The Cozen Lens

• Presidential re-election campaigns are generally a referendum on the incumbent, but for President Biden, the negative case for a second term (i.e., he’s not former President Trump) is stronger than the affirmative case.
• Trump is the weakest he has ever been in his third run for president, but MAGA continues to be a potent element of the Republican Party.
• The Biden administration recently released the latest version of its regulatory agenda, which will now come to the fore as the White House seeks to further its partisan agenda in the face of a divided Congress.

Biden’s Re-election Strategy

The Affirmative Case for Biden. The president has begun laying the groundwork for his re-election.

• As the oldest president in history, President Biden has long been the target of speculation over his re-election plans. But after presiding over the best midterm election performance for the party in power in 20 years, he’s expected to seek a second term. Biden largely has the support of his party. Recent CNN interviews with members of Congress, administration officials, and others revealed how Biden is consolidating support among Democrats for a 2024 campaign.
• Biden has a lot to run on when making his case to voters and bringing out his base in 2024. He accomplished a robust legislative agenda including the Infrastructure Investment and Jobs Act, the CHIPS and Science Act, and the Inflation Reduction Act, despite narrow margins in Congress. Biden has also experienced strong job growth during his term and has appointed judges at a historic rate.
• Some of Biden’s recent moves are laying the groundwork for a 2024 run and a pivot to the political center. For example, earlier this month, he held an event with Senate Minority Leader Mitch McConnell (R-KY) on the infrastructure law. He’s also shoring up one of his biggest political weaknesses: border security. Last week, he visited the US-Mexico border for the first time since being elected. He announced new regulations for immigration, including expanded use of Title 42, the expedited removal process for people attempting to enter the US illegally.

The Negative Case for Biden. Though Biden may want to make a positive case for a second term, the negative case is likely to be more convincing.

• A presidential re-election campaign is traditionally a referendum on the incumbent. For Biden, that’s a problem. His approval ratings remain low: only 43.9 percent in the latest FiveThirtyEight polling average.
• Biden doesn’t need to be beloved to win re-election though. He just needs to be seen as the least bad option. His best strategy will likely be to frame the 2024 campaign as a choice between him and Trump, whom he views as dangerous to American democracy. Biden’s favored “ultra-MAGA” attack line aims to instill fear and anger in an effort to bring out his political base.
• Defining your opponent is a winning strategy in presidential politics. President Obama, for example, successfully characterized his 2012 opponent, Mitt Romney, in the eyes of many voters as a wealthy, out-of-touch country club Republican who wanted to take entitlements away.
• Biden may have a harder time running against a candidate not named Trump, but he can still warn about Republican attacks on Social Security, Medicare, the debt ceiling, abortion access, and other issues to paint his opponent as an ultra-MAGA extremist and make himself look like the better (or less worse) choice, his own unpopularity notwithstanding.

X-Factors. Biden’s re-election strategy can only account for so much. Two major wildcards have the potential to reset the 2024 election.

• Interest rate hikes made by the Federal Reserve to address inflation could very well spark an economic recession this year or next. The closer to Election Day a recession occurs, the worse for the Biden campaign. In remarks delivered at the Brookings Institution in November, Federal Reserve Board of Governors Chairman Jay Powell said that future rate increases may be smaller but the Fed will continue its efforts to fight inflation. “It is likely that restoring price stability will require holding policy at a restrictive level for some time. History cautions strongly against prematurely loosening policy,” he remarked. “We will stay the course until the job is done.”
• For the first time in US history, there are special counsels simultaneously investigating both the incumbent president and the previous president. Attorney General Merrick Garland last week appointed Robert Hur to oversee the probe into Obama-era classified documents found in Biden’s residence and former office. This investigation has the potential to be politically damaging for Biden’s re-election campaign. Though the Biden case is not the same as Trump’s retention of classified documents at Mar-a-Lago (Biden is cooperating with the Department of Justice investigation, for example), it could still undermine his case against Trump and undercut his re-election strategy.

What's Relevant About Trump's Less Relevance?

Trump is Less Relevant. Since announcing his candidacy for president in November, former President Trump has struggled to remain a dominant force in the party.

