Jump to Navigation


Post-Election Overview

November 5, 2010

The 2010 mid-term election is now history, and most every race has been decided. What does all this mean for business, manufacturing and energy? In the following presentation, our crack government relations team offers up concise analyses on the lame duck session and on the following topics:

Lame Duck Session

Healthcare Reform


Industrial Owners and Operators

Campaign Finance

Labor, Employment and Human Resources

Consumer Products

Offshore Energy Development


Renewable Energy

Energy and Environmental Policy


Financial Services

Trade Policy and International Commerce

The book on the 2010 mid-term election is still being written. As time goes by, we will follow these developments closely, and will keep you informed. Let us know how we can be helpful to you. Before we get to the details about specific topics, let's start with some general takeaways from the mid-term:

General Takeaways

The results of the 2010 mid-term election were historic. Republicans gained over 60 seats in the House of Representatives — the biggest shift since the Democrats lost 75 seats in the 1948 election. While Republicans fell well short of the 10-seat shift needed to regain control of the Senate, and while the Senate Majority Leader was reelected by a surprising 5 percent margin, the Senate is almost evenly divided, making the positions of the Republican minority highly relevant to the conduct of Senate business.

The President, in a somewhat contrite November 3 press conference, stated that bipartisan cooperation on modest legislation will be a priority. The presumptive Speaker John Boehner and the Republican Senate Leader Mitch McConnell agreed in a separate, earlier conference, but warned that the agenda of the first two years of the Administration had been rejected.

The House of Representatives, its leadership, and committee structure have now changed hands.  While this is the first time in 80 years that the House has shifted without the Senate doing the same, the Senate too faces changes in ratios and priorities. 

  1. The American public wants a more modest, cost-effective approach to legislation and regulation. There seems to be little tolerance for multiple-thousand page bills crafted with little input and placed on the floors of the Houses of Congress with unseen leadership changes. It is reasonable to assume that the same critique applies to major rulemaking.  The President himself said last week the time for comprehensive legislation may be over. Perhaps a corollary to this concern is regulatory reform. It is now clear that the Congressional Review Act is not an effective check on major expensive rulemaking. The time for generic Congressional enactment with hard decisions left to administrative agencies should be past. Amending CRA to force positive Congressional authorization of very expensive regulation would be a good place to start.
  2. Republicans need to guard against overreaching. Republicans won during the mid-term essentially by capturing the independent vote, which they did by a margin of some 18 percent over Democrats. Just two years ago, Democrats won independents by 8 percent.  But did independents sign on for the whole Republican agenda? It's hard to make that case. While independents don't like the Obama agenda on the economy (some 57 percent think it hurts the economy), exit polls show that independents in almost equal numbers held unfavorable views of Democrats (58 percent) and Republicans (57 percent).

    The good news is that Republicans seem to understand that. The best example may be rising star Marco Rubio, the Republican Senator-elect from Florida. Even with a 19 percent margin over Governor Crist, he reminded his party that the election was not "an embrace of the Republican Party." Instead, he styled the election as "a second chance" for the GOP to "be what they said they were going to be, not so long ago."

  3. The Tea Party is a mixed blessing and a management challenge. It is too simplistic to say that Tea Party candidates cost the Republicans the Senate in the form of gaffes from the likes of Angle (NV), Buck (CO), and O'Donnell (DE). The excitement of the Tea Party also made material contribution to the so-called enthusiasm gap that arguably buoyed the GOP to the historic gains it made. 

    The more interesting question is how Republican leadership will deal with Tea Party candidates that were elected in either House, and the desire of incumbents to appear acceptable to Tea Party constituents in future elections. It is our view that most elected officials do change their perspectives the longer they are exposed to the Art of the Possible in Washington. Further, the incoming class also includes very seasoned political leaders like Boozman (AR), Coats (IN), Hoeven (ND), and Portman (OH).

    So, while some dust up can be expected on issues like discretionary spending, there will be moderating influences that should reduce the general level of internecine strife.

  4. The President has plenty of capacity to assert leadership. In many respects, the President sets the tone and agenda for Congressional leadership in his own party. The well-worn examples of Ronald Reagan after the 1982 election, and Bill Clinton after the 1994 election, are both asserted for the proposition that a President can seek out bipartisan cooperation and triangulation (or strategic agreement with your opponents at the expense of your supporters) to maintain control.

    The Reagan and Clinton examples are not perfect, even though the President cited both in his post-election press conference. Reagan had a history of reaching out to Democratic leaders, having them as frequent White House visitors. Clinton's background was as a Southern governor and co-founder of the moderate Democratic Leadership Council; it's not clear that President Obama has the same triangulating pedigree. But he is a canny politician with good communications skills. He can do this if he tries, but he cannot go further than the coalition he put together in 2008 will tolerate.

    While many have said potential legislative gridlock may free the Administration to push more and expensive regulation, we are not so sure.  Cognizant of the lessons of the mid-term election (see number one above), and desirous of emulating Reagan or Clinton, it is hard to see how an overly zealous approach to advancing regulation can really advance the ball.

  5. Oversight, oversight, oversight. Over the past two years, there has been precious little in the way of actual oversight of executive branch agencies.  Such Congressional letters that have flowed to agencies over the last year or so have often been bipartisan in nature.  There is a real pent-up reservoir of support for oversight of regulatory agencies on both sides of the aisle. The key to getting it done is seriousness of purpose, excellence in staffing decisions, and appropriate targeting.

