Post-Election Election Analysis 2020

By Kevin O'Neill, Christopher J. Dodd, Eugenia E. Pierson, Gregory M. Louer, Amy Davenport, Jessica I. Monahan, David J.M. Skillman, Marne Marotta

This Advisory provides an analysis of the impact of a Biden Presidency and a divided Congress, where control will not be known until after the two Senate runoff races in Georgia on January 5, 2021. Note: Our analysis of the congressional elections reflect results as of November 6, 2020, when it appeared Republicans might have a slight lead in the Senate. If circumstances change significantly, Arnold & Porter will revise and circulate a new Advisory.

Former Vice President Joe Biden has been elected the 46th President of the United States in an extraordinarily close election in several battleground states, but his coattails were not long enough for Democrats to win control of the Senate. The populism that drove the 2016 election of President Trump yielded to Joe Biden's call for a return to political normalcy, which resonated with millions of voters exhausted by the non-stop drama surrounding President Trump. The split control of Congress for the next two years will test the President-elect's ability to avoid gridlock and negotiate compromises to address the major policy issues confronting our nation. As a result, incrementalism will likely define the next two years of federal government activity rather than big and bold new legislative actions.

The lame duck session comes just three weeks after Senate Republicans confirmed Amy Coney Barrett to the Supreme Court in a highly controversial pre-election fight. Two senators who voted for the confirmation lost on Election Day (Cory Gardner in Colorado and Martha McSally in Arizona) while one Democrat who opposed confirmation lost (Doug Jones of Alabama) but otherwise it appears the fight was a net positive for incumbents in both parties. The political turmoil of the confirmation fight will linger and create animosity that negatively affects future congressional operations.

Congressional Democrats expected to net as many as 10-15 seats in the House, primarily in growing suburban areas, but it appears Republicans will instead pick up a net of several House seats in the next Congress. That unexpected result will spark a progressive versus moderate battle for the direction of the Democratic House majority over the next two years, and places control of the House will very much be in doubt in the 2022 elections.

Under normal circumstances, the election of a vice president to the White House would represent a third term for his president, but President-elect Biden faces a unique situation that is far from presiding over the third term of Barack Obama's presidency. Instead, President-elect Biden returns to Washington expected to bridge the gulf between a Democratic House and a Republican Senate struggling to control a year-old global pandemic that has wreaked havoc on all elements of American society. President-elect Biden's campaign slogan was "Build Back Better," and the central planks of that platform will become key elements of his early policy priorities. Finding the healthcare pathways to let the American economy reopen in full and repairing the economic devastation resulting from the pandemic are the two issues most likely to define the Biden presidency. Finding meaningful compromise on these issues, when partisan perspectives in the House and Senate are polar opposites, will be the biggest hurdle to success for the Biden Administration.

As with four years ago, America remains deeply divided politically, with fault lines on race, gender, age, educational level, and income level. Those fault lines are what allowed the Biden-Harris campaign to win back Arizona, [Georgia], Michigan and Wisconsin after those states voted for the Trump-Pence ticket in 2016. President-elect emphasized unity throughout his campaign and committed to govern as an "American president," but he will find it challenging to bridge the divides that define the nation today. That challenge, and a divided Congress, will also moderate the expansive legislative agenda congressional Democrats hoped for in a Biden Presidency.

For Republicans, President Trump's loss is tempered by their ability to maintain slim control of the Senate, where they can moderate or block most of the Biden Administration's plans. More broadly, the loss of the White House forces Republicans to reflect on how the party has evolved, and where it is headed in the post-Trump era.

2020 was yet another "change" election in terms of party control—this is the ninth of eleven federal elections since 2000 during which control of the White House or a chamber of Congress changed hands. Donald Trump became the first incumbent president in 28 years to fail in his reelection bid. This is a unique change election. Voters selected leaders to implement change, particularly President-elect Biden, that have decades of experience in the federal government and are not the normal faces for a change election. Nationwide, the results mean voters sought change in the White House but were comfortable keeping Senate Republicans in the majority to serve as a check on progressive legislative objectives.

Our analysis discusses how major policy issues and economic sectors will fare in the first two years of the Biden Administration and the incoming 117th Congress where each party controls one chamber. A team of dozens of Arnold & Porter professionals spanning a range of practices prepared this report. Our team is available at any time to talk with you about how best to engage Washington policymakers to achieve your business objectives.

Please read on for more of our overview of the 2020 election's impact on the future in Washington or click one of the tiles below to jump directly to an analysis of the policy sectors that interest you most.

© Arnold & Porter Kaye Scholer LLP 2020 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.

What to Expect in the Biden Administration, 117th Congress, and Beyond

  • What will Congress do in the final days of the 2020 legislative session?

    The decision to elect a Democratic president while retaining a majority Republican Senate makes it difficult to forecast how productive the lame duck session will be in the next few weeks. The House and Senate will grapple with five major issues: (1) seeking a potential compromise to pass another COVID-19 economic assistance package; (2) completing or extending government funding for Fiscal Year (FY) 2021 that began on October 1; (3) completing the annual National Defense Authorization Act (NDAA) that Congress has passed for 59 straight years; (4) political fallout from the pre-election confirmation of Supreme Court Justice Amy Coney Barrett; and (5) moving some form of tax and healthcare extenders in the lame duck session, though the size and scope of those extenders is not yet clear.

