07 November 2014

Previewing the 114th Congress

Republicans scored historic victories in Tuesday night’s midterm elections, retaking the Senate majority for the first time since 2006 by adding at least seven seats and possibly as many as 10. The GOP increased its majority in the House of Representatives by at least 13 seats (with some races still undecided), achieving the largest House Republican majority since the Hoover Administration. And Republicans added three more governors to their ranks.

Change in Washington is coming. The next Congress will feature different committee chairmen pursuing new policy priorities and refocusing the congressional investigation agendas. Some might anticipate more partisan gridlock. We expect a flurry of legislative activity and oversight that will impact almost every sector of the economy. We believe that it is in both parties’ interests to try to find common ground. President Obama and many Democrats will be working to cement his presidential legacy with significant, new legislative achievements; Republicans will try to demonstrate that they can govern. Yet, all of this will take place in front of a backdrop of the 2016 elections. The presidential race will likely involve several sitting senators and the Senate election map will favor the Democrats. Republicans will have to defend 24 Senate seats. Democrats will only have nine Senate seats to defend.

Below, we introduce the key players and provide brief descriptions of some of the top issues the new Congress will likely tackle.

Congressional Investigations

Key Committees:

Every Committee in the House and Senate has oversight and investigations authority

Senate Permanent Subcommittee on Investigations (Committee on Homeland Security and Government Affairs)

House Committee on Oversight and Government Reform

Key Players:

Sen. John McCain (R-Arizona) or Sen. Rob Portman (R-Ohio) will likely chair the Senate Permanent Subcommittee on Investigations, a position that retiring Sen. Carl Levin (D-Michigan) has held for 10 of the last 14 years to investigate aggressively alleged corporate malfeasance. With broad subpoena power, this committee chairman is the Senate’s most powerful investigator.

Rep. Darrell Issa’s (R-California) term as chairman of the House Committee on Oversight and Government Reform has expired. This committee also has broad subpoena authority. The next committee chairman will not be known until December, but top contenders include Rep. Jim Jordan (R-Ohio), Rep. Jason Chaffetz (R-Utah) and Rep. John Mica (R-Florida).

Rep. Elijah Cummings (D-Maryland) will serve as the Ranking Democratic Member of the House Committee on Oversight and Government Reform.

What the Election Results Probably Mean:

Congressional investigations take place on a unique landscape where there are few rules, no neutral decision makers, no appeals and no evidentiary standards. High-profile investigations take place in a highly public arena under the glare of TV lights. Investigators are typically motivated to address misfeasance or malfeasance by the federal government and corporate America. We expect the leadership in the next Congress to focus their investigations on regulatory overreach, job creation and innovation.

It is important to note that every committee in the House and Senate has oversight authority. We believe that the House and Senate will initiate an aggressive investigative program. The following topics will likely be an early focus:

  1. Affordable Care Act: Congressional investigations on the Affordable Care Act (ACA) are expected to increase significantly during the 114th Congress. These investigations may target operational issues regarding the Marketplaces, data security and appropriateness of subsidies.
  2. Ebola Oversight, Management and Preparedness: The Ebola crisis will continue to be a high priority of the Senate and House Committees with jurisdiction over healthcare. During his press conference after the mid-term elections, President Obama requested $6.2 billion from Congress in order to fight Ebola abroad and prevent the spread of the disease in the United States. Congress is expected to evaluate the availability of additional funding resources and engage more aggressively in managing issues like quarantine protocols. Expect Congress to very thoroughly review the adequacy of the Administration’s response.
  3. Benghazi: The House has held many hearings and even established a select committee to investigate the 2012 attack on an American compound in Benghazi, Libya, but the Senate has not. Many Senate Republicans have demanded a thorough investigation into the attacks, including into former Secretary of State Hillary Clinton’s role. We expect the Republican-led Senate to engage on this issue and the House to continue to investigate.
  4. Privacy, Data Protection and Data Security: During the 113th Congress, committees in both the House and Senate held high-profile hearings investigating data breaches at some of the country’s leading retailers, banks and social media companies. They also examined the competitive impact of industrial espionage and the continued theft of intellectual property from American companies. These hearing and investigations will continue in the 114th Congress. Importantly, the range of investigations is not limited to companies that have suffered from breaches. Additionally, Congress is likely to examine the scope of the regulatory authority of the FTC and continue discussions regarding a federal data breach notification requirement that would reduce the burden of compliance with the existing patchwork of state laws.
  5. Financial Services: Many analysts believe that in the financial services sector, the focus will be oversight – in particular, oversight of the agencies responsible for implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act. We expect significant investigations into the internal operations of the Consumer Financial Protection Bureau (CFPB), the Federal Reserve and the Financial Stability Oversight Council. We also believe that House and Senate committee investigators will devote significant attention to implementation of the Qualified Mortgage and mortgage servicing rules; Operation Choke Point; subprime auto financing; and also the use of the new and loosely-defined “unfair, deceptive and abusive” consumer protection standard.
  6. Tax Compliance: Comprehensive tax reform is a top legislative objective for congressional Republicans. To help their efforts to pass legislation, they will likely hold a series of hearings focusing on the complexities of the tax code and the challenges of compliance. Among other issues, hearings could focus on the taxation of international operations, including inversions; how large partnerships avoid IRS audits; and tax-advantaged practices of non-profit organizations. We also anticipate that House and Senate Republicans will continue to aggressively investigate whether the IRS targeted politically-active conservative political organizations.
  7. Airbag Recall: In October, the National Highway Traffic Safety Administration (NHTSA) issued a recall of nearly 8 million vehicles equipped with airbags made by Takata, a Japanese auto parts manufacturer. This recall has affected 10 different auto makers. Already, NHTSA has initiated an investigation and ordered Takata to provide documents and answer questions under oath. With the company’s airbags fitted into so many cars, Congressional hearings are a virtual certainty.

Energy and the Environment

Key Committees:

Senate Committee on Energy and Natural Resources

Senate Committee on the Environment and Public Works

House Committee on Energy and Commerce

House Committee on Natural Resources

Key Players:

Senate Committee on Energy and Natural Resources

Lisa Murkowski (R-Alaska) is likely to serve as the new chair of the Energy and Natural Resources Committee. Sen. Murkowski is expected to take positions that encourage domestic energy production and the promotion of grid reliability.

Mary Landrieu (D-Louisiana), the outgoing committee chair, is in line to serve as the committee’s Ranking Democratic Member; but, she remains locked in what many predict to be an uphill battle to even return to the Senate. Louisiana will hold the runoff election on December 6. If she is not reelected, Maria Cantwell (D-Washington) will likely lead the Democrats on the committee.

Senate Committee on the Environment and Public Works

Jim Inhofe (R-Oklahoma), a vocal opponent to the Obama Administration’s environmental agenda and an advocate of additional energy production is in line to chair the Environment and Public Works Committee (EPW). As EPW Chair, he will scrutinize the Administration’s environmental policies and the basis for their rulemakings. He is only eligible to serve as the Committee’s chair for two more years.

Barbara Boxer (D-California) is expected to become the Committee’s Ranking Democratic Member.

House Committee on Energy and Commerce

Rep. Fred Upton (R-Michigan) will serve as the Chair of the House Committee on Energy and Commerce Committee for two more years.

Either Rep. Frank Pallone (D-New Jersey) or Rep. Anna Eshoo (D-California) will become the Ranking Democratic Member of the House Committee on Energy and Commerce because the current Ranking Democratic Member, Rep. Henry Waxman (D-California), is retiring at the end of this term. Rep. Pallone will be the most senior Democrat on the Committee in 114th Congress and has the support of House Minority Whip Steny Hoyer (D-Maryland). Rep. Eshoo is the third most senior Democrat on committee and has the strong support of House Minority Leader Nancy Pelosi (D-California). Democratic House Members will face a choice of supporting Rep. Eshoo, the Minority Leader’s candidate, or supporting the seniority system by voting for Rep. Pallone. This important decision will be made by the House Democratic Caucus in late November or early December.

House Committee on Natural Resources

There will be new leadership atop the House Committee on Natural Resources. Chairman Doc Hastings (R-Washington) will retire from Congress at the end of this year. The path seems clear for Rep. Rob Bishop (R-Utah) to claim the gavel.