    But to what end? Does oversight ever really do anything? The answer is a wrong yes.  Good oversight can create substantial public pressure on agencies to alter their strategies to the extent they are not based on direct operation of law. If they are, then good oversight can become the predicate for statutory reform, appropriations riders, and rifle-shot amendments.

    Oversight is not, however, for the faint of heart.  Hearings in particular give Administration officials the forum for defense of their rules, programs, and spending, and for the opportunity to demonstrate grace under pressure. That's why a good oversight agenda must be based on adequate planning.  (top)

Lame Duck Session

By Michael Pate and Ed Krenik

Congress will reconvene November 15-19, take a one week break for Thanksgiving, and then reconvene on November 29. The final date of adjournment will depend on how ambitious the agenda Majority Leader Harry Reid and Speaker Nancy Pelosi attempt to accomplish, and how amenable the Republicans are to passing any of the legislation. We have heard that the Senate would like to end the lame duck session by December 3.

In addition to legislative work considered during the lame duck session, Congress will also organize itself for the 112th Congress. Leadership votes will occur during the week of November 15.

Legislation Scheduled for the Lame Duck Session

Recent reports have indicated that Democratic leaders will consider as many as twenty pieces of legislation during the lame duck session. The most notable issue that Congress will address is the extension of the Bush 2001 and 2003 tax cuts, which are set to expire at the end of 2010. Republicans will be pushing for a permanent extension of the tax cuts for all Americans, while the Democrats favor an extension of tax cuts for people making less than $250,000. An alternative that might be considered is a one- or two-year extension of the tax cuts, which would be followed in the first session of the 112th by a strong push by Republicans for a permanent extension.

Another piece of legislation which has been touted as a priority by Democrats is the Defense Authorization Bill. This year, it also includes a repeal of the Military's "don't ask, don't tell" policy, making it the target of a Republican filibuster. The bill failed to pass a procedural hurdle before the Senate recessed for the elections, and will likely face continued opposition from Republicans during the lame duck.

Legislation to extend unemployment insurance benefits and freeze scheduled cuts to doctors’ Medicare reimbursements are key priorities in the Democrats' agenda. These are viewed as "must pass" by many, because on November 30 thousands of laid-off workers will begin to lose unemployment benefits and on December 1, doctors are scheduled to see a 23 percent cut in Medicare reimbursements.

Senate Majority Whip Dick Durbin (D-IL) has promised to push for consideration of the DREAM Act during lame duck. This bill would give children of illegal immigrants a chance to earn citizenship.

Speaker Pelosi has made passing a child nutrition bill a priority. This legislation has already passed the Senate by unanimous consent, and is a popular issue for liberals in the House. Barring internal disputes among the Democrats following the election, it has a very good chance of being sent to the President. Another food related bill which may be taken up and is a top priority of Sen. Tom Harkins (D-IA) deals with food safety. This bill was pulled from the floor in September due to procedural hurdles which were slowing its progress. 

The White House will also want the Senate to ratify the START arms-control treaty. It takes a 2/3 vote of the Senate to ratify a treaty. Senator Lugar (R-IN), the ranking member of the Senate Foreign Relations Committee, said last week he expected some members of his party “will argue that the lame-duck session is not a good time” to review and vote on New START.  The White House is also trying to work with Senator Kyl (R-AZ) to get the necessary votes for START.

Energy Committee Chair Jeff Bingaman (D-NM) and Sen. John Rockefeller (D-WV) are aggressively lobbying Majority Leader Reid to take up a pair of energy bills. Bingaman is pushing for legislation to set a renewable electricity standard, and Rockefeller is hoping for a vote on a bill to prevent the EPA from curbing carbon gas emissions for two years. Given the decreased focus on environmental issues in the election, it appears these issues will be pushed off into the next Congress.  

Some of the most important legislation being addressed during the lame duck session is a backlog of spending bills. In fact, this is the first time in Congressional history that Congress recessed without finishing a budget, and without passing a single spending bill.

One of the more controversial bills is the highway funding legislation, which would continue funneling hundreds of millions of dollars into infrastructure projects. Many Republicans are skeptical of this legislation, and particularly with large Republican gains, it is unlikely that a full highway funding bill will be passed. It is much more realistic to expect an extension of SAFETEA-LU beyond its present end-of-December expiration date. Most, if not all, spending bills will probably end up being booted to the 112th Congress, with only a continuing resolution keeping the government funded.

Possible Lame Duck Legislation

Below is a list of the legislation which Congress may consider during the lame duck:

Extension of Bush tax cuts

Defense authorization


Tax extenders package

Renewable electricity standard

Intelligence authorization

START treaty

Medicare physician payments

Child nutrition

Unemployment insurance benefits

Cyber security

Mine safety

Food safety

China currency

NASA authorization

FAA multiyear authorization

South Korea trade pact


Elementary and Secondary Education Act authorization
Spending bills (or stopgap spending measure)

Estate and Gift Tax
Rockefeller bill to pre-empt EPA
action on carbon emissions (top)


By Former Congressman Jim Chapman

In spite of the post election pledge of both parties and the White House to cooperate to accomplish necessary legislation, the recent record of all parties is not encouraging in this regard. What is clear is that with the Republican takeover of the House of Representatives, significant consequences will result in at least 3 areas of the annual appropriations process:

  1. The overall level of Federal spending will likely be less under Republican leadership of the Committee and the House of Representatives, irrespective of the Budget submitted by the President. Additionally, the spending cuts will target traditional "Democratic" programs with "Democratic" constituencies. Funding levels for Defense and Homeland security programs will not be harmed nearly as much as the social and other programs traditionally favored by a Democratic majority.
  2. Earmarks for Member projects, if not eliminated entirely, will become increasingly more transparent and harder to secure. Republicans seem more willing to forgo the traditional Congressional prerogative of funding Member projects through the numerous appropriations bills and to allow the Administration greater latitude in the area of project funding (known as "grants" when the administration does it). A large number of current Republicans have already signed a letter to never request or support appropriations projects from Members, or "earmarks." This topic was mentioned in the Republican Leadership press conference Wednesday morning and the President, not surprisingly, mentioned this topic as an area of agreement that the White House and House could work on together. The incoming freshman class of Republicans in the House and Senate will have an even more strident and negative view of this process.
  3. The Republican leadership has already promised to use the appropriations process to fight the Obama "agenda" by threatening to "defund" already authorized programs of the current White House. Particularly in the area of the unpopular Health Care Reform Bill, Republicans have promised to "defund" aspects of the provision if they are unable to repeal the program in its entirety. Such action will invite Presidential vetoes of the funding bills and most surely add to the acrimony and confrontational nature of the next Congress in its relationship with the Obama Administration.

Additional friction will occur in the appropriations process with the House and Democratic-controlled Senate likely producing very different versions of the 12 separate appropriations bills, making compromise between the two chambers more difficult in the numerous conference committees that will be charged with the reconciliation of the differences in the spending priorities of the two bodies.

All in all, the already difficult and partisan nature of the Appropriations process will become even more contentious in the new Congress. With the advent of differing majorities in the House and Senate, those seeking appropriations should find the process an even more messy and treacherous one in which to maneuver.  (top)

Campaign Finance

By Josh Zive and Larry Levy

This election season saw campaign finance and political law issues raised to a new level of public prominence. This comes as no surprise, as President Obama foreshadowed the role of campaign finance in elections when he criticized the Supreme Court's decision in Citizens United during his State of the Union address. And, when Congress failed to pass the broad new disclosure and expenditure rules included in the DISCLOSE Act, the stage was set for accusations that the Supreme Court had opened the door for new ways for money to influence elections.

During the midterm election season there has been no shortage of accusations that have the potential to lead to new legislation, regulations and investigations during the next Congress.  Indeed, a twelve-term incumbent facing a tough election challenge has called for the impeachment of the Chief Judge.

In the aftermath of the elections it is obvious that campaign finance and political law issues are not about to go away any time soon. In fact, the President identified "transparency" as an area where he plans to work with the new leadership in the House during his post-election press conference, and the language of transparency has long been used to describe all varieties of new contribution and expenditure restrictions, disclosure obligations for advocacy groups and lobbyists, and restrictions on the political activities of companies and individuals.

Investigations of Corporate Political Activism

With the new composition of Congress, it will be exceedingly difficult for any comprehensive campaign finance legislation to attract both a majority in the House and the 60 votes necessary for passage in the Senate. However, it is likely that the heated campaign finance rhetoric in this election cycle will lead to series of hearings, investigations and studies designed to identify what type of corporate political activism occurred during the recent elections. Politically active companies should be prepared to explain and justify their activism to legislators, the media and the FEC. While it is legal for companies to participate in independent expenditures it is not legal to coordinate activities with campaigns or political parties nor is it permissible to fund the activity with funds from foreign entities or citizens.

Continued Criticism of Foreign-owned Companies

Starting with the President's State of the Union address, there has been a growing drumbeat of criticism aimed at U.S. subsidiaries of foreign companies that become involved in politics. During the midterm campaigns these criticisms reached a crescendo with virtually all of the leaders of the Democratic Party, including the President, making claims that foreign companies were exerting undue influence in U.S. elections, claims which were vigorously denied by the accused entities such as the US Chamber of Commerce. In this context, it is reasonable to expect that Congress will engage in a new round of bashing of foreign companies, and the President and Democratic leadership in the Senate may try to resurrect the DISCLOSE Act elements that limited the political activism opportunities for foreign-owned companies.

Gearing Up for 2012

All of the campaign finance machinations in Congress will take place as both parties ramp up their fundraising efforts for 2012.  Given the tone of the campaign finance discussion over the past year, politically active individuals, groups and companies should gird themselves for frequent inquiries from politicians and the media about their contributions. With the chances of legislative reform of campaign finance laws being relatively low, it increases the likelihood that politicians will resort to even more heated accusations of corruption and undue influence. In this environment companies and individuals should consult counsel prior to making campaign-related expenditures.  (top)

Consumer Products

By Paul Nathanson and Ed Krenik

After Congress passed the Consumer Product Safety Improvement Act (CPSIA) in 2008, the 111th Congress took little action, allowing the Consumer Product Safety Commission (CPSC) time to implement the rules and regulations required in the law. However, we believe that after receiving tens of thousands of complaints from small business owners and consumers over the past two years, and with Republican control of the House, Congress will exert more oversight of the CPSC next year during the 112th Congress.

