2016 Federal Election Overview and Congressional Outlook

NOTE: This information is correct as of 1 p.m. EST, Wednesday, Nov. 9, 2016.

While all the returns have not yet been certified, there is no question that it was a big night for President-elect Donald Trump.  Just as he has done throughout the entirety of the campaign, President-elect Trump stunned political analysts last night by not just winning, but winning big.  And just before 3:00 a.m. EST on Wednesday, Nov. 9, Secretary Hillary Clinton called President-elect Trump to concede the presidential election.

While there are still a handful of states that have yet to be called, President-elect Trump won the election with an estimated 279 votes from the Electoral College, while Secretary Clinton received an estimated 228 votes.  Interestingly, as of 8:10 a.m. EST on Nov. 9, Secretary Clinton had amassed 59,163,675 votes nationally, to President-elect Trump's 59,027,971 — a margin of 135,704, which puts Secretary Clinton on track to become the fifth U.S. presidential candidate to win the popular vote but lose the election.

 

 

Source: Real Clear Politics, Nov. 9, 2016.

A total of 270 Electoral College votes were needed to secure the presidency, and leading into Election Day, “swing states,” or those states where the race remained close, accounted for roughly 171 Electoral College votes.  Those swing states included:  Arizona, Colorado, Florida, Georgia, Iowa, Maine, Michigan, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin.

Of the swing states that have been finalized, President-elect Trump was able to secure roughly 115 Electoral College votes, while Secretary Clinton received an estimated 36.  A brief overview of the swing state outcomes as well as the candidates’ polling numbers leading into Election Day are below for your review.

Swing State (EV)

Winner

Polling Numbers 11/8/161

Arizona (11)

pending

Trump +4.0 (Trump 46.3; Clinton 42.3)

Colorado (9)

Clinton

47.2%

Clinton +2.9 (Clinton 43.3; Trump 40.4)

Florida (29)

Trump

49.1%

Trump +0.2 (Trump 46.6; Clinton 46.4)

Georgia (16)

Trump

51.3%

Trump +4.8 (Trump 49.2; Clinton 44.4)

Iowa (6)

Trump

51.7%

Trump +3.0 (Trump 44.3; Clinton 41.3)

Maine (4)

Maine At-Large (AL)(2)

Maine District 1 (1)

Maine District 2 (1)

Clinton (3)

ME-AL, 48.0%; ME-1, 5.8%

Trump (1)

ME-2, 48.0%

Clinton +4.5 (Clinton 44.0; Trump 39.5)

Michigan (16)

pending

Clinton +3.4 (Clinton 45.4; Trump 42.0)

Nevada (6)

Clinton

47.9%

Trump +0.8 (Trump 45.0; Clinton 45.0)

New Hampshire (4)

pending

Clinton +0.6 (Clinton 43.3; Trump 42.7)

New Mexico (5)

Clinton

48.3%

Clinton +5.0 (Clinton 45.3; Trump 40.3)

North Carolina (15)

Trump

50.5%

Trump +1.0 (Trump 46.5; Clinton 45.5)

Ohio (18)

Trump

52.1%

Trump +3.5 (Trump 45.8; Clinton 42.3)

Pennsylvania (20)

Trump

48.8%

Clinton +1.9 (Clinton 46.2; Trump 44.3)

Virginia (13)

Clinton

49.7%

Clinton +5.0 (Clinton 47.3; Trump 42.3)

Wisconsin (10)

Trump

47.9%

Clinton +6.5 (Clinton 46.8; Trump 40.3)

Trump Transition

For the President-elect Trump team, there is little time to enjoy the victory, as the organization must now fully pivot to issues surrounding the upcoming presidential transition.  President-elect Trump will take office on January 20, 2017, and his transition team has just over two months to start assembling his new administration and setting policy goals for the next four years.  There are over 4,000 jobs that require presidential appointment, but President-elect Trump will not be starting from scratch.

The Trump transition has been in place since April and currently has over 100 staff members focused on making policy and hiring suggestions in all sectors of government such as the military, agriculture, science, and trade, to name just a few.  New Jersey Governor Chris Christie is officially overseeing the transition operation; however, due to recent legal issues surrounding the Governor’s administration, it has been reported that Senator Jeff Sessions (R-AL) has taken on a more significant role within the transition.

President-elect Trump will likely begin by assembling his core team of White House advisors and immediately begin vetting Cabinet nominees.  In addition to Senator Sessions, other Trump insiders such as Vice President-elect Pence, former Speaker of the House Newt Gingrich, and former New York City Mayor Rudolph Giuliani, a Greenberg Traurig shareholder who has been on leave from the firm since October 7 to focus on the Trump campaign, may play a role in assisting the transition.  Additionally, some of these advisors are reportedly being considered for positions within the new Trump Administration.  For example, Rudy Giuliani’s name has been leaked as a possible nominee for Attorney General and Newt Gingrich is being considered as a candidate for Secretary of State.

It remains too early to make full-scale predictions on a Trump cabinet at this time, but there is no question that the transition team will move quickly to fill key positions in preparation for Inauguration Day.  Additionally, because President-elect Trump will oversee a Republican-controlled Congress, the transition team will also focus on what the legislative priorities will be for the incoming Republican president.

