Despite a divided government, the next Congress will provide opportunities for cooperation

In 2009, shortly after taking office, President Obama reminded his Republican critics, “We’re not campaigning any more. … The election’s over.”  A few races notwithstanding, the 2018 midterm elections are now over, and as Washington moves from unified Republican control to divided government, the salient question is: can both parties can move past the last election and find common policy ground for the brief period before the 2020 election season begins in earnest? As former leadership staffers who have served during divided government, we believe they can and will succeed in doing so.

Conventional wisdom tells us that ‘this is the most historic midterm election in history.’ Democratic gains in the House were no doubt significant, but President TrumpDonald John TrumpTrump: 'I will not let Iran have nuclear weapons' Rocket attack hits Baghdad's Green Zone amid escalating tensions: reports Buttigieg on Trump tweets: 'I don't care' MORE now joins Presidents Reagan and Obama, both of whom were forced to govern having held the Senate and lost – or further lost, in Reagan’s case – the House. And mere partisan division does not dictate gridlock.


House Democrats will find themselves forced to walk a tightrope — fulfilling their calls for greater transparency and accountability as a check on the administration, while also moving the dial on pressing policy priorities, such as health care, infrastructure and retirement security. As a result, House Democrats will not necessarily follow a one-size-fits-all approach to congressional oversight and in certain instances will seek to take a measured tone in order to protect the potential for bipartisanship on other fronts. For the business community, that will translate into potential investigations touching private-sector entities that have either benefitted from regulatory decisions by the administration or that do significant business with the federal government.

Beyond investigations and oversight, Democrats will want to put points on the board on the policy front. This will be especially true for the newly elected members of the Democratic Caucus, who were elected on promises of breaking the gridlock in Washington. Having run, and won, on the issue of health care, they will seek to amend and improve—rather than repeal and replace—the Affordable Care Act.

Many of these members were also elected in suburban districts where the Republican tax cut package was characterized as a giveaway to corporations at the expense of homeowners and those living in high-tax states. So, while Democrats will not follow the Republican lead on the Affordable Care Act and attempt a full repeal, we can expect a thorough review of the new law. And, given the depth of the corporate rate relief, limitations on state and local tax deductions, the generous treatment of pass-through businesses, cuts in the top marginal rates, and estate tax relief, a discussion of whether some of these provisions need to be re-worked will occur. Some of these changes might also be considered as ways to finance either key investments or additional middle-class tax relief.

In the Senate meanwhile, nominations remain the name of the game for Republicans. As was evident in the decision to hold nomination hearings in the Judiciary Committee in October even as the rest of the Senate was in recess, the continued staffing of the federal courts remains a priority for Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBolton emerges as flashpoint in GOP debate on Iran On The Money: Treasury rejects Dem subpoena for Trump tax returns | Companies warn trade war about to hit consumers | Congress, White House to launch budget talks next week | Trump gets deal to lift steel tariffs on Mexico, Canada Schumer calls on McConnell to hold vote on Equality Act MORE (R-Ky.) and Senate Republicans. The demand to use floor time for nominations will only increase as additional Cabinet and Cabinet-level nominees require confirmation. And, given the pressure that these nominations put on the floor schedule, additional changes to rules governing the Senate’s executive calendar might be considered.

Partisan priorities aside, at some points the Trump/Nancy PelosiNancy Patricia D'Alesandro PelosiPelosi receives John F. Kennedy Profile in Courage Award Dems walk Trump trade tightrope Tlaib calls on Amash to join impeachment resolution MORE/McConnell Venn diagram do intersect, providing opportunities for significant legislation. Though the issue remains highly controversial among legislators, congressional Democrats and the president will attempt to find common cause on the issue of drug pricing. Most members of Congress are theoretically interested in an infrastructure package, even as agreement over financing remains elusive. With the California data privacy statute coming online in January 2020, it seems likely that Congress will act to provide some uniform federal standards. Pockets of intense opposition remain, but bipartisan majorities exist for criminal justice reform. Trade policy — both trade deals and tariffs — will continue to be front and center for the administration and Congress. Though it has been long-promised, perhaps 2019 is the year for housing finance reform finally to get across the finish line. And finally, there is the matter of appropriations and the debt. A caps deal, continued regular order on appropriations and an extension of the debt limit is in the interest of both parties.

President Obama was only partly correct in 2009. The election might have been over, but the campaigning never completely stopped. That’s not necessarily a bad thing. Different people, with different experiences, and represented by different parties, disagree on critical issues. Still, America’s institutions are resilient and will remain a place where differences can be worked through by those with a shared interest in governing.


Divided government has often been an opportunity for grand bargains on big ideas, such as Ronald Reagan and Tip O’Neill on tax reform and Bill ClintonWilliam (Bill) Jefferson ClintonDe Blasio pitches himself as tough New Yorker who can take on 'Don the con' WANTED: A Republican with courage Democratic leaders' impeachment tightrope MORE and Newt Gingrich on welfare reform and a balanced budget. While it may be a long shot to think President Trump and a likely-House Speaker Pelosi will find consensus on landmark legislation, we believe there are still several opportunities for consensus and common ground in the next Congress.

That doesn’t mean that it will be easy sledding. Even as Senate Republicans expanded their majority, last week was a setback for the GOP. And if the 2016 cycle was any guide, we will be tuning in to Democratic presidential debates in a matter of months. The temptation will be for the president to turn to his ‘phone and pen,’ focusing exclusively on regulatory policymaking. For House Democrats, the temptation will be to focus exclusively on partisan priorities. And for Senate Republicans and Democrats, there is always the danger of gridlock. But make no mistake. Come January 2019, the window for legislation is open, even if only for a while.

Arshi Siddiqui and Brendan Dunn are partners in Akin Gump’s public law and policy practice. Prior to joining Akin Gump, Ms. Siddiqui served as senior policy advisor and counsel to former House Speaker Nancy Pelosi (D-Calif.), and Mr. Dunn served as policy advisor and counsel to Senate Majority Leader Mitch McConnell (R-Ky.).