    First, many stakeholders had hoped Congress would come together to pass another major COVID-19 relief package, but nothing significant happened after the House passed the HEROES Act (H.R. 6800) in May and Senate Republicans made several attempts this fall to pass their own smaller relief package. President Trump and Senate Republicans never settled on a mutually agreeable funding level while Democrats were mostly united around the $2.2 trillion figure in the updated HEROES Act released in September. Both parties will need to bridge key disagreements on funding levels for unemployment benefits, state and local government support, education, and support for small businesses before they can reach a deal. Split control of the next Congress makes a compromise possible in the lame duck, as lawmakers face the question of whether to seek a compromise now or early in 2021. House Democrats have less incentive to compromise in December, as they perceive they will have more leverage when President-elect Biden takes office. Either way, Senate Republicans will have the same objections. President Trump's negotiating team will have less leverage in lame duck negotiations, which may allow Speaker of the House Nancy Pelosi (D-CA) and Senate Majority Leader Mitch McConnell (R-KY) to cut a deal now. The political animosity stemming from the Supreme Court nomination fight could be enough to sink relief package negotiations. It is possible congressional leaders will reach a deal of about $1.5-$1.6 trillion in the lame duck session, freeing the next Congress to evaluate what is working with the pandemic response.

    In September, Congress passed a short-term spending bill to fund the government through December 11, so keeping the government funded from that point forward will be the top priority when the House and Senate return to Washington. The split control in Congress in 2021 creates the conditions for both parties to spend the next several weeks negotiating a final spending deal. It is in everyone's best political interests to negotiate a deal before the holidays to ensure the incoming Congress does not have to deal with this issue as their first order of business in the new year. We expect negotiations to be contentious on many levels, especially if the outgoing Trump Administration tries one final time to fund a few outstanding defense and homeland security priorities that President-elect Biden does not support. Nevertheless, it is very likely Congress will pass a bill completing FY 2021 spending before Christmas.

    Both chambers have spent months preparing the FY 2021 NDAA for final passage. While Congress is often dysfunctional, there is a sense of pride that the NDAA still becomes law every year, and both chambers will work hard to keep that 59-year streak going. The Trump Administration will pressure Senate Republicans to make one last push for some policy and funding priorities before ceding power to President-elect Biden. Regardless of the final details, the FY 2021 NDAA is likely to be a high-water mark for the Pentagon on a number of fronts. In the future, the Biden Administration's budgets may need to placate House Democrats who wish to slow the growth in defense spending and shift more funding towards domestic policy priorities.

    With Republicans remaining in control of the Senate for the next two years, Democratic threats to retaliate for the Supreme Court fight by ending the legislative filibuster and passing court-packing legislation are now moot for at least the next two years. Still, the ill will created by the recent Amy Coney Barrett confirmation fight will contribute to the steady decline of bipartisanship needed to run the Senate.

    Aside from the impact on congressional relations, Justice Barrett's confirmation to the Supreme Court will shift the ideological balance of the court to the right. The Court may be more willing to place additional limits on federal power, including limiting Congress' ability to delegate to the executive branch and placing sharper limits on the deference given to federal agencies' decisions. This shift may make it harder for the Biden Administration to enact new progressive policies. Beyond the incoming administration, this shift may make it more difficult for future administrations to enact new regulations, even with congressional support.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • What will be the Biden-Harris Administration's top priorities in 2021?

    After being sworn in on January 20, President-elect Biden's near-term agenda has six major components:

    1. Confirming the members of his Cabinet;
    2. Passing a multi-trillion COVID-19 relief package;
    3. Addressing healthcare priorities, including vaccine development and delivery and fixing the Affordable Care Act (ACA);
    4. Advancing a middle-class economic agenda as part of the Build Back Better campaign platform, including potential updates in education and tax policy and additional infrastructure investments;
    5. Showcasing a visible strategic reset with key international allies, alliances, and even adversaries; and
    6. Rescinding the Trump Administration's executive orders in key policy areas.

    President-elect Biden is likely to move quickly in naming a cabinet full of Democratic luminaries, but a Republican Senate will scrutinize those nominees before confirming them in early 2021. Past history suggests that a White House of one party and a Senate controlled by another usually means one or more cabinet nominations will fail, and the second layer of critical sub-cabinet officials will also face longer and more detailed confirmation fights. Finally, President Trump and Senate Majority Leader Mitch McConnell cooperated to confirm an extraordinary number of judges in just four years. Now, Majority Leader McConnell will have every incentive to slow walk most of President-elect Biden's judicial nominations.

    Confirming a Supreme Court justice before the election comes at an extraordinary long-term cost to the Senate as an institution. Some of that damage is delayed only slightly by the fact Senate Republicans will retain control of the chamber. For example, in the lame duck, furious Senate Democrats could block any final Trump Administration legislative priorities from moving, potentially leaving the incoming Biden Administration with a longer and more urgent "to do" list when he takes office in January.

