Plurus Strategies October Political Update: Quiet Before the Storm

With just under a month until Election Day, an eerie quiet is settling over Washington as both parties zero in on the same goal: winning. It is clear that there has been a shift in the midterms environment. For the past two years, Democrats have been fighting off the conventional wisdom that the president’s party loses ground in off-year elections. Despite Democrats feeling like they had the wind at their backs following a series of wins before the August recess (the CHIPS and Science Act, the Inflation Reduction Act (IRA), and the Promise to Address Comprehensive Toxics (PACT) Act), the post-Dobbs momentum that contextualized Democratic wins in August and early September seem to be fading. With just four weeks to go, the midterms are sure to be a nail-biter.

Below are some highlights for the weeks ahead, including what to watch post-Election Day, as well as our most recent versions of our Senate and House musical chairs documents and “Congressional laundry list.”

What to Watch in the Weeks Ahead

Midterm Messaging

The generic ballot polling coming out of the long weekend shows Republicans with a narrow lead, but the parties remain neck and neck in many key races. Republicans are playing off President Biden’s low job approval ratings, doling out millions on ad campaigns and maintaining messaging on inflation, crime, immigration, and “culture wars” as they look ahead to implementing their “Commitment to America.” Republicans are also trying to make this about

Democrats continue to remind voters of the fulfillment of their party’s commitments, including through the American Rescue Plan (ARP), Infrastructure Investment and Jobs Act (IIJA), Inflation Reduction Act (IRA), student loans executive order (EO), and marijuana reforms, but also current and future dangers created by certain Supreme Court (SCOTUS) decisions, most notably Dobbs.

On both sides, vulnerable members are making attempts to win over swing voters, scheduling public debates, and taking aim at one another’s pasts. The final hearing of the House Select Committee to Investigate the January 6 Attack on the Capitol is set for Thursday, underlining a lingering midterms factor: President Donald Trump’s legal quagmire, the risks of a Trump-controlled majority dominated by election-denying voices, and the former president using the midterms as a testing ground for a possible 2024 bid.

Senate

While many political pundits continue to include the ten most vulnerable Senate seats, control of the chamber is increasingly looking like it will come down to races in Georgia, Nevada, and Pennsylvania.

The race in Georgia was most recently rocked by a news story that revealed GOP Senate candidate Herschel Walker paid for an abortion for a former partner despite his aggressive campaign stance against abortion. In an interesting move, the party has rallied behind him with National Republican Senatorial Committee (NRSC) Chair Rick Scott (R-FL) and Sen. Tom Cotton (R-AK) arriving in the state this week to back Walker. Many voters seem unphased, but as is usual in the Peach State, voter turnout will play a key factor in determining the winner. The latest polls have incumbent Sen. Raphael Warnock (D-GA) up 3.7 points.

In Nevada, polls are showing that incumbent Sen. Catherine Cortez Masto (D-NV) and Republican challenger Adam Laxalt tied. President Joe Biden’s job approval rating in the state is 59 percent among likely voters, dragged down by concerns about the economy, putting Sen. Cortez Masto in dangerous territory for an incumbent. Seeing an opportunity, President Trump and Sen. Tommy Tuberville (R-AL) held a rally in the state over the weekend.

In Pennsylvania, John Fetterman and Dr. Mehmet Oz have been pushing out ads and participating in community events to win over Black voters, who are increasingly becoming a key demographic to securing the Senate spot. Although polls show that 94 percent of Black voters in Pennsylvania voted for President Biden two years ago, even a small portion being lured to Oz could shift the outcome of the election this time around. Oz is looking to make up for lost momentum from the summer as Fetterman was recovering from his stroke. As of today, Fetterman is up six points, but his performance in the debate scheduled for later this month will be key to demonstrating to voters that he is healthy and up to the job.