Senate Election Results

Republicans currently enjoy an eight-seat majority.  There were 34 Senate races on the ballot November 8, with Republicans defending 24 seats and Democrats defending 10.  Therefore, under a new Trump Administration with Vice President-elect Mike Pence prepared to break ties, Democrats needed a net gain of five seats to control the Senate.  Democrats were unable to meet that benchmark, only winning 11 of the 34 seats.

Republicans will continue to control the Senate by at least four seats in the 115th Congress.  Please note, the New Hampshire Senate race has not yet been decided and the Louisiana race will be decided in a run-off election in December.  Republicans are likely to hold the Louisiana seat, giving them at minimum a five-seat advantage, and at maximum, if they hold New Hampshire, a six-seat majority.

 

 

                                                                                Real Clear Politics, Nov. 9, 2016.

Of the 34 Senate races throughout the country, 11 were considered competitive.  Of those races, Republicans won at least eight seats, while the competitive race in New Hampshire remains too close to call.

STATE

RACE

STATE

RACE

Arizona

McCain (R)* 53.2%

Kirkpatrick (D)

New Hampshire

Ayotte (R)*

Hassan (D)

Florida

Rubio (R)* 52.1%

Murphy (D)

North Carolina

Burr (R)* 51.1%

Ross (D)

Illinois

 

Kirk (R)*

Duckworth (D) 54.4%

Ohio

Portman (R)* 58.3%

Strickland (D)

Indiana

(open – Coats retiring)

Young (R) 52.2%

Bayh (D)

Pennsylvania

Toomey (R)* 48.9%

McGinty (D)

Missouri

Blunt (R)* 49.4%

Kander (D)

Wisconsin

Johnson (R)* 50.2%

Feingold (D)

Nevada

(open – Reid retiring)

Heck (R)

Cortez Masto (D) 47.1%                                                                            

                                                                                                                                                         *incumbent

Senate Freshman Class

The 115th Congress will welcome at least six new members to the United States Senate – four Democrats and likely two Republicans.  A brief overview of the Senate freshman class is below.  Again, please note that the Louisiana Senate race will not be officially determined until December 10 when John Kennedy (R) and Foster Campbell (D) will compete in a runoff, which John Kennedy is highly favored to win.

Tammy Duckworth (D-IL)

  • Democratic member of the U.S. House of Representatives since 2013
  • Previously served as Assistant Secretary for Public and Intergovernmental Affairs in the Department of Veterans Affairs in the Obama Administration and is the former director of the Illinois Department of Veterans Affairs
  • First disabled woman to be elected to Congress; suffered severe combat wounds in the Iraq War
  • Sits on the House Oversight and Government Reform Committee and the House Armed Services Committee

Catherine Cortez Masto (D-NV)

  • Former Nevada Attorney General; served during mortgage crisis in Nevada
  • Former federal prosecutor in Washington State
  • First Latino woman to be elected to the Senate; has pushed for immigration overhaul
  • Close ties to retiring Senate Minority Leader Harry Reid (D-NV)

 

 

 

 

Kamala Harris (D-CA)

  • Current California Attorney General; first woman elected to that position
  • First Indian-American to serve in the U.S. Senate; first African-American senator from California; the daughter of immigrants from India and Jamaica
  • Has the support of major labor unions, environmental organizations, and pro-choice groups

 

Chris Van Hollen (D-MD)

  • Democratic member of the U.S. House of Representatives since 2003
  • Former chairman of the Democratic Congressional Campaign Committee
  • Ranking Member on House Budget Committee
  • Previously served in the Maryland House and Maryland Senate
  • Previously worked as a lawyer, gubernatorial aide, and congressional aide

Todd Young (R-IN)

  • Republican member of the U.S. House of Representatives since 2011
  • Sits on the House Ways & Means Committee
  • Served in the U.S. Marine Corps
  • Previously worked as a congressional aide, an attorney, and for the conservative think tank, the Heritage Foundation

 

Louisiana – TBD

Louisiana will hold a runoff on December 10 between John Kennedy (R) (left) and Foster Campbell (D) (right). Kennedy is heavily favored.

 

 

 

 

Control of the Senate in the 115th Congress

Republicans will continue to control the Senate in the next Congress, but neither Senate Republicans nor Senate Democrats have announced when each caucus will hold leadership elections.  However, there are some safe assumptions with respect to leadership positions that can be made.  Senator Mitch McConnell (R-KY) and Senator John Cornyn (R-TX) will continue to serve as the top two Republicans in the Senate as Majority Leader and Majority Whip.

With Senator Harry Reid (D-NV) retiring, Senator Chuck Schumer (D-NY) is expected to become the next Minority Leader in the 115th Congress.  However, there could be a race for the position of Minority Whip between Senator Dick Durbin (D-IL), who currently holds the title, and Senator Patty Murray (D-WA).  Durbin supporters say he has the votes, but Senator Murray has yet to indicate her intentions publicly.  It is unclear if the unexpected presidential outcome will factor into Senator Murray’s decision-making whether or not to challenge Senator Durbin.c

Some changes to committee leadership within both parties will also occur.  Seniority, or “order of service,” dictates almost everything in the United States Senate, from service on a committee to office space selections.  While Senate leadership positions are elected within each caucus, committee leadership posts – the chair and ranking member – are given to senators with the most seniority.  If a senator declines the offer, the gavel will then usually pass to the next senator in line, and so on.  Occasionally, leadership will step in and influence the process by offering other enticements, etc., but for the most part, the Senate process is rooted in seniority.