    As discussed earlier, the lame duck Congress has to decide whether to pass another major COVID-19 relief package now or in the next Congress. Democratic leaders will coordinate closely with the Biden transition team to determine if they can get a better deal before the holidays. If not, Democrats and the incoming Biden Administration will use the transition period to write a major new relief package that updates the HEROES Act to reflect the nation's changing healthcare and economic needs.

    President-elect Biden was a key player in the 2009 passage of the American Recovery and Reinvestment Act (ARRA), which passed a Democratic-controlled House and Senate and was signed into law by President Obama on February 17, 2009. The legislation became a landmark accomplishment of the Obama Administration, investing nearly $800 billion in government spending, tax cuts, and loan guarantees to take the country out of an economic recession. President-elect Biden finds himself in a similar position, entering office with an economic crisis, but he does not enjoy Democratic majorities in both chambers like President Obama had in 2009. In hindsight, many Democrats believe that package could have been more effective if it included more money. It will be very difficult for President-elect Biden to convince Senate Republicans to vote for additional rounds of COVID-19 relief that approach or exceed the $3 trillion cost of the HEROES Act the Senate has already rejected.

    Deal points in a COVID-19 relief package include settling disputes on: (1) state and local governments seeking aid to replace hundreds of billions of dollars in lost tax revenue; (2) whether to extend moratoriums on financial actions like housing evictions or suspensions of student loan obligations; (3) additional aid for the airline industry; (4) additional support for hospitals; (5) carve-out aid packages for other industries like restaurants, tourism, fitness, and the arts; (6) the duration and scope of enhanced unemployment benefits that previously expired this summer; (7) bailouts for mass transit agencies; (8) new and expanded funding for the Paycheck Protection Program; (9) additional support for all levels of education from childcare to K-12 to higher education; (10) expanded funding for a national COVID-19 testing strategy; (11) enhanced funding for the Supplemental Nutrition Assistance Program for struggling families; and (12) creation of a federal pandemic liability shield for business. Senate Republicans continue to have concerns about bailing out units of local government for what some consider poor long-term fiscal decisions that predate the pandemic, and they are sure to demand a federal pandemic liability shield for business as a part of any final relief package.

    On the healthcare front, the early days of the Biden Administration will focus on COVID-19 response issues. The incoming administration hopes to expedite vaccine delivery so the US can fully reopen later in 2021. If the Supreme Court does the unexpected in the summer of 2021 and strikes down the ACA (arguments are scheduled for November 10, and a decision is likely to be handed down in June 2021), Congress will have an urgent need to address replacement comprehensive healthcare legislation. Striking down the ACA in its entirety would be a nightmare for the healthcare markets, given that 20 million people may lose insurance coverage at a moment when state budgets would not be able to absorb increases in Medicaid rolls. Massive reimbursement cuts would be needed for hospitals and healthcare providers, causing major market disruptions for all healthcare services. In the midst of all that upheaval, there would be no national political consensus about what to do.

    Split control of Congress may lead to a bevy of competing proposals on how to improve the nation's healthcare systems. It will take a herculean effort to find common legislative ground if the Supreme Court rules the ACA is unconstitutional. The Biden Administration would face a major regulatory and funding crisis consuming valuable political capital trying to strike a healthcare deal with Senate Republicans. Those legislative realities kill progressive efforts to pass a "Medicare for All" proposal or other ideas giving the federal government a larger role in the healthcare system and setting the stage for what will be hotly contested 2022 Senate elections.

    Next, the opening agenda of the Biden Administration will focus on classic middle-class, pocketbook issues. This may include education reforms at the K-12 and higher education levels, such as enhancing access to remote learning resources. The Biden Administration will also likely use its experience from the 2009 passage of ARRA to push for an expensive set of new infrastructure investments that create jobs nationwide, which has bipartisan support. Additionally, President-elect Biden's plans to reform the tax code are largely dead on arrival in a Republican Senate. The Senate will not agree to Mr. Biden's proposals to unwind many of the corporate tax cuts under the Tax Cuts and Jobs Act, or his proposal to restore the eliminated state and local tax deduction that primarily benefits taxpayers in blue states.

    President-elect Biden will seek to restore the American role in leading international policy decisions. The President-elect has significant international affairs experience from 36 years in the Senate and 8 years serving as vice president, and he has pre-existing personal relationships needed to make progress on his priorities. His philosophical approach to international institutions and relationships with allies are vastly different than President Trump's policies. The Biden Administration will host several high-profile events with international leaders in the first few months to highlight a consistent message that the United States wants to renew and strengthen its relationships with allies around the globe. One notable policy unlikely to change is the current regime of tariffs on Chinese goods, as President-elect Biden and congressional Democrats cannot afford to be perceived as soft on China in their initial actions. Overall, international policy also is the area where President-elect Biden can operate with the least interference from the Republican Senate.

    While President-elect Biden will likely focus on domestic issues during his first year in office, his administration will work to increase transparency and make some limited changes to US trade policy. President-elect Biden is unlikely to remove President Trump's Section 232 or 301 tariffs in the near term. Reauthorization of Trade Promotion Authority will be a priority for congressional Republicans, but the Biden Administration may be reluctant to advance a trade policy tool without securing substantial wins for labor and environmental allies first.

