Democratic House ends all serious legislative efforts to repeal and replace the Affordable Care Act (ACA), though the Trump Administration will continue its work to disassemble the ACA via regulatory action. Despite this, Democrats will feel pressure to address the increasing premiums for individual health plans, while maintaining certain ACA provisions such as protecting pre-existing conditions. In addition, drug pricing will be on the top of Democrats' healthcare agenda. We expect both the House Energy and Commerce and the Oversight and Government Reform Committees to hold hearings to bring transparency to manufacturers' drug pricing systems, and for Democrats to introduce legislation that contrasts with the Trump Administration's drug pricing proposals. We also anticipate Democrats on the House Judiciary Committee to engage in oversight activity on pharmacy benefit managers and health insurance mergers. For more information on the coming Congressional agenda on healthcare, see the following publication from our teammates: Impact of the Mid-Term Elections on the Life Sciences Industry.

The new House Democratic majority will prioritize climate change policy. It is possible Democrats may use the infrastructure measure to incorporate provisions related to grid modernization and efficiency into the bill. In addition, Democrats will likely introduce a package of climate change bills and engage in oversight activities over the Environmental Protection Agency's (EPA) dismantling of the Obama Administration's environmental regulations. It is also possible the House will use the Congressional Review Act (CRA) to try and preserve some of President Obama's environmental initiatives that President Trump is now eliminating. House Democrats know the Senate is not likely to take up these measures, but using the CRA could put Senate Republicans on the defense.

Immigration reform remains a priority for much of the Democratic base, and House Democrats will be staunch opponents of funding for President Trump's border wall. The new House majority will also look for ways to support the legal status of Dreamers.

Criminal justice reform is one area where common ground is likely to be found. We expect it to be a perhaps surprisingly early priority of both parties and the Administration. Indeed, an optimist might even hope that cooperation on that subject could prove to be a trust-building exercise for more cooperation on tougher challenges such as infrastructure financing and immigration.

What It Means: Healthcare was the top policy priority of 2018 voters and the House will deliver a consistent stream of hearings, investigations and legislation. The House will use its investigation and legislative powers to halt or slow down President Trump's deregulatory agenda in the environmental space. Further, the House will be an opposing force to President Trump's immigration actions even if major legislative solutions on this issue cannot clear Congress. On all these issues, the Democratic House will be highly visible and active compared to the last few years under Republican control of the House.

Tech Policy, Especially Privacy, Will Be Under the Microscope

Democrats in both chambers will provide oversight and legislate on privacy. Establishing national privacy standards remains a bipartisan interest, but the two parties will diverge on how stringent the standards should be. Republicans will push for a national privacy framework that preempts state laws, particularly with the California Consumer Protection Act taking effect in 2020. While Democrats also view preemption as a measure to ensure consistent consumer protection laws across states, they do not intend to concede on preemption without the inclusion of stringent consumer data privacy protection provisions. Democrats also want to give the Federal Trade Commission (FTC) enforcement power over privacy issues.

We also anticipate Democrats on the House Energy and Commerce Committee to bring in tech and media companies to investigate data privacy violations and mergers. Further, House Democrats will take the liberty to increase oversight of tech industry regulators such as the Federal Communications Commission (FCC), particularly on net neutrality. With control of the House, Democrats may feel the pressure to work with Republicans to pass a nationwide net neutrality framework to avoid significant changes in the FCC's rules in the future.

In addition to privacy, Democrats will prioritize their legislative agenda on security. Democrats on the Homeland Security Committee intend to work with Republicans to address mounting concerns with intellectual property theft and securing the supply chain by foreign entities, especially IT companies closely tied to the Chinese government. In September, the House passed the Securing the Homeland Security Supply Chain Act, authorizing only the Homeland Security Department to ban contractors that pose a cybersecurity and national security risk. The bill has stalled in the Senate and presents an opportunity for Democrats to expand the bill's scope to a government-wide solution in the 116th Congress. In the Senate, there are questions about which Democrat will take up the mantle on supply-chain security issues, given that Senator Claire McCaskill (D-MO) lost her seat.

What It Means: Regardless of who won the elections, Congress is increasingly concerned with the level of control big tech companies have over the everyday lives of Americans. The new Democratic House will be proactive in looking for ways legislation and regulation can rein in the worst excesses of the tech sector's intrusions into individual privacy.