Many Members of Congress from both parties recognize that the CPSIA needs to be amended to correct several unintended consequences, such as a ban on youth model bicycles, ATVs and motor bikes. CPSC Commissioners sent a letter to House Energy and Commerce Chairman Henry Waxman in January 2010 unanimously supporting legislative fixes to the original legislation. A bill was floated by Democrats for a narrow set of amendments to CPSIA; and a hearing was held on the draft bill on April 29, 2010. However, Democrats and Republicans could not agree on the scope of the amendments and the bill was shelved.

The new leadership of the House Energy and Commerce Committee will likely examine ways to, at a minimum, allow for targeted legislative fixes without overturning the entire law. The Senate, while staying under control of the Democrats, also indicated that it intends to review potential targeted fixes to CPSIA.

There are a number of CPSIA-related deadlines that may also spur Congressional attention:

  • Several stays of enforcement imposed by the CPSC expire in 2011, with a majority of CPSC Commissioners indicating they don't plan to extend the deadline. These stays include:
    • Testing and Certification Requirements for lead content limits (ends February 10, 2011)
    • Bicycle, jogger strollers and bicycle trailers (ends July 1, 2011)
    • Youth ATVs, off-road motorcycles and snowmobiles (ends May 1, 2011)
  • The lead limit for children's consumer products will be further reduced to 100 part-per-million (ppm) on August 14, 2011. This lead limit is retroactive, meaning that products already on the shelf will have to meet the new standard or be destroyed. By making these limits retroactive, Congress caused havoc in the marketplace over the past two years when the new lead limit was imposed at 600ppm and then reduced to 300ppm in 2010. CPSC sent a letter in January 2010 encouraging Congress to amend the CPSIA so that the 100ppm only applies to products made after the new standard becomes effective.
  • The CPSC's Consumer Database, mandated by the CPSIA, is scheduled to go online in March 2011. This searchable Internet database will contain reports of product defects and harm caused by consumer products. Manufacturers are concerned that the database will become a dumping ground for unsubstantiated accusations and a treasure trove for product-liability attorneys.
  • While federal legislation was introduced in 2010 to ban cadmium from children's jewelry following media reports, look for Congress to defer to CPSC to develop a standard and regulate this product in 2011.

In summary, there is growing pressure for Congress to fix the problems associated with the CPSIA. While efforts to amend the law failed in 2010, look for these efforts to be renewed in 2011 along with more oversight of CPSC from Congress.  (top)


By Michael Carter

Outlook in the House

With the change in majority, Buck McKeon (R-CA) will replace Ike Skelton (D-MO) as Chairman of the House Armed Services Committee. Most of the remaining Republicans on the Committee are safe bets to retain their membership and will take their new positions on their subcommittees. On the Democratic side, the top four ranking Members, including Chairman Skelton, lost their bid for re-election. Of the remaining Democrats, as of now, eight lost their seats to Republicans, and Joe Sestak (D-PA) ran for a Senate seat (losing to Pat Toomey in Pennsylvania) and will not be returning. There are only two changes on the Republican side where both Members sought other offices. With the Democrats in the minority, they will lose 14 to 16 seats, creating a scramble for the remaining Members to keep their slots on the Armed Services Committee.

The House Appropriations Subcommittee on defense shouldn't look too different except for who is in the majority. Ranking Member Young will become the Chairman, a position he is familiar with having served as the Chairman more than once. Two Democrats lost their seats, and will probably not be replaced due to the ratios. There will probably be six new slots added on the majority side. The defense community expects to see little change in the way business is done in this arena, since most Members have worked together in both majority and minority status. There will be some new Members added in the case of a Republican majority and Members are jockeying for the coveted seats on this panel.

Outlook in the Senate

Nearly half the Defense Appropriations Subcommittee could be on the way out because of retirements or electoral defeats. Republicans are losing four of the current eight Members due to three retirements and Senator Brownback's successful run for Governor of Kansas. Turnover of this magnitude in one election cycle is virtually unheard of for such a powerful subcommittee. Two of the panel’s 11 Democratic members are leaving. With the GOP additions, there should be at least one more Member added to the subcommittee.

Regardless of who sits on the Senate panel in the next Congress, it may be in for a change in tone and approach. With the national mood opposed to federal spending and earmarks, Senate appropriators could face growing pressure to rein in Member-directed spending, as House appropriators have, and reduce Pentagon spending overall. In such a climate, some suggest that service on the Defense spending panel could become less attractive to new Senators.

Nonetheless, appropriators on the panel will continue to bring home funding for projects of local interest that are not requested by the Pentagon. The appropriators are all about securing dollars for their states.

The Republicans on the defense committees have already shown their hand by stating that they will fully fund and support the Afghanistan war effort, and the Washington parlor game is trying to determine if that means the timelines identified by the Administration are less firm now that a more "hawkish" Congress is in place.  (top)

Energy and Environmental Policy

By Scott Segal and Salo Zelermyer

Divided Government = No Large-Scale Legislation?

Once again, our Nation has divided government and, given the difficulties Democrats had in passing even conventional appropriations bills when they controlled both Houses of Congress and the White House, the conventional wisdom says that both parties will certainly have trouble enacting any legislation deemed "controversial." Climate change and certain aspects of energy policy (e.g., a national renewable electricity standard (RES)) are widely seen as being just that — controversial. So, the midterm election means no action on climate change and energy legislation — end of story, right?

