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Monthly Legislative Newsletter: November 2022
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Congressional State of Play

On November 8, 2022, American voters went to the polls to determine control of the 118th Congress. In an environment largely thought to heavily favor Republicans, Democrats were able to retain control of the Senate. Although results in the House of Representatives are not yet finalized, Republicans will control the chamber with a slim majority, far from the 20-25 seat majority originally expected.

Up until election night, it was a foregone conclusion that California Republican and current Minority Leader Kevin McCarthy would ascend to Speaker of the House. However, with the less than stellar results there is some willingness within the House Republican Caucus to explore other options. Former Freedom Caucus Chair Andy Biggs (R-AZ) mounted an unsuccessful challenge to Minority Leader McCarthy’s campaign for Speaker with McCarthy winning the GOP nomination by a vote of 188-31. However, McCarthy will still need to receive 218 votes on the House floor at the start of the 118th Congress. An outcome that is far from certain.

No matter who ultimately ascends to the speakership, a Republican controlled House of Representatives will have a number of priorities, most notably performing oversight of the Biden administration and specifically implementation of the Inflation Reduction Act. A common theme in Republican circles is to prevent another “Solyndra,” a solar company that received millions of dollars in loans from the Obama Administration and ultimately filed for bankruptcy approximately 2 years after receiving the loans.

While the House will likely flip to Republican control, Senate Democrats effectively defended their seats and even picked up a Republican held seat in Pennsylvania. Whether the Senate will be 50-50 or 51-49 will depend on the runoff in Georgia between incumbent Senator Raphael Warnock (D-GA) and Republican challenger Herschel Walker. That race will ultimately be decided on December 6, 2022.

Moving into the lame duck session, Congress has a number of “must pass” items it must address before the 118th Congress, including Fiscal Year 2023 appropriations legislation and the annual National Defense Authorization Act (NDAA). Congress will also seek to tie up a number of other loose ends, notably permitting reform legislation sought by Senator Joe Manchin (D-WV). Whether all of these items will be addressed before the new year is still up in the air as House Republicans, who will be soon to take over the majority, could push to delay into the new year, where they will have more leverage. Should a government funding deal ultimately come together, it could provide a vehicle for an end-of-year tax title, commonly referred to as “tax extenders.”

What the Election Means for Health Policy

Baseline:

  1. In 2020, the incoming Biden-Harris Administration campaigned on ending the COVID-19 pandemic, lowering prescription drug prices, expanding the Affordable Care Act while reducing healthcare costs, expanding maternal health, and ensuring that healthcare is a “right for all.” The burden of delivering on these promises was alleviated by Democratic control of both the House and Senate, allowing for the successful expansion of the Affordable Care Act by the American Rescue Plan through increased subsidies that made health insurance more affordable.
  2. While the Inflation Reduction Act included comprehensive drug pricing reform, President Biden and Congressional Democrats have not succeeded in pushing a government-run “public option” within the Affordable Care Act across the finish line.
  3. The Administration released the Maternal Health Blueprint that delivers for women, mothers, and families earlier this year, setting the stage for future agency action.
  4. In June 2022, the Supreme Court of the United States overturned the constitutional right to an abortion, going against precedent that began with Roe v. Wade.

Status:

  1. Appropriations legislation has stalled in Congress. Republicans, in anticipation of taking over the House, could wait for the 118th Congress to finalize federal funding. A short-term continuing resolution to carry over funding until January will better allow Republicans to protect their interests.
  2. Final funding levels for medical research and Advanced Research Projects Agency for Health (ARPA-H), the new federal entity that has yet to be authorized, become more uncertain with a divided government.
  3. The bipartisan Cures 2.0 Act, comprehensive medical research legislation introduced by Representatives Fred Upton (R-MI) and Diana DeGette (D-CO) that builds upon the success of the 21st Century Cures Act, has stalled in the House of Representatives with little likelihood of being considered before the start of a new Congress.

Pulse Check:

  1. Although divided government will make it difficult to enact broad healthcare legislation, the Republican-led House will be keen to advance mental health legislation and conduct oversight of the U.S. healthcare system in response to recent expansions of the Affordable Care Act.
  2. With Rep. Fred Upton’s (R-MI) retirement and no clear Republican champion, the future of the Cures 2.0 Act now hangs in the balance. In the absence of a new Republican lead cosponsor, its future could idle indefinitely, as partisan legislation with a big price tag is unlikely to progress through the Republican-controlled House.
  3. While the overruling of Roe v. Wade was a key driver of turnout during this election, Democrats’ campaign promises to protect reproductive rights face an uphill battle in the divided 118th Congress. Divided power limits legislation opportunities to middle-of-the-road initiatives, and it is unlikely that Republicans and Democrats could reach a consensus on any sort of reproductive rights legislation.
  4. With a split Congress looming on the horizon, many Democratic priorities will languish unless President Biden exerts executive authority. However, with the President heading into the second half of his term, executive discretion could be tightly controlled by a Congress with at least one house controlled by Republicans seeking to thwart executive action. That said, healthcare issues are a priority for the Administration and Democratic Party alike, so look for President Biden to use every available executive tool (including executive orders and regulations) to protect reproductive rights, and to expand both maternal health and access to healthcare for underserved communities.

FY23 Appropriations Update

Baseline:

  • Traditionally, government funding runs out at the end of the fiscal year, September 30, 2022. Congress passed a Continuing Resolution (CR) on September 29, 2022 to avert a government shutdown and fund the government through December 16, 2022.
  • Congress has completed the appropriations process before the start of the fiscal year only 4 times in the last 40 years with the last time being over 20 years ago, in 1996.
  • Senate Appropriations Committee Chair Patrick Leahy (D-VT) and Vice Chair Richard Shelby (R-AL) are retiring at the end of the 117th Congress.

Status:

  • The House of Representatives passed their government funding package earlier this year, while the Senate has yet to move on any appropriations legislation. However, in July, Chair Leahy released draft text of the Senate legislation.
  • The House and Senate attached supplemental appropriations to the CR to support Ukraine in its war with Russia. Further support to Ukraine is an additional topic of debate for the House and Senate Appropriations Committees.
  • The House and Senate are currently in negotiations to fund the government before the CR deadline of December 16, 2022. If a deal between the House and Senate does not come together before that time, another CR might be necessary.

Pulse Check:

  • With Chair Leahy and Vice Chair Shelby retiring, there will be new leadership at the top of the Senate Appropriations Committee. Should Democrats hold on to the Senate, Senator Patty Murray (D-PA), current Chair of the Labor, Health, and Human Services Subcommittee will likely assume the Chair of the full committee.
  • On the Republican side, Senator Susan Collins (R-ME) is likely to assume Vice Chair Shelby’s leadership position on the full committee. Current Senate Minority Leader Mitch McConnell (R-KY) outranks Senator Collins on the committee; however, he is ineligible due to his role as the Republican Leader.
  • With the House flipping to Republican control, current Ranking Member Kay Granger (R-TX) will assume the role of Chair while current Chair Rosa DeLauro (D-CT) will move into the Ranking Member spot.
  • Whether an ultimate omnibus deal comes together will likely be determined by who controls the Senate. Should Republicans flip the Senate and control both chambers, they are likely to force another CR until the new Congress and pass legislation that focuses on Republican funding priorities.