The balance of power in Congress - and with it the fate of President Joe Biden's White House agenda - was unclear Wednesday morning as ballots are still being counted around the country and several elections remain too close to call.
The promise of a red wave receded late Tuesday with Democrats defying predictions and flipping several House, Senate and governor's races in places Republicans expected to claim their own.
In Pennsylvania, Democrat John Fetterman defeated Dr. Mehmet Oz and flipped a Republican-controlled Senate seat that's key to the party’s hopes of maintaining control of the chamber. Senator Ron Johnson, R-Wis., narrowly won re-election in a tight race in battleground Wisconsin.
Republicans have been eager to claw back power in Congress, working to break the Democrats' one-party hold in Washington. All 435 seats in the House and one-third of the Senate were being decided.
Republicans needed a net gain of five seats in the House to achieve the 218-seat majority and a net gain of one to seize control of the Senate. The 50-50 Senate has been in Democratic hands because Vice President Kamala Harris can cast a tie-breaking vote, in what has been one of the longest stretches of a split Senate in modern times.
Across the U.S., all eyes were on key races in Georgia, Arizona and Nevada that could decide which party controls the Senate:
- Nevada: Democratic Sen. Catherine Cortez Masto vs. Republican Adam Laxalt
- Arizona: Democratic Sen. Mark Kelly vs. Republican Blake Masters
- Georgia: Democratic Sen. Raphael Warnock vs Republican Herschel Walker
In the House, many districts in states like New York, California, Michigan and Pennsylvania have not yet been called.
Elsewhere in the country, Republican J.D. Vance defeated Democrat Tim Ryan for an open House seat in Ohio. In New Hampshire, Trump-styled Republican Don Bolduc lost a bid to oust Democratic Sen. Maggie Hassan and Democratic Reps. Abigail Spanberger and Jennifer Wexton held off spirited Republican challengers in Virginia districts the GOP had hoped to flip. In North Carolina, the Trump-backed Republican Rep. Ted Budd beat Democratic candidate Cheri Beasley, the former chief justice of the state Supreme Court.
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With so much unknown, here's a look at how things could play out:
Scenario: Republicans Take the House, Democrats Keep the Senate
As ballots were being counted on Tuesday night, this seemed like a likely scenario. Democrats face strong headwinds to holding on to the House, from redistricting that favors Republicans to retirements in their ranks.
What would the GOP do with control of the House? With Democrats in the majority in the Senate, they would have little chance of passing legislation on their own but they could begin hearings and investigations and try to magnify any real or perceived failures of the Biden administration.
"Realizing they are highly unlikely to get any GOP brand-boosting policies through the Senate and to the president’s desk, [Republicans] would feel strong incentives to focus on symbolic activities in the form of hearings or speeches or public events, messaging bills that aid to highlight the difference between the GOP and the Democrats with an eye towards picking up seats in 2024 and maybe winning the presidency," said Kevin R. Kosar, resident senior fellow at the Washington D.C.-based think tank American Enterprise Institute.
So what have Republicans already indicated would be on such an agenda?
Probe Hunter Biden’s Businesses
Republican Rep. James Comer of Kentucky is a likely chair for the House Oversight Committee and at the top of his agenda would be the president’s son, Hunter Biden. Comer has said he would probe the younger Biden’s business dealings and look for evidence that he had compromised the president. Biden has said that he has no involvement in his son’s businesses and that his son’s previously disclosed addictions had not caused any conflicts for him.
Shut Down Jan. 6 Committee
The Jan. 6 committee’s mandate expires at the end of the current Congress and it would need to be re-convened to continue. The committee on Oct. 21 subpoenaed testimony and documents from Trump, but if Republicans win the House they could be expected to disband the committee and end the investigation into the attack on the Capitol. The House Minority Leader Kevin McCarthy instead threatened telecommunications companies that complied with subpoenas of phone records. Alternately Republicans could keep the committee but redirect its focus, perhaps to try to blame Speaker Nancy Pelosi. They have accused her of failing to call for help, a claim contradicted by video released by the Jan. 6 committee.
