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The Only Certainty in Next Split Congress is Uncertainty, Experts Say

A uniquely divided Congress has few historical precedents.

Nearly 10 days following the Nov. 8 midterm elections, the nation finally has some governing clarity: Republicans will hold what could end up being the slimmest majority ever in the House—several races are still tabulating votes—and Democrats have secured the slimmest of majorities in the Senate.

Immediately after the election, Nextgov spoke with experts regarding how a split Congress might affect tech policy, budgeting and oversight and Biden administration priorities. With a split Congress now a certainty amid historically slim margins, Nextgov reached back to experts seeing what—if anything—has changed with most of the election dust now settled. As it turns out, federal IT may be one of the least impacted areas in Congress, with most everything about as clear as mud.

“I’m hesitant to say how the leadership and subcommittees will work, and we don’t know yet if it is going to be a scorched-Earth Congress,” said Stan Soloway, president and CEO of Celero Strategies and a former Defense Department acquisition official. “None of this typically impacts issues like IT modernization that we care about at a high level, but a split Congress does make it harder to get anything done. Will we get funding for the [Technology Modernization Fund]? Will we have advocates on both sides of the aisle? There’s a lot we just don’t know.”

Through Republican and Democratic presidents and split Congresses over the past five years, one constant has been increasing federal IT budgets.

Mike Hettinger, president and founding principal of Hettinger Strategy Group and former House Republican Leadership chief of staff and committee staff director, said the next few months will be both critical and telling for Republicans. Key committees, including Oversight, Judiciary and Armed Services, will have to hire up professional staff as new committee leaders and members coalesce around their main priorities. Early on, Republicans, including current House Minority Leader Kevin McCarthy, R-Calif., have signaled an investigation-heavy agenda. Targets include the Biden administration’s COVID-19 response, the withdrawal of troops from Afghanistan and Hunter Biden, the president’s son.

“I think you’ll see a very aggressive oversight agenda across the board,” Hettinger said. “On technology and other things, it’s going to take some time to get settled in. Our world [in government technology] has always been bipartisan and I’ve always felt oversight committees will battle hard over things like subpoenas and then move on to the next few agenda items without a problem.”

With a House majority, Hettinger said Republicans will want to cut government spending. Spending bills originate in the House but require Senate approval, so gridlock, fireworks and continuing resolutions on spending are certainly possible. Such slim margins could force unconventional partnerships and deal making between members of opposing parties.

“There is going to be some forced moderation especially on budget stuff,” Hettinger said. “Republicans will want to make cuts, but Democrats controlling the Senate will not allow those cuts to go forward, so where those cuts come will remain to be seen,” Hettinger said. “In order to get anything done, they’ll have to come up with a plan everyone can agree to.”

One key legislation to watch will be the 2023 National Defense Authorization Act. McCarthy on Wednesday signaled he might delay its passage until next year, citing “the woke-ism [Democrats] want to bring in there.” It has been more than 60 years since Congress failed to pass its most important defense bill by Jan. 1.

Tech activists have low expectations for substantive Congressional action on other tech policy initiatives.

“Tech policy debates in Congress have been pretty frustrating over the last couple years, and they’re going to get at least a little bit worse,” online advocacy group Fight for the Future said in an election recap.

Congress’ lame duck session is likely the last chance for two antitrust bills, the American Innovation and Choice Online Act and Open Act Markets Act. Comprehensive federal data privacy legislation is unlikely, with major differences in what Democrats and Republicans are willing to accept.

On Section 230 reform, Fight for the Future warned against “unholy alliances” between the parties that lead to legislation that does more harm than good. Section 230 reform has been championed in recent years by both political parties. The language is a portion of the 1996 Communication Decency Act that absolves internet services from being liable for third party content published on their platform, and it has been a hot-button tech issue as misinformation and disinformation on social platforms has become part of the electoral norm.

“If you want to get Section 230 reform done, you’re going to have to write a bill that gets 120 Democrats and 120 Republicans, and I don’t know how you write that bill; that’s tough,” Hettinger said. “There’s going to be a bunch of things like that.”

Hettinger speculated that on important legislation, moderate Republicans—“those willing to come together to get things done”—may wield more power than fringe members in the oft-wieldy House.

“They’ll have to figure out how to govern,” Hettinger said. “Governing is a lot more difficult than screaming about what you don’t like. This is kind of uncharted territory.”