    In the financial services sector, the Biden Administration will not be able to secure agreement from a Republican Senate on all of its legislative goals. Instead, the Biden Administration will place greater emphasis on oversight and investigations of financial institutions, a reemphasis on financial consumer protection rules, and an enhanced focus on promoting diversity and inclusion in the financial services industry, among other key priorities.

    In the energy sector, President-elect Biden's election presents a challenge for domestic carbon-based energy producers, particularly after the president-elect committed to transition towards a net-zero emission goal by 2050. The Biden Administration will use the administrative state to push for broader climate change goals, and the Democratic House will be working to fund those goals, but the Senate will be a barrier to most legislative ambitions in this space.

    The transition to a Biden Administration could also mean quick action overturning series of Trump Administration executive actions. In the healthcare arena, look for President-elect Biden to quickly rescind all of the Trump Administration's executive orders that undermined full implementation of the Affordable Care Act or limited access to federal healthcare resources. The first days in the White House also are likely to feature a high-visibility event where President-elect Biden rescinds or countermands President Trump's controversial executive orders focused on immigration. He also may sign several executive orders that direct federal agencies to reinstate prior immigration policies of the Obama Administration. The Biden Administration will move quickly to have the United States rejoin the United Nations Framework Convention on Climate Change's Paris Agreement, and it will include climate change as a priority in all policy considerations going forward.

    Finally, California's role in federal public policy choices will only grow in Washington over the next few years. Vice President-elect Kamala Harris will likely tap many Californians with experience pushing progressive policies in Sacramento to join her in Washington. Her election as vice president opens the door to several strong California politicians to secure her Senate seat, including vice presidential short-lister Rep. Karen Bass, California Secretary of State Alex Padilla, and California Attorney General Xavier Becerra. Several prominent Californians also are top candidates for cabinet positions in the Biden Administration. Speaker Pelosi's potential final term as Speaker will focus on delivering climate change, immigration, consumer protection, labor, and tax code changes that have already taken hold in California.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • What does the election mean for the future of the Supreme Court?

    The recent battle over the nomination of Amy Coney Barrett to the Supreme Court will sharpen the partisanship in the lame duck session and the opening months of the next Congress. However, Justice Barrett's conformation also means that it may be several years before President-elect Biden can nominate someone to the high court.

    If a nomination opportunity does emerge, the president-elect is almost certain to land on a diverse candidate. On the campaign trail, President-elect Biden promised to nominate the first female African American Supreme Court justice when a vacancy occurred. There are only a few female African American appellate judges in the federal system today, not all of whom were appointed by Democratic presidents. The Biden Administration will have to cast a wider net of state court judges or sitting political figures to fulfill this key campaign promise. The ideal candidate will be in her early 50s, so she could reasonably have 25-30 years to serve on the court. President-elect Biden will have a hard time getting any Supreme Court nominee passed through a Senate controlled by Republicans, so he will face a stark choice between picking his ideal candidate or picking one that is more likely to appeal to a handful of remaining centrist Senate Republicans. President Obama tried the moderate path with Merrick Garland in 2016 and it failed, so President-elect Biden may choose to go with a nominee that is more polarizing.

    During election season, Senate Democrats floated the idea of passing legislation to increase the number of justices on the Supreme Court. Republican control of the Senate means such legislation is going nowhere in the short-term. It may be an idea that becomes reality in two years, especially with bright Democratic prospects to win control of the Senate in 2022.

    In the long-term, the next vacancy is likely to result from a resignation from Justice Stephen Breyer, who is now 82 years old, and was appointed by President Clinton. Some progressive interest groups may be vocal in pushing for Justice Breyer to retire so President-elect Biden can nominate his successor, but that strategy makes more sense in 2023 if Democrats take back control of the Senate.

    After Justice Breyer, the three oldest Supreme Court justices are Republican appointees (Chief Justice Roberts and Justices Clarence Thomas and Samuel Alito). Of those, only Justice Thomas is old enough to be concerned about retirement in the next few years.

    Historically, Republican presidents have had more luck in timing that allowed for multiple Supreme Court nominations. President George H.W. Bush is the only Republican in the last 100 years to have the opportunity to nominate less than four Supreme Court justices, and even he saw the Senate confirm two of his nominees during his four years in office. Conversely, on the Democratic side, President Harry Truman was the last US president to see more than two nominees confirmed to the high court.

    As for other federal judges, Majority Leader McConnell spent four years of the Trump Administration trying to fill every possible judicial vacancy. Thus, the federal courts have historically low levels of vacancies. The Republican majority will use its power to slow the process of judicial nominations through the Senate Judiciary Committee. President-elect Biden will ultimately see most of his nominees confirmed, but the process will be slower and more contentious in the Republican Senate. A few nominees will fail, and the Biden Administration will have to account for this political risk in making decisions about which nominees can survive the process.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • Will the Senate eliminate the filibuster?

    The Senate will eliminate the filibuster someday, but it does not appear that will happen in the next two years. Democrats likely would have eliminated the filibuster if they won the Senate in this year's elections. Yet, passing legislation in the Senate with just 52 Republican votes is meaningless when Republican Senators know a Democratic House will not pass it and President-elect Biden will not sign it into law. For Republicans controlling the chamber now, there is no reason to eliminate the filibuster.