There is another point of view which has on its side some historical precedent. Conflicts over energy and environmental legislation tend to be more regional than partisan. One of the ways to resolve regional differences — say between renewable "have" and "have-not" states — is to have a conference between the two Houses of Congress to resolve difficult topics. That's the way the last major amendment to the Clean Air Act, back in 1990, passed both Houses by almost unanimous margins.

Bases for Incremental Action on Energy and Environment

Having the two Houses next year with different political leadership might just force the Congress to return to the conferencing process - and to move away from the more recent style of Congressional leadership just writing the bills and cramming them down the throats of the minority (and of dissenters in their own party, for that matter). What does this mean for energy legislation?

  • Cap-and-trade legislation might still be a bridge too far.
  • National RES is likely the new focus of President Obama and Democrats. If a RES were to be run through a conferencing process, you could expect the outcome to include a more generous definition of what counts as renewable or clean (e.g., energy conservation, nuclear, clean coal, geothermal heat pumps, etc.), and a more realistic timetable for compliance.
  • Consumer-focused efficiency initiatives such as: the Home Star consumer rebate program, the Building Star rebate program for large buildings, and an expansion of the Energy Star program.
  • In addition, there is some serious bipartisan Congressional movement for restricting EPA authority to regulate greenhouse gases.

All of these efforts together constitute actions consistent with the expressed desire of President Obama to continue to focus on energy, but to do so in "chunks" as opposed to a comprehensive bill.  Because past efforts at passing climate or energy legislation were "perceived as reducing job growth," President Obama said shortly before the election that it is no longer "realistic to expect that we have another big, omnibus, comprehensive, one-size-fits-all energy bill." However, the President said he believed more modest energy legislation could be advanced that "would have the side benefit of dealing with climate change."

Said the President: "So my approach to Republicans would be to say, 'Regardless of what you think about climate change, here are a bunch of things that are smart to do. It will save consumers money, it will save the country as much money going into foreign oil imports, so let's concentrate on things that we just know are smart to do.' If we do that, we can probably get a quarter of the way there in terms of where we need to be in terms of carbon emissions."

As he did a month earlier, the President embraced a "series of more bite-sized pieces that have to do with renewable energy standards, that continue to build on the good work we've done to improve fuel efficiency in cars, energy efficiency in buildings."

Will the newly elected Republican leaders reach across the aisle on energy? Contrary to election year characterizations, Republican leadership has articulated several energy initiatives that could be part of the iterative process suggested above. Consider the following quote from soon-to-be Speaker of the House John Boehner: 

"I am committed to a comprehensive energy reform policy that will boost supplies of all forms of energy right here at home to reduce our dependence on foreign sources of energy, protect us against blackmail by foreign dictators, create American jobs and grow our economy."

Both House and Senate Republicans have supported exploration and production of next-generation oil, natural gas and coal in environmentally-sound ways. They have supported cellulosic ethanol and coal-to-liquids programs. Also, advanced nuclear and cleaner coal combustion technology are favored. The energy efficiency measures discussed above have also had some Republican support. 

Areas of Focus for House Republicans

To say there could be consensus on some legislative items relating to energy is not to say that Republicans have no limitations in these areas. The following will be major areas of focus for the new House majority:

  • Insistence that major large increases in discretionary spending, even on favored areas such as energy development, be accompanied by spending reductions elsewhere. 
  • Opposition to regulations that have effectively imposed a construction moratorium for sectors economy-wide. This will surely include a strong push to limit the authority of EPA to regulate carbon dioxide as a pollutant under the Clean Air Act. 
  • Substantial oversight regarding regulatory developments and governance issues, such as the role of White House officials (e.g., Energy and Climate Czar Carol Browner) in setting EPA agenda items.
  • Substantial oversight regarding costly environmental regulation, including efforts to reassess the National Ambient Air Quality Standards, new air toxics standards, cooling intake rules, and coal ash standards.
  • Discretionary spending limitations may undermine the case for subsidies or new spending in the energy sector. 


This election cycle has already confounded the typical beltway prognosticators. The post-election period could produce more of the same as it relates to Congressional action on energy policy. There will be significant battles surrounding increased EPA regulation and climate policy to be sure. However, the record suggests that Republicans have their own brand of energy proposals that focus on technology, efficiency, and domestic production. These smaller, but still significant, proposals could form the basis of some bipartisan movement on energy policy as we (already) set our sights on the 2012 election.  (top)

Financial Services

By Dee MartinGeorge Felcyn and Renée M. Dailey

As predicted by most polls and political pundits, the midterm elections have delivered a Republican majority to the U.S. House of Representatives and have tightened the margin in the U.S. Senate. Given this composition change, will Republicans seek to repeal the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Obama administration's landmark financial services reform law? Notwithstanding possible targeted efforts to repeal provisions of the law, wholesale gutting is unlikely. Rather, the new Republican majority may seek to limit the law's application by exercising its Congressional oversight authority or limiting funding. In the event repeal efforts are successful in Congress, targeted or wholesale, President Obama would likely exercise his veto authority, ultimately blocking repeal. 

Who Are the Key Players?

Passage of Dodd-Frank is due in large part to its namesake, Chairman of the House Financial Services Committee Barney Frank (D-MA). With the change in majority, it is widely believed that the Committee's Ranking Member Spencer Bachus (R-AL) will become Chairman. A vocal opponent of Dodd-Frank who voted against the bill, Bachus has focused his attention on the Consumer Financial Protection Bureau and the Obama administration's pick to head the agency, Harvard's Elizabeth Warren. However, the day after the election, Representative Ed Royce (R-CA) announced that he will challenge Bachus for the Chairmanship. Royce, also an opponent of Dodd-Frank, has historically focused on the overhaul of Fannie Mae and Freddie Mac. Minority Leader John Boehner (R-OH), likely Majority Leader, suggested a moratorium on implementation of Dodd-Frank immediately after passage and has called for the law's repeal.

