Thoughts from a Former Congressman: Three Post-Election Scenarios

22 July 2020 2020 Election Resource Center Blog
Authors: Michael E. Capuano

It seems everyone agrees that Washington has been dysfunctional for a while. Today, in both parties, every proposal to save the economy or stop the pandemic initiates both an intra-party and inter-party conflict. To me, it is somewhat reassuring that a few bills have actually made it through the process. If it is this difficult getting agreement during a double-barreled crisis in the middle of a national election, I think it is fair to ask what the future offers for American politics.

The short answer – I don’t know (and neither does anyone else). For a longer answer (and my background gives me as good a platform to prognosticate as anyone), let’s look at three post-election scenarios that may occur in Washington, D.C. starting January 21, 2021, the day after the Inauguration of the President.

As I write, 

  • It is universally agreed that the Democrats will retain control of the House.
  • The current consensus is that the White House will likely be occupied by a Democrat. Biden has led in every single poll taken since February and polls taken in July range from a 4 to 10-point spread. Nonetheless, modern polling is suspect and some would argue that Trump should be down even more after the last few months.
  • The Senate is a toss-up with a decent chance it could be split 50-50. No one believes either party will win 60 seats, so the filibuster continues to be a concern for all issues. With a split Senate, it is important to note that the Vice President casts tie-breaking votes!

So, let’s have some fun considering a few different outcomes.

Post-Election Scenario #1 - DIVIDED with a Republican advantage:

House = Democratic | White House = Republican | Senate = Republican (or tied with the Republican VP breaking ties)

My opinion – nothing significant changes. Hyper-partisanship would be considered a proven political path so there would be no incentive to change. Only essential bills pass through Congress and the White House fills the leadership void on most matters.

  • All three House leaders are 80 years old. Many believe there may be new House Democratic Leaders after this election; even if there are no immediate changes, the jockeying for these positions will intensify dramatically. This could further exacerbate differences and wounds between the wings of the Democratic Party, which could in turn exacerbate intra-party divisions and make bipartisanship even less likely.
  • The make-up of the Supreme Court changes dramatically for a generation; the same happens in the lower courts. With little legislation adopted in a divided Washington, the judicial system could become the major battleground for change.
  • Economic policy on all levels moves further to the right. Income inequality increases, management power in the workplace increases, and the Federal Reserve moves further in line with the Trump White House.

Post-Election Scenario #2 – DIVIDED with a Democratic advantage:

House = Democratic | White House = Democratic | Senate = Republican

This situation is the most difficult to assess so I will delay my comments until after a few observations. Here are a few things to consider:

  • As soon as the 2020 election is over, 34 Senators start considering their own re-election in 2022. At least 20 of those seats are currently held by Republicans (two seats up in 2020 are to complete unexpired terms and they are up for a full term in 2022). Currently, only a handful of those 34 will be in play for party control, but that is all it could take. Besides, each Senator sees their own election as critical and suspect, and this concern could shape their actions more than public polls.
  • In 2010, Republican Leader Senator McConnell said, "the single most important thing we want to achieve is for President Obama to be a one-term president." Even if this attitude is repeated, it may be more difficult for McConnell and friends with Biden as President – unlike Obama, Biden is widely seen as “a Senator’s Senator” and is better positioned to fight against such an approach.
  • Within the Republican Party, the race to become the 2024 Presidential nominee will begin. There is a good chance that the various wings of the party will engage in the divisive battles they saw in 2012 and 2016. This battle will certainly affect a Republican-controlled Senate.
  • As described above, the battle for future leadership within the Democratic House could exacerbate intra-party divisions and make bipartisanship even less likely.

My opinion – under this situation some degree of bipartisanship reemerges in Washington. Both parties will engage in intramural battles between their respective wings. Nonetheless, many Democrats (starting with the White House) will need to be seen as effective. I believe there is a good chance that the less divisive issues such as infrastructure will be addressed in a meaningful way. Other issues such as climate change, health care, and housing could be addressed as well – as long as some Members can couch their arguments more as economic actions rather than the fulfillment of activists’ dreams.

Post-Election Scenario #3 – UNIFIED

Democrats continue to control the House, win the White House, and control the Senate (either a win or a split with a Democratic Vice President).

My opinion – clearly there will be many changes across the board. The biggest obstacle could be the intra-party fight between the wings of the Democratic Party.

  • Let me point out two such matters from the last time Democrats controlled Washington. First, climate change – although the Democratic House passed a “cap and trade” bill in 2009, the Democratic Senate with a 16-seat majority never even took it up for a vote. Second, immigration reform – again, the House passed the Dream Act of 2010 but the Senate refused to take it up. Emotional issues are always difficult, extremists always demand “more” or “less,” and the battle between the wings of the Democratic Party will matter more than the battle between the parties on these matters. Nonetheless, there WILL be immigration and climate change laws adopted because few Democrats could face re-election without something to show on these major issues.
  • Again, this entire situation could be impacted by any actual or imminent battle for party leadership positions.
  • Although the more difficult matters will eat up the headlines, I think a lot will get done with less controversy. Infrastructure will be done and bills will pass that address the widening income gap, racial justice, housing affordability, and other matters of social equity and justice.


Everything I say above could be wrong. I don’t know and neither does anyone else.

One thing is certain – no matter who wins, politicians will continue to change the world … including your world. If you are not represented at the table, with someone pushing your interests, then you run the risk of your interests being ignored or worse.

We have a great team at Foley who can help across the board and across the aisle - in Washington and in almost every state. Reach out to your Foley contact. It’s never too early to discuss your strategy. 

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.


Related Services