    The split control of Congress and retention of the filibuster means the political power shifts to the centrists in the Senate. Only legislation that can gather 60 votes of support will move, meaning any Biden Administration priority will need the support of at least eight Republican senators to become law. The House will be more aggressive in pushing the policy priorities of a progressive House majority, but much of that effort will be viewed as messaging for their political base since those bills will be dead on arrival in the Republican Senate.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • Who will be in congressional leadership in 2021?

    Sen. McConnell will remain as Majority Leader after winning his own reelection fight in Kentucky and spearheading an effort to retain the Senate majority. Sen. John Thune (R-SD) is expected to continue as the Whip. There is a quiet campaign to succeed Majority Leader McConnell as the Republican leader in the future, and contenders include Sens. Thune, Roy Blunt (R-MO), and John Cornyn (R-TX).

    Senate Minority Leader Chuck Schumer's (D-NY) 40-year climb through the House and Senate ranks stalled out in this election, as he fell short of his goal to secure a Democratic Senate majority. Over the past few years, Minority Leader Schumer has moved left to reflect his party's shift in priorities, but he could face a potential 2022 primary challenge from progressive Rep. Alexandria Ocasio-Cortez (D-NY). Pressure from progressive Democrats will force Minority Leader Schumer to be more vocal and visible in supporting progressive priorities over the next two years, but he cannot move those priorities into law as the Minority Leader. There are unlikely to be other changes with the rest of the Senate Democratic leadership team.

    The Senate Democratic Caucus includes several people President-elect Biden will consider for cabinet positions, such as Sens. Kirsten Gillibrand (D-NY), Elizabeth Warren (D-MA), Amy Klobuchar (D-MN), Mark Warner (D-VA), and Chris Coons (D-DE). In a closely divided Senate, President-elect Biden will not select senators to his cabinet unless he is sure their home-state governor will appoint a Democrat to fill the open seat, and prospects for a Democratic special election victory are favorable.

    The 117th Congress brings the oldest elected president in American history working with the oldest House leadership team in American history. The top three Democratic leaders in the House are all at least 80 years old but are ready to spend the next two years helping President-elect Biden enact his agenda.

    Despite widespread discontent among House Democrats upset they did not expand their majority on Election Day, Speaker Pelosi will likely continue in her role, and she will be a powerful force in pushing the president-elect's agenda through the House as quickly as possible. She also will be an important ally in White House negotiations with the Republican Senate. Speaker Pelosi, who has hinted at it before, may face pressure to announce an end date for her leadership, with many stakeholders expecting her to announce this upcoming session of Congress is her last term as Speaker. If this happens, it will give the House majority two years to sort out the next generation of candidates.

    Both Majority Leader Steny Hoyer (D-MD) or Majority Whip Jim Clyburn (D-SC) may make an effort to succeed Speaker Pelosi. It is possible Whip Clyburn—who played a key role in helping President-elect Biden resurrect his primary campaign—would take a senior position in the Biden Administration as a capstone to his career. It seems that a generational change in leadership is underway, and some key younger members are tired of waiting for their time to come.

    A number of younger leaders could become serious candidates for the Speaker's gavel after Rep. Pelosi's term ends. Democratic Caucus Chairman Hakeem Jeffries (D-NY) is a strong contender from this group. As the leadership fight to succeed Speaker Pelosi moves into a higher gear, other candidates will emerge, especially from California's large delegation, which has significant sway over internal caucus politics, and from younger and more diverse members of the Democratic caucus. Left-wing progressives like Rep. Ocasio-Cortez also wield immense power within the party and will continue to push for policies that disrupt the status quo. While the factions within the Democratic Party united to defeat President Trump, they are likely to reemerge in the 117th Congress.

    Republicans appear to have cut the Democratic majority to a number that will make it more difficult for them to operate the House. Republicans were bolstered by a surprising number of female candidate wins and they are now within striking distance of winning back the House in the 2022 races. Republican Leader Kevin McCarthy (R-CA) and Republican Whip Steve Scalise (R-LA) will easily be reelected to their leadership positions. However, Conference Chair Liz Cheney (R-WY) could become a target for challenge. She is a growing force and well-respected by many in the conference, but she also faces criticism from younger members who found her support for President Trump lacking. Still, the top three positions in the Republican conference are likely to remain the same.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • How will President-elect Biden staff the White House and cabinet?

    The Biden Administration will suffer from an embarrassment of riches, as talented players at all levels of government, think tanks, interest groups, and business compete to join the team. The Trump Administration spent four years begging top-level Republican talent to join the team and never succeeded, leaving hundreds of key political appointments unfilled or in the hands of people who were unprepared for the positions they held. President-elect Biden has four significant advantages that will lead to a relatively fast staffing up for his new administration.

    First, he has unparalleled experience with the Senate that must confirm his nominees. President-elect Biden comes to the White House after 36 years in the Senate and another 8 years presiding over the chamber while serving as Barack Obama's Vice President. The vast majority of Senators serving in the next Congress were in the House or Senate when Mr. Biden was Vice President, so he has a depth of congressional relationships not seen in the White House since President Lyndon Johnson. The incoming president knows the Senate's culture, pace, and arcane rules, which will serve his team well as they move their cabinet and sub-cabinet nominees.