Although the Democrats held the majority in the Senate, Chairman of the Banking Committee Chris Dodd (D-CT) is retiring, leaving the Chairmanship vacant. Senator Tim Johnson (D-SD), widely viewed as the Committee's most industry-friendly Democrat due to the numerous lenders and credit card companies based in his state, is first in line to replace Dodd and would likely push the Committee to the right of Dodd. If he ascends to Chairman, most expect Johnson to take a slower, more cautious approach to changing Dodd-Frank, as he has stated his intention to let the regulators promulgate rules before fine-tuning them. Other candidates for Chairmanship could include Senator Chuck Schumer (D-NY), now freed from engaging in a separate battle for Majority Leader, and Senator Jack Reed (D-RI), who is next in line after Johnson in terms of seniority on the Committee.

Why Are the Key Players Important?

Contained within the text of the massive Dodd-Frank bill are requirements for various agencies to complete what is reported as approximately 240 rulemakings and 60 studies. This staggering amount of work that could eventually set our nation on the track toward economic recovery or wreak havoc on an already ailing system demands two things: resources and oversight. Congress, of course, has a hand in both through appropriations and its oversight authorities. How these powers are used depends on who is at the helm, making the composition of Congress a critical element in the way Dodd-Frank is implemented, modified and funded.

In order to fulfill the requirements of the new law, the Securities and Exchange Commission and the Commodity Futures Trading Commission are relying on increased budgets to hire an estimated 800 and 200 new staff members, respectively. The battle over appropriations will ensue when Congress returns after the midterms, but passage of the bills could be delayed again. Given that the Republicans will control the House in 2011, the funding fight could become even more contentious.  See Appropriations.

In addition to appropriations, look for Congress to exercise its oversight authority, calling in regulators to take them to task over implementation of Dodd-Frank. Hot topics could include:  the "orderly liquidation" provision, the Volcker rule, the Consumer Financial Protection Bureau, legal liability for credit rating agencies, and reform of the government sponsored enterprises—the latter of which is a key priority of Representative Scott Garrett (R-NJ), the likely new Chairman of the House Financial Services Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises.  (top)

Healthcare Reform

By Josh Zive

One of the primary targets of criticism from candidates during this election season was the recently enacted healthcare legislation. Republican leaders, candidates, and pundits have all called for substantial changes to the legislation, and many have called for an outright repeal of the bill.  In fact, even many Democrats have joined in criticisms of specific aspects of the legislation and have claimed that they would support efforts to revise the legislation.

This tone has not changed in the immediate aftermath of the elections.  The likely new Speaker of the House, Rep. John Boehner (R-OH), has declared that repeal of significant aspects of the healthcare bill will be a high priority for the new House, and even the President has expressed openness to addressing aspects of the legislation. 

Here are the issues most likely to arise in the next Congress:

Repeal or Reform?

The threshold issue, especially for Republicans, will be whether they want to fight to repeal the entire healthcare bill, or instead pick and choose issues to try to revise piece-by-piece.  Wholesale repeal will be a very difficult task, as it will face strong opposition from the Democratic leadership in the Senate (which will only need to be able to sustain, rather than break, a filibuster) and have to overcome a Presidential veto. That said, recent comments from Boehner and other Republicans in leadership in the House have made it clear that some variety of repeal effort will be undertaken by Republicans in the House, and all that remains to be seen is how broad that effort will be and what legislative provisions will targeted for overhaul or removal from law.


If outright repeal cannot be accomplished, Republicans in Congress, along with some Democrats who opposed the healthcare legislation, may seek to defund the legislation through denial of appropriations to the agencies responsible for implementing the bill's mandates. In fact, some candidates and current members of Congress have threatened to condition all appropriations on the defunding, a prospect that threatens the type of government shutdown last seen in the early 1990s. While it will be difficult to collect the votes necessary to accomplish the goal of defunding the legislation, the battle over these appropriations threatens to complicate a wide variety of appropriations bills and the projects that depend on appropriations for funding.

Targets for Reform

There is a virtually unlimited universe of issues connected to the healthcare legislation that Congress may target for reform. The issues most likely to be addressed by Congress include:

  • Changes to the individual mandate to purchase health insurance. This provision has been the target of intense criticism from politicians at the federal and state levels. In addition to the litigation winding its way through the courts, many legislators appear to be willing to support a discussion about significant revisions to the mandate. These changes could include a focus on incentives, such as vouchers, that Republicans have long supported as a tool to encourage consumers to purchase health insurance.
  • There is significant momentum in the direction of reducing the burdens on small businesses in connection with the healthcare bill. One popular example is the requirement that all businesses report a wide range of new transactions to the IRS. This mandate may be an early target for reform, as even the President, speaking after the elections, has expressed a willingness to consider changes to the IRS mandates.
  • Medical malpractice reform. Medical malpractice reform was discussed during the lead-up and drafting of the healthcare bill, but very little language ultimately survived in the final text of the legislation. With a larger Republican presence on Capitol Hill, the time may be ripe to reopen the bill to include more comprehensive malpractice reform language.  (top)

Industrial Owners and Operators

By Lisa Jaeger

With the large gains by Congressional Republicans, Republican control of the House, and a more balanced Senate, industry owners/operators can expect some relief from the many burdensome initiatives pending in the 111th. Republican gains in the Senate will tilt Committee ratios closer to parity between the parties with greater representation by Republican Members and staff on Committees across the board.  A shift toward parity, and the Republican majority in the House, will be very positive for industry owners/operators.


