State of Play
As votes continue to be counted, it is clear the election was unexpectedly tighter—and better for Democrats—than most observers expected. While a handful of House races remain undecided, our current view is while Republicans will take control of the House, they will have a very narrow majority in the single digits. Relative to expectations, House Democrats are in good shape after being largely resigned to entering a significant minority in the chamber. The slim Republican majority complicates the path to the speakership for House Minority Leader Kevin McCarthy (R-CA). While McCarthy overwhelmingly won his colleagues’ endorsement to be speaker-designate, there are concerns about what he must compromise on in negotiations with the conservative House Freedom Caucus to secure the requisite 218 votes to be elected speaker on the first day of the 118th Congress. Former Speaker Paul Ryan (R-WI) and outgoing Speaker Nancy Pelosi (D-CA) faced similar opposition before their respective floor votes, but each was able to close the gap between their conference and floor votes. McCarthy will have to work hard throughout December to hold his conference together and secure the speakership on Jan. 3. Across the aisle, House Democrats will enter an era of new leadership, with Pelosi and House Majority Leader Steny Hoyer (D-MD) announcing on Nov. 17 that they would step down from their roles atop the caucus.
In the Senate, Democrats managed to hold their majority by winning several key races across the country. However, the Georgia Senate race—which will go to a run-off election to be held Dec. 6—will still have significant implications on how the Senate will operate. If Democrats hold the seat, they will have increased their majority to 51-49, meaning that Senate committees would no longer be evenly split. This would allow Democrats to speed up certain legislative processes, like the elimination of the need to take time considering discharge petitions on the Senate floor when committee votes end in a tie. It will also impact committee ratios and staff budgets going into the next Congress.
Notable Midterm Takeaways and Trends
Key Issues and Partisan Extremism
Leading up to Election Day, the political environment appeared to significantly favor the GOP, with inflation at a 40-year high and an unpopular president from the opposing party in office. However, the results show that voters have limits to their tolerance for Trump-era politics, rejecting Trump-backed or Trump-aligned Republican candidates in many competitive House and Senate races across the country. All but one election denier candidate for secretary of state lost their races. This position oversees how elections are run within each of their respective states, and many of the Republican candidates in question had pledged to institute reforms to state-level elections processes that Democrats claimed would politicize vote-counting processes.
The abortion issue also played a critical role, as evidenced by voters in California, Michigan, Kentucky and Vermont voting to approve measures to preserve or expand abortion rights. Exit polls found abortion to be one of the most important issues to voters, and these polls found that the approximately 60% of voters who said they were dissatisfied or angry about the overturning of Roe v. Wade overwhelmingly supported Democrats.
Progressive Democrats also struggled on Election Day, most notably Lt. Gov. Mandela Barnes (D-WI) losing a close election to incumbent Sen. Ron Johnson (R-WI) in Wisconsin, as well as the loss of Democratic House candidate Jamie McLeod-Skinner in a swing Oregon district. McLeod-Skinner had ousted incumbent moderate Rep. Kurt Schrader (D-OR) in a primary earlier this year by running to Schrader’s left. Combined with Trump-oriented Republican candidate struggles—such as Rep. Joe Kent (R-WA) in an R+5 district in rural Washington—the results indicate that voters rejected candidates they believed to be too partisan, regardless of whether the candidate was liberal or conservative. To this point, a CNN exit poll found that 51% of respondents felt Democrats were too extreme, while 52% felt that way about Republicans.
Regionalization vs. Nationalization
Heading into the election, there was much debate over how voters would prioritize the key issues of abortion, crime, inflation and the norms of democracy. The outcome seems to point that voters weighted those issues based on the regions of the country they live in, and candidates themselves, rather than follow one singular national trend.
While midterms are normally a referendum on the party in power (Democrats), both the issues of the state of democracy and abortion broke against the party out of power (Republicans). As a result, Democrats running on these issues in several competitive states where Republican victories could have resulted in transformative changes to election laws or more restrictive abortion access scored decisive victories that were otherwise thought to be close races. Conversely, this trend may have helped Republicans score several victories in New York, where the GOP focused on crime issues and ousted the head of the Democratic Congressional Campaign Committee (DCCC). The deep-blue lean of the state and Democratic control of key statewide offices and the state legislature means that there was less of a threat of changes to election and abortion laws.
