Legal and Regulatory

The Once and Future Congress

Reviewing the first session of the 117th Congress and looking ahead to the 2022 midterm elections—including the potential effects of retirements and redistricting.
By Shreya Kanal
January 24, 2022
Topics
Legal and Regulatory

Once it became clear that national Democrats would have control of the White House and Congress, then-newly inaugurated President Joe Biden’s legislative and regulatory agenda was given a huge boost heading into 2021—the first session of the 117th Congress. As promised on the campaign trail, President Biden led his domestic agenda with a $1.9-trillion COVID-19 relief package, titled the American Rescue Plan. In line with priorities to address the ongoing COVID-19 pandemic, Congress was able to pass the measure via the budget reconciliation process, securing the first legislative win of the Biden era.

Following the passage of the American Rescue Plan, the White House turned its focus to an ambitious domestic agenda broken into two plans: the American Jobs Plan and the American Families Plan. Turning to the infrastructure-focused American Jobs Plan first, the administration chose to ultimately seek bipartisan agreement on an issue that had evaded past presidents and congresses. Shaped by 21 U.S. senators on both sides of the aisle, the final product of months of negotiations was the Infrastructure Investments and Jobs Act, which allots more than $1 trillion to modernize the nation’s most critical infrastructure through the end of the decade.

The IIJA contains increased funding for the nation’s infrastructure accounts and programs, which will provide critical opportunities for America’s construction companies. Other policy victories—supported by Associated Builders and Contractors—include funding for public-private partnerships, increased focus on state-driven workforce development programs and federal permitting reform. But the IIJA included several anti-competitive provisions, which ultimately led to ABC remaining neutral on its passage.

After the IIJA was signed into law, Congress moved forward with the Build Back Better Act, meant to fulfill the second portion of President Biden’s domestic plan. The act has proven to be an issue for Democrats, faced with internal disagreements about the scope of the bill, relief for state and local taxes, child-care and tax credits, energy policy, labor requirements, as well as concerns over the bill’s effect on inflation and the overall economic health of the country. While President Biden had hoped this signature legislation would pass ahead of the new year, U.S. Sen. Joe Manchin (D-WV) announced his opposition to the package in late December, effectively killing the bill in its current form.

Several other bills passed by the House have been stalled in the Senate, some of which could have a devastating impact on the construction industry, such as the Protecting the Right to Organize Act—which would repeal right-to-work laws; strip workers of the privacy, freedom and choice to refuse union representation; and implement restrictions on independent contractors. Additionally, the House has passed the National Apprenticeship Act, a bill that would significantly limit apprenticeship opportunities throughout the country. These bills would further restrict small businesses’ ability to compete, limit job opportunities in the construction industry and create additional obstacles for the construction industry to meet future workforce demand and needs.

As the president continues to push for passage of this key piece of his legislative agenda into the 117th Congress’ second session, the legislative branch will begin to shift its focus to the 2022 midterm elections—the results of which will determine the future success of President Biden’s agenda.

2022 Election Outlook

As Washington prepares for the 2022 midterm elections with persistent inflation, supply-chain troubles, a COVID-19 reemergence and a stalled domestic agenda in Congress, Republicans seem poised to win the majority in the U.S. House of Representatives, while Democrats will need to overcome these significant barriers both to retain their Congressional majorities and to build on their legislative victories from the current Congress.

The recent upset in the 2021 Virginia governor’s, lieutenant governor’s and attorney general’s races could be seen as a precursor for Republicans prospects in 2022. Political newcomer Glenn Youngkin (R) defeated former Gov. Terry McAuliffe (D) in a Virginia gubernatorial contest that notched record-setting voter turnout, becoming the first Republican to win a Virginia statewide office since 2009. In addition to Youngkin’s win, Republicans swept the top down-ballot statewide races. Republican Winsome Sears defeated Democrat Haya Ayala to become the first African American lieutenant governor in state history. Jason Miyares (R) defeated two-term incumbent state Attorney General Mark Herring (D) to take over as Virginia’s top law enforcement officer, and is the first Cuban American to win statewide office in Virginia. After losing the majority in the House of Delegates in 2019, Republicans also secured a 51-49 advantage over Democrats, taking back the state’s General Assembly.

Republicans will look to replicate the success in Virginia in 2022, as they seek to take advantage of several key factors, including capitalizing on open seats and the seats made more competitive through the redistricting process.

Retirements, Resignations and Redistricting

Further headwinds facing Democrats in the 2022 election cycle include a slew of retirement announcements from many senior Democratic lawmakers. As of Dec. 22, 2021, the House Democratic Caucus had had 23 members retire or announce plans to seek other office. As for House Republicans, only four are retiring and nine are seeking other office.

Among the notable retirements, Senate President Pro Tempore Patrick Leahy (D-VT) first elected in 1974, made the surprise announcement that he will not seek a ninth term in 2022. At-Large Rep. Peter Welch (D-VT) has announced his Senate candidacy and is expected to be the prohibitive front runner to replace Leahy. Leahy’s retirement also means that the top two members of the powerful Senate appropriations committee will not be returning to the upper chamber next year, as Sen. Richard Shelby (R-AL) is also retiring.

Rep. Peter DeFazio, D-OR, chair of the House Transportation and Infrastructure Committee, announced he will also retire after completing his 18th term this year. He is ranked sixth in House seniority. Republican Senators Pat Toomy (PA), Roy Blunt (MO) and Rob Portman (OH) have also announced their upcoming retirements. Meanwhile, Republican Reps. Louis Gohmert (TX), Vicky Hartzler (MO), Billy Long (MO) and Ted Budd (NC) have announced their bids for Texas attorney general, Missouri Senate and North Carolina Senate, respectively.

At the state level, Republican Massachusetts Gov. Charlie Baker has announced that he will not seek a third term, opening up the seat for Democrats to take control. A moderate Republican with enduring support among Democrats and independents, Baker was the GOP’s best hope of holding onto the governor’s office in deep-blue Massachusetts. Baker’s move has changed the field for the Massachusetts gubernatorial contest and will ripple across down-ballot races in 2022.

Meanwhile, the North Carolina map is the national Republicans’ best to date. Under the enacted map, Rep. Kathy Manning (D) and Rep. Virginia Foxx (R) are paired in a new 11th District that would heavily favor the GOP nominee. Barring any legal challenges, Republicans could net as many as three seats in the North Carolina delegation.

In West Virginia, it came as little surprise that Rep. Alex Mooney (R), whose 2nd District lies in the middle of the state, was collapsed. With the redistricting, West Virginia has gone from three seats to two seats.

In Georgia, two-term Rep. Lucy McBath (D) announced that she will depart her current 6th District since its new constituency trends strongly Republican. Instead, she will challenge freshman Rep. Carolyn Bourdeaux (D) in the adjacent 7th District in next year’s Democratic primary.

In all, 43 House seats have been affected thus far, with four sitting members having announced their intentions to run for seats they don’t currently represent. A total of 157 congressional districts have been drawn so far. Ninety seats have a FiveThirtyEight partisan lean of R+5 or more, 55 have a partisan lean of D+5 or more and only 12 are in the “highly competitive” zone between R+5 and D+5. Compared with the old lines, this represents a net gain of six Democratic-leaning seats and two Republican-leaning seats and a net loss of five highly competitive seats.

For the construction industry, the outcome of these midterm elections will help inform future decision making, as a flip of at least one chamber of Congress, if not both, will not bode well for President Biden. Instead, this potential flip could result in a renewed focus on the regulatory battles emerging from the several agencies that formulate rules for the industry. ABC will continue to focus on delivering value for members through advocacy efforts to produce key victories for merit shop construction companies while pushing back against harmful proposals.

by Shreya Kanal

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