Climate Change Cap-and-Trade
Any life left in greenhouse gas (GHG) cap-and-trade legislation has been squelched by the election outcome. 

Creating American Jobs and End Offshoring Act (S 3816)
This bill would have punished manufacturers for increasing production outside of the US or closing US facilities, by eliminating their business expense deduction and increasing their taxes. The underlying reasons for expanding overseas and closing domestic facilities – such as, for example, unsustainable energy or environmental costs here in the US – would not have been taken into consideration. Although the closely-watched bill did not move in the 111th, Senate Majority Leader Reid in his Teleconference mapping out the Democrats' post-election agenda, made clear that Democrats will "keep fighting to stop" corporations from shipping jobs overseas, "because there's nothing that impacted the middle class more than job shipping overseas." Industry should expect to revisit this issue in the 112th.

Foreign Manufacturers Legal Accountability Act (HR 4678)
HR 4678 would require foreign manufacturers doing business in the U.S. to identify a registered agent in the U.S., effectively to acknowledge liability for lawsuits in the US against the company.  Although the bill explicitly exempts certain manufacturers with a US presence or ownership, the bill would violate trade laws and could have created supply difficulties for US companies. The bill was reported favorably by the House Energy and Commerce Committee in the 111th, which is less likely to happen in the 112th, but there could continue to be interest in this issue.


  • environmental standards that are achievable and protect the environment
  • energy policies that do not substantially increase costs and decrease competitiveness
  • overall regulatory certainty
  • greater access to credit
  • tax and trade policies that encourage manufacturing investment and assist US manufacturing
  • aid for developing a skilled workforce


Republican "Pledge to America"
The Pledge outlined plans for encouraging business and supporting manufacturers. According to the pledge, "a plan to create jobs, end economic uncertainty, and make America more competitive must be the first and most urgent domestic priority of our government." Republicans in the House will introduce legislation to implement this pledge. To have any chance of success, the legislation will need to garner enough Democratic support to be passed by the Senate and signed by the President. For this reason, industry should not expect Congress to enact major changes in law or policy.

House Energy and Commerce Committee Oversight of EPA
All three potential Republican Chairmen of the House E&C Committee (Reps. Barton, Shimkus, Upton) have made clear that they will conduct oversight of EPA regulatory actions. In October 2010, Ranking Member Barton wrote to EPA signaling his interest in the impact on US companies and jobs of 50 pending EPA Clean Air Act regulations. In the 111th Congress, concern for EPA's pending regulations has been strongly bipartisan, evidenced by, for example, Democrats and Republicans on letters to EPA expressing concern that the upcoming ozone standard not be unduly stringent. Close, bipartisan scrutiny of these and other EPA actions such as climate change, Clean Water Act, Superfund and other environmental statutes, should be expected in the 112th.

Climate Change
Beyond no support in the 112th Congress for a GHG cap-and-trade legislation, there will likely be bipartisan support for protecting the US economy from GHG regulation. House and Senate Committees are likely to consider ways to prevent EPA from going forward with its GHG regulations. Among the possible actions would be a Rockefeller-like attempt to delay EPA regulations, or to delay State implementation of the rules.

Senate Environment and Public Works Committee Makeup
Two of the most dogged and knowledgeable opponents of overreaching by EPA – Senators Bond and Voinovich – are retiring. It is unclear who will replace them on the Committee, but their deep knowledge of the Clean Air Act and other EPA statutes will leave a gap to be filled. New Committee Members and staff will take some time to be educated in the issues and new advocates on the Committee for key environmental issues will need to be identified.

Energy Policy
From the perspective of industrial energy consumers, who must absorb the downstream cost impact of the regulation of utilities, the 112th energy policy = environmental regulation + energy legislation. Presumptive House Speaker Rep. John Boehner has described his idea of comprehensive energy policy to include boosting domestic energy supplies and creating American jobs. This is consistent with how industrial sources see domestic energy policy, and the 112th could provide the bipartisan opportunity to bring environmental goals into line with the energy policy they are driving.  (top)

Labor, Employment and Human Resources

By Amy Halevy, Nancy O'Connor and Lon Williams


Comprehensive Immigration Reform Act
If enacted, such legislation would, among other things, create a legalization program for undocumented workers and enhance employment verification programs.

Employee Free Choice Act (Traditional Labor)
Would give workers the right to form union by majority signing authorization cards.

Employee Misclassification Prevention Act
Would amend the Fair Labor Standards Act (FLSA) to penalize employers who mis-categorize workers as independent contractors rather than employees. Such legislation would force employers to categorize more workers as employees, thus subjecting them to income tax withholding and deductions for various employment related taxes. It would subject the employers to organization by unions and cover the affected employees with employment-related statutes such as Title VII, the Age Discrimination in Employment Act (ADEA), etc. Such legislation would allow these "new" workers to be added to the "jobs" rolls.