Resetting Policy on Taxes, Appropriations, Financial Services, and Trade

On the House Ways and Means Committee, Democrats will likely work to pass technical corrections to the Tax Cuts and Jobs Act and tax extenders that appeal to the Democratic base, such as renewable tax credits and the deduction of college tuition. Corporate tax issues will be scrutinized for potential new federal revenue. The Committee also is expected to prioritize retirement and pension reform.

Much of the appropriations process got back on track in 2018. Now, it will be critical for the seven remaining appropriations bills to be finished in the lame duck session if House Democrats want to start the Fiscal Year 2020 process on time. Democrats on the House Appropriations Committee will look to maintain the annual appropriations process and push for two-year budget agreements. As for earmarks, their return remains uncertain as there are diverse and diverging opinions on earmarks within the party.

We expect the House Financial Services Committee to conduct oversight and issue subpoenas to Trump Administration officials to testify about its reorganization of the Consumer Financial Protection Bureau (CFPB), including limiting the Bureau's enforcement actions. We also expect more oversight hearings on enforcement actions related to the big banks. The Committee's priorities will also include Congressional actions needed for regulatory reform for the financial services industry, potential reactivation of the Export-Import Bank, GSE reform, reauthorization of both the Flood Insurance Program and the Terrorism Risk Insurance Acts, fintech oversight and cybersecurity/data breach issues. For a more comprehensive review of the policy agenda of the Financial Services sector, please see the policy briefing from some of our colleagues: Impact of the 2018 Mid-Term Elections on Financial Services Regulation.

As for trade, House Democrats will likely use their oversight authority to examine the Trump Administration's trade agenda and the adverse effects of retaliatory tariffs by other countries. While the Trump Administration is seeking to move quickly on the US-Mexico-Canada (USMCA) trade agreement, House Democrats will use their procedural tools to slow down President Trump's preferred approval timeline. President Trump cannot pass USMCA without strong support from House Democrats, giving the new House majority leverage on trade issues. Democrats may try to secure targeted concessions on Democratic priorities as a condition of supporting USMCA's passage. Both the Senate and House have procedural tools to stall the approval process for USMCA which, combined with the sheer number of new Representatives and Senators who may not yet understand trade policy, makes it challenging to predict if Congress will ultimately approve USMCA.

What It Means: Any future tax cut will be focused on the middle class, but it is more likely that there simply is no major tax code change in the near term. The financial services industry will find itself under the most scrutiny since the immediate aftermath of the 2008 banking meltdown. President Trump is going to have to negotiate on fiscal priorities for the first time, and Congressional Democrats have a great record of emerging with substantial victories on spending issues, especially on nondefense discretionary spending. The same is true with trade. There is no USMCA deal possible unless President Trump offers trade concessions or grants other legislative compromises as the price for Democratic support.

Infrastructure and Education

One of the Democrats' top legislative priorities may be passing a major infrastructure package, as both parties view this as an opportunity for bipartisanship and a way to boost job creation. Congress will need to address an anticipated shortfall in the Highway Trust Fund and reauthorize surface transportation programs expiring in the current five-year authorization under the FAST Act.

As for education, House Democrats will use their Aim Higher Act as a blueprint for a Higher Education Act reauthorization bill and have said they want to move forward with a bipartisan reauthorization process. However, Democrats will likely take hard stances on accountability measures, particularly for for-profit institutions, as well as preserving and expanding student financial aid programs to address concerns about college affordability and accessibility. Additionally, we expect a heavy dose of oversight of the Department of Education. Much of the Department's regulatory actions around Title IX, gainful employment, student loan servicers, for-profit institutions, student borrower defenses, and accessibility for students with disabilities will be under the microscope. House Democrats also will question the Department's handling of the Public Service Loan Forgiveness Program, as the Department has failed to approve the majority of applications.

What It Means: As we discuss later, a divided Congress can achieve bipartisanship on major legislation. A major investment in infrastructure and reforms of the laws governing higher education touch pocketbook issues that affect most voters, especially swing and youth voters. These are two areas where Congressional bipartisanship, or even agreement with President Trump, could lead to major legislation becoming law.

