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  • Allon Advocacy

Senate Elections and the Lame Duck Session

The outcome of the 2022 midterms will dictate how busy the Senate’s lame duck session could be.

While individual senators are elected to six-year terms, the Constitution divides the U.S. Senate into three “classes” with one class — or roughly one-third of the entire chamber — up for reelection every two years.

According to constitutional scholar Joseph Story, the founders instituted this division to prevent senators from permanently forming any “sinister bias.” The founders also wanted to protect the Senate from a rapid turnover — all 435 seats of the House are up for election every two years — and to encourage deeper deliberation.

This year there are 35 Senate seats on the ballot: the 34 seats from Senate Class III, plus an open seat from Oklahoma that was created when Sen. Jim Inhofe (R-Okla.) announced his retirement this past February. Whoever wins that special election will finish the last four years of Sen. Inhofe’s term and then be back on the ballot again in 2026 with the rest of Senate Class II. (Sen. Inhofe last won reelection in 2020.)

As readers are well aware, the U.S. Senate is currently divided evenly between the two parties. There are 50 Republicans and 2 independents who caucus with Democrats. Vice President Kamala Harris casts the deciding vote on controversial matters, which means Democrats have the slightest possible Senate majority. For the Democrats, losing just one seat this November means losing control of the chamber.

Control of Congress is not the only thing riding on the outcome of November’s election—so is the Senate agenda for the lame duck session. If Democrats keep control of the Senate, they will have more breathing over the next two years to tackle important matters, especially nominations. If they don’t, it will be an even busier-than-usual December.

Before talking about policy, let’s see where the politics stand.

Which party is likely to control the Senate?

Senate Democrats came into the 2022 midterm elections with a distinct advantage. Not only does the party already control the Senate, albeit narrowly, only 14 of the 35 seats on the ballot this year are currently held by the party.

In other words: Democrats have a lot less ground in the Senate to defend than Republicans.

Republicans have 21 seats that are up for grabs, including that open seat previously held by Sen. Inhofe.

According to Cook Political Report, the gold standard for ranking the competitiveness of House, Senate, and gubernatorial elections, the majority of Senate races this year are not competitive. In those uncompetitive seats, the party that currently occupies the position is almost certain to retain it. Indeed, 8 of the 14 Democratic seats are classified as “solid” for that party while the GOP should not have any trouble holding 14 of its 21 seats.

For those who are keeping count, that means there really are only 13 seats where power could shift. Six of these — Arizona, Colorado, Georgia, Nevada, New Hampshire, and Washington—are held by Democrats. Seven — Florida, Iowa, North Carolina, Ohio, Pennsylvania, Utah, and Wisconsin — are held by Republicans.

The closest of these 13 races are in Georgia and Nevada, seats held by Democrats, and in Pennsylvania and Wisconsin, where a Republican currently occupies the post.

As these numbers make plain, the Senate is either party’s game to win — or lose.

While the number of competitive races for each party is fairly even, history is not on Democrats’ side. Since World War II, the party of the incumbent president loses an average of four seats in the Senate during a midterm election year.

And then there is this: at least one recent public opinion poll has generated heartburn among Democrats this week.

A New York Times/Siena College survey released on Monday found Republicans have a slight edge over Democrats on the generic congressional ballot question. This is the question that asks, in general, which party a voter favors. The New York Times survey had Republicans up 49 percent to Democrats’ 45 percent. That balance is a shift from September when the same poll had Democrats ahead of Republicans by one point. (A Morning Consult poll out this morning still has Democrats leading by 1 point on the generic ballot, but Republicans have major advantages when it comes to handling issues like crime and the economy.)

That’s not all: in September, the New York Times survey showed Democrats had a 14-point lead with independent women. The survey that was released this week shows that Republicans now have an 18-point advantage with this important swing voting bloc.

Of course, President Joe Biden’s 43 percent average approval rating also is a concern for Democrats. President Bill Clinton’s approval rating was at 41 percent when his party suffered massive losses in 1994. President Donald Trump’s was at 43 percent when his party endured the same fate in the 2018 midterm elections.

Still, according to the elections website FiveThirtyEight, Democrats have a slight edge over Republicans when it comes to who will retain Senate power. The website’s latest prediction gives Senate Majority Leader Chuck Schumer (D-N.Y.) a 63 percent chance of keeping his current leadership post.

And what will the lame duck session of Congress look like in December if he does?

Let’s take a look.

Will it be a long December?

If Democrats keep the Senate, Majority Leader Schumer will have some breathing room when it comes to confirming the dozens of executive branch and judicial nominations that are pending before the chamber. As a reminder, confirmations only require a simple majority in the Senate, unlike most legislation.

According to a count by the U.S. court system, 44 Biden judicial nominations are currently ready to be heard and voted on by the upper chamber of Congress. Five of those are appeals court nominees and the rest are district court positions.

There are also 125 executive branch nominations pending before the Senate.

Majority Leader Schumer is under significant pressure to act on the nomination of Gigi Sohn to lead the Federal Communications Commission. Sohn has been held up because of her controversial views on net neutrality and her wariness of conservative broadcasters.

The Senate also still has plenty to do on the legislative side in addition to the fiscal year 2023 spending legislation that Congress must deal with by December 16.

As Politico noted, “Democrats put myriad other politically volatile items to the side before the election, leaving them to return in the final days of the 117th Congress. That includes bipartisan negotiations on legislation protecting same-sex marriage and modernizing the 19th-century Electoral Count Act, designed as a safeguard against future attempts to challenge fairly decided elections.”

The House has already approved its versions of those pieces of legislation. Senate Majority Leader Schumer has pledged to vote on both bills during the lame duck. If his party loses the Senate, he will be under increased pressure to keep those promises since neither bill would have any chance of making it through a Republican House and Senate. (Even so, both of these pieces of legislation are subject to filibuster rules. Majority Leader Schumer will have to attract 10 Republicans to support either bill in the lame duck if he wants to get them to President Biden’s desk before the next congress convenes.)

The Senate could be in for a big financial services-related fight as well. Sen. Richard Durbin (D-Ill.) has offered an amendment to the National Defense Authorization Act (NDAA) that is sure to rile credit card companies and the payments industry.

The Credit Card Competition Act (CCCA) of 2022 would build off of debit card competition reforms enacted by Congress in 2010 that capped debit card interchange rates, among other provisions. Durbin’s new bill would expand the scope of these fee caps to credit cards.

This effort is a bipartisan one. Sen. Durbin’s cosponsor is Sen. Roger Marshall, a Republican from Kansas. In the House, cosponsors are Reps. Peter Welch (D-Vt.) and Lance Gooden (R-Texas).

Banks and credit card companies already are lobbying hard against this provision. On October 4, the American Bankers Association wrote a letter to the leaders of both the House and Senate arguing, “The CCCA will not increase competition in the credit card marketplace, but it will benefit multi-national retailers at the expense of consumers and community financial institutions, including those serving members of the military. It does so by reducing the number of credit card issuers competing for consumers’ business, removing a consumer’s choice of preferred card network, reducing the competitive differences among card products, limiting popular credit card rewards programs, and putting the nation’s private-sector payments system under the micromanagement of the Federal Reserve Board.”

The ABA also said the bill will “make it more difficult for merchants and federally- insured financial institutions to prevent fraud and protect the transaction data.”

With interest rates rising (and hurting consumers whether they are Republicans or Democrats), will federal lawmakers listen?

We will have to wait until just after the 2022 election to find out.

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