With Rep. Peter DeFazio (D-Oregon) expected to become the Ranking Democratic Member on the Committee on Transportation and Infrastructure, there will likely be a new ranking member at the House Committee on Natural Resources. If he becomes that committee’s ranking member, Rep. Frank Pallone (D-New Jersey), Rep. Grace Napolitano (D-California) and Rep. Raul Grijalva (D-Arizona) are contenders for the top Democratic position.

What the Election Results Probably Mean:

  1. Keystone XL Pipeline: We can anticipate activity on bills to approve the Keystone XL pipeline.
  2. Action on Energy Exports: During the 113th Congress, we have witnessed a significant push for increased energy exports, especially as it relates to liquefied natural gas. Exports of oil are largely prohibited under current law. Sen. Murkowski and other members, however, have publicly expressed a strong and renewed interest in making changes to the law and eliminating the decades-old oil export ban. Some insiders speculate that a debate on repealing the oil export ban will likely be delayed for another two years.
  3. Potential Energy Legislation: House Energy and Commerce Committee Chairman Upton, who will be in the final two years of his chairmanship, is rumored to be developing legislation that is focused on energy infrastructure. Staff is said to be in discussions with their counterparts in the Senate as well. Insiders believe that passage of energy legislation will require a delicate balance even in a GOP-controlled Congress given various regional issues that split the Conference and that some may attempt to tack onto this legislation. Sen. Murkowski is also concerned about the lack of development of energy infrastructure, including pipelines and transmission lines, and may also develop a more comprehensive legislative package to address her concerns.
  4. Potential Changes to the Renewable Fuel Standard (RFS): More regional in nature, and always controversial, this is a perennial issue that will require extensive monitoring and engagement, but is ultimately unlikely to make it to the President’s desk for his signature. Sen. Murkowski cited to reforms to the RFS as a point for consideration in her 20/20 Blueprint.
  5. Potential Revisions to Key Environmental Laws: While unlikely to yield in bills that are enacted, a Republican-controlled Congress may address the Administration’s regulatory overreach through amendments to current statutes.
  6. Action on Energy Efficiency Legislation (Shaheen-Portman): Work on bipartisan and widely-supported energy efficiency legislation has been ongoing during the 113th Congress. The prospect, however, of unrelated amendments being considered and vulnerable Members having to take tough votes, derailed the bill. Some would argue that if in a Senate controlled by Sen. Harry Reid (D-Nevada) the legislation could not be considered, the prospects for consideration and passage are even less likely in a GOP controlled Senate. However, Sen. Rob Portman (R-Ohio), who will be running for reelection in 2016, will probably push to advance legislation that Democrats would generally support. Given the broad and bipartisan support for the bill, it is an item to monitor, especially if it is one of the few energy-related measures that ultimately moves, and therefore could be amended throughout the legislative process.
  7. Waters of the US: The Administration’s proposal to expand the reach of the Clean Water Act jurisdiction has been met with very strong opposition. We can anticipate that the opposition will be even stronger in a Republican-controlled Congress.

Financial Services

Key Committees:

Senate Committee on Banking, Housing and Urban Affairs

House Committee Financial Services

Key Players:

Senate Committee on Banking, Housing and Urban Affairs

Sen. Richard Shelby (R-Alabama) is expected to once again helm the Senate Banking Committee. Sen. Shelby chaired the committee from 2003 to 2007. He was the Ranking Member from 2006-2012.

Sen. Sherrod Brown (D-Ohio) is expected become the Ranking Democratic Member of the Senate Banking Committee.

House Committee Financial Services

Rep. Jeb Hensarling (R-Texas) will most likely continue as chairman of the House Financial Services Committee but Rep. Frank Lucas (R-Oklahoma) announced last month that he is considering challenging him for the post. Rep. Lucas, a longtime member of the Financial Services Committee, has chaired the House Agriculture Committee for the last four years and was its ranking Republican member for two years. He is term limited from chairing that committee again.

Rep. Maxine Waters (D-California) will serve as the Ranking Democratic Member of the House Financial Services Committee.