The Republican Agenda

The split control of Congress triggered by the midterm election establishes a two-track strategic approach for Republican lawmakers in the 116th Congress. Republicans in both chambers of Congress will defend the Administration and White House on a number of fronts. In the Senate, the Republican majority has a responsibility to move Trump Administration nominees quickly through the confirmation process. Meanwhile, House Republicans serving in the minority will be tasked with the unenviable job of defending the Administration—and in many cases, industry interests—as the new Democratic majority begins to press forward with an aggressive oversight and investigation agenda that we anticipate will be wide-ranging.

First and foremost, the Senate Republican majority will need to shepherd through a forthcoming nomination to succeed Jeff Sessions as Attorney General. That contentious process will serve as a political flashpoint on the nominee's views on a range of issues. It may also be a referendum on the president's plans regarding Special Counsel Mueller and the future of his investigation. The president may also nominate Acting Administrator Wheeler to serve as the permanent Administrator of EPA. He may also need to appoint a nominee to replace Secretary Zinke at the Department of Interior who is under ethics scrutiny.

Senate Republicans will likely devote significant floor time to approving nominations at every level of the Judiciary. Senate Majority Leader Mitch McConnell pushed through a near-record number of nominees for the US district and appellate courts over the past two years, in addition to two new Supreme Court nominees. And that process may well play out again in the new Congress. Associate Justice Clarence Thomas could, for instance, decide to retire at the end of the current term to ensure that a Republican president can nominate a replacement while the Senate is under Republican management. Richard Nixon was the last president with three Supreme Court nominations in a single term. And while we do not anticipate other openings on the Court, Associate Justice Ruth Bader Ginsburg's recent accident is a reminder many Supreme Court openings arrive unexpectedly.

What It Means: Senate Majority Leader Mitch McConnell knows personnel is policy, and he will focus his chamber on confirming the people needed for President Trump to transform the judicial branch in the long term, and reshape the executive branch in the near term.

Other Legislative Items

More broadly, Senate Republicans will likely continue to press ahead on major "must pass" legislation in the new Congress along with other high-priority policy agenda items. Transportation and infrastructure issues jump immediately to the forefront in this scenario. Another priority may be extension of the Satellite Television Extension and Localism Act (STELAR), which expires in December of 2019. Senate Republicans also appear poised to lead a bipartisan effort to establish regulations to protect consumers' online privacy in our increasingly digital ecosystem. Finally, Republicans may attempt to pass new tax reform legislation focused on a middle-class tax cut ahead of the 2020 election.

We expect House Republicans to serve mostly as a messaging arm on major policy issues that will arise in the new Congress. They will serve as the loyal opposition to Democratic oversight and investigation initiatives and attempt to influence the trajectory of major "must pass" legislation. But ultimately, their chief objective will be thwarting what they view as objectionable legislative initiatives and efforts to derail the Administration's agenda.

Turnover in the Trump Administration

After two years operating at a frenetic pace, many Trump Administration top officials are expected to depart over the next few months. The exodus began a few weeks ago with UN Ambassador Nikki Haley stepping down. Now, after the election, Attorney General Jeff Sessions has departed and will need to be replaced. President Trump has said he was going to take the week after the election to consider further changes in his Cabinet, which is in keeping with the practices of his predecessors in the White House, who often used the post-election period to make changes in their Cabinet.

President Trump already has a turnover rate in his Cabinet and White House that is far higher than historical norms.2 Now, there is some expectation that he is contemplating turnover for Chief of Staff (John Kelly), Defense Secretary (Jim Mattis), Homeland Security Secretary (Kirstjen Nielsen), Commerce Secretary (Wilbur Ross), and Interior Secretary (Ryan Zinke). It is possible that President Trump will seek to turn over some or all of those positions, but it is also reasonable to think that several of the existing Cabinet members who have served since the beginning of the Trump Administration will also choose to step down now.

What It Means: There's high turnover in President Trump's Cabinet, which places stress on the Senate confirmation process, and creates delays in confirming the critical sub-Cabinet officials awaiting confirmation. Senate Minority Leader Chuck Schumer (D-NY) has used every procedural tool to slow the timeline for confirming second-level Trump Administration officials, handicapping the president's ability to take control of agencies and implement major changes that match his policy preferences. While the president now has a larger Republican majority to deal with, he will have to spend more time than he would like getting top-level officials confirmed. That leaves less time for confirming second-level officials, and less Senate floor time for actual legislation to be debated.

