The 117th Congress and the New Administration: The First 100 Days and Beyond

The 117th Congress

The Reverend Raphael Warnock and Jon Ossoff are both headed to the U.S. Senate after defeating Republican incumbents Kelly Loeffler and David Purdue in the January 5 runoff elections. Both men made history with their wins: Warnock is the first Black person and Ossoff is the first Jewish person to be elected as Senators from Georgia. Ossoff is also the youngest candidate to be elected to the Senate since President-elect Joe Biden in 1972. Warnock and Ossoff are the first Democrats to win a Senate race in Georgia since Max Cleland in 1996.

By winning their respective elections, Warnock and Ossoff not only flipped Georgia for the first time in decades, but also gave the Democrats control of the Senate with a 50-50 majority. Broadly, the political landscape will create an environment that allows Democrats more opportunities to advance their priorities than would be the case as the minority party in the Senate. However, it is clear partisan politics will not fade away any time soon.

The First 100 Days

Over the weekend, incoming White House chief of staff Ron Klain laid out four overlapping and compounding crises the Biden Administration will seek to address through administrative action in its first ten days. These include the COVID-19 pandemic; the resulting economic downturn; climate change; and a national reckoning over racial equity in the wake of the Black Lives Matter movement. In response to the pandemic, on day one, President-elect Biden is expected to sign executive orders that implement a mask mandate in federal buildings and interstate travel; extend restrictions on evictions and foreclosures; and continue the pause on student loan payments and interest.

Although Democrats will control both the House and Senate with incredibly thin margins, there is still optimism at least one high-priority item (COVID 5.0) will be achieved during Biden’s first 100 days in office. First and foremost, President-elect Biden will prioritize domestic issues, as evidenced by the recent rollout of his Rescue America Plan. The Biden plan for an immediate COVID package is focused on boosting funding for the pandemic response and mitigating the impacts of the COVID-19, including a new national vaccine plan; aid to working families; and providing relief for the economy by helping struggling small businesses and state and local governments.

Since March 2020, the U.S. has seen nearly 24 million cases of COVID-19 and almost 400,000 deaths. Given the recent spike in cases and high unemployment numbers, another COVID relief bill during the first 100 days will likely top the legislative agenda. It is expected to be similar to the most recent relief package, and include additional funding for the Paycheck Protection Program (PPP), as well as stimulus checks for individuals. If the proposed COVID 5.0 cannot attract enough bipartisan support, Democrats may need to utilize reconciliation. If this ends up the case, COVID 5.0 likely morphs into a different bill.

Another priority for the administration will be to usher nominees through their confirmation hearings. Given the composition of the Senate that gives Democrats the majority, it is now much more likely President-elect Biden gets his Cabinet appointees confirmed without obstruction from Republicans. If all of President-elect Biden’s nominees are confirmed, history will be made. Twelve of the 24 Cabinet-level offices will be held by women and a majority of Cabinet-level officials will be non-white.

The timing for confirmation of nominees is unclear, as impeachment proceedings could throw a wrench into the regular order of confirmation hearings. Consistent with past transitions, we have observed the Biden team is focused on moving its national security team through the confirmation process as quickly as possible, and the urgency has increased in the wake of the insurrection at the Capitol.

100 Days and Beyond

Judging by how much was accomplished in the final days of the 116th Congress - including a COVID relief bill, an omnibus appropriations bill, tax extenders, the Water Resources Development Act (WRDA), a pipeline safety reauthorization, and compromise legislation to phasedown hydrofluorocarbons (HFCs) - we are optimistic significant legislation will move this year. In fact, because much of the activity we saw at the end of 2020 advanced in large part due to moderate groups like the Problem Solvers Caucus coming forward with a consensus COVID solution, we believe bipartisan agreement will be possible on some policy measures this year. However, with such narrow majorities in both the House and Senate, Democrats will have little room for error.

In order to keep the 50 Senate Democrats together, Majority Leader Chuck Schumer (D-NY) will need to balance the interests of a diverse caucus, with a single defection potentially slowing down nominations and legislation. This could give extra power to conservative Democrats like Sen. Joe Manchin (D-WV), who may be able to win concessions on initiatives they consider too liberal. Democrats will also be eager to attract support from Republicans who recognized President-elect Biden’s electoral victory win and have shown a willingness to work with the new administration, such as Sens. Mitt Romney (R-UT), Susan Collins (R-ME), and Lisa Murkowski (R-AK).

The Congressional Review Act (CRA) will enable Democrats to roll back recent Trump administration regulations without a single Republican vote. So long as the caucus remains united, Democrats will also be able to move the president’s executive and judicial nominations with only Democratic support as a result of rules changes that require a simple majority to cut off debate on confirmation.

