How Will the Midterm Elections Affect Regulation? Member Scholars and Staff Offer Expert Insights

It’s all over but the shouting.

The results of this year’s much-discussed midterm elections are finally (almost fully) in: the U.S. House is now controlled by a Republican from California, President Biden now faces a divided Congress, control of several state legislative chambers switched hands, and voters in 32 states weighed in on hundreds of ballot measures on issues ranging from abortion to voting rights.

We asked several of our Member Scholars how the election outcomes will affect policy going forward in our three priority policy areas. Today’s post covers the implications for regulations; additional posts in this series cover implications for climate justice and public protections.

Q: How will the outcome of the midterm elections affect policy relating to regulatory democracy and/or responsive government?

A. A GOP House will interfere with federal efforts to curb climate change

The Republican takeover of the U.S. House will not prevent the Inflation Reduction Act and Infrastructure bill from addressing the global climate crisis through subsidies for clean technology, but it will make continued progress through standard-setting harder.

The House may try to thwart progress through investigations and appropriation riders. If the lame duck Congress abolishes or substantially raises the debt ceiling, the House’s ability to damage the regulatory process will be quite limited.

— David Driesen is University Professor at Syracuse University College of Law

A: Kansas voters shield regulatory agencies from improper political interference

Several state ballot measures this election cycle garnered significant attention – particularly those related to protecting reproductive rights, decriminalizing marijuana, and expanding Medicaid. Overlooked was a proposed amendment to the Kansas Constitution that would have created a “legislative veto” — and given the state legislature nearly unfettered freedom to repeal any regulations issued by state regulatory agencies.

Apparently, the state’s conservative lawmakers were prompted to pursue this measure out of disgust for the sensible safeguards that the state’s agencies had issued in response to the COVID pandemic.

Fortunately, voters were able to cut through the technical nature of this amendment and recognize how dangerous a legislative veto would be for the state. The regulations issued by agencies like those in Kansas are the product of professional experts collaborating with people across the state to respond to pressing policy challenges by finding the best solutions permitted by law.

Legislative vetoes, however, make it easy to obliterate the painstaking policy implementation process on the basis of little more than naked politics. They take what is best about regulatory systems and replace it with what is worst about legislatures.

Kansas voters’ response to this ill-conceived measure inspires hope that the broader American public would enthusiastically embrace our federal and state regulatory systems — if only our public officials had the political courage to explain those systems and the valuable role they play in our constitutional democracy.

— James Goodwin is a Senior Policy Analyst at the Center for Progressive Reform

A. Senate Republicans won’t be able to block critical agency nominees

Although the 2022 elections have given control of the U.S. House to the Republican Party, the fact that the Democratic Party retained control of the U.S. Senate is huge for several reasons, one of which is that the Republicans should not be able to prevent President Biden’s nominees to federal courts and federal agencies from being confirmed.

While the courts received a great deal of attention during the campaigns, the president’s appointees to regulatory agencies are critical because they have the power to protect and enhance the lives and well-being of all Americans. Without leaders appointed by the president and confirmed by the Senate, agencies cannot function effectively. Had the Republicans won control of the Senate, they would have been able to prevent or stall agency efforts to implement critical federal regulatory programs that protect consumers, workers, neighbors, and the environment.

The power to confirm presidential appointees is especially critical in the case of multi-member independent agencies, like the Federal Trade Commission, the Consumer Product Safety Commission, and the National Labor Relations Board, whose members serve for staggered multi-year terms.

Since these agencies need a quorum to make major decisions, the Republicans could have hamstrung those agencies by refusing to confirm Biden’s appointees for vacant positions after the current occupants’ terms had expired. With the Democrats in control, Biden should be able to fill vacant positions or reappoint members to additional terms. And those members will serve well into the next presidential administration, providing a degree of continuity, no matter which party wins the presidency in 2024.

— Thomas McGarity is endowed chair in administrative law at the University of Texas

A: The elections signal a return to a less divisive national conversation

Many Americans wanted to turn the national conversation away from an “us versus them” politics and back to debating the role of markets and government in our country. While people may differ as to the answer to that question, it is the one that brings us together in our democracy, instead of splitting us apart.

— Sid Shapiro is the Fletcher Chair in Administrative Law at Wake Forest University