Confirmation of judges is a legacy item for President Trump, as these judges will be in place for decades after the president leaves office. A third Supreme Court nomination fight may be a possibility in the next two years, and could be another highly charged political battle.

Trends Among New Senators and Representatives

The 116th Senate Will Be a Young and Less Experienced Body

While there is perception that Washington is comprised of lifelong political "swamp creatures," the reality is that the level of Congressional experience has been dropping in recent years.

Pending the results in Florida for Senator Bill Nelson (D-FL), there will be only 15 or 16 Senators who have served more than 18 years. At least 57 Senators in 2019 will have been in the Senate less than eight years. This means they have little or no institutional memory of the bipartisan comity that used to be the hallmark of the Senate, which has been largely washed away in the last decade or so.

Forty-nine Senators in office in 2019 will have previously served in the House of Representatives and thus are familiar with the more partisan legislative customs of that chamber.

What It Means: It will be harder for the Senate to pass major legislation because there are fewer Senators who have led such legislation to the finish line. The high number of former House members in the Senate means new Senators are bringing more of the House's culture to the Senate, and are adopting fewer of the Senate's historical norms.

House Turnover Is Accelerating

This year's election resulted in the third-highest turnover rate in the House since 1974. Since 2010 was also the second-highest turnover rate in the House since 1974, you have a body where the vast majority of Members are inexperienced by historical standards.3

Only 56 House Republicans were in office before 2011 when Republicans became the majority, meaning few of the rank-and-file are prepared for the stark realities of life in the minority.

Conversely, well under 50 percent of the new Democratic majority were serving in Congress the last time their party controlled the chamber.

What It Means: There are relatively few House members who have served in both the majority and minority. Some of the more progressive new Democrats elected will want rules that minimize the chances of Republicans undermining the legislative will of the new majority. But many of the Democrats elected come from districts that demand and expect bipartisan cooperation from their member, and such promises were central to their election. There is also the relatively new bipartisan Problem Solvers Caucus, which has offered a set of procedural reforms that would reward bipartisanship, and reset the partisan mindset of the House. It will be interesting to see if any of those reforms are implemented in the transfer of power in the House.

Continued Gains for Women in Congress

This is an election of firsts, especially for female candidates. As of November 14, a record 99 women have won a House seat (with some races still not called). In the House, 86 of those women are Democrats, and only 13 are Republicans, as many Republican women lost their House races. The Senate will have 23 or 24 women, depending on the final outcome of the Mississippi runoff at the end of November.4 In the last six years, voters have chosen the three youngest women ever elected to Congress. Elise Stefanik (R-NY) was 30 when elected in 2014, and while she was reelected, her record was broken by two Democrats in 2018. Alexandria Ocasio-Cortez (D-NY) (age 29) is now the youngest woman ever elected, edging out Rep-elect Abby Finkenauer (D-IA), who will turn 30 the week before she will be sworn into office.

Ayanna Pressley (D-MA) is the first black female member of Congress from Massachusetts. Veronica Escobar (D-TX) and Sylvia Garcia (D-TX) are the first Latina women elected to Congress in Texas. The first two Native American females elected to Congress are Sharice Davids (D-KS) and Deb Haaland (D-NM). Similarly, the next Congress will be the first to include Muslim female Representatives after the election of Rashida Tlaib (D-MI) and Ilhan Omar (D-MN).

If she holds onto a very narrow lead, Young Kim (R-CA) would be the first Korean-American female elected to Congress. Nevertheless, even with Kim's potential addition, the number of Republican women in the House will be about half the number in the current Congress.

The House is likely to elect Nancy Pelosi (D-CA) Speaker of the House, again making her the only female Speaker in American history. Speaker Pelosi would be the first Speaker elected to nonconsecutive terms in that position since Sam Rayburn (D-TX) and Joseph Martin (R-MA) spent 20 years trading the Speaker's gavel between 1940 and 1961.

