Nothing’s decided yet, but we might be headed to a new era of divided government

This story was updated at 8:30 a.m. EST on Nov. 9. 

After two years of the Democrats controlling the House, Senate and White House, the Biden administration might have to navigate a divided government as it works to curb the almost three-year pandemic, run and fund the government, and carry out its policy priorities.

On Wednesday morning, control of the Senate remained a toss-up and the House was leaning Republican. Between states’ laws on counting ballots and the rise of vote-by-mail,  it could be days or weeks before the final results are declared. And none of that accounts for election challenges in the courts.

A Republican-controlled House will likely mean more investigations into the Biden administration, more of a challenge in the government funding process and potential impeachment attempts of top Biden officials. However, as Government Executive reported last week, "historically, midterm elections haven’t had much impact on reducing the size of government or changing the way it is managed.” 

Nevertheless, House Minority Leader Kevin McCarthy, D-Calif., who is in line to be House speaker if the House flips, told CBS News on Tuesday night that a Republican-majority House would investigate the Biden administration’s COVID-19 policies, the U.S.’s withdrawal from Afghanistan, and the Justice Department as well as push for spending cuts as the deadline for the debt limit nears. 

Also, under the potential leadership of Rep. James Comer, R-Ky., who is currently the ranking member of the House Oversight and Reform Committee, the House’s main investigative committee, plans to investigate the Biden administration’s border policies, Biden family members and the origins of COVID, the congressman previously told Government Executive.

“I plan on doing that because everything that we do, that my name is a part of on oversight, everything is going to be credible and factual, and we're not going to mislead the American people,” Comer said. 

Meanwhile, a committee spokesperson for the Democrats, said, “Republicans have made clear that they plan to continue attacking President Biden and his family to score cheap political points and distract from their extreme, unpopular agenda that most Americans reject.” 

Another possible roadmap for investigations is a report the Republicans on the House Judiciary Committee released last Friday, alleging vast politicization of the Justice Department and FBI under President Biden. This comes after a wave of bad-mouthing and threats against FBI agents after the agency executed a search warrant on former President Trump’s Mar-a-Lago resort. 

When asked for comment on the report, the FBI told Government Executive that, “the men and women of the FBI devote themselves to protecting the American people from terrorism, violent crime, cyber threats and other dangers,” and do so “without regard for politics.” Additionally, “while outside opinions and criticism often come with the job, we will continue to follow the facts wherever they lead, do things by the book, and speak through our work."

Politico reported in early October that “there is a growing confidence both in and outside the White House that the Republicans who are readying a smorgasbord of investigations will end up overreaching and that the probes will ultimately boomerang to Democrats’ political benefit.” While the White House has been preparing for possible Republican investigations since 2020 “the efforts have accelerated since veteran D.C. lawyer Dick Sauber joined the administration in May as special counsel focusing on oversight, with Ian Sams managing comms,” Politico said. 

If the Senate flips, then it could lead to more roadblocks in the Biden administration’s confirmations process, in addition to Republican senators launching their own investigations. Of the 810 positions The Washington Post and Partnership for Public Service are tracking, the president has yet to nominate 79, three are awaiting formal nomination, 124 are being considered before the Senate and 465 have been confirmed. 

One of those yet to be confirmed is the nominee to be administrator of the Office of Information and Regulatory Affairs, which has been referred to as “the most important job in Washington that no one ever heard of.” With a divided government, use of regulations to get things done will likely become increasingly important to the Biden administration. 

Sen. Rand Paul, R-Ky., who could become chairman of the Senate Health Labor and Pensions Committee, won his reelection and said that in that role, he will subpoena all documents from Dr. Anthony Fauci, director of the National Institute for Allergy and Infectious Diseases and the president’s chief medical adviser, as part of investigations into the origins of COVID-19, Fox News reported. Paul often spars with Fauci during hearings. 

The midterms could also bring back a slew of former Trump officials to government, as several are running for seats. 

Sarah Huckabee Sanders, Trump’s press secretary, won the governor’s race in Arkansas. Max Miller, former Trump director of presidential advance, is projected to win a House seat in Ohio. And there are others, as NBC News previously outlined. Scott Pruitt, former administrator of the Environmental Protection Agency, also ran for a Senate seat in Oklahoma, but he lost in the primary. 

In the lame duck session, the White House and Congress have to come to an agreement to fund the government as the continuing resolution runs out on December 16 and enact the must-pass massive defense policy bill (that unrelated items often get tucked into), among other legislative priorities. This could be difficult if there is a newly emboldened Republican party. 

Now that the midterms are coming to a close, all eyes are on the 2024 presidential campaign. Former President Trump, who is facing a slew of legal challenges and investigations, is expected to announce his third bid for the White House soon. During a rally on Tuesday night he said, “I’m going to be making a very big announcement on Tuesday, Nov. 15 at Mar-a-Lago in Palm Beach, Florida.”

Correction: An earlier version of this story incorrectly stated that Sarah Huckabee Sanders was Trump's first secretary. She was not first.