What the Election Results Probably Mean:

  1. Dodd-Frank Legislative Fixes: For two congresses, Senate Democrats have blocked virtually every Dodd-Frank amendment because they were concerned that making even minor changes that they supported would open the law up to major amendments that they opposed. During the 114th Congress, expect Republicans to pass a number of targeted fixes that address Dodd-Frank’s unintended complications and consequences.
  2. CFPB Changes: Republicans have tried to restructure the CFPB – replacing the single director with a five-person commission and subjecting its budget to the Federal appropriations process. The structural changes that Republicans have sought are unlikely to be enacted, but expect robust oversight of the Bureau and multiple attempts to limit its regulatory authority.
  3. Fannie Mae and Freddie Mac Reform: Most observers believe that enacting Government Sponsored Enterprise (GSE) reform will be a multi-Congress endeavor. There is no consensus on how to reform the secondary mortgage market. Neither advocates for privatization nor supporters of a government role in securitization has a mandate to act. Next Congress, passing comprehensive GSE reform legislation in the House will remain the top priority of the Financial Services Committee’s likely chairman, Jeb Hensarling. Sen. Shelby, a long-time leader on GSE reform efforts, can be expected to offer his own proposal too. The Johnson-Crapo/Corker-Warner framework is dead.
  4. “Too Big To Fail”: More than four years after enactment, the consensus across the ideological spectrum is that the Dodd-Frank Act did not end “too big to fail” or make bailouts a thing of the past. Indeed, in recognition that the Dodd-Frank Act did not end “too big to fail,” an increasing number of commentators and public officials have called for changes, including Sen. Sherrod Brown, the likely Ranking Democratic Member of the Senate Banking Committee. Some want to break up the big banks; others say “shrink and simplify them”; others still say “regulate them.” This debate will continue.
  5. Export-Import Bank Reauthorization: Set to expire on September 30, 2014, Congress reauthorized the Export-Import Bank’s charter until just June 30, 2015. The bank’s charter has been attacked by conservative critics, led by Financial Services Committee Chairman Jeb Hensarling as “crony capitalism.” The fight to reauthorize the bank pits conservative Republicans against traditional allies like the U.S. Chamber of Commerce and the National Association of Manufacturers. With the issue unresolved, the debate will continue and the outcome is uncertain.

Health

Key Committees:

Senate Committee on Finance

Senate Committee on Health, Education, Labor and Pensions (HELP)

House Committee on Energy and Commerce

House Committee on Ways and Means

Key Players:

Senate Committee on Finance

Sen. Orrin Hatch (R-Utah) is expected to chair the Senate Finance Committee during the 114th Congress. Senator Hatch has served as its Ranking Republican Member since 2011 and also serves as a senior member of the Health, Education, Labor and Pensions Committee.

Sen. Ron Wyden (D-Oregon) is expected to serve as the Ranking Democrat of the Finance Committee.

Senate Committee on Health, Education, Labor and Pensions

Sen. Lamar Alexander (R-Tennessee) is expected to chair the Senate HELP Committee after serving as its Ranking Republican Member since 2011, however, Sen. Mike Enzi (R-Wyoming) the previous Chair, still has two more years to serve as the HELP Committee Chair.

Sen. Patty Murray (D-Washington) is expected to be the new Ranking Democrat Member of the HELP Committee due to the retirement of Sen. Tom Harkin, the current Chair of this Committee. Sen. Murray currently serves as the Chair of the Senate Budget Committee.

House Committee on Energy and Commerce

Rep. Fred Upton (R-Michigan) will serve as the Chair of the House Energy and Commerce Committee for two more years.

Either Rep. Frank Pallone (D-New Jersey) or Rep. Anna Eshoo (D-California) will become the ranking member of the House Committee on Energy and Commerce because the current ranking member, Rep. Henry Waxman (D-California) is retiring at the end of this term. Rep. Pallone will be the most senior Democrat on the Committee in 114th Congress. He currently serves as the Ranking Democratic Member of the Subcommittee on Health, and has the support of House Minority Whip Steny Hoyer (D-Maryland). Rep. Eshoo is the third most senior Democrat on committee and has the strong support of House Minority Leader Nancy Pelosi (D-California). Democratic House Members will face a choice of supporting Rep. Eshoo, the Minority Leader’s candidate, or supporting the seniority system by voting for Rep. Pallone. This important decision will be made by the House Democratic Caucus in late November or early December.