While there are still a variety of uncertainties, below is a chart that provides Senate ratios and the most likely Senate leadership positions in the next Congress.  Please note, individuals in red reflect a change in leadership.

Position

Before election

After 2016 election

Party Ratio

54 R, 46 D (including 2 independents)

51 R, 47 D (including 2 independents)

(Ds had a net gain of 1 seat; there are still 2 races undecided)

Leadership

Majority Leader

Mitch McConnell (R-KY)

Mitch McConnell (R-KY)

Majority Whip

John Cornyn (R-TX)

John Cornyn (R-TX)

Minority Leader

Harry Reid (D-NV)

Chuck Schumer (D-NY)

Minority Whip

Dick Durbin (D-IL)

Dick Durbin (D-IL) or

Patty Murray (D-WA)

Agriculture Committee

Chairman

Pat Roberts (R-KS)

Pat Roberts (R-KS)

Ranking Member

Debbie Stabenow (D-MI)

Debbie Stabenow (D-MI)

Appropriations Committee

Chairman

Thad Cochran (R-MS)

Thad Cochran (R-MS)

Ranking Member

Barbara Mikulski (D-MD)

Patty Murray (D-WA) or

Dick Durbin (D-IL)

Armed Services Committee

Chairman

John McCain (R-AZ)

John McCain (R-AZ)

Ranking Member

Jack Reed (D-RI)

Jack Reed (D-RI)

Banking Committee

Chairman

Richard Shelby (R-AL)

Mike Crapo (R-ID)

Ranking Member

Sherrod Brown (D-OH)

Sherrod Brown (D-OH)

Budget Committee

Chairman

Mike Enzi (R-WY)

Mike Enzi (R-WY)

Ranking Member

Bernie Sanders (I-VT)

Bernie Sanders (I-VT) – if he decides to stay on Budget

Commerce, Science & Transportation Committee

Chairman

John Thune (R-SD)

John Thune (R-SD)

Ranking Member

Bill Nelson (D-FL)

Bill Nelson (D-FL)

Energy & Natural Resources Committee

Chairman

Lisa Murkowski (R-AK)

Lisa Murkowski (R-AK)

Ranking Member

Maria Cantwell (D-WA)

Maria Cantwell (D-WA)

Environment & Public Works Committee

Chairman

Jim Inhofe (R-OK)

John Barrasso (R-WY) or Shelley Moore Capito (R-WV)

Ranking Member

Barbara Boxer (D-CA)

Tom Carper (D-DE) if he decides to leave Homeland Security; if he does not leave, Ben Cardin (D-MD) could take the post; but if Cardin stays to  lead Foreign Relations, then Bernie Sanders (I-VT) or Sheldon Whitehouse (D-RI) could seek the post

Finance Committee

Chairman

Orrin Hatch (R-UT)

Orrin Hatch (R-UT)

Ranking Member

Ron Wyden (D-OR)

Ron Wyden (D-OR)

Foreign Relations Committee

Chairman

Bob Corker (R-TN)

Bob Corker (R-TN)

Ranking Member

Ben Cardin (D-MD)

Ben Cardin (D-MD) – but if he leaves for EPW, it could be Jeanne Shaheen (D-NH) if she decided to leave Veterans Affairs post or Chris Coons (D-DE)

Health, Education, Labor & Pensions Committee

Chairman

Lamar Alexander (R-TN)

Lamar Alexander (R-TN)

Ranking Member

Patty Murray (D-WA)

Patty Murray (D-WA) or

Bernie Sanders (I-VT) if he decides to leave Budget post and Murray takes Appropriations

Homeland Security & Governmental Affairs Committee

Chairman

Ron Johnson (R-WI)

Ron Johnson (R-WI)

Ranking Member

Tom Carper (D-DE)

Tom Carper (D-DE)

Indian Affairs Committee

Chairman

John Barrasso (R-WY)

John Hoeven (R-ND)

Ranking Member

Jon Tester (D-MT)

Jon Tester (D-MT)

Intelligence Committee

Chairman

Richard Burr (R-NC)

Richard Burr (R-NC)

Ranking Member

Dianne Feinstein (D-CA)

Dianne Feinstein (D-CA)

Judiciary Committee

Chairman

Chuck Grassley (R-IA)

Chuck Grassley (R-IA)

Ranking Member

Patrick Leahy (D-VT)

Patrick Leahy (D-VT)

Rules & Administration Committee

Chairman

Roy Blunt (R-MO)

Roy Blunt (R-MO)

Ranking Member

Chuck Schumer (D-NY)

Dick Durbin (D-IL)

Small Business & Entrepreneurship Committee

Chairman

David Vitter (R-LA)

Jim Risch (R-ID)

Ranking Member

Jeanne Shaheen (D-NH)

Jeanne Shaheen (D-NH)

Veterans’ Affairs Committee

Chairman

Johnny Isakson (R-GA)

Johnny Isakson (R-GA)

Ranking Member

Richard Blumenthal (D-CT)

Richard Blumenthal (D-CT)

House Election Outlook

Republicans also maintained control of the House with a new balance of 238 Republicans and 193 Democrats.  Please note: at this time, there are still four races that have not been decided.  Going into Election Day, there were 18 competitive or “toss-up” races, only two of which were Democrat-held seats.  Democrats needed to take 30 seats to take the majority.  However, they had a net gain of only six seats.  Below is a chart detailing the 18 most competitive House races leading into Election Day.