Employment Non-Discrimination Act (ENDA)
Would add sexual orientation to the list of protected categories covered under federal law.

Healthy Families Act
Would require employers to accrue seven (7) days of paid sick leave annually to full time employees.

Paycheck Fairness Act
Would make compensatory and punitive damages available in gender pay discrimination cases and would make it easier for plaintiffs to organize class actions by allowing "opt-out" method.


Department of Labor - Administrator's Interpretation Letters
On its own initiative, the Obama Administration has been issuing Interpretation Letters advancing its interpretation of certain regulatory language. In most cases, these Interpretations expand the application of existing regulations. Outlook: These Interpretations are likely to continue for the remainder of the Obama Administration.

With addition of new employees under various federal funding programs, these agencies have become more active in enforcing anti-discrimination laws and regulations against private employers. Outlook: The Administration has largely acted through Executive Orders, rather than through legislation. Absent the prospect of "helpful" legislation, this activity will expand even if funding is reduced.

The Obama Administration has appointed strong labor-oriented members to the National Labor Relations Board (NLRB), including two via recess appointment. Outlook: The current five-member Board still has one vacancy, and the chairmanship and one recess appointment will expire in 2011, forcing the Administration to obtain Senate consent for nominees or make more recess appointments. The results of the midterm elections make obtaining consent problematic for the Administration, inhibiting it from appointing pro-labor nominees to the Board. Earlier this year, the U.S. Supreme Court established that the Board cannot act with only two members.

Workplace safety is a major focus of this Administration, which has been utilizing all available tools at its disposal (and creating new ones, i.e., Interpretation Letters) to pursue its agenda. Outlook: Expect this trend to continue.  (top)

Offshore Energy Development

By Michael Olsen

Where Offshore Drilling Legislation Currently Stands:

  • Despite overwhelming public support for a legislative response to the Macondo blowout, drawn out Congressional actions allowed science and technology to catch up with the rhetoric, and slowly public interest and outrage began to fade.
  • Ironically, the Obama Administration also slowed the momentum for passage of spill response legislation with its statements that three quarters of the oil that had been released into the Gulf had evaporated, broken down, been captured, or burned.
  • Energy and oil spill response legislation during the lame duck is implausible. Senate Majority Whip Dick Durbin (D-IL): "There are many choices and most of them are controversial, so to think that we could do them quickly in a lame-duck is a long shot." (The Hill, 9/28/10)
  • House and Senate Republicans are united in their opposition to legislation that mirrors the House-approved CLEAR Act.

Political Climate Surrounding Drilling Legislation in the 112th Congress:

  • The change in the House to Republican control and significant pickups by Republicans in the Senate will certainly impact the legislative agenda for offshore drilling.
  • Action taken in the Congress will depend to some degree on the Interior Department's efforts to impose additional requirements on industry through regulation.
  • A Republican-controlled House and a Democratic-controlled Senate are well suited for deal making and compromise.
  • A split Congress may force the Democrats and Republicans to soften some of their more hard-line stances and find common ground.
  • Consequently, the President will be in a stronger position to act as a deal broker. 
  • Indications are that House Republicans, with support from Senate Republicans, will also focus on more robust oversight and investigations of the Interior Department's decision making in the wake of the Macondo blowout.

What Could Generate Renewed Interest in Drilling Legislation?

  • We do not expect to see a rush to legislate at the beginning of the 112th Congress. Staff will likely make recommendations on legislative action based on the final results of ongoing investigations into the causes of the Macondo blowout. For example, look for hearings following the January release of the report of the Bipartisan Commission on the BP Deepwater Horizon Oil Spill and then legislation in the spring or summer.
  • Like it has with shallow water permits, we expect that the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) will begin to issue deepwater drilling permits at an exceptionally slow pace, despite the lifting of the moratorium. We expect increased calls from Republicans and oil-state Democrats for legislative action mandating drilling application approvals.
  • With regard to the timing of spill response legislation, consider that after the Exxon Valdez spill in March of 1989, it took Congress more than 18 months to pass the Oil Pollution Act of 1990.

What Could Offshore Drilling Legislation in the 112th Congress Include?

  • Many Republicans would be very content with doing little or nothing with regard to offshore drilling legislation or comprehensive energy reform legislation. 
  • Nevertheless, the House and/or Senate will likely develop some form of spill response legislation, but it will be more narrow, more technical, and more tempered than the CLEAR Act passed by the House in July. For example, look for more reasonable attempts to address concerns regarding oil spill liability and financial risk.
  • Without a resurgence of public interest in legislation addressing the blow out and offshore drilling generally, a more comprehensive energy bill or other major legislation will likely be the vehicle with which changes to laws impacting offshore drilling will be made.  (top)

Renewable Energy

By Salo Zelermyer and Michael Pate

In the wake of the recent mid-term elections, it can fairly be said that little is certain but death, taxes, and that at January's State of the Union address President Obama will prominently call for increasing the nation's production of renewable energy. This policy goal has become an annual right of passage for Presidents of both parties. A quick glance around the House chamber will once again reveal that this statement will receive a unanimous standing ovation from all Congressional members present — after all, even in this election cycle, is there anyone opposed to renewable energy? And yet, when it comes to actually enacting legislation designed to achieve the stated policy goal, there are differences that emerge based on fiscal ideology, geographic disparities, and other key issues. How will these differences be approached by a new Congress where Republicans have regained the majority in the