The next Congress will include 23 women in the Senate. Tennessee elected their first female Senator in Rep. Marsha Blackburn (R-TN), and Arizona did as well with Krysten Sinema (D-AZ). Appointed Senator Cindy Hyde-Smith (R-MS) will be in a runoff on November 27, and, if she wins, she will be the first woman to win a Congressional race in the state.

What It Means: The election of more women to Congress will result in cultural changes big and small to the House and Senate. Women in Congress will head many of the most powerful committees for the first time, such as the House Appropriations Committee, and will be key players on virtually every committee of relevance, and every debate of consequence. Women elected in Congress have generally been more collaborative on bipartisan legislation and more interested in making even incremental progress on an issue rather than holding out for a "perfect" legislative solution.

Veteran Influence in Congress Continues to Decline

There has been a great deal of media attention paid to the fact that Democrats recruited a number of military veterans who won election to the House or Senate, but the reality is military service amongst Senators and Representatives will continue to fall in the next Congress. The incoming class will include at least 17 freshmen Senators and Representatives. This is slightly larger than recent classes in 2016 (14), 2014 (12) and 2012 (12), but there is much more ideological balance inside this freshman class of veterans.5 Three of the freshmen veterans are women.

Overall, at least 77 veterans won election (most of them as incumbents), and there are 16 other Senators who are veterans but were not up for election in 2018.6 Nevertheless, the new Congress will have fewer veterans than the 102 that started in the current 115th Congress.7 By comparison, in the early 1970s, when Congress was populated largely by men who came of age in World War II, about 75 percent of the House and Senate were veterans.8 Aabout half of all veterans in Congress in 2019 will be those who served after 9/11.9 Republican veterans in Congress are expected to outnumber Democratic veterans by about a 2-1 margin.10

What It Means: Veterans are usually touted as more likely to be bipartisan problem-solvers than other members of Congress, and most are staunch defenders of military spending and improving care at the VA. The continued decline of veterans in Congress means there are fewer policymakers with first-hand experience about policy decisions that affect troop deployments, strategic projection of forces, acquisition of complex military systems, and military responses to an ever-widening array of threats to the United States. It also means fewer members of Congress have first-hand understanding of the complex VA medical system and whether it is delivering cost-effective, high-quality medical care for enough of its patients. Finally, a majority of veterans now come from asymmetrical warfare environments, and that experience will shape their perspective on policy debates about military policy and military spending.

New Congressional Leaders

House Democrats

The House Democratic leadership team hopes to stay intact and withstand challenges from members of the new majority who want to see some turnover at the top. Minority Leader Nancy Pelosi (D-CA) will most likely become Speaker of the House again, with both Minority Whip Steny Hoyer (D-MD) and Assistant Democratic Leader Jim Clyburn (D-SC) trying to move up a rung on the leadership ladder to Majority Leader and Majority Whip, respectively. But upstart challengers loom, as reflected in Rep. Diana DeGette's (D-CO) decision to challenge Rep. Clyburn for the Majority Whip position, which could lead to a broader set of candidates contesting the top three leadership candidates. Democrats will also need to elect two additional members into the open leadership positions of Assistant Democratic Leader and Democratic Caucus Chairman (now held by Rep. Joe Crowley (D-NY), who lost his primary to Alexandria Ocasio-Cortez). We expect Reps. Cheri Bustos (D-IL), David Cicilline (D-RI), Hakeem Jeffries (D-NY), Debbie Dingell (D-MI), and Ben Ray Lujan (D-NM), among others, to run for these positions.

Congressional Democrats are likely to view the coming Congress as a transitional period from one historic generation of leadership to another. In the House, the first woman elected Speaker, and the first African-American in leadership, will likely return to power, but perhaps only for two more years. A wide array of Democrats—representing all regions, demographics and policy perspectives—are maneuvering in advance of the full-scale leadership battle that is on the horizon when the current leadership team retires.

What It Means: The youth vote and first-time voters have spoken, and their voice will now give rise to the oldest-ever leadership team in the House, where all three top Democrats are approaching 80, and the median age of incoming committee chairs is 70. That dynamic can't hold for long, but Speaker Pelosi is likely to be very diligent in doling out high-profile legislative opportunities to allow the entering class of members to shine. It's good politics for 2020, but it also allows Speaker Pelosi to maximize her role in shaping the leadership team that ultimately replaces her.

