With Divided Government Likely, Don’t Sleep On Federal Agencies

While the nation anxiously awaits the final margins in the House and Senate, President-elect Joe Biden’s transition team has already started making moves. He will begin announcing major appointments in the coming days and weeks. With a divided government looking increasingly likely, these decisions are far more impactful than one might assume, as an astonishing amount of policy-making will be delegated to dozens of different federal agencies. 

For many organizations—including corporations, nonprofits, advocacy groups, and more—the biggest, most relevant policy shifts will happen within the walls of federal agencies. Savvy beltway operators will keep a close eye on how agencies are being staffed and what their new directors—responsible for enacting President-elect Biden’s policy priorities—announce as their priorities when they’re sworn in this January.

Each agency has a different organizational structure, unique mandates, and varying degrees of autonomy (in some cases, the authority includes the power to write rules and regulations without congressional oversight). Some agencies will host a number of political appointees, while others are predominately staffed by career civil servants. Understanding these differences is key to navigating the new executive landscape.

In the past few years, the rate at which Congress has passed legislation has dramatically declined. In lieu of legislative action, agencies have risen up to fill the void. Members of Congress and outside groups alike (such as the Federalist Society, a prominent conservative legal group) have voiced their opposition to the executive branch’s growing responsibilities and powers, even going so far as to question the constitutionality of the process at large. But barring a major shift in Congress’ appetite to reverse the trend, the rulemaking process is here to stay.

So what does this mean for the months ahead?

Get ready for bruising confirmation battles

Regardless of the outcomes of the Georgia runoffs, President Biden will face a Republican majority in the senate or the narrowest possible Democratic majority. Either will complicate President Biden’s efforts to staff the major agencies. Even with a Democratic majority, moderates like Senator Joe Manchin and Senator Kyrsten Sinema may be unwilling to vote for confirmation of the progressive firebrands some members of the party will champion. This dynamic could be a powerful moderating influence on President Biden’s appointees, with major implications for the policies his administration is ultimately able to pursue.

In the days ahead, interest groups will begin launching campaigns to influence who Joe Biden nominates for hundreds of appointed positions. With a narrow Senate majority, it will only take one or two senators to change the final outcome. But organizations and associations should be warned: after years of dysfunction, gridlock, and vacant positions throughout the federal government, the public may quickly lose its appetite for the stonewalling tactics witnessed in the past decade. Consistently opposing every appointee is ill-advised; you have to pick and choose your battles.  

If Congress doesn’t play ball, be prepared for a wave of executive actions

President-elect Biden will surely be looking for opportunities for bold and transformative action in his first 100 days, but without solid congressional majorities, he may rely on Federal agencies to make rules and regulations.

In the coming months, many organizations and trade associations will put together options for executive actions related to their industries in hopes of shaping the media narrative around the issue, and thereby the ultimate language of the action. These plans are rarely the legal frameworks the President actually adopts, but a successful rollout can set the table and earn valuable media coverage.

Think smaller

Big personalities can dominate headlines, but most of the day-to-day work of running the federal government is done quietly. The White House liaisons in each cabinet agency hold tremendous power and are often integral to shaping regulatory and personnel decisions—they can’t be overlooked. Agency staffers are, in many cases, the decision makers, drafting regulatory language and proposing industry rules that agency heads evaluate and act on. Often, the most effective campaigns influence, educate, and move the staff of these agencies, rather than just their director.

Modest investments in outreach and advertising to these groups can have an outsized impact. Don’t focus on the titular department heads at the expense of the staff around them.