STATE

RACE

STATE

RACE

California – 10

Denham (R)* 52.4%

 Eggman (D)

California – 25

Knight (R)*  54.3%

Caforio (D)

California – 49

Issa (R)* 51.5%

Applegate (D)

Colorado – 06

Coffman* (R) 51.5%

Carroll (D)

Florida – 07

Mica (R)*

Murphy (D)  51.4%

Florida – 26

Curbelo (R)* 53.0%

Garcia (D)

Illinois – 10

Dold (R)*

Schneider (D) 52.5%

Iowa – 01

Blum (R)* 53.9%

Vernon (D)

Maine – 02

Poliquin (R)* 54.7%

Cain (D)

Minnesota – 02

(open – Kline retiring)

Lewis (R) 47.2%

Craig (D)

Nevada – 03

(open – Heck retiring)

Tarkanian (R)

Rosen (D) 47.2%

New Jersey – 05

Garrett (R)*

Gottheimer (D) 50.5%

New York – 19

(open – Gibson retiring)

Faso (R) 54.7%

Teachout (D)

Pennsylvania – 08

B. Fitzpatrick (R)* 54.5%

Santarsiero (D)

Texas – 23

Hurd (R)* 48.5%

Gallego (D)

Virginia – 10

Comstock (R)* 52.8%

Bennett (D)

Minnesota – 08

 

Nolan (D)* 50.3%

Mills (R)

Nebraska – 02

 

Ashford (D)*

Bacon (R) 49.2%

                                                                                                                                             *incumbent

House Freshman Class

Come January, there will be 48 members of the incoming House freshmen class.  Of those, 23 are Republicans, 25 are Democrats, and the freshman class will represent 11 percent of the total House.  At least 29 of these freshmen secured open seats in districts where they were essentially assured victory due to the fact that districts were drawn to guarantee election by someone in their party.

Control of the House in the 115th Congress

House Republican leadership is currently scheduled to meet on Tuesday, November 15, 2016 to nominate leadership positions for the next Congress.  While House Speaker Paul Ryan (R-WI) has indicated that he fully intends to maintain his job as Speaker, some of the most conservative factions within the Republican caucus are calling for a delay to the leadership nominations.  This would allow conservative Republicans more time to see how Speaker Ryan handles the end-of-the-year spending battle before making any decisions about leadership.

To date, no Republicans have suggested an alternative to Representative Ryan for the Speaker’s job, and if the nominations move forward as planned next week, it is highly unlikely that there will be enough time to put forth an alternative candidate and whip the votes needed to win a nomination.  However, there is no question that Speaker Ryan’s relationship with President-elect Trump has become strained throughout the campaign, and it is unclear what role, if any, President-elect Trump will play in the Speaker’s nomination.  If President-elect Trump chooses to wade into internal House discussions by encouraging that the leadership vote be delayed, it is uncertain how the Republican caucus will respond.

Republican Representatives Kevin McCarthy (R-CA) and Steve Scalise (R-LA) are expected to remain as the Majority Leader and Majority Whip, and Democrats are likely to maintain Representative Nancy Pelosi (D-CA) as Minority Leader, with Representatives Steny Hoyer (D-MD) and Jim Clyburn (D-SC) retaining their posts as Minority Whip and Assistant Democratic Leader.  Leadership votes among the entire conference will be held in January once the new Congress is convened.

Committee leadership posts will be juggled quite a bit at the start of the next Congress.  Republican and Democratic steering committees will start to meet in December to select committee chairs and ranking members, who will later be approved by the larger party caucuses.  Two powerful committees of interest include the Appropriations Committee and the Energy & Commerce Committee (E&C), as the chairs of both committees are term-limited2  and must be replaced.  The E&C Committee post is already shaping up to be quite the race among Representatives John Shimkus (R-IL), Greg Walden (R-OR), and Joe Barton (R-TX).  Representatives Rodney Frelinghuysen (R-NJ) will likely chair the Appropriations Committee.

While there are still a variety of uncertainties, below is a chart that provides House ratios and the most likely House leadership positions in the next Congress.  Please note, individuals in red reflect a change in leadership.

Position

Before election

After 2016 election

Party Ratio

246 R, 186 D

(3 vacancies)

237 R, 191 D

(Ds had a net gain of 6 seats

Still 7 races left to call)

Leadership

Speaker

Paul Ryan (R-WI)

Paul Ryan (R-WI) – may be contested

Majority Leader

Kevin McCarthy (R-CA)

Kevin McCarthy (R-CA)

Majority Whip

Steve Scalise (R-LA)

Steve Scalise (R-LA)

Minority Leader

Nancy Pelosi (D-CA)

Nancy Pelosi (D-CA)

Minority Whip

Steny Hoyer (D-MD)

Steny Hoyer (D-MD)

Agriculture Committee

Chairman

Mike Conaway (R-TX)

Mike Conaway (R-TX)

Ranking Member

Collin Peterson (D-MN)

Collin Peterson (D-MN)

Appropriations Committee

Chairman

Hal Rogers (R-KY)

Rodney Freylingheysen (R-NJ)

Ranking Member

Nita Lowey (D-NY)

Nita Lowey (D-NY)