House Democrats have made wise use of their time in the political wilderness to build a wide array of policy initiatives and experts inside their own Caucus. They may not have campaigned on those issues because it was politically more expedient to run on an "oppose President Trump" platform, but the party does have the pieces to begin moving legislation right away in the House. The lack of experience in the majority for House Democrats will inevitably lead to some procedural hiccups and missteps in the near-term, but the majority has the raw materials needed to move both partisan and bipartisan legislation in 2019.

House Republicans

The Republican leadership will change with Speaker Paul Ryan (R-WI) retiring at the end of the year, and a reduction to the minority party in the House meaning there is one less leadership position to fill. The Republican conference elected Kevin McCarthy (R-CA) as the Minority Leader, Steve Scalise (R-LA) as the Minority Whip, and Liz Cheney (R-WY) as the Conference Chair (replacing the current GOP Conference chair, Rep. Cathy McMorris Rogers (R-WA)). The lack of more Republican women in leadership, and as Committee Ranking Members, is something the party will continue to look to address.

House Republicans face a serious brain drain in 2019 for three reasons. First, several long-serving Republicans who were committee chairs retired before the 2018 election, taking with them a generation of knowledge that stretched back to even before Republicans won the House for the first time in 1994. Many of the Republican party's biggest policy initiatives in the last 20 years stemmed from the minds of House Republicans who just retired. Second, Speaker Paul Ryan was the most influential and effective policy voice in his party, and it was his policy expertise that drove his rise to power. The Speaker's retirement is the biggest sign the Republican Party is walking away from almost 20 years of debate about how to reform the entitlements that are eating the federal budget (Medicare, Medicaid, Social Security). Finally, several other Republican committee chairs, subcommittee chairs, and policy wonks were defeated in the 2018 election cycle. Republicans control the White House and the Senate, so the president and the Senate majority will set the Republican policy agenda. This covers up the fact that House Republicans have lost many of their best policy and procedural experts. Unless and until a new generation of policy experts comes forward in the House, Republicans will be heavily dependent on President Trump's agenda.

What It Means: Republicans took the House in 1994 in large part because of the Contract for America. Republicans seized the House back in 2010 in part because they had a clearly articulated vision of how they wanted to roll back some of President Obama's policy initiatives. In 2020, it is much harder for the chamber to flip if Republicans don't articulate a new policy agenda that helps them emerge from the shadow of President Trump and his policy preferences. Right now, it is not clear which House Republicans will fill that role of driving new policy ideas.

Massive Turnover on House Committees

There are many House committees that will see wholesale turnover in their membership in January. For example, the current Ways and Means Committee, which controls tax, trade and much of healthcare policy in the House, has 24 Republicans and 14 Democrats. The Democratic majority sets committee ratios and may end up with roughly the same allotment for Ways and Means as the current Congress, only with the parties flipped. Ten of the 24 Republicans on the Committee won't be in the next Congress, leaving 14 returning Republicans. It's possible then that no new Republicans are appointed to the committee. Conversely, Democrats will expect to add 10-12 seats on the Committee for their members. They have 12 of 14 current members returning to the next Congress, meaning they may have 8-10 plum committee assignments to spread amongst their caucus.

What It Means: Once final committee ratios are set, we can expect to see House Democrats add several seats for their members on every committee. Key committees like Ways and Means will have a very high number of new members learning the issues. Even still, demand to be appointed to top committees will far outpace the available supply of seats on those committees. There may be very few seats for Republicans to claim on the top-level committees.


In the Senate, we do not foresee changes in the Democratic leadership, but party term limits require a shift in Republican leadership under Majority Leader Mitch McConnell (R-KY). Majority Whip John Cornyn (R-TX) is term-limited in his current position, but he is likely to stay on the Senate Republican leadership team in some newly created capacity. Sen. John Thune (R-SD) is the new Majority Whip.

What It Means: The Senate floor in 2019 will look like blind auditions for the 2020 Democratic presidential primaries. As many as eight different Senators are seriously contemplating running for president, and they will look to use Senate committee hearings and floor debates to define their platform. In some cases, the political ambitions of these Senators may conflict with Senate Minority Leader Schumer's agenda for his party in the chamber. The Senate minority will have a harder time with votes as well, since several Senators might soon favor time in Iowa, New Hampshire and South Carolina over mundane roll call votes in Washington. One area where presidential ambitions of Democratic Senators intersects favorably with the Minority Leader's agenda is the all-out effort to slow down the process of confirming Trump Administration officials.