Looking at the overall map, Democrats rebounded after several negative cycles in the Midwest, winning key district and statewide races in Michigan, Ohio, Pennsylvania and Ohio. Democrats also blew out Republicans in Colorado, further signifying that the once-purple state may be nearing a solidly blue status. As for Republicans, a similar trend in their favor is apparent in Florida, with Republicans running up the score and making races previously thought as safe for Democrats looking closer than expected. Interestingly, incumbent Gov. Ron DeSantis (R-FL) won reelection by nearly the same margin (19 points) as incumbent Gov. Jared Polis (D-CO) did in Colorado (17%).
Voter Turnout
Overall, turnout in the 2022 midterms was remarkably high. Michael McDonald of the U.S. Elections Project found that turnout stood at 47%, while lower than the 50% turnout in 2018 was nevertheless one of the highest rates for a midterm in half a century. Unsurprisingly, turnout was highest in battleground states where close elections were expected, such as Pennsylvania (four points higher than 2018), according to an analysis by The Washington Post. Conversely, turnout was lower in states that were commonly viewed as less competitive, including California, Maryland and New Jersey.
Democrats appear to be aided by a surge in turnout by young voters, with a CNN exit poll finding that Democrats increased their lead among under 30s from 26 points in 2020 to 28 points this cycle. The youth vote was critical in Pennsylvania, where 72% of 18–24-year-olds backed Democratic Senate candidate John Fetterman—an increase relative to 59% support for Biden in the state in 2020. Moreover, in New Hampshire, 76% of 18–24-year-olds supported incumbent Sen. Maggie Hassan (D-NH) relative to only 50% who voted for Biden in 2020.
For their part, Republicans received increased support from African American and Latino voters, with a rise from the 2020 elections of 6% among the former group and 5% for the latter, according to a Fox News voter analysis. This is a trend both parties will continue to closely monitor, and may raise alarm bells for Democrats, given that both groups have overwhelmingly favored Democratic candidates in recent history.
Altogether, varied turnout levels based on competitive elections combined with increased GOP support by minority candidates may be key factors toward closer-than-expected results in several deep-blue urban and suburban districts, particularly those on Long Island in New York and in the Los Angeles area in California.
What’s Next
Party Leadership Outlook
Winners of the elections are President Joe Biden and Democratic congressional leadership. Some Republicans can also be perceived as winners, such as Florida Gov. Ron DeSantis (R-FL)—who scored a decisive reelection victory in Florida.
The results are a negative development for former President Donald Trump given the apparent repudiation of his candidates, as well as House Minority Leader Kevin McCarthy (R-CA), who now must win over his ideologically broad conference in order to obtain the speakership. Sen. Rick Scott (R-FL), who led the National Republican Senatorial Committee (NRSC) this cycle was also negatively affected, and his attempt to overtake Senate Minority Leader Mitch McConnell (R-KY) for the top conference position seemed to further isolate him.
For Trump, the results may be prompting Republicans to reconsider whether they will support the former president’s 2024 run to reclaim his former office. Trump announced his candidacy on Nov. 15, casting aside calls for him to delay his announcement until after the Georgia Senate runoff. Some prominent Republicans, including Virginia Lt. Gov. Winsome Sears and Wisconsin Assembly Speaker Robin Vos, have called for Trump to not be the party’s nominee in 2024. Others, like Sens. Mitt Romney (R-UT) and Bill Cassidy (R-LA), as well as Gov. Chris Sununu (R-NH) and conservative commentator Ann Coulter, have made remarks implying that they would rather see someone else nominated, blaming Trump for the party’s disappointing midterms. Trump’s case is further complicated by DeSantis’ remarkably strong reelection. DeSantis, who has been viewed by many observers to be Trump’s biggest competitor for the 2024 nomination, has recently been labeled by the former president as “Ron De-Sanctimonious.” Still, Trump retains a significant level of support within the party; soon after Election Day, Rep. Elise Stefanik (R-NY) became the first member of GOP leadership to formally endorse Trump’s 2024 campaign.