    Second, there is an extremely deep bench of Democratic players vying for appointments at all levels of a Biden Administration. Alumni of the Obama Administration are likely to occupy a number of key cabinet and senior White House positions, as President-elect Biden can draw on the best of that network. A few Clinton Administration players also may be in play for key positions. A wide number of senators will be potential players in the new cabinet, and most come from states controlled by Democrats, meaning if they depart for the Biden Administration their seat will remain in safe hands in the closely divided Senate. The Biden Administration also will consider a number of rising stars in the House, and both chambers have thousands of staffers who will enthusiastically pursue key sub-cabinet political appointments in the new Administration. There also are some key Democratic governors who will be considered for the cabinet, as well as members of these gubernatorial teams seeking to be considered for a promotion to Washington.

    Third, the Biden Administration has an effective transition operation that has been working for months, and it is well down the pathway of identifying key players of the top positions in the White House and cabinet. Former Sen. Ted Kaufman (D-DE), who is a long-time confidant of the president-elect and succeeded him in the Senate, is leading the transition effort. The transition team also features a number of top staffers with key ties to leading players in both chambers of Congress. The Trump Administration had a very poor transition effort that foreshadowed four years of personnel challenges. It is possible that a legal fight over the election in November and early December will hinder the Biden transition effort. Overall, the Biden campaign's experience in Washington makes them less likely to make transition mistakes, allowing the new administration to be well-staffed from its opening days.

    Finally, the Biden Administration may have challenges working with a Republican Senate. Historical precedent suggests most but not all top nominees get confirmed in similar situations, and sub-cabinet officials will have slower pathways with more obstacles to confirmation. The Senate usually confirms high visibility presidential nominees, but recent presidents have had to withdraw two to five nominees at some stage in the nomination process.

    Every president since John F. Kennedy has appointed at least one person from the opposing party to serve in their cabinet, and President-elect Biden will likely continue this informal tradition. Likely candidates include several recent Republican senators who served with the president-elect, or potentially a former or current Republican governor, such as Massachusetts Governor Charlie Baker (R-MA), who represent traditional Democratic stronghold states.

    Two interesting issues will emerge in the transition and appointment process. First, the president-elect's team will wrestle with the role Vice President-elect Kamala Harris and her team will play in building out the Administration. The new vice president will want to position her allies throughout the Biden Administration to enhance her influence over policy but also to form the nucleus of a network to support her in the event of a future White House run. Second, the Biden Administration will grapple with what to do about lobbyists who want to serve in government. The Obama Administration had to soften restrictions preventing lobbyists for working for the team. The progressive wing of the Democratic party strongly opposes allowing corporate leaders or lobbyists to serve in the incoming Biden Administration for jobs where they have some preexisting expertise, especially in areas like fossil fuels and financial services. It is not clear what the Biden Administration will do about this dilemma. What is clear, however, is that incoming political appointees in the new administration will have a different background from appointees in the Trump Administration. Many will come from Capitol Hill or elsewhere in US, state or local public service, while others will come from academia or businesses aligned with the President-elect's agenda.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • How will the Biden Administration use the Congressional Review Act to roll back some Trump Administration regulations?

    A committed president and Congress can use the Congressional Review Act (CRA) to undo a broad array of rulemaking by their predecessors, but the CRA's usefulness does not extend to instances where the President hopes to have further regulatory action on a specific issue.

    Unfortunately for President-elect Biden, a Republican Senate is unlikely to pass any legislation rescinding recent regulatory actions of President Trump. The White House and Democratic House may wish to test this theory, but it seems more likely President-elect Biden will not waste his political capital in this space and will look for other executive branch opportunities to undo the regulatory actions of the Trump Administration.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • What led to Joe Biden’s victory?

    While we know the general results of the 2020 national election, the unique nature of this election cycle amidst a global pandemic means multiple jurisdictions are still counting votes. Nevertheless, exit polling and pre-election polling give us a strong sense of the factors that led to President-elect Biden's election. Understanding the complex electoral coalition that lifted the Biden-Harris ticket to victory gives us some insights into how they may govern over the next four years.

    First, according to CNN exit polling data, more than 90% of Biden voters said efforts to contain COVID-19 were going poorly while only 10% of Trump voters shared that view. Overall, President-elect Biden won the strong majority of voters who thought COVID-19 was the most important issue in the election and/or who thought the former vice president was better equipped to handle the pandemic and related national recovery effort.

    Pie chart showing percentage of voters who thought the coronavirus pandemic mattered most in the election

    Pie chart showing percentage of voters who believe Joe Biden or Donald Trump is better at dealing with the Coronavirus

    Second, the Supreme Court nomination fight was initially thought to be a net positive for President Trump and congressional Republicans, but polling data shows it motivated Democratic voters to turn out in numbers that blunted what was once a Republican advantage.

    Pie chart showing percentage of voters who believe Joe Biden or Donald Trump is better at making appointments to the US Supreme Court

    Third, Joe Biden edged out President Trump with voters who rated the economy as their top issue in the race.