Armed Services Committee

Chairman

Mac Thornberry (R-TX)

Mac Thornberry (R-TX)

Ranking Member

Adam Smith (D-WA)

Adam Smith (D-WA)

Budget Committee

Chairman

Tom Price (R-GA)

Tom Price (R-GA)

Ranking Member

Chris Van Hollen (D-MD)

John Yarmuth (D-KY) – Minority Leader Pelosi will nominate and the conference must approve

Education & Workforce Committee

Chairman

John Kline (R-MN)

Virginia Foxx (R-NC)

Ranking Member

Bobby Scott (D-VA)

Bobby Scott (D-VA)

Energy & Commerce

Chairman

Fred Upton (R-MI)

Joe Barton (R-TX),

John Shimkus (R-IL), or

Greg Walden (R-OR)

Ranking Member

Frank Pallone (D-NJ)

Frank Pallone (D-NJ)

Ethics Committee

Chairman

Charlie Dent (R-PA)

Will be nominated by leadership

Ranking Member

Linda Sanchez (D-CA)

Linda Sanchez (D-CA) – unless she wins the Democratic caucus vice chairmanship

Financial Services Committee

Chairman

Jeb Hensarling (R-TX)

Jeb Hensarling (R-TX)

Ranking Member

Maxine Waters (D-CA)

Maxine Waters (D-CA)

Foreign Affairs Committee

Chairman

Ed Royce (R-CA)

Ed Royce (R-CA)

Ranking Member

Eliot Engel (D-NY)

Eliot Engel (D-NY)

Homeland Security Committee

Chairman

Mike McCaul (R-TX)

Mike McCaul (R-TX)

Ranking Member

Bennie Thompson (D-MS)

Bennie Thompson (D-MS)

House Administration

Chairman

Candice Miller (R-MI)

Nominated by Speaker and confirmed by conference – two possibilities are Gregg Harper (R-MS) or Rodney Davis (R-IL)

Ranking Member

Robert Brady (D-PA)

Robert Brady (D-PA)

Intelligence Committee

Chairman

Devin Nunes (R-CA)

Devin Nunes (R-CA)

Ranking Member

Adam Schiff (D-CA)

Adam Schiff (D-CA)

Judiciary Committee

Chairman

Bob Goodlatte (R-VA)

Bob Goodlatte (R-VA)

Ranking Member

John Conyers (D-MI)

John Conyers (D-MI)

Natural Resources Committee

Chairman

Rob Bishop (R-UT)

Rob Bishop (R-UT)

Ranking Member

Raul Grijalva (D-AZ)

Raul Grijalva (D-AZ)

Oversight and Government Reform Committee

Chairman

Jason Chaffetz (R-UT)

Jason Chaffetz (R-UT)

Ranking Member

Elijah Cummings (D-MD)

Elijah Cummings (D-MD)

Rules Committee

Chairman

Pete Sessions (R-TX)

Pete Sessions (R-TX) – the post is nominated by the Speaker and confirmed by conference and it is unclear if Ryan will nominate someone new

Ranking Member

Louise Slaughter (D-NY)

Louise Slaughter (D-NY)

Science Committee

Chairman

Lamar Smith (R-TX)

Lamar Smith (R-TX)

Ranking Member

Eddie Bernice Johnson (D-TX)

Eddie Bernice Johnson (D-TX)

Small Business Committee

Chairman

Steve Chabot (R-OH)

Steve Chabot (R-OH)

Ranking Member

Nydia Velazquez (D-NY)

Nydia Velazquez (D-NY)

Transportation and Infrastructure Committee

Chairman

Bill Shuster (R-PA)

Bill Shuster (R-PA)

Ranking Member

Peter DeFazio (D-OR)

Peter DeFazio (D-OR)

Veterans’ Affairs Committee

Chairman

Jeff Miller (R-FL)

Phil Roe (R-TN),

Doug Lamborn (R-CO), or

Gus Bilirakis (R-FL)

Ranking Member

Mark Takano (D-CA)

Mark Takano (D-CA) or

Tim Walz (D-MN)

Ways & Means Committee

Chairman

Kevin Brady (R-TX)

Kevin Brady (R-TX)

Ranking Member

Sander Levin (D-MI)

Sander Levin (D-MI)

Lame Duck Session of Congress

As Republicans and Democrats in Washington prepare for an incoming Trump Administration in January 2017, there are roughly two months left in the year to finish any business Congress may wish to address before the start of the 115th Congress.  As one reporter put it, “[L]awmakers returning to the Capitol next week for the lame-duck session face two options:  go big or just go home.”3   If Congress decides to just “go home,” the only legislation lawmakers will likely finish by the end of the session is a funding deal.  If Congress decides to “go big” there are a variety of issues that Congress could attempt to complete during the lame duck session.

Below is a brief overview of where some of these issues stand.  In light of President-elect Trump’s victory it is extremely unlikely that any legislative matter that does not already maintain heavy bipartisan support will move through the process during the lame duck session.  If you would like more in-depth information about any of these issues or other legislative efforts you may be tracking, please do not hesitate to contact any member of the Government Law & Policy Practice Group at Greenberg Traurig (www.gtlaw.com).