• Trump's grip on Republican voters is loosening. According to a USA Today poll last month, only 31 percent of GOP and GOP-leaning voters want Trump to run in 2024.
• Trump isn't as feared among Republican politicians. Despite pushing for Rep. Kevin McCarthy (R-CA) to be speaker, he did not sway any of the 19 ultraconservative holdouts to quickly fall in line. At the presidential level, several potential candidates, like former UN Ambassador Nikki Haley, are no longer deferential to Trump's candidacy when considering their own.
• A less relevant Trump can still win though. While Trump loses in head-to-head matchups against Governor Ron DeSantis (R-FL), he remains in the lead when there is a larger field of candidates running, similar to the 2016 Republican primary.

Trumpism Remains Relevant. Trump didn't start a movement; he just marketed one with his name and a tag line. Trumpism and MAGA existed before Trump and continues to be the driving force of the Republican base.

• Republicans still want Trump's policies. Sixty-one percent of GOP and GOP-leaning voters want a different Republican to continue to pursue Trump's policies.
• Republicans still want a fighter. Sixty-five percent of Republicans approved of the chaotic and public fight for speaker this month.
• Most GOP lawmakers still want the government to function. There remains a large "vote no, hope yes" caucus that fears for a primary challenge if they compromise but also hopes America doesn't default on its debt, the government doesn't shut down, and Trump loses influence.

Is There a Path Beyond Trump and Trumpism? The Republican Party can't quit Trump or Trumpism. But elements of the party continue to adapt and work around it.

• Anti-Trumpism won't thrive anytime soon in the GOP. There's not a critical mass of support for an anti-Trump Republican to be a prominent leader of the party. 
• There are gradients beyond pro- and anti-Trumpism. Republicans like Governors Glenn Youngkin (R-VA) and Brian Kemp (R-GA) aren't mistaken for moderates, but they also are finding ways to maintain the GOP's historical ties with big business.
• There's a quiet path for big business to remain relevant. Industrial policy isn't just a Democratic initiative, as national conservatism seeks to preserve American identity and economic power. Job creation and capital investments at home now has a national security angle for Republicans to tout.

Democrats' Regulatory Agenda Comes to the Fore

Biden’s Regulatory Roadmap. The Biden administration released its latest semi-annual Unified Agenda of Regulatory and Deregulatory Actions (UA), outlining its regulatory priorities.

• What makes this edition noteworthy is that it comes as President Biden is making a pivot away from his legislative agenda to his regulatory agenda due to the divided Congress he faces. This document is a roadmap of many of the actions that will be the focus for the next two years.
• As quick as the pace of rulemaking has been for the last two years, with more attention from the White House, regulators, many of whom have had time to settle into their roles, will become more effective as they push to finalize their proposed rules. Finishing these efforts sooner than later is key to have time for the legal battles that many of the most transformative rules will inevitably face.

The End of Non-Competes? One of the rulemakings that has garnered the most attention is a proposal from the Federal Trade Commission (FTC) that would seek to ban non-compete clauses.

• Shortly after the UA was published, the agency officially issued its notice of proposed rulemaking for the new regulation. In the accompanying press release, the FTC argued that making this change would help to increase wages and expand career opportunities. The rule was included in Biden’s competition policy executive order from last year.
• Under the rule, employers will still be allowed other legal pathways to protect trade secrets and sensitive information. These agreements though could not be so broadly construed so as to serve as effective non-compete clauses.
• Part of the reason for the attention on the rule is the authority the FTC is claiming it has to regulate non-competes. In the agency’s view, Section 5 of the FTC Act gives it the authority to regulate “unfair or deceptive acts or practices in or affecting commerce,” and in its judgment non-compete clauses constitute an “unfair method of competition.” This means legal challenges of the rule will also likely target the agency’s authority more broadly and seek to restrict expansive interpretations of Section 5 by invoking the major questions doctrine, which was at the core of last year’s West Virginia v. EPA Supreme Court ruling.

Ending Junk Fees and Worker Misclassification. The UA contains rulemakings covering a wide spectrum of policy areas, but two others that are of particular note are one from the FTC targeting “junk fees” and one by the Department of Labor (DOL) on worker classification.

• The FTC has begun its rulemaking process to address “junk fees,” but has not released a draft of what the rule would look like. The FTC’s effort is targeting three broad categories of fees, including fees that consumers have no way of opting out of. The rule is not expected to be finalized until some point in 2024, but the agency will likely release a draft this summer.
• The DOL kicked off the process of writing its own worker classification rule in October, which would replace a Trump-era standard with a new test and is aiming to tighten companies’ ability to classify workers as independent contractors. A final rule is not expected before May and it is likely to face legal challenges, especially from companies that have made use of gig workers.