Conversely, Democrats will have to contend with the minority party’s ability to filibuster. In addition to keeping its caucus voting together, the slim Democratic majority will need to win over at least 10 Republicans to get to the 60 votes required to avoid a filibuster. This is a huge challenge, especially for non-budgetary initiatives on politically salient issues like the federal minimum wage, family leave, labor rights, immigration reform, voting rights, and background checks for gun purchases.

A unified Democratic Congress reopens the conversation about whether or not reconciliation may be used to pass major legislation like COVID relief, climate policy, healthcare, or an infrastructure package with a simple majority. Several senior Democratic lawmakers have all spoken in favor of using budget reconciliation and have vowed to deploy the powerful procedural tool this Congress.

There may be as many as three opportunities during the 117th Congress to use reconciliation. Congress has the ability to unlock the special procedure in each budget resolution. Lawmakers never adopted a Fiscal Year 2021 (FY21) budget resolution and can still pass one for FY22, as well as FY23. Each reconciliation attempt could be broken into three pieces of legislation, dealing with spending, revenues, and the debt limit. If that were to happen, it would mean Democrats could have the opportunity to pass as many as nine bills over two years using reconciliation. However, there are several restrictions on how reconciliation can be used. How these restrictions are navigated will prove critical to advancing President-elect Biden’s policy agenda.

We anticipate that reconciliation will first be used for advancing another COVID relief package, with climate change and infrastructure to follow. However, there are questions about whether Democrats would be able to pass more than one major bill using reconciliation. Any such effort would almost certainly face challenges from Republicans over the scope of the Byrd Rule, which limits amendments that can be included in reconciliation legislation to only revenue-related items. As we consider some of the climate change and infrastructure proposals from the 116th Congress that could serve as a foundation for this type of package, they likely include a number of provisions that would not be permitted under the Byrd Rule in its current form.

Budget, Appropriations, and Tax

As noted above, it is possible Congress will resort to passing an FY21 budget resolution within the first 100 days of the new Congress. We anticipate Democrats will jam the budget resolution through for the sole purpose of advancing reconciliation instructions that will allow for passage of COVID 5.0 by a simple majority.

It is rumored the Biden Administration will target April 20 as the date for the release of the president’s FY22 budget request. While later than anticipated, this does not mean appropriators will wait until April to begin the FY22 cycle. In fact, it seems likely the Appropriations Committees will call on Cabinet secretaries to testify on agency priorities, even before the budget is released. However, given the delayed budget release, Hill staff is skeptical the timeline bodes well for finishing all 12 appropriations measures before the end of the fiscal year. Given recent trendlines, a continuing resolution (CR) is possible come September 30. Although Democrats will control both chambers, thin margins and the Senate filibuster rule make it likely any spending legislation that ultimately reaches the president’s desk will be void of policy riders. However, the debate on the return of earmarks continues.

Throughout the year, there may be a number of opportunities for Congress to pursue reforms to the tax code. For example, COVID 5.0 may include tax provisions aimed at addressing the economic fallout from the pandemic. We could also see a scenario where tax reforms are included as part of the reconciliation measure that is used to advance an infrastructure/climate change package. As is the case in most years, there are also a number of tax credits set to expire on December 31, which will likely drive debate on a year-end tax package.

Under a unified Democratic government, there is some thinking that, as was the case with the 2017 Tax Cuts and Jobs Act, Democrats could use the reconciliation process to rewrite portions of the tax code. Incoming Senate Finance Committee Chairman Ron Wyden (D-OR) has outlined an ambitious agenda that includes increasing corporate tax rates and creating incentives for companies to re-shore jobs. On the individual level, refundable tax credits like the Earned Income Tax Credit and Child Tax Cuts will be targets for expansion. Democrats may also try to increase the top marginal tax rate for high-income individuals. As has been noted, narrow majorities, in addition to competing priorities for reconciliation, will likely cap the breadth of the changes Democrats can make.

Finally, the 117th Congress will also need to act on the debt limit, as the current debt limit ceiling suspension is due to expire on July 1.

Defense, Foreign Policy, and National Security

In the final days of the 116th Congress, both the House and Senate voted to override President Donald Trump’s veto of the FY21 National Defense Authorization Act (NDAA), making it the 60th consecutive defense authorization measure signed into law. Given the political importance of the NDAA to supporting the troops and military families, the FY22 NDAA is considered must-pass legislation this year.

The FY22 NDAA and defense appropriations cycles will notably be influenced by changes in committee leadership. Under the new Democratic majority, Sen. Jack Reed (D-RI) will wield the gavel on the Senate Armed Services Committee, allowing Democrats in both chambers to spearhead writing the bill. The chairman’s slot on the Senate Defense Appropriations Subcommittee has yet to be filled in both the House and Senate. Due to changes in Senate rules, Sen. Dick Durbin (D-IL) will give up his position to chair the Senate Judiciary Committee. The House defense cardinal will also change due to 116th Congress Chairman Pete Visclosky’s (D-IN) retirement.