It's going to be harder for the Democratic Senate minority to be a blocking force on legislation, even as the party doubles down on a procedural delay strategy for presidential nominations. Look for Senator Schumer to pick his spots more carefully to ensure he has the political capital to be effective when needed most.

Can a Divided Congress Be a Productive Congress and Pass Major Legislation?

Most political commentators present divided government as a path to legislative gridlock, but recent history demonstrates that is not true. There are three recent examples of a divided federal government, and looking at the successes and failures of those three eras is interesting to review in the context of the two years to come in Washington.

Lessons Learned from the Last Three Divided Congressional Sessions

President George W. Bush's first two years featured a divided Congress (the 107th from 2001-02), where his party controlled the House but not the Senate. Nevertheless, President Bush enjoyed an extremely productive record of success. Major success included: President Bush's tax cuts package; the Patriot Act in the wake of 9/11; the creation of the Department of Homeland Security; Sarbanes-Oxley to increase regulation of the financial services industry; the authorization for use of military force against Iraq; Trade Promotion Authority to allow future presidents to negotiate better trade deals; a fundamental rewrite of primary/secondary education in the No Child Left Behind Act; the McCain-Feingold Act to regulate political spending; a farm bill; a bill to prepare and protect the nation against bioterrorism threats; the Medical Device User Fee and Modernization Act; and the Help America Vote Act, which was a package to upgrade state and local-level voting technology. In short, President Bush worked with a divided Congress to pass major legislation in a broad number of sectors.

President Barack Obama dealt with two consecutive Congresses where his party controlled only one chamber (112th Congress from 2011-12, and the 113th Congress from 2013-14). Like the divided Congress President Trump is about to face, President Obama's Democratic party lost the House to the opposition but retained control of the Senate. Also like President Trump following the mid-term elections, President Obama lost control of the House in the 2010 elections, after a period where the president had been able to use complete control of Congress to pass his biggest policy promises. For President Obama, those promises included the Affordable Care Act, the economic stimulus package, and the Dodd-Frank bill.

President Obama's work with the divided Congress in 2013-14 still yielded passage of some major legislative items. These items included: the Budget Control Act of 2011 (which kicked off a multiyear process to try and tame the growth of the national debt); Free Trade Agreements with South Korea, Colombia and Panama; the American Taxpayer Relief Act of 2012 that made most of the Bush tax cuts permanent for the middle class; the STOCK Act to limit the potential for insider trading scandals in Congress; extending the National Flood Insurance Act; a major infrastructure package (MAP-21); several bills to improve operations at the FDA; and the Patent Law Treaties Implementation Act.

President Obama's second term also kicked off with a divided Congress where his party controlled the Senate, but Republicans controlled the House. With his biggest legislative accomplishments now three to four years old, President Obama had a harder time moving major legislation to the finish line. Some of what did pass includes: the Violence Against Women Reauthorization Act; reauthorization of laws preparing the country to deal with pandemics and Chemical, Biological, Radiological, and Nuclear (CBRN) terrorism; legislation to stabilize the student loan marketplace; a farm bill reauthorization; and reauthorized funding for medical residency training at children's hospitals.

There were commonalities in the success both Presidents Bush and Obama enjoyed in facing a divided Congress. Both presidents cultivated key Congressional players in both parties, were willing to deal to get things done and had excellent White House legislative staffs handling the details of key negotiations.

What It Means: A divided Congress is not a recipe for gridlock, but it does call for a change in presidential tactics to help things move through the process. President Trump values the art of the deal over the details in those deals, and he has a good legislative staff in the White House. Those are two of the key elements Presidents Bush and Obama used to deal with a divided Congress. President Trump has used his bully pulpit to create momentum for policy changes he seeks. In an all-Republican Congress, he was successful in making progress on many of his policy priorities, and he was able to openly attack his political opponents because he often did not need their votes. Now that must change if the president wants to get things done. If the president can alter his propensity for attacking political rivals, and instead look to bridge small gaps where they exist, it is possible President Trump can also get big things done in this divided Congress.