FY 2017 Federal Spending

Before recessing in late September, Members of Congress passed a continuing resolution (CR) that provided temporary funding for the federal government through December 9, 2016.  However, a path forward on full fiscal year 2017 funding has yet to be finalized.  At minimum, the one agenda item that Congress must address in the upcoming lame duck session is to finalize FY 2017 appropriations.

Speaker of the House Paul Ryan (R-WI) and Senate Majority Leader Mitch McConnell (R-KY) have both indicated that they would like to see the remaining spending bills bundled into small groups or “minibuses,” as opposed to one large catchall “omnibus” package.  Democrats disagree and have said they will not support a minibus approach.

The most conservative Republicans have signaled their preference for passing another continuing resolution through the end of the year, extending current governmental funding levels without enacting any new spending measures.  Some conservatives are even advocating that FY 2017 appropriations be held over until the 115th Congress because the debt limit suspension expires on March 15, 2017.  These Republicans believe that they might be able to use the debt limit issue as leverage during funding negotiations.

Prior to the election results, most Washington insiders would have argued that an omnibus and an extended lame duck session well into December was a likely outcome.  However, now that Republicans are looking at a 115th Congress where they control the White House and Congress, the decision may be made to do as little as possible, go home, and start fresh in January with a new Republican Administration and Congress.

Supplemental Spending

In addition to addressing FY 2017 measures, lawmakers are seeking two additional emergency supplemental bills.  The White House would like Congress to pass a bill totaling an estimated $6 billion in emergency defense spending.  These funds would be used to pay for troop increases in Iraq, a slower draw-down of troops in Afghanistan, as well as additional air operations in the region.  Some Democratic lawmakers argue that any defense spending should be matched by domestic spending, so there may be some initial opposition.  Generally, however, it is tough for lawmakers to refuse the military its request for emergency spending.

In addition to the supplemental bill for the Defense Department, there will also likely be a supplemental bill to address recent natural disasters in the United States.  Lawmakers from a variety of southeastern states, including Florida and North Carolina, are requesting emergency funding to address damages caused by significant flooding following Hurricane Matthew.

Both the defense and the domestic emergency supplemental bills are likely to pass in the lame duck session. However, the domestic package may face opposition if too many jurisdictions attempt to gain access to those emergency funds.       

Water Resources Development Act

Both the House and Senate have independently passed versions of the Water Resources Development Act of 2016 (WRDA), which is aimed at authorizing projects for ports and harbors, flood control, and water resources infrastructure.  To finalize WRDA, House and Senate negotiators need to agree upon a compromise package that can be approved by both chambers and signed by the President before the end of the year.  However, some major points of contention remain.

During negotiations in the House, lawmakers were forced to table the inclusion of amendments to the Harbor Maintenance Trust Fund (HMTF) in the underlying WRDA bill.  The HMTF was created in 1986 and established a user fee for coastal ports and harbors, the Harbor Maintenance Tax (HMT).  The HMT is levied on the value of imported goods and, in turn, those funds were meant to be re-invested back into the operations and maintenance of ports and coastal waterways.

In recent years, however, the fund has run a surplus and these monies have been used in other ways, largely to balance the federal budget.  Lawmakers from coastal communities argue that this is unfair, and that the industries being taxed to ensure safe ports and waterways aren’t getting what the government promised.  Significant changes to the HMT and HMTF were written into the House version of WRDA, but were dropped to ensure final passage of the larger package.  It is possible that these provisions could find their way back into a final bill following Congressional negotiations, but currently, the odds are against it.

The Senate version also has extensive provisions specific to projects addressing drinking water safety.  While both the House and the Senate versions include language to authorize funding for Flint, MI to address the water crisis there, drinking water projects are not typically within the scope of a WRDA bill.  Further, the overall spending levels of each bill are significantly different.  The Senate version is priced at roughly $10.6 billion, while the House version costs less than half that amount at an estimated $5 billion.

Discussions are ongoing to craft a final version that will be ready for passage by the end of the lame duck session, and staff negotiations are presently taking place.  All sides remain confident that a compromise will be met and a WRDA bill will be signed into law this Congress.

National Defense Authorization Act

The FY 2017 National Defense Authorization Act (NDAA), which authorizes spending for the Department of Defense, is currently in conference, with the House and the Senate trying to negotiate each chamber’s differences into one compromise version.  In addition to reconciling the disparity in overall finding levels between the two bills, there are both minor and substantive differences that must be addressed.

The House version of the bill includes language allowing for the federal government to grant religious exemptions from workplace protections to any corporation that receives a government contract.  Opponents of the measure argue that this language authorizes taxpayer-funded discrimination against employees with different religious views than that of their employers and has the potential to effectively override President Obama’s 2014 executive order protecting LGBT employees of federal contractors from discrimination.

Some lawmakers argue that the language would not apply to just contractors, but also subcontractors, any institutions receiving a grant or a purchase order from a federal agency, and any group that enters into a cooperative agreement with the federal government.  The White House strongly objects to this language and has indicated that if the provision remains in the final version of the bill, President Obama will veto NDAA.

The White House also objects to a provision in the House version that prevents the sage grouse from being listed as an endangered species under the Endangered Species Act (ESA).