As substantive debate kicks off this year, progressives are gearing up to reduce overall defense spending, with incoming Budget Committee Chairman Bernie Sanders (I-VT) positioned to lead the charge for defense cuts. However, tight margins in the House and Senate have some defense companies planning as if topline defense spending may remain flat. Other issues where Democrats may focus their efforts are on revisiting the nuclear weapons strategy, extending the New Strategic Arms Reduction Treaty (new START) with Russia, placing conditions on arms sales, and rewriting the Authorization for the Use of Military Force (AUMF).

More generally, the Biden Administration is likely to find support in Congress for its efforts to repair alliances, reengage with multilateral organizations, deploy foreign assistance, and coordinate U.S. sanctions with allies and partners.

Energy, Environment, and Climate

Democrats’ narrow majorities in both bodies of Congress make passage of a sweeping, progressive climate agenda unlikely. However, this remains an area ripe for activity and progress. With Democrats taking control of the Senate, it is possible we could see subcommittee names adjusted to reflect jurisdictions that include issues related to climate change and environmental justice. It is also possible the Democratic majority establishes a new select committee on climate.

President-elect Biden included a number of energy, environment, and climate proposals as part of his Build Back Better vision. While reconciliation has become a buzzword discussed as a potential tactic for achieving some of these policy goals, ambivalence from moderates could serve to rein in ambition. In particular, Sens. Manchin and Kyrsten Sinema (D-AZ), may oppose using the reconciliation process simply as a matter of principle. Further, expecting members who represent coal and gas-dependent states to use reconciliation as a means to pass economy-wide decarbonization policy, such as a carbon tax, is not realistic. Instead, we might expect that grid modernization, transmission, resiliency, and clean energy tax code changes ride on an infrastructure bill.

During the Biden Administration, most climate and environmental activity will take place via either administrative action or regulation, at least initially. On day one, President-elect Biden is expected to re-enter the Paris Climate Agreement. Additionally, several senators have already indicated an interest in using the CRA to repeal recent Trump Administration rules and regulations. Pending a formal opinion from House and Senate parliamentarians, all regulatory actions issued on or after August 21, 2020, will be able to be overturned through use of the CRA. In the energy and climate space, this includes a number of executive orders on issues such as reducing the average time for environmental reviews and increasing domestic oil production on federal land, as well as rulemakings related to methane emissions, fuel economy standards, and endangered species regulations.

Healthcare

COVID-19 relief measures, and in particular vaccine distribution, are likely to take up much of the focus in the healthcare space in the first 100 days. On January 14, President Biden released his $1.9 trillion American Rescue Plan. This proposal includes $400 billion for coronavirus response measures, including faster vaccine distribution. Both House Speaker Nancy Pelosi (D-CA) and Leader Schumer have already pledged their support for the plan, though Republicans are signaling resistance. Regardless, limited success in containing the virus makes the enactment of another COVID package likely early this year. We also expect early Congressional hearings to focus on oversight of the COVID-19 response effort.

Beyond COVID legislation, Democrats have identified healthcare as a kitchen table issue for voters. In the interest of moving legislation that can provide immediate and recognizable benefits to voters ahead of the midterm elections, Democrats are likely to pursue an expansion of Obamacare subsidies. This could prevent a more divisive policy debate that would likely be required to achieve more structural changes, like a public option or lowering the Medicare eligibility age. While progressives may continue to beat the drum for Medicare for All, narrow margins are likely to result in more incremental change, as opposed to sweeping policy reform.

Once immediate COVID and coverage issues are addressed, it is possible we will see a reemergence of momentum to address the rising cost of prescription drugs. For example, Sen. Wyden said he plans to build off a package of drug pricing measures he and outgoing Finance Committee Chairman Chuck Grassley (R-IA) drafted during the 116th Congress.

Infrastructure

In Congress’ consideration of additional COVID relief packages, Democrats will continue to push to provide billions of dollars to support transit agencies, Amtrak, airlines, and airports. As this work gets underway on Capitol Hill, we anticipate the Biden Administration will roll out an infrastructure package, which could move under reconciliation. We envision this proposal will leverage President-elect Biden’s campaign-era Build Back Better messaging and portray a large infrastructure bill – one that goes beyond a traditional highway authorization bill – as legislation that can stimulate jobs and reinvigorate the struggling economy. Given that infrastructure projects can have a positive impact in every state, this is one area where we may see bipartisanship.

The current FAST Act (highway bill) extension is set to expire on September 30. This means Congress has until the end of the fiscal year to either advance a reauthorization bill or pass another extension. Sen. Carper (D-DE), incoming chairman of the Senate Environment and Public Works (EPW) Committee, has said he plans to scrap the Senate version of the FAST Act reauthorization from the 116th Congress and draft a new, more aggressive, proposal. A highway bill reauthorization measure drafted under Democratic leadership is likely to heavily incorporate investments in innovation and clean energy, environmental justice, and broadband.