Some polls are showing races, such as in Wisconsin between incumbent Sen. Ron Johnson (R-WI) and Democrat Mandela Barnes, in virtual ties. Other battles are continuing in Arizona, where incumbent Sen. Mark Kelly (D-AZ) is defending his seat. Competitive races are also taking place in North Carolina and Ohio, where there are open seats due to the retirement of two GOP senators. Three other states being watched somewhat closely are New Hampshire, which is giving incumbent Sen. Maggie Hassan (D) a 5.3 point lead, Florida, which is giving incumbent Sen. Marco Rubio (R) a 4.7 point lead, and Colorado, which is giving incumbent Sen. Michael Bennet (D) an 8.3 point lead. If the Senate flips, there are sure to be major consequences. For example, the IIJA and IRA have significant rollout plans set to begin in 2023 and could face serious impediments in a divided government scenario.

House

As they have been for several months, Republicans remain largely favored to win control of the House. FiveThirtyEight has given Republicans 7 in 10 odds of flipping the chamber. Republicans only need six seats to flip the House, but overall margins are likely to rest on the outcome of a dozen or so races, such as those in New York’s 19th District, Texas’ 15th District where there is an open seat, and Oregon’s 5th District where progressive Jamie McLeod-Skinner beat incumbent Rep. Kurt Schrader (D-OR) in the primary for this purple seat. Like Senate races, factors such as the Dobbs decision have given a boost to Democratic odds. However, regardless of political pundit, all show that Democrats hold over 80 percent of seats considered to be toss-ups this year.

Unlike 2010, when Republicans gained 63 seats overall, this year’s midterm elections will take place under new district lines, and many of the districts Republicans have the best chance of flipping have changed significantly due to redistricting. For instance, Florida’s map saw dramatic transformations from formerly competitive areas in Florida’s 7th District – where Rep. Stephanie Murphy (D-FL) is retiring – and 13th District – from which Rep. Charlie Crist (D-FL) stepped down to run for Governor –­ to now all but certain Republican wins. Republicans also have a chance of winning some more purple seats, such as New Jersey’s 7th District, currently held by Rep. Tom Malinowski (D-NJ).

Although a smaller number overall, Democrats have a chance of flipping a few districts from red to blue, such as Michigan’s 3rd District, in which incumbent Rep. Peter Meijer (R-MI) lost the GOP primary. In addition, redistricting has made several Republican-held seats much more competitive. For instance, California’s 22nd and 27th Districts, held by Reps. David Valadao (R-CA) and Mike Garcia (R-CA), respectively, became somewhat bluer under new lines. Generally, Republicans are well-positioned to pick up competitive seats and Republican-leaning seats held by Democrats, but Democrats could pick up a few Republican-controlled districts.

Retirements

Last week, news broke that Sen. Ben Sasse (R-NE), one of seven GOP senators to vote in favor of President Trump’s second impeachment, had become the sole finalist to become the University of Florida’s new president. While he has not yet indicated the timing of his departure and he is currently facing growing protests from the university’s students and faculty over his views on LGBTQ+ rights, he is likely to become the eighth Senator to announce his retirement from Congress.

On September 30, Rep. Ted Deutch (D-FL), who had already indicated he was retiring, announced his early resignation from Congress. As of today, there are 77 legislators – just under seven percent – who will not be returning to the 118th Congress. This total does not include the roughly 30 vulnerable incumbents who might lose reelection. Below are where the numbers stand:

  • 1 Senate Democrat: One full committee chair (Appropriations)

  • 7 Senate Republicans: Six full committee ranking members (Appropriations; Armed Services; Banking; Health Education, Labor and Pensions (HELP); Homeland Security and Governmental Affairs (HSGAC); and Rules)

  • 39 House Democrats: Five full committee chairs (Budget; Ethics; Oversight and Government Reform; Science, Space, and Technology; and Transportation and Infrastructure)

  • 30 House Republicans: Five full committee ranking members (Ethics; Homeland Security; House Administration; Ways and Means; and Select Committee to Investigate the January 6 Attack on the U.S. Capitol)

Musical Chairs and Committee Leadership: Here are links to our most recent Senate and House musical chairs documents. These analyses aim to show how retirements, close races, and term limits may impact party leadership, committee leadership, and committee membership. Stay tuned for deeper analysis on subcommittee leadership as we get closer to the next Congress.