Try to Impeach Biden and Others
Republicans have introduced resolutions calling for the impeachment of Biden, Vice President Kamala Harris and others. But in October House Minority Leader Kevin McCarthy cautioned against using impeachment as a political tool and said he did not believe any Democrats warranted such a step.
Investigate Dr. Anthony Fauci, Trump documents and Democratic policy
Here are other areas the GOP could eye: Dr. Anthony Fauci, Biden’s chief medical advisor, and the origins of the coronavirus pandemic, which some Republicans have blamed on a leak from a laboratory; the chaotic withdrawal of troops from Afghanistan; the FBI retrieval of classified and other documents from Mar-a-Lago; the border with Mexico and the possible impeachment of Homeland Security Secretary Alejandro Mayorkas; and U.S. policy toward Ukraine and Russia.
Cut Medicare, Social Security
McCarthy has said that the GOP would use approval for raising the debt limit as a way to get spending cuts, including possibly ones to Medicare and Social Security. The debt ceiling will need to be lifted next year if the country is not to default on its debt.
Linda Fowler, a research professor in the Department of Government at Dartmouth University, said there could be a possible fight over the budget in December.
“Republicans may just block it with the idea that they’ll come back and re-legislate everything in January if they win one or both chambers,” she said.
She also predicted a battle over the House speaker position, which McCarthy, of California, would be in line for. But immediately after the Jan. 6 attack on the Capitol, leaked audio shows, McCarthy demanded an investigation. “We need to know why this happened, who did it and people need to be held accountable for it,” he said.
“Despite Kevin McCarthy’s efforts to keep faith with the Trump wing of the party, I think they are suspicious of him because of his remarks after Jan. 6, which were certainly appropriate,” Fowler said. “And even though he’s walked them back and tried to make his peace with Trump he may not have the votes for the speakership.
Democrats Confirm Biden’s Judicial Picks
In this scenario, even though Democrats are losing the House, keeping control of the Senate means they would be able to continue approving Biden’s picks for the federal courts.
Confirming or denying judges is one key role that under the constitution is reserved for the Senate (other key Senate-only roles include conducting impeachment trials and advising and consenting on treaties).
The importance of the federal judiciary, including the Supreme Court, has been sharply in focus with the Supreme Court’s overturning of Roe v. Wade, rulings on Trump’s many lawsuits and other decisions.
Scenario: Republicans Take the House and Senate
With control of both the House and Senate, Republicans would have more chance to impede Biden’s initiatives, an appealing move with a presidential election two years off. There would be pressure to introduce measures popular with the Republican base, even if Democrats employ the filibuster, the Senate rule that requires 60 votes to pass most legislation.
If the Republicans win both chambers they would continue symbolic actions, "but I think there are two other categories of things they would consider doing and one is pushing legislation that they would dare Biden to veto," Kosar said. "And the other is looking for possible win-wins that help the GOP brand."
Among the first could be allocating funds to finish the wall along the U.S.-Mexico border, he said. The second could include working to move the supply chain away from China.
Challenge Biden on Immigration
If Republicans do want to highlight what they see as immigration policy failures, they could add funds to the Department of Homeland Security appropriation to finish the wall on the U.S.-Mexico border, former President Donald Trump’s answer to migration into the United States. For the Democrats, Vice President Kamala Harris has been leading the administration’s attempt to address the root causes of migration from El Salvador, Guatemala and Honduras.
“Democrats have to figure out an answer on immigration,” Kosar said. “Vice President Harris’ engagement with the issue has not impressed too many people.”
Propose National Abortion/Transgender Bans
A tricky proposition for many Republicans, who have long argued that abortion rights is an issue that should be left to the states, Sen. Lindsey Graham of South Carolina proposed national legislation to ban abortions after 15 weeks and proponents could force a debate on the issue.
Republicans could also introduce a resolution banning transgender women from participating in women's sports.
Tighten Voting Laws
Republicans might introduce legislation that would curb practices they claim lead to voter fraud, tightening rules on voter IDs, curbs on the number of days of early voting, restrictions on absentee voting and mandatory post-election audits.
Spending Cuts
Republicans might try to link inflation to Democratic spending, the $1.9 trillion American Rescue Plan, and the economy’s over dependence on supply lines out of China. Kosar said he would expect the GOP to propose cuts in government spending, to try to lessen dependence on goods from China and support more drilling for oil and gas in the United States.
Economists typically point to a number of factors for inflation and many agree that aggressive government spending during the coronavirus pandemic spurred a recovery but also demand that supply has not met.
Scenario: Democrats Take Both the House and the Senate
If Democrats are able to expand their lead in the Senate they could tackle issues sometimes stymied by Senators Joe Manchin of West Virginia and Krysten Sinema of Arizona, said Mark Carl Rom, an associate professor of government and public policy at Georgetown University.
"The dream scenario for the Democrats is that they maintain a majority in the House -- it’s not impossible, it’s unlikely but not impossible -- and they expand their majority in the Senate," he said. "That would allow real policy change because every vote does not come down to Senator Sinema and Senator Manchin. And if that happens I could imagine the Democrats would be much more aggressive on efforts to make the tax system more fair, to enhance our ability to address climate change, to protect the integrity of the American elections in the way the Democrats prefer to."
Democrats have not campaigned aggressively on what they would do with control of both chambers, but on the successes on the Biden administration, from environmental policies to the infrastructure rebuilding, he said.
Kevin R. Kosar, a resident senior fellow at the American Enterprise Institute, is less certain Democrats would tackle such big issues. The party has had a tough time holding together its more mainstream and progressive members in a single coalition.
"Criminal justice and other issues have really exposed those rifts," he said.
Whatever Democrats do, they must figure out an answer on immigration, he said.
"They're just getting clobbered by the images from the border."
National Protection for Abortion Rights/Same-Sex Marriage
Biden promised protecting abortion rights would be his priority if Congress sends him a bill, but Democrats would need to gain enough seats in the Senate to overcome the requirement for 60 votes to pass the legislation. The split is now 50-50 and only a few Republicans would likely vote in favor. The House has twice voted to expand the rights to an abortion though the medical procedure would be banned earlier than 24 weeks, when the ability of a human fetus to survive outside a woman’s uterus is thought to begin. Exceptions would be made for the life and health of the mother.
Similarly the House passed a bi-partisan bill codifying same-sex marriage in July, worried that the right would not withstand the new conservative faction on the Supreme Court. The Senate pushed its vote to after the election concerned about getting the necessary Republican votes for it to pass.
Expand Voting Rights
The House approved a bill requiring states with a history of voting rights discrimination to get approval from the Department of Justice for changes to voting laws. Another would make forbid partisan gerrymandering, designate Election Day a holiday, make it easier to register at places such as the Departments of Motor Vehicles, establish early voting periods of at least 15 days, allow voting by mail without reason and make it easier for people with disabilities to vote. The legislation stalled in the Senate.
Broaden Climate Change Legislation
One of the most significant legislative successes of the Biden administration, the Inflation Reduction Act is a far reaching measure whose goal is to take on climate change, slow inflation, reduce the deficit, lower prescription drug prices and impose a minimum tax on the profits on the largest corporations. It replaced the Build Back Better plan that ran up against opposition from Manchin. The Inflation Reduction Act includes $370 billion for climate change and clean-energy production.
Build Back Better
Build Back Better, a $2 trillion spending package, faltered in Congress when it lost support among some Democrats. Manchin in particular, who refused to move forward with the bill at the end of 2021. Democrats could try to revive parts of it that were dropped.
The plan started out with a $3.5 trillion price tag. Some Democrats had hoped to expand social services to provide such benefits as universal pre-kindergarten programs, free community college and paid family and medical leave. Republicans called the plan socialism. Democrats could try to revive some or all of their proposals.