In the last Congress, the House’s Moving Forward Act (H.R. 2), was much more expansive. Totaling $1.5 trillion, the House-passed infrastructure package included the highway bill reauthorization, along with new infrastructure and climate proposals, and the Affordable, Accessible Internet for All Act. Thinking is this bill will serve as the foundation for the House to work from in the 117th Congress. 

Immigration

In an effort to demonstrate contrast with President Trump, immigration is one area where President-elect Biden expects to engage immediately – both administratively and legislatively. President-elect Biden has warned it will take time to repair the immigration system from the damage it suffered from more than 400 policy changes under President Trump. While activity is expected to tick up right away, most immigration observers believe that any significant change is likely to take place beyond the first 100 days in order to allow the regulatory process and court battles to play out and give the new administration time to put the appropriate guardrails in place.

On day one, President-elect Biden is expected to immediately roll back several Trump Administration executive orders with the stroke of a pen. This might include lifting President Trump’s travel ban on predominantly Muslim countries, halting the flow of funding to construction of the southern border wall, and lifting the moratorium implemented on foreign workers during the COVID-19 pandemic. Other issues that remain priorities include reunifying families separated at the border, increasing refugee admission rates, and terminating the return to Mexico policy. However, it could take months to establish solutions and build capacity for new approaches.

Additionally, President-elect Biden has indicated he intends to introduce a bold proposal for immigration legislation early in his administration, perhaps even as soon as day one. Given the thin margins in Congress and the political controversies over immigration during the Trump Administration, it is unclear if this effort will result in a comprehensive immigration reform bill or legislation that is more narrowly targeted towards protecting Dreamers under Deferred Action for Childhood Arrivals (DACA). The Biden transition is rumored to be working with Reps. Joaquin Castro (D-TX), Raul Ruiz (D-TX), and Linda Sanchez (D-CA), the Congressional Hispanic Caucus (CHC), and advocacy groups on a legislative proposal that includes, among other things, an eight-year pathway to citizenship for undocumented immigrants. At the moment, Democrats seem to lack consensus on a desire to pursue comprehensive immigration reform or to instead rally around small victories won using a piecemeal approach.

In the meantime, we could see Democrats attempt to attach immigration provisions to larger COVID relief packages. One example might be forthcoming legislation from Rep. Castro that would allow undocumented essential workers to apply for permanent resident status.

Technology, Telecommunications, and Cybersecurity

In the early days of the new Congress, the technology and telecommunications agenda will focus on immediate connectivity challenges during the ongoing COVID-19 pandemic. Lawmakers on both sides of the aisle will have an interest in ensuring broadband internet service remains accessible and affordable for telehealth, distance learning, and remote work. We expect Democrats to continue oversight efforts to ensure internet service providers (ISPs) are maintaining connections. We could also see additional provisions, such as the recent suggestion by outgoing Federal Communications Commission (FCC) Chairman Ajit Pai, to allocate C-Band spectrum auction revenues to subsidize broadband access during the pandemic, included as part of a future COVID relief bill.

Another issue that will top the agenda out of political relevance and necessity is Section 230 reform and content moderation on big tech platforms. Following many social media outlets’ decisions to ban President Trump following the January 6 attack on the Capitol, we expect Section 230 to be the topic of some early telecommunications debate. It is unclear, however, if consensus can be achieved on legislation, as recent events appear to have deepened the partisan divide between Democrats’ desire to block disinformation online and Republicans’ concerns about political bias against conservatives.

Later this year, broadband buildout is expected to be part of the broader infrastructure conversation, with bills from the 116th Congress, such as the Accessible, Affordable Internet for All Act and the LIFT America Act, serving as the foundation for any infrastructure provisions that may ultimately be included as part of an infrastructure measure. Other issues that are likely to be ripe for discussion in the Senate Commerce and House Energy and Commerce Committees include privacy and spectrum management. While Democrats are also keen to reverse the Trump Administration's Open Internet Order, Democrats are likely to allow the FCC to act on net neutrality once a Democratic FCC chair is confirmed, as opposed to attempting to advance legislation.

Finally, we expect cybersecurity to continue to be a priority, especially as President-elect Biden’s Rescue America Plan includes more than $9 billion to modernize federal information technology (IT), attract cybersecurity expertise, and strengthen cybersecurity monitoring and incident response activities. Cybersecurity will also be a hot topic as Congressional investigations continue into the SolarWinds hack. The incoming administration has already demonstrated a commitment to making cybersecurity a priority, as evidenced by the creation of a new cybersecurity advisor role on the National Security Council (NSC) in addition to the launch of the new cyber director position recommended by the Cyberspace Solarium Commission.