Looking Ahead to the Lame Duck

Once Election Day passes, many departing lawmakers will be eager to secure their legacy, while those remaining will want to get in “eleventh hour” wins before we say farewell to the 117th Congress. However, the midterm election results will likely shape the environment and how much might get done beyond what is absolutely necessary. Four priorities remain top-of the-list once Congress returns: funding the government beyond the December 16 expiration of the continuing resolution (CR), the FY23 National Defense Authorization Act (NDAA), the Electoral Count Act (ECA), and the Respect for Marriage Act.

Once Congress returns in November, there are only 19 legislative days until government funding runs out and just 22 until the end of the year. President Biden signed the Continuing Appropriations and Ukraine Supplemental Appropriations Act at the end of September. The CR included funds for disaster aid, an additional $12.3 billion for the war in Ukraine, $1 billion for the Low-Income Home Energy Assistance Program (LIHEAP), and the extension of reauthorizations for several federal programs. However, many key pieces of legislation did not make it into the final package, making them potential candidates to ride on a year-end spending vehicle.

While some Republicans argue if they are victorious in flipping one or both chambers that they should punt the finalization of FY23 appropriations until next year when they might have more leverage, our sources continue to tell us a December omnibus is more likely. However, it appears clear to Congressional leadership that a government shutdown, either at the end of the year or next spring, is neither in the interest of Democrats or Republicans, and many would prefer to avoid it. The omnibus is likely to become a vehicle for the remaining policy work to be completed by this Congress, including reauthorization of expiring federal programs, tax and healthcare extenders set to expire on December 31, and Hurricane Ian relief.

The NDAA has been signed into law for the past 61 consecutive years. While the House passed its version in July, the Senate opened debate on its NDAA during a pro forma session today, although there will be no floor votes until the Senate is back in session after the midterm elections. More than 960 amendments have been filed to the Senate bill. Senate Armed Services Committee Chairman Jack Reed (D-RI) and James Inhofe (R-OK) will continue to sift through amendments during the recess and assemble a manager’s package. The final version of the Senate bill could include the Taiwan Policy Act; reauthorizations of the State Department, Coast Guard, Maritime Administration, and intelligence programs; the Water Resources Development Act (WRDA); cybersecurity and immigration measures reported out of HSGAC; and legislation to improve ocean, coastal, and Great Lakes science to support conservation, restoration, and resilience. Work is also likely to take place over the break to pre-conference the House and Senate bills so that resolution on a final conference report can be achieved quickly after the Senate passes its bill.

Both the ECA and the Respect for Marriage Act have gained bipartisan support and are likely to be voted on as separate measures. Beyond these must-pass measures or bills that are highly likely to see action, there are several wildcards, including legislation on environmental permitting, behavioral health, and retirement security. These could also be attached as riders to the omnibus package of NDAA. Issues that are not ultimately addressed by the time the 117th Congress adjourns might provide a preview of priorities for the 118th Congress.

Below is the current of our “Congressional laundry list” – a list of priorities with high possibility of action, legislation filed as amendments to the NDAA, candidates for short-term extensions, and agenda items being worked on but less likely to see action. 

Congressional Countdown

  • 28 Days until Election Day

  • 32 Days until Congress is back in session

  • 19 Legislative Days until government funding runs out

  • 22 Legislative Days until the end of 2022

HIGH POSSIBILITY OF ACTION (likely to be attached to the omnibus or NDAA)

MAJOR LEGISLATION FILED AS AMENDMENTS TO NDAA

963 amendments have been filed to the Senate NDAA. See full list here. While the manager’s package will not include all amendments, below are themes observed in our review of NDAA amendments: 

SERIOUS CANDIDATES FOR SHORT TERM EXTENSION (could be attached to the omnibus)

Extended to Dec. 16 under CR

  • Federal Communications Commission (FCC) Spectrum Authorization Authority

  • Spectrum Innovation Act: This House-passed bill would extend spectrum auction authority for 18 months. Sen. Maria Cantwell (D-WA) and Sen. Roger Wicker (R-MS) are working on a longer-term bill.

  • National Flood Insurance Program Authorization

  • Authorization of Temporary Assistance for Needy Families (TANF)  

  • Certain FDA User Fee-Related Policies: Authorities have been extended through FY27, but policies related to drug and device regulation were only extended until December 16.

  • Maternal, Infant, & Early Childhood Home Visiting

  • Medicaid Assistance for Territories (FMAP): Without action by December 13, FMAP will revert to 55 percent. This issue is addressed by an amendment filed to the Senate NDAA.

  • Low Volume Hospital (LVH) Program  

  • Medicare-Dependent, Small Rural Hospital (MDH) Program

Expires Dec. 31  

  • Medicare Access and Children’s Health Insurance Program (CHIP) Reauthorization Act/Alternative Payment Models (MACRA/APM) Bonus (2022 last performance year, 2024 payment year)  

  • Health Care Extenders: Medicare Radiation Oncology Rules Delay; Medicare Physician Bonus Payments.  

  • Temporary Order for Fentanyl-Related Substances (FRS): Submitted as amendment to the Senate NDAA.  

  • Tax Extenders: Full Deduction for Restaurant Meal Expenses; Railroad Track Maintenance Credit (50 percent); and Temporary delay of designation of multiemployer plans as in endangered, critical, or critical and declining status. Democrats also want to revive the Child Tax Credit, which expired previously.

  • Other Tax Cuts and Jobs Act (TCJA)-Related Tax Phase-Outs: Three notable provisions are scheduled to expire/change but could be considered at end of the year: (1) 100 percent bonus depreciation; (2) R&E expensing; and (3) Net interest deduction limit.

Other

  • Medicare Sequester Relief: Moratorium on Medicare provider payments sequestration, which had its 2 percent cuts restored on July 1, 2022.

  • Pay-As-You-Go (PAYGO) Sequester Relief: Cuts to certain mandatory spending, which Congress had deferred waiving at the end of last year, could potentially be added to the NDAA. Cuts would otherwise take effect in in early winter.

AGENDA ITEMS BEING WORKED, BUT LESS LIKELY ACTION

Cyber & Technology

Health, Education, Labor, & Pensions

  • Child Nutrition Reauthorization: There has been no update since 2010. The Healthy Meals, Healthy Kids Act passed the House in July.

  • Pandemic-Related: Could include the PREVENT Pandemics Act, legislation aimed at preventing fraud in CARES Act programs, or the potential revival of $10 billion proposal that failed in the spring due to debate around immigration reform.  

  • Dialysis Patients Protection: This bill has been introduced in House and Senate and could be attached to the omnibus.

  • INSULIN Act: One of bill’s provisions capping Medicare copays was included in the IRA. This issue could be addressed in lame duck, but action is more likely in the spring.

  • Pioneering Antimicrobial Subscriptions To End Up Surging Resistance (PASTEUR) Act: This legislation has been introduced in the House and Senate.

  • Social Security Fairness Act: Sponsors have filed a discharge petition to force a floor vote.

  • Labor Protections: Protecting Right to Organize (PRO) Act

Energy & Environment

Judiciary

  • Immigration Reform: Focused on pathways to citizenship, including Deferred Action for Childhood Arrivals (DACA), enlistment in Armed Services; Temporary Protected Status (TPS) designation; and restrictions at the southern border.  

Other

  • Restaurant Relief: Replenish Restaurant Revitalization Fund (RRF).

Amelia ClearyPlurus Strategiessenate, house, republican, democrat, congress, biden, ira, iija, arp, midterms, elections, retirements, musical chairs, lame duck, CR, continuing resolution, appropriations, NDAA, ukraine, behavioral health, retirement security