Rep. Joe Pitts (R-Pennsylvania) will serve as the Chair of the House Energy and Commerce Subcommittee on Health.

House Committee on Ways and Means

Rep. Paul Ryan (R-Wisconsin) currently serves as the Budget Committee Chair and intends to run for Chairman of the House Ways and Means Committee. Current Chair, Rep. Dave Camp (R-Michigan) is retiring from Congress at the end of this year. Rep. Ryan is expected to face a challenge from Rep. Kevin Brady (R-Texas), who has seniority over Rep. Ryan and is currently Chair of the Subcommittee on Health. The new chairman will be chosen by the House Republican Steering Committee in two weeks. Rep. Ryan’s national profile and fundraising capabilities will certainly give him a major advantage; but Rep. Brady’s senior position may help convince some Republican members to support his candidacy because they will want to preserve the traditional seniority system.

Rep. Sander Levin (D-Michigan) will continue to serve as the Ranking Democrat Member of the full Ways and Means Committee.

Rep. Jim McDermott (D-Washington) will continue to serve as the Ranking Democrat Member of the Health Subcommittee of the Ways and Means Committee.

What the Election Results Probably Mean:

  1. ACA Oversight and Reform: Both Houses of Congress will likely approve legislation repealing certain sections of the ACA. Specific candidates include, among others, the medical device tax, the Independent Patient Advisory Board (IPAB) and the ACA Prevention and Public Health Fund. Further, certain controversial issues, such as the definition of a full-time employee for health insurance coverage purposes, may be considered by the Congress. Finally, congressional investigations into various aspects of the Marketplaces are expected to increase significantly, which could target data security and incorrect amounts of federal subsidies, as just two examples.
  2. Entitlement Reform: The House and Senate Committees with jurisdiction over the Medicare and Medicaid programs have signaled that both programs will be subject to reform efforts. While the Energy and Commerce Committee held hearings on entitlement reform in the 113th Congress, the Senate Finance Committee, along with the Senate Budget Committee, will analyze and review ways to preserve Medicare and Medicaid in future years. The Congress is expected to approve a budget for Fiscal Year 2016 with challenging reconciliation instructions for both health providers and beneficiaries.
  3. Permanent Doc Fix and Medical Liability Reform: The Medicare Sustainable Growth Rate for physicians, better known as the “doc fix,” will be addressed in early 2015. Action must be taken by March 2015 or physicians participating in the Medicare program will face a 21.2% reduction in reimbursement. Pay-fors may include medical liability reform.
  4. Advancing Cures for Diseases and the FDA: The 21st Century Cures Initiative currently being drafted by the House Energy and Commerce Committee will become a priority of the Senate HELP Committee. Congress may seek to block FDA’s regulation of laboratory developed tests (LDTs) and its proposal to allow generic drug manufacturers to change their labeling. In addition, Congress will continue to scrutinize the FDA’s activities regarding the drug and medical device approval processes.
  5. Ebola: The Ebola crisis will continue to be a high priority of the Senate and House Committees with jurisdiction over healthcare, especially given the President’s request for $6.2 billion to combat Ebola. Congress will evaluate the availability of additional funding resources, engage more aggressively in management of various aspects of this crisis and conduct oversight of the Administration’s response.

Key Senate Committee Changes:

The Senate Republican Conference has a rule for determining committee leadership: a senator may only serve for six years as a committee chair and six years as the ranking minority member of a committee. It should be noted that once a senator has served six years chairing a committee, the term ends and that senator cannot subsequently serve as the ranking member. However, if a senator has served six years as a ranking minority member, the Republican senator can then serve as chair if the Republicans control the chamber.

These term limit rules will play a significant role in determining who runs many of the most significant committees in the Senate during the 114th Congress. Below is a list of many likely Senate Committee chairs:

Committee on Appropriations – Thad Cochran, Mississippi

Sen. Cochran has served in the Senate for 36 years and was just reelected to a seventh term earlier this week. He is expected to again become the chairman of the Committee on Appropriations, a committee he chaired from 2005 to 2007.