The most immediate trendlines for how Republicans plan to move forward are gained from the recent House and Senate leadership elections. On Nov. 15, McCarthy emerged victorious in a conference-wide vote to be the GOP candidate for speaker of the House by a margin of 188-31. McCarthy’s victory came despite facing public opposition from conservative members within his conference, notably the House Freedom Caucus, who played a key role in bringing forward former Freedom Caucus Chair Andy Biggs (R-AZ) as an alternative candidate to McCarthy.
Despite the overwhelming margin, the 31 dissenters show the uphill climb McCarthy faces to reach the necessary 218 votes for the speakership. While McCarthy said prior to the vote that he was not concerned about gaining enough support for the speakership, Freedom Caucus member Bob Good (R-VA) said McCarthy “absolutely should be concerned,” while also pledging that Biggs would run against him. Over the coming weeks, McCarthy will need to consolidate support from conservative Republicans. As a means to do so, McCarthy has been engaged in conversations with members, including Freedom Caucus Chair Scott Perry (R-PA), about rule changes sought by the caucus as well as greater representation of the caucus on key committees. Should he fail to win over support of skeptical members, it is likely that the conference would turn to members who would be portrayed as consensus candidates.
Another competitive House GOP leadership race was for the Whip position—the third-highest ranking role in leadership. Capturing the role was National Republican Congressional Committee (NRCC) Chair Tom Emmer (R-MN), who narrowly beat Rep. Banks in the second round of voting, 115-106. A third candidate, current Chief Deputy Minority Whip Drew Ferguson (R-GA), was eliminated by a single vote during the first round, which was actually won by Banks by a vote of 82-72-71. Emmer’s victory came as some members questioned whether his bid was irreparably harmed by the disappointing midterms results under his NRCC leadership. For other senior leadership roles, Steve Scalise (R-LA) and Rep. Richard Hudson (R-NC) were both unopposed for the House majority leader and NRCC chair roles, respectively, while incumbent House Republican Conference Chair Elise Stefanik (R-NY) turned back a challenge from Rep. Byron Donalds (R-FL), 144-74.
Challenges to leadership also occurred for Senate Republicans, with Sen. Rick Scott (R-FL) mounting a challenge against McConnell for the top conference role. Scott’s bid marked the first challenge to McConnell in his 15-year leadership tenure. As was widely expected, McConnell defeated Scott by a vote of 37-10, with one person voting present. Some observers believed that Scott’s bid was hurt by GOP frustration over how the Florida Republican managed the NRSC, including the failure to capture a Senate majority. Additionally, Sens. John Thune (R-SD) and John Barrasso (R-WY) were both reelected to serve as Republican whip and conference chair, respectively. Rounding out the leadership team, Sen. Joni Ernst (R-IA) was elected to serve as conference policy chair, while Sen. Shelley Moore Capito (R-WV) was tapped to serve as vice chair and Sen. Steve Daines (R-MT) was selected to run the NRSC for the 2024 cycle.
Changes may be taking place at the Republican National Committee (RNC) too, with media reports indicating that a growing number of GOP officials have grown frustrated with Chair Ronna McDaniel’s leadership, wanting her to resign. A potential successor may be outgoing Rep. Lee Zeldin (R-NY). Fresh off losing a surprisingly close race for governor, reports indicate that Zeldin has spoken with several GOP lawmakers, strategists and activists who have urged him to run for the role. Another prospect is South Dakota Gov. Kristi Noem (R-SD), who has reportedly taken calls from several major GOP donors urging her to run for the role while remaining governor.
Leadership changes are not expected for Democrats in the Senate, whose elections will take place in December. However, House Democrats’ leadership elections—set for Nov. 30—currently have a level of uncertainty given the Nov. 17 announcements by Nancy Pelosi (D-CA) and Steny Hoyer (D-MD) that they were stepping aside from their respective leadership roles. House Majority Whip Jim Clyburn (D-SC) also announced he would step aside from his senior leadership role and instead run for the assistant Democratic leader position. House Democratic Caucus Chair Hakeem Jeffries (D-NY), Assistant Speaker Katherine Clark (D-MA) and Caucus Vice Chair Pete Aguilar (D-CA) have positioned themselves as the favorites to replace the outgoing trio. In a tweet issued following the Pelosi and Hoyer announcements, Clyburn endorsed Jeffries, Clark and Aguilar, calling them a “new generation of Democratic Leaders.” Given the reelection loss of Democratic Congressional Campaign Committee (DCCC) Chair Sean Patrick Maloney (D-NY), some members have already announced campaigns to assume the role, including Reps. Ami Bera (D-CA) and Tony Cárdenas (D-CA). A decision is expected by the end of the month, though several members are pushing for the selection procedure to be changed from a caucus-wide election to a leadership selection.