    Pie chart showing who voters thought is better able to handle the economy (Biden v. Trump)

    Fourth, women were a particular strength for the Biden-Harris ticket, driven in part by the potential election of the first female vice president, but another notable trend was the swing of suburban, highly educated women who favored President-elect Biden over President Trump.

    Pie chart showing percentage of suburban women who favor Donald Trump or Joe Biden

    Fifth, President-elect Biden undercut President Trump's 2016 strong level of support with senior citizens, as Biden ended up with 48% of the senior vote in 2020. President-elect Biden won every other age demographic under 65 years of age.

    Pie chart showing percentage of voters 65 or over who voted for Joe Biden or Donald Trump

    Sixth, President Trump picked up more African-American and Hispanic support in 2020 than he had in 2016, but the Biden-Harris ticket retained a high-enough percentage of African American and Hispanic voters to win out in critical states like Arizona, Georgia, Michigan and Wisconsin.

    Pie chart showing percentage of African American voters who voted for Joe Biden or Donald Trump

    Pie chart showing percentage of Latino voters who voted for Joe Biden or Donald Trump

    Finally, the suburbs represented the winning margin for the Biden-Harris ticket in almost every swing state, as affluent, highly educated (college degree or higher) voters were runaway supporters of the Biden-Harris ticket this year.

    Pie chart showing percentage of suburban voters who voted for Joe Biden or Donald Trump

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • What is historic and unique about the 2020 election results?
    Control of Washington continues to shift in most federal elections
    • This is the ninth time in the last eleven federal elections (since 2000) that control of at least one chamber of Congress or the White House has changed hands.
    • Control of the White House changed parties four times in the six presidential elections since 2000 (2000, 2008, 2016, 2020).
    • The Senate has changed hands four times (2000, 2002, 2006, 2014) in the eleven federal elections since 2000.
    • The House has changed hands three times (2006, 2010, 2018) in the eleven federal elections since 2000.
    White House
    • President-elect Biden is the first man elected to the White House without winning Florida or Ohio since John F. Kennedy in 1960. The winner of Florida and Ohio had gone on to win the White House in the last six elections before 2020.
    • President-elect Biden is the first person elected to the White House after serving 13 or more years in the US Senate.
    • President-elect Biden is the first Democratic vice president directly elected president since Martin Van Buren in 1836.
    • President-elect Biden is the first Democrat elected president without winning either the Iowa caucuses or the New Hampshire primary since President Bill Clinton in 1992.
    • President-elect Biden and President Nixon are the only vice presidents elected president after an intervening administration of the opposite political party.
    • President-elect Biden joins Presidents Nixon and Reagan as the only three elected presidents in the modern (primary/caucus) era who failed to secure the nomination of their party in their first run.
    • President Trump is the first president in 28 years not to be reelected.
    • At least 75 of the senators expected to serve in 2021 were in the Senate or House during President-elect Biden's vice presidency.
    • About 240 representatives expected to serve in the House in 2021 were in the House during Joes Biden's vice presidency.
    • There are a record 105 women currently serving in the House. With about 30 races still to be called, the incoming House will break that record or come close to doing so.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • How will the fight for the Senate in the 2022 elections affect the legislative process?

    While Democrats came up just short of winning control of the Senate in 2020, they are heavy favorites to win control in the 2022 elections.

    The election of Kamala Harris as Vice President means California Governor Gavin Newsom must fill her vacant Senate seat. Whoever he nominates will serve the remaining two years of Vice President-elect Harris's term before having to run an expensive jungle primary and general election in a state where fellow elected Democrats present the heaviest competition. Rep. Karen Bass (D-CA), state attorney general and former Rep. Xavier Becerra (D-CA), and Lt. Governor Eleni Kounalakis (D-CA) are likely candidates for the appointed seat. Two female senators have represented California for the last 28 years, so Governor Newsom will be under intense pressure to appoint a woman to replace Vice President-elect Harris.

    Senators up for reelection often have an outsized influence in the legislative agenda in the Senate. Leadership looks for opportunities to consider their legislative priorities and highlight their influence to assist with their reelection bids. Senators from a state won by the opposing party in the White House in the last election are immediate battleground targets.

    Three of the current four longest-serving senators - Sens. Pat Leahy (D-VT), Chuck Grassley (R-IA), and Richard Shelby (R-AL) - may retire rather than run in 2022. This would make reelected Majority Leader McConnell the longest-tenured member of the Senate in 2023.

    Several broader factors favor Democrats in 2022 Senate races:

    1. Republicans will have 20 seats at risk while there are only 12 Democratic seats up for reelection. Generally speaking, the party playing offense in recent election cycles has done better than the party playing defense. The fact Republicans are playing defense in 2022 will seep into every strategic decision they make in the Senate over the next two years.
    2. Retirements are the best chance to pick up seats long held by the other party. An open seat in Alabama, where Sen. Shelby will be 88 on election day 2022, is probably a case where the winner of the Republican primary fight easily wins in the general election. The story is different in Iowa, where Sen. Grassley will be 89 on election day in 2022, and the other Senate seat has been very competitive, including Sen. Joni Ernst's (R-IA) close reelection win this week with just 52% of the vote. In Pennsylvania, Sen. Pat Toomey (R-PA) announced his retirement before the election, in a state where he won with only 48.8% in 2016 and where the last two presidential races have been very close. Finally, in North Carolina, Senator Richard Burr (R-NC) is widely expected to retire, opening a seat he won with just 51.1% six years ago. Sen. Thom Tillis (R-NC) won his bid for reelection this week with just 49% of the vote in the most expensive Senate race in American history, so North Carolina will be a key 2022 battleground.
    3. Senate elections now closely track which party won the most recent presidential race in the state. Seven Republicans won close races in 2016 as President Trump won narrow victories in their state, and, whether or not they run for reelection, Republicans face political headwinds in those states in 2022: Sens. Marco Rubio of Florida (won with 52% in 2016), Todd Young in Indiana (51.1%), Richard Burr in North Carolina (51.1%), Ron Johnson in Wisconsin (50.2%), Roy Blunt in Missouri (49.2%), Pat Toomey in Pennsylvania (48.8%), and Lisa Murkowski in Alaska (44%). Those candidates also will not have a presidential campaign to help them with organization and messaging in 2022.
    4. Finally, there is Georgia, where the special election to replace retiring Senator Johnny Isakson will go to a January 2021 runoff, and the winner will immediately have to turn around and run again for a full term in November 2022. The runoff between Sen. Kelly Loeffler (R-GA) and Ralph Warnock (D-GA) will be extraordinarily expensive and will occur at the same time as a separate runoff between Sen. David Perdue (R-GA) and Democratic candidate Jon Ossoff.

    Senate Democrats have risks of their own in 2022. Three incumbents come from battleground states that will be high-profile and expensive races in 2022: Sens. Michael Bennet in Colorado (won with 50% in 2016), Maggie Hassan in New Hampshire (48%), and Catherine Cortez Masto (47.1%). Sen. Leahy, the current longest-serving Senator in either party with 45 years of experience, may retire. But the seat is considered a safe Democratic one if he does.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • Who are the GOP White House frontrunners for 2024?

    On the Republican side, the Trump-Pence loss means the field is wide open for the 2024 presidential nomination. The fight may very well be between candidates seeking to distance themselves from the controversies of the Trump Administration and those seeking to claim they are the logical successor to Trump's vision for the party and the country.

    Vice President Mike Pence has the resume of a leading candidate, given his experience as a member of House leadership, Governor of Indiana, and four years as vice president. No former vice president has ever been elected president after the president under which he served lost his bid for reelection. Consequently, Vice President Pence will be fighting history if he pursues the nomination.

    Republicans have a deep bench of senators and governors who will look hard at the 2024 race. In the Senate, Sens. Marco Rubio (R-FL), Ted Cruz (R-TX), and Rand Paul (R-KY) have run before and have a national profile that would benefit them if they try again. Sens. Tom Cotton (R-AR), Josh Hawley (R-MO), Ben Sasse (R-NE), and Tim Scott (R-SC) also may consider the race. Among governors, four spark serious interest among party faithful: Greg Abbott of Texas, Ron DeSantis of Florida, Larry Hogan of Maryland, and Kristi Noem of South Dakota. Finally, former South Carolina Governor and U.N. Ambassador Nikki Haley is eyeing the race.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

  • What happens if President-elect Biden serves only one term?

    There is speculation that President-elect Biden will only serve one term in office, since he will be the oldest American elected president. If that scenario comes to pass, Vice President-elect Harris becomes the immediate and overwhelming front-runner for the 2024 Democratic nomination, and she will have at least two years to consolidate her power and put together a team to pursue the 2024 nomination. The last four Democratic vice presidents all were later Democratic nominees for president (Humphrey in 1968, Mondale in 1984, Gore in 2000, and Biden in 2020), but each faced major primary battles. Nevertheless, each of those vice presidents faced major primary fights from senators and governors before they emerged with the party's nomination, and only President-elect Biden turned that nomination into a general election victory. It seems likely President-elect Biden selected Kamala Harris to be his vice president knowing already he would back her as his successor.

    The vice president-elect will not necessarily have a clear path to the Democratic nomination if President-elect Biden only serves one term. Major challengers will likely come from a sitting governor or senator. Sens. Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) ran for the 2020 nomination but may be considered too old to do so again in 2024. Sens. Kirsten Gillibrand (D-NY) and Amy Klobuchar (D-MN) are possible second-time presidential candidates, but each would need a compelling and contrasting profile to challenge the sitting female vice president of their own party. In the ranks of sitting governors, there are several candidates who may see 2024 as their one best shot for the White House, including Andrew Cuomo of New York, Michelle Lujan Grisham of New Mexico, Jared Polis of Colorado, Gina Raimondo of Rhode Island, Gretchen Whitmer of Michigan, and Tom Wolf of Pennsylvania. Many of those governors first face 2022 reelections. Given the Democratic Party's continued evolution to the left, it is possible a progressive outsider could also be a serious presidential contender in the next election cycle.

    © Arnold & Porter Kaye Scholer LLP 2020 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.

Key Contacts

Kevin O'Neill   Senator Chris Dodd Eugenia E. Pierson

Gregory M. Louer Amy Davenport


Presidential Appointments and Senate Confirmations: A Guide for Prospective Political Appointees
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