Another issue that lawmakers may choose to address in the NDAA relates to payments made to the California National Guard in 2006-07 as reenlistment bonuses.  It was recently reported that National Guard officials were improperly managing funds and offering reenlistment bonuses as a way to meet recruitment goals.  When the fraud was discovered, military personnel were asked to return the funds, but a variety of Members of Congress, including Speaker of the House Paul Ryan (R-WI) and Democratic Leader Nancy Pelosi (D-CA), have petitioned Secretary of Defense Ash Carter to request that the Pentagon halt attempts to recover such monies, which total roughly $50 million.  Secretary Carter has launched an internal investigation, but lawmakers may look to add language to NDAA to prohibit the Pentagon from recovering wrongful payments.

Tax Extenders

The FY 2016 omnibus spending bill made permanent or extended over 50 tax credits.  There are roughly three dozen tax credits set to expire at the end of this calendar year, worth an estimated $17.7 billion in annual tax relief.  Of those expiring credits, about half are energy-related, including provisions focused on investment tax credits for technologies such as qualified fuel cells, microturbines, and thermal energy properties.  Some of the other expiring provisions relate to a host of various issues including tuition and education expenses, mortgage insurance, and the horse industry.

Senate Majority Leader Mitch McConnell (R-KY) has indicated a willingness to address tax extenders during the lame duck session, but it remains unclear what an extenders package may look like.  Some lawmakers have proposed rolling all of the energy-related tax provisions into a single package, while others would like to see a larger more robust package.  House Ways and Means Committee Chairman Kevin Brady (R-TX) has argued against an across-the-board extension, but he has indicated a willingness to move those extenders that have bipartisan support.  Senate Finance Committee Chairman Orrin Hatch (R-UT) has acknowledged that there are requests to do an extenders package, but he hasn’t yet indicated what he thinks the best path forward may be.

21st Century Cures

Leaders in both the House and Senate are publicly committed to finalizing a biomedical innovation legislative package, the 21st Century Cures Act (Cures), which passed almost unanimously in the House last year.  House Speaker Paul Ryan (R-WI) has voiced support for passage during the lame duck session, and Senate Majority Leader Mitch McConnell (R-KY) has named Cures one of his top priorities for the lame duck session.  But despite Leader McConnell’s support, Cures is facing an uphill battle in the Senate due to various issues, including $4 billion in new funding for the National Institutes of Health (NIH).

The House-passed bill includes roughly $9.3 billion in funding for NIH and the Food and Drug Administration (FDA), but the legislation also includes a provision that would make NIH annual funding mandatory and not subject to annual appropriations.  This new spending was offset in order to avoid increasing the federal budget deficit, but these offsets have since been utilized by other bills. Therefore these “pay-fors” are no longer available to offset the Cures package, and Senate Judiciary Committee leadership recently said they would oppose efforts to use legislation addressing a drug safety program at the FDA as a possible offset for the bill.

Further, outside consumer groups have already started lobbying against the bill over concerns that the legislation would raise health care costs, and there has also been speculation that funding for the recently passed legislation providing relief for the opioid epidemic may also be tacked onto the Cures bill during the lame duck session.  There may also be an additional attempt to include Vice President Biden’s cancer “moonshot” effort as well.

Overall, the Cures package does have support on both sides of the aisle, but it remains unclear if the bill is strong enough to sustain additional riders, and if negotiators can find the proper offsets to the bill.  If a bicameral agreement can be met on a Cures package, the legislation will likely originate in the House after the election.

Energy Bill

Congress has been working on a comprehensive energy bill for two years and conferees have been negotiating a final package since this summer.  Senate conferees sent a compromise proposal to the House in October, and discussions are expected to ramp up once Congress returns next week.

Negotiations have continued to focus on LNG terminal and pipeline permitting, energy subsidies, energy efficiency, and grid modernization, among others.  One sticking point is the permanent reauthorization of the Land and Water Conservation Fund (LWCF), which uses revenue generated from offshore oil and gas royalties to fund the purchase of land for conservation and wildlife protection purposes.  The fund was reauthorized in last year’s omnibus appropriations bill for three years, and the permanent reauthorization language included in the Senate bill is backed by Democrats and some Republicans.

Many regard this language as the “silver bullet” to advancing the underlying legislation through the Senate, but the provision faces strong opposition from House Republicans, especially House Natural Resources Chairman Rob Bishop (R-UT), who has regularly advocated for reforms to the LWCF and strongly opposes any effort to permanently reauthorize LWCF.

An additional point of contention is a provision to direct federal agencies to treat biomass as “carbon-neutral” in certain circumstances.  Environmentalists are pushing hard to ensure this language will not end up in the final package.  The House bill also includes portions of 37 separate bills, some of which the White House has threatened to veto.

Iran Sanctions

Both Republicans and Democrats have expressed interest in passing an extension of the Iran Sanctions Act (ISA), which is currently set to expire at the end of the calendar year.  But there are a variety of pitfalls for both parties in negotiating a final version of such legislation.

The White House is concerned that any measure Congress passes may go too far, which Iran could then regard as a violation of at least the spirit of the deal struck with the Obama Administration and other nations that limits Tehran's nuclear ability in return for lifting certain international oil and financial sanctions.  That deal received significant opposition from House and Senate Republicans who believe President Obama never should have been negotiating with Tehran.  Those same Republicans would like to see sanctions renewed for an additional ten years, as well as added penalties for Iran, which has conducted some ballistic missile testing following the Joint Comprehensive Plan of Action (JCPOA). A variety of lawmakers have argued that these tests violate the spirit of the agreement.

