Results reflect reporting as of the morning of Thursday, November 5. Several races are still being counted, and we’ll update this post as they’re finalized.

Tuesday’s midterm elections will bring a new balance of power to Washington in January. Democrats will hold majorities in both the House and the Senate, and voters in several states also reshaped their legislatures. For ecommerce merchants, the change will shape how lawmakers approach AI and consumer messaging and the litigation abuse that increasingly comes with them.

Here is what happened and what it could mean for online businesses.

What we know so far

• The House: Democrats have won a clear majority. Dozens of races are still being counted.
• The Senate: Democrats have secured at least 54 seats, with two races still undecided. In Mississippi, Scott Colom leads Sen. Cindy Hyde-Smith by roughly 1,100 votes with absentee and affidavit ballots still to count; counties have until November 13 to certify. In Alaska, the race between Sen. Dan Sullivan and Mary Peltola is likely to be decided by ranked-choice tabulation on November 18.
• Key Senate players: Several senators active on AI and messaging policy, including Shelley Moore Capito, Ed Markey, John Hickenlooper and Ben Ray Luján, will return. Sen. Amy Klobuchar, a lead sponsor of AI-related messaging legislation, was elected Governor of Minnesota and will leave the Senate, so new sponsors are likely to take up that work in 2027.
• The states: Significant shifts occurred in two states in which mini-TCPA bills remain pending and could be taken up during the lame duck session before the end of the year.  Michigan voters gave Democrats control of both chambers of the legislature, where Republicans have held control of the House, and in North Carolina, Democrats won a majority in the state House. 

What it could mean for ecommerce policy

Consumer protection and AI will be on the agenda. Leaders of both parties agree that scam calls and fraudulent texts hurt consumers and erode trust in legitimate businesses. We share that goal. As Congress and the states look at how artificial intelligence is used in calls and texts, the question for merchants is whether new rules target bad actors or sweep in the everyday tools small businesses use to reach customers who have asked to hear from them.

New committee leadership means bills will be written early. Committee assignments and chairs will be set in January, and lawmakers with long records on consumer protection are expected to take on larger roles. The most important decisions about a bill are often made before it is introduced, which makes the next few months the best time for merchants’ practical experience to inform the drafting.

The lame-duck session is worth watching. Congress returns this month with a number of year-end priorities. Some technology and messaging proposals may be considered before January, and we’ll be engaging to make sure any changes are practical for businesses and consumers alike.

States will keep moving. New majorities in places like Michigan and North Carolina, and active legislatures everywhere, mean continued state activity on privacy, AI and messaging in 2027. Every new state law adds to the patchwork merchants must navigate, and many come with their own enforcement provisions.

The litigation risk: what we’ve seen

Since EIA was formed in 2023, we have watched a consistent pattern: when a law is written broadly and enforced through private lawsuits with fixed statutory damages, a small number of law firms build a business model around suing legitimate companies over technicalities – whether actual or just made up. A few examples from our work:

• “Quiet hours” claims. Federal rules limit marketing calls before 8 a.m. and after 9 p.m. Plaintiffs’ firms began suing businesses for texts sent to customers who had explicitly opted in, even though quiet hours does not apply to messages sent with consent..
• Opt-out traps. Federal rules required businesses to honor an opt-out sent by “any reasonable means,” which invited claims built on unusual phrasing designed to slip past standard STOP-keyword systems.
• Email subject lines. After a 2025 Washington Supreme Court decision, dozens of lawsuits were filed against retailers under the state’s commercial email law, many over promotional subject lines.
• Website technology. California’s decades-old wiretapping statute was used to file thousands of claims over routine analytics and advertising tools found on most ecommerce sites.

The common thread is that statutory damages multiplied across a customer list, make it cheaper for a business to settle than to fight, even when it did nothing wrong. This reality is used as leverage by plaintiff’s firms who build practices soliciting plaintiffs in order to threaten or file these claims against small businesses en masse. New AI or messaging rules that add vague requirements or new private rights of action without guardrails risk adding more fuel to the litigation fires.

Why litigation costs matter for affordability

Americans of every political stripe told pollsters this year that the cost of living is a top concern. Litigation costs are a real part of what is driving the affordability crisis. When a small business spends tens of thousands of dollars defending or settling a lawsuit even when they have not violated the law, that money comes out of hiring, wages, inventory and investment, and ultimately it shows up in the prices customers pay. Many independent merchants are already working on thin margins and struggling to cover rising costs; a single claim can be the difference between growing and closing.

Even businesses that are never sued feel the effect, through higher compliance and insurance costs and by pulling back from the customer communications that help them compete with much larger companies. Policies that reduce unnecessary litigation while keeping strong protections against real fraud are good for consumers, good for small businesses and good for affordability.

Reason for optimism: common-sense fixes are bipartisan

The good news is that lawmakers in both parties can understand this problem and can be persuaded to work together to address it. California’s SB 690 is the latest and clearest example. Authored by Democratic Sen. Anna Caballero, it passed the Legislature unanimously this fall, 40–0 in the Senate and 66–0 in the Assembly, and Governor Newsom signed it on September 30. The law ends private lawsuits under certain provisions of the state’s old wiretapping statute that had been used against routine website technology, while preserving the Attorney General’s ability to go after real bad actors. It takes effect January 1, 2027.

SB 690 shows what is possible when policymakers focus on actual harm, keep strong public enforcement in place and close the door on lawsuits that do little for consumers. If the nation’s largest state can reach unanimous agreement on that approach, it can be done elsewhere.

Merchants are the most important voice

Policymakers make better decisions when they hear directly from the people affected. That is why merchant activation is at the center of our work. EIA represents about 20,000 ecommerce brands, most of them small and mid-size businesses, and their owners can explain better than anyone how a well-meaning rule plays out in practice: what it costs to defend a lawsuit, how compliance decisions get made at a five-person company, and what is at stake when a business is already working hard to pay its bills. In Virginia, Washington and elsewhere, those stories helped lawmakers see the unintended consequences of rules that weren’t precisely tailored.

Over the coming months we’ll be connecting merchants with their representatives in Washington and in state capitals, sharing stories about how ecommerce creates jobs in every district, and bringing business owners to meet with lawmakers in 2027. The goal is simple: help policymakers see the full picture, including the litigation threat facing small businesses, so the rules they write protect consumers without unintended consequences for the businesses that serve them.

Our principles going forward

Whoever holds the gavel, EIA’s approach stays the same:

• Stop scams, not small businesses. Focus enforcement on fraud and bad actors, not on the tools honest businesses use.
• Clear consent and transparency. Consumers should know what they’re signing up for, and businesses should have clear, workable rules for getting it right.
• Precisely tailored rules. Legislation should target the harm it is meant to address and account for the litigation it may invite.
• Fair, sensible enforcement. Give businesses a chance to fix good-faith mistakes, rely on public enforcement where it fits, and keep penalties focused on real harm.
• Consistency across states. A clear national framework gives consumers the same protections everywhere and gives merchants certainty.

Join the EIA today to help strengthen and shape policies that affect all ecommerce businesses. Together, we can continue to create the future of ecommerce. Subscribe to EIA email updates to stay informed on key developments and their impact on your business. 

The Ecommerce Innovation Alliance provides this update for general informational purposes. It is not legal advice. Businesses should consult qualified counsel about how these developments apply to their specific SMS and marketing practices.