Two weeks after the 2022 Midterm Elections, we now have a clear(er) understanding of the balance of power in the U.S. House of Representatives and the Senate in the new Congress. With all but one Senate race yet to be called (Sen. Raphael Warnock is set for a December 6 runoff election against Herschel Walker) and 4 seats remaining uncalled in the House, the legislative branch will see divided control for the next two years – Democrats retaining the Senate and Republicans winning the slimmest House majority in almost a century, a margin currently sitting at R+6.

What does this mean for the many pieces of tech legislation currently making their way through the two chambers?

  • Tech legislation will continue to be a priority for both sides of the aisle in the House and Senate
  • The Senate has seven new members joining the chamber – a majority of whom have criticized internet platforms for a number of reasons, including competition content, encryption and privacy
  • Senate committees with jurisdiction over tech will likely remain under the same Democratic leadership
  • House committees with jurisdiction will now be led by vocal tech critics, some of whom cosponsored tech legislation with Democrats in the 117th Congress

With slim majorities in both chambers, reaching bipartisan consensus on tech legislation will be difficult, and many committees on the House side will instead use their time for oversight hearings on the Biden administration.

  • The Biden Administration passed several large spending bills in the 117th Congress, which included billions of infrastructure dollars and other programs to bridge the digital divide. Look for the GOP led House to use its oversight authority to dive into many of the activities funded by these bills. We anticipate FCC Chairwoman Jessica Rosenworcel and her fellow Commissioners will be repeat visitors to the House Energy & Commerce committee.

What tech bills remain unpassed as the Congress begins its lame duck work? 

Here are a few of the bills both chambers still have outstanding:

Content Moderation

  • EARN IT Act
  • Protect Speech Act

Algorithmic Transparency

  • Justice Against Malicious Algorithms Act

Competition

  • American Innovation and Choice Online Act
  • Open App Markets Act

Privacy & Security

  • Kids Online Safety Act
  • Children and Teens' Online Privacy Protection Act
  • American Data Privacy & Protection Act

Internet Commerce

  • INFORM Consumers Act
  • SHOP SAFE Act

With a stacked schedule of “must pass” legislation, it is likely many if not all of these bills will need to be revisited in the 118th Congress.

Lastly, what do the caucus elections mean for tech legislation in the 118th Congress?

Speaker Nancy Pelosi announced last week that she will not run for Democratic leadership in the House, ending her tenure which began over 20 years ago. Democratic Whip Steny Hoyer also chose to retire from Democratic leadership, a position he has held since 1989. This historic change will likely usher in a trio of Speaker Pelosi acolytes to the top three positions – Minority Leader candidate Hakeem Jeffries, Minority Whip candidate Katherine Clark and Democratic Caucus Chair candidate Pete Aguilar. Current Majority Whip James Clyburn is expected to run for Assistant Leader and stay in leadership as number four in command. Democrats will hold their election on November 30.

The GOP Caucus already held its election even prior to clinching the 218 majority needed to win the chamber. There were few surprises: Minority Leader Kevin McCarthy was nominated to be Speaker (the 118th Congress will need to formally elect him speaker in January), Minority Whip Steve Scalise was elected Majority Leader, outgoing NRCC Chair Tom Emmer was elected Majority Whip and GOP Caucus Chair Elise Stefanik remains in the same position.

It remains unclear what historic new leadership in the minority will mean for Democrats’ efforts on tech policies, but with current Republican leaders taking power of the chamber, it is likely current tech legislation introduced by GOP members will receive more attention in committees.

In the Senate, leadership is likely to remain the same in both caucuses. Republicans re-elected Minority Leader Mitch McConnell and Minority Whip John Thune to their positions. Democrats will hold their leadership after the December 6 runoff election in Georgia, but it is likely to be Majority Leader Chuck Schumer and Majority Whip Dick Durbin at the helm of the caucus.

With the status quo remaining in the Senate, tech legislation will remain a top priority in the chamber.