The Lame-Duck and 118th Congress Prelude
The agenda for the upcoming lame-duck session of Congress will include several priority items that both Democrats and Republicans hope to pass, such as annual appropriations, the FY23 National Defense Authorization Act (NDAA) and the extension of several expiring tax credits. Other items that Democrats hope to address before the end of the 117th Congress include raising the debt limit, passing legislation to reform Congress’ role in certifying presidential elections, and safeguarding same-sex marriage.
The prospect of a GOP-led House beginning in January may fuel Democrats to prioritize their appropriations bills as well as address the debt limit, lest they need to manage both matters with a split government next year that would likely entail intense partisan standoffs. On appropriations, the current continuing resolution (CR) expires on Dec. 16, but it appears likely that lawmakers will reach an agreement prior to the December holiday period. While Republicans would have greater leverage in the next Congress, they must weigh whether they want to enter the 118th Congress by needing to deal with FY23 appropriations, or if they would prefer to clear the deck. At present, the latter appears to be more likely, with the GOP emboldened to reach an agreement now as opposed to hashing out appropriations with a narrow House majority and divided government next year. However, a short-term CR may be required to buy more time for members to reach a final agreement prior to the end of the year. With respect to the latter issue, Pelosi said Democrats may look to address the debt ceiling in the coming weeks. McCarthy and other House Republicans have indicated that a GOP-led House would use debt limit votes as a means to force the Biden administration to accept a range of spending cuts—a proposal that Biden has said he would flat out oppose.
In the next Congress, partisan gridlock is to be expected given the divided government. In the Senate, Democrats will largely focus on advancing Biden’s judicial and government agency nominations. In the House, Republicans are likely to center their efforts on oversight of the Biden administration, with topics ranging from scrutinizing alleged politicization at the Justice Department (in the context of its investigations of Trump and Jan. 6) to the administration’s handling of the U.S. withdrawal from Afghanistan. Moreover, House Republicans have pledged to establish a select committee on China that would focus on economic and military challenges posed to the U.S. by the communist nation.
In the 118th Congress, bipartisan compromise by moderate members will be essential in order to legislate; compromise will also be required of House Republicans as they seek to legislate under a narrow majority in the chamber. In such a narrow majority, any small group of members can hold significant sway, meaning that Republicans will need to keep their conference fully unified to advance their agenda, while Democrats may be presented with opportunities to advance some of their priorities that would be supported by moderate or bipartisan-oriented House Republicans. At the same time, the conservative Freedom Caucus will hold significant leverage over House Republican leadership, equipped with the ability to tank leadership’s agenda if they do not have their interests met in House GOP proposals.
For Democrats, a cohort of incoming progressive House members and exodus of several moderate members means the caucus will be more left leaning overall. By being in the House minority, the Biden administration will be somewhat insulated from progressive proposals given that they will die in a GOP-led House. Moreover, moderate Democrats will retain the majority of power in House policymaking given that Republicans may need their support to advance measures that would otherwise be opposed by their right flank.
THIS DOCUMENT IS INTENDED TO PROVIDE YOU WITH GENERAL INFORMATION REGARDING THE 2022 MIDTERM RESULTS. THE CONTENTS OF THIS DOCUMENT ARE NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. IF YOU HAVE ANY QUESTIONS ABOUT THE CONTENTS OF THIS DOCUMENT OR IF YOU NEED LEGAL ADVICE AS TO AN ISSUE, PLEASE CONTACT THE ATTORNEYS LISTED OR YOUR REGULAR BROWNSTEIN HYATT FARBER SCHRECK, LLP ATTORNEY. THIS COMMUNICATION MAY BE CONSIDERED ADVERTISING IN SOME JURISDICTIONS.