The Volume and Success Rate of Legislation Drops Slightly in a Divided Congress

Overall, it IS harder than ever to pass a bill through Congress, regardless of its level of division. We looked at the legislative productivity in the last three Congresses where one party controlled each chamber,11 along with the numbers for the current Congress. In those three divided Congresses, the House of Representatives passed an average of 904 bills, while the Senate passed an average of 597 bills. Those numbers are about 25 percent less than the current House has passed, and 14 percent less than what the current Senate has done in an all-Republican Washington.

In President George W. Bush's first Congress (2001-02), he faced a divided Congress but 383 bills were signed into law. By President Barack Obama's second (2011-12) and third Congress (2013-14) he was facing also facing a divided Congress, and only 284 bills became law in 2011-12. By 2013-14, the president signed only 219 bills into law, a 43 percent reduction from 2001-02's divided Congress. For President Trump's first term, with a Congress totally controlled by his party, we've seen a rebound to 278 bills signed into law through the election, with reasonable expectations we might top 300 bills signed into law by the end of the session.

What It Means: A divided Congress creates disparate perspectives on many issues, but it does not create gridlock in and of itself. A divided Congress is likely going to pass 750-1,300 bills in the House, 550-650 bills in the Senate, and can expect to deliver 250-375 bills to the president for signature. In fact, a divided Congress can pass major legislation when both parties have political incentive to find common ground on some issues before next asking voters for support.

Outside of major legislation, a divided Congress will still pass hundreds of other bills, and a reasonable percentage of those bills will become law. At the very least, the bills that pass one chamber but not the other in a divided Congress, are often the blueprint to quickly pass similar legislation when Congress is controlled by just one party. Thus, it is a high-risk strategy for companies, coalitions, not-for-profit organizations, and associations to throttle down their advocacy efforts or sit out the process altogether because they face a divided Congress.

Trump Triangulation Coming in the Next Congress?

Some political commentators have talked about the prospect of President Trump engaging in some political triangulation with the opposing party. This is of course the exact playbook President Bill Clinton used in 1995-96 to deal with the first Republican House in decades. President Clinton revived his political fortunes by working with new House Speaker Newt Gingrich (R-GA) and Senate Majority Leader Trent Lott (R-MS) to pass legislation that angered portions of his Democratic base but appealed to the moderate, middle-class voters who would go on to reelect him in 1996. Major legislation included: welfare reform, the Defense of Marriage Act, tough crime laws, the line item veto, HIPAA, the Telecommunications Act (which included new decency standards), and Helms-Burton (Cuba embargo and sanctions).

What It Means: There are going to be days that President Trump makes Congressional Democrats happy and Congressional Republicans very nervous. For President Trump, many of his policy positions are flexible, as the president prefers to "do something" than to do nothing on a key topic. It's quite possible he will find it appealing to find common ground with Speaker Pelosi on some major items like infrastructure reform, higher-education reform and trade, even if such a deal means angering some portions of the traditional Republican base (which is not the same as the Trump base).

© Arnold & Porter Kaye Scholer LLP 2018 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. We would define a wave election as anytime a party flips control of a chamber of Congress or gains more than 25 seats in the House.

  2. See "Trump's staff turnover is the highest of any US administration in modern history," Business Insider (Mar. 28, 2018).

  3. See "There Was A Lot Of Turnover In The House In The 2018 Cycle," FiveThirtyEight (Nov. 13, 2018).

  4. See "Record number of women elected to the House," CBS News (Nov. 12, 2018).

  5. See "U.S. House freshman class includes most veterans in nearly a decade," Reuters (Nov. 7, 2018).

  6. See "U.S. House freshman class includes most veterans in nearly a decade," Reuters (Nov. 7, 2018).

  7. See "The number of vets in Congress appears headed down again," Military Times (Nov. 7, 2018).

  8. See "The number of vets in Congress appears headed down again," Military Times (Nov. 7, 2018).

  9. See "The number of vets in Congress appears headed down again," Military Times (Nov. 7, 2018).

  10. See "The number of vets in Congress appears headed down again," Military Times (Nov. 7, 2018).

  11. The three Congresses were the 107th (2001-02), 112th (2011-12), and 113th (2013-14).

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