Additionally, some Republicans accused the White House of making cash payments to Iran for the release of American prisoners, violating a longstanding tradition of not paying “ransom” money in exchange for U.S. lives.  The State Department has argued that the cash transfers were a down payment of a larger sum owed to Iran to settle legal claims dating back to the freezing of assets after the Iranian Revolution of 1979.  However, some Members of Congress would like to include language in ISA to prohibit such cash transactions in the future.

Other lawmakers such as Lindsey Graham (R-SC) would like to ensure that any final package that moves include $1.5 billion in supplemental emergency funding to support Israel.  Senate Democrats are largely backing a straight extension.  It remains unclear if House and Senate Republicans will have enough support for any of these riders, and if so, if President Obama will use his veto power or not.

JASTA

Another foreign policy issue that may arise during the lame duck session is a potential amendment to the Justice Against Sponsors of Terrorism Act (JASTA).  Under the longstanding doctrine of sovereign immunity, U.S. citizens are not allowed to sue foreign governments.  However, following enactment of the new JASTA law, lawsuits against foreign governments accused of playing a role in terrorist attacks on U.S. soil are allowed.

This bill was strongly backed by the families of 9/11 victims interested in suing Saudi Arabia.  Prior to the passage of this legislation, the White House lobbied strongly against the bill, arguing that JASTA could expose American military service members and government personnel to lawsuits oversees.  Congress ignored the warnings from the White House, and the bill passed with overwhelming support in both houses of Congress and from both sides of the aisle.  The President vetoed the measure, and Congress overrode that veto easily – the only presidential veto override to occur during the Obama Administration.

Now, however, lawmakers may have a case of “buyer’s remorse,” and are considering potential changes to the law to better protect Americans overseas.  Senator Chuck Schumer (D-NY), the presumptive Democratic Leader in the Senate and a major proponent of JASTA, has said that he is willing to consider a fix, but not if the fix in any way affects the families’ ability to sue Saudi Arabia.  Odds are against a JASTA fix in the lame duck session, but if proponents make an attempt to get it done, the fix would most likely be tacked onto either the omnibus spending bill or the NDAA reauthorization.

Nomination to the U.S. Supreme Court

Republican Majority Leader Mitch McConnell (R-KY) has consistently maintained that Republicans will block any action to confirm a nominee during the Obama Administration.  He has argued that that the American voters should have a voice in the process, ensuring that the next president be the one to nominate the next justice.  Despite taking heavy criticism from some, this strategy appears to have paid dividends to Republicans.  With Republicans controlling the White House, Senate, and House of Representatives beginning in January 2017, the Merrick Garland nomination is now officially off the table.  Additionally, as Senate Republicans begin to formulate a plan for moving forward on the nomination of a conservative judge to the Supreme Court of United States (SCOTUS), it is entirely possible that Senate Republicans may also make an argument for “going nuclear” and eliminating the right to filibuster Supreme Court justices, just as Democrats did for lower court judges in 2013.  If so, the change would allow for nominees to be confirmed with a standard majority of 51 votes, instead of the 60 votes currently needed to break a filibuster.

Trans Pacific Partnership

Ratification of the landmark trade deal, the Trans Pacific Partnership (TPP), will be an uphill battle during the lame duck session.  President-elect Trump opposes the measure, and Senate Majority Leader Mitch McConnell (R-KY) and House Speaker Paul Ryan (R-WI) have both said publicly that they do not have the votes to pass the deal.

While it is no surprise that a variety of Democrats who are historically aligned with labor interests and opposed to large trade deals are opposed to TPP, there are a significant number of Republicans, like President-elect Trump, who are also opposed.  Some merely do not want to give President Obama a “win” on his trade deal, but others have legitimate policy concerns with how the trade deal affects constituent industries, such as complaints from farmers over the treatment of tobacco under the deal, and complaints from the pharmaceutical industry over how biologics are handled under the treaty.

Even before the election, a significant number of lawmakers on both sides of the aisle have indicated that there is no way TPP will come up for a vote during the lame duck session.  But now that President-elect Trump has won the White House, a path forward on TPP becomes even more unlikely.

Immigration

While both Republicans and Democrats are anxious to see what immigration plan President-elect Trump may put forth, there are four immigration programs authorized and extended in the continuing resolution that expires December 9, 2016.  Those programs include the EB-5 Regional Center Program, the E-Verify Program, the Conrad-30 Rural Doctor Waiver Program, and the Non-Minister Religious Worker Visa Program.

While any significant changes to other parts of the U.S. immigration code are highly uncertain during the lame duck, there will likely be discussions in Congress with respect to these programs.  In particular, there has been a serious attempt by House and Senate Judiciary Committee leadership to overhaul the EB-5 program.   This could mean significant changes and reforms to the program along the lines of those identified in The American Job Creation and Investment Promotion Reform Act introduced in June 2015.

If lawmakers cannot find a path forward on EB-5 or the other programs in the limited time allowed during the lame duck session, there will likely be short-term extensions of all the expiring programs that would extend through early 2017.

 

1 Real Clear Politics, www.realclearpolitics.com. Accessed Nov. 9, 2016. up

2 House Republicans adhere to self-imposed term limits, while House Democrats do not. up

3 Koss, Geoff. “Lame duck: Blockbuster session or just lame?” E&E Daily, http://www.eenews.net/stories/1060045327. Accessed Nov. 7, 2016. up