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Post-Election: What We Know/What We Don’t Know

November 20, 2020

Here’s what we know: After the November 3 US election, the Biden-Harris ticket has 306 electoral votes, 36 more than what is needed to win. Senate Republicans hold a two-seat advantage (50-48) with the two Georgia seats undecided, and House Democrats maintain control with a current advantage of 221-205 (218 is needed to retain the majority) and 9 races undecided. As we continue to watch this unfold, there are key dates ahead:

  • December 14: Electoral College meets to confirm the presidential winner
  • January 3: First session of the 117th Congress convenes
  • January 5: Important Senate run-off elections occur in Georgia
  • January 20: Inauguration Day

The US presidential election results will be official when each state certifies its results, most of which will occur by November 30, but others will extend as late as December 11. The two Georgia Senate races will not be resolved until the January 5, 2021, runoff, thus determining control of the Senate for 2021–2022. If either one of the Republican candidates wins, Republicans will maintain control of the Senate. If both Democratic candidates win, there will likely be 50-50 tie votes in the Senate, which will then be decided by Vice President-elect Kamala Harris, resulting in Democratic control of the Senate. The undecided House races may not be finalized until well into December, and those will determine the final size of the Democratic majority.

The Biden-Harris team is moving forward with the transition process by announcing “agency review” teams (often referred to as “landing teams”). These teams are tasked with working with the outgoing administration to review documents and receive updates on the status of rulemakings and other administrative actions. See the full list of landing team members.

What Comes Next

In Washington, DC, the work of Congress is done primarily through committees. Thus it is helpful to understand the power players—the chairmen and ranking members of committees with jurisdictional responsibilities for legislation and oversight of the Executive Branch—to anticipate legislative agendas. This is particularly important in the Senate, which has the responsibility to “advise and consent” on the incoming Biden administration’s cabinet and other regulatory agency appointments to help navigate the regulatory waters.

If the election ultimately results in Republicans maintaining control of the Senate and Democrats maintaining control of the House (albeit in smaller margins), the 2020 congressional election will be viewed as a status quo election. But because of voluntary retirements, Republican term limits, and election defeats, there will still be significant changes among committee chairmen and ranking positions on numerous key congressional committees, which will affect numerous policy areas.

Here’s a breakdown of committee leadership movement for the priority policy areas of healthcare, tax, labor, energy and environment, and banking and financial services.

  • Healthcare Policy. Healthcare policy is handled by four congressional committees—two in the House (Ways & Means and Energy & Commerce) and two in the Senate (Finance and Health, Education, Labor & Pensions or HELP). The HELP and Energy & Commerce Committees generally handle health policy legislation (e.g., health insurance, biomedical research and development, and agencies like FDA, NIH, and CDC), while the Finance and Ways & Means Committees handle the financing of those programs either through tax policy or dedicated trust funds.
    • In the Senate those committees will see changes in leadership. Because current Finance Chairman Sen. Charles Grassley (R-IA) is term limited at the end of the year, Sen. Mike Crapo (R-ID) will become the top Republican. Similarly, with the retirement of current HELP Committee Chairman Sen. Lamar Alexander (R-TN), either Sen. Richard Burr (R-NC) or Sen. Rand Paul (R-KY) will take over as the top Republican there. It is of note that Sen. Paul is a medical doctor and contracted the coronavirus (COVID-19) early in the year. On the Democratic side, Sen. Ron Wyden (D-OR) will continue as the top Democrat on Finance and Sen. Patty Murray (D-WA) as the top Democrat on HELP.
    • In the House there will be significant change resulting from the retirement of the ranking Republican on the Energy and Commerce Committee, Rep. Greg Walden (R-OR). The three contenders to replace Rep. Walden are Rep. Michael Burgess (R-TX), Rep. Bob Latta (R-OH), and Rep. Cathy McMorris Rodgers (R-WA). Rep. Frank Pallone (D-NJ) will return as chairman. Similarly, Rep. Richard Neal (D-MA) will return as Ways & Means Committee chair and Rep. Kevin Brady (R-TX) as ranking Republican.
  • Tax Policy. Jurisdiction over tax policy resides in the Senate Finance and House Ways & Means Committees.
    • In the Senate the implications of Republican Sen. Grassley being term limited at the end of the year and the maintenance of status quo on the Democratic side as outlined above are key considerations.
    • In the House no changes in leadership of the Ways & Means Committee are expected in either party.
  • Labor Policy. The Senate HELP Committee and the House Education & Labor Committee handle labor policy.
    • In the Senate labor policy will be impacted by the retirement of HELP Committee Chairman Sen. Lamar Alexander (R-TN). As previously discussed, he will be replaced by either Rep. Richard Burr (R-NC) or Rep. Rand Paul (R-KY). Sen. Patty Murray (D-WA) will remain as the top Democrat on the Committee.
    • In the House Rep. Robert Scott (D-VA) will remain as the chairman of the Education & Labor Committee and Rep. Virginia Foxx (R-NC) as the ranking Republican.
  • Energy and Environmental Policy. Several committees with jurisdiction over energy and environmental policy will see significant changes: the Senate Energy & Natural Resources and Environment & Public Works Committees and the HOUSE Energy & Commerce Committee.
    • In the Senate, both the Energy & Natural Resources and Environment & Public Works Committees will likely have new Republican leadership. On the Energy Committee, the current Chairman is Sen. Lisa Murkowski (R-AK) but because she is term limited, the top Republican slot will likely go to Sen. John Barrasso (R-WY). In this game of musical chairs, if Sen. Barrasso assumes the top spot at Energy he will need to relinquish his chairmanship of the Environment & Public Works Committee, thus opening the top Republican slot there to Sen. Shelley Moore Capito (R-WV). For the Democrats, Sen. Joe Manchin (D-WV) is the top Democrat on the Energy Committee and Sen. Tom Carper (D-DE) is the top Democrat on the Environment Committee.
    • In the House, as mentioned above, the retirement of Rep. Greg Walden (R-OR) will result in a new ranking Republican on the House Energy & Commerce Committee. Three senior Republicans are hoping to replace Rep. Walden: Rep. Michael Burgess (R-TX), Rep. Bob Latta (R-OH), and Rep. Cathy McMorris Rodgers (R-WA). Rep. Frank Pallone (D-NJ) will continue as chairman.
  • Banking/Financial Services Policy. The Senate Banking Committee and the House Financial Services Committee oversee policy regarding banking and financial services.
    • In the Senate, we will see movement. The current chairman of the Banking Committee, Sen. Mike Crapo (R-ID), will have to relinquish that chairmanship when he takes the top Republican slot on the Finance Committee. As a consequence, the top Republican spot will pass to Sen. Patrick Toomey (R-PA). Sen. Sherrod Brown (D-OH) will continue as the top Democrat.
    • In the House, Rep. Maxine Waters (D-CA) will continue as chairman of the House Financial Services Committee and Rep. Patrick McHenry (R-NC) as ranking Republican.

As we track what’s ahead, Morgan Lewis’s deep bench of former government officials and advisors are here to provide practical advice and guidance during this transition period and beyond.

CONTACTS

Jeff Boujoukos
Jennifer Breen
Giovanna Cinelli
Chai Feldblum
Thomas Gede
Nick Gess
Tom Harman
Susan Harthill
Harry Johnson
Ryan Kantor
Bill Kissinger
Sharon Masling
Matt Miner
Philip Miscimarra
Eamonn Moran
Sandra Moser
Eleanor Pelta
Kenneth Polite
Alex Reid
Amanda Robinson
Jonathan Snare
Howard Young