Committee on Banking, Housing and Urban Development – Richard Shelby, Alabama

Sen. Shelby, a one-time Democrat and noted populist, is expected to once again helm the Senate Banking Committee. Sen. Shelby chaired the committee from 2003 to 2007. He was the Ranking Member from 2006-2012. He can serve only two more years as chairman of this committee.

Committee on Energy and Natural Resources – Lisa Murkowski, Alaska

Sen. Murkowski is in line to become the new chair of the Committee on Energy and Natural Resources. She was first appointed to the Senate in 2002 and most recently was reelected as a write-in candidate in 2010. She wants to develop the nation’s conventional energy resources and is a proponent of a national energy policy that produces as much domestic energy as safely as possible.

Committee on Environment and Public Works – Jim Inhofe, Oklahoma

The new Chairman will be Senator Jim Inhofe of Oklahoma, a stalwart opponent to the Administration’s environmental agenda and strongly pro-energy. As EPW Chair, he will certainly advance an agenda very much focused on scrutinizing the Administration’s environmental policies and the basis for their rulemakings. As a result, Sen. Inhofe, who previously served as EPW Chair from 2003 to 2007, is eligible to serve as the Committee’s Chair for two more years.

Committee on Finance – Orrin Hatch, Utah

The new Chairman will likely be Senator Orrin Hatch of Utah, the most senior Republican in the U.S. Senate who is known for working closely with his Democratic colleagues. Sen. Hatch has taken a deep interest in healthcare issues and also is a strong advocate of comprehensive tax reform.

Committee on Foreign Affairs – Bob Corker, Tennessee

The new Chairman of the Foreign Relations Committee will be Senator Bob Corker of Tennessee. Corker, who also served as the Ranking GOP Member of the Senate Aging Committee, is viewed as a more moderate Republican with a deep interest in foreign policy. Like his Tennessee Senate colleague, Senator Corker also is a consensus builder and works well with his Democrat colleagues.

Committee on Health, Education, Labor and Pensions – Lamar Alexander, Tennessee

The new Chairman, Senator Lamar Alexander of Tennessee, is the former Governor of Tennessee and has served in two previous Republican Administrations including as Secretary of the U.S. Department of Education during President George H.W. Bush’s Administration. Senator Alexander was a member of the Senate GOP Leadership but resigned his post as Chairman of the Republican Conference Committee in 2012 due to his frustrations regarding the lack of bipartisanship in the Senate. He is deeply interested in education and healthcare issues.

Judiciary Committee – Charles Grassley, Iowa

The new Chairman, Senator Chuck Grassley of Iowa is not a lawyer and prior to being elected to the U.S. Senate, he served as a member of the U.S. House of Representatives. He has been a long time member of the Judiciary Committee and currently serves as its Ranking GOP Member. Previously, Senator Grassley served as both the Chair and Ranking GOP Member of the Senate Finance Committee and actually has two years left to serve as that Committee’s Chair. He has indicated that he will not pursue the Chairmanship of the Senate Finance Committee if the Republicans control the Senate in the 114th Congress.

* * *

If you have any questions regarding this update, please contact the Sidley lawyer with whom you usually work or

Michael E. Borden
Counsel
+1.202.736.8521
mborden@sidley.com

Rick Boucher
Partner
+1.202.73608290
rboucher@sidley.com

Patricia DeLoatche
Policy Advisor
+1.202.736.8862
pdeloatche@sidley.com

Peter M. Goodloe
Counsel
+1.202.736.8305
pgoodloe@sidley.com

Stephanie P. Hales
Associate
+1.202.736.8349
shales@sidley.com

Catherine Karen
Counsel
+1.202.736.8368
ckaren@sidley.com

Daron Watts
Partner
+1.202.736.8528
dwatts@sidley.com

Sidley Austin provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship.

Attorney Advertising – For purposes of compliance with New York State Bar rules, our headquarters are Sidley Austin LLP, 787 Seventh Avenue, New York, NY 10019, 212.839.5300; One South Dearborn, Chicago, IL 60603, 312.853.7000; and 1501 K Street, N.W., Washington, D.C. 20005, 202.736.8000.

EmailShare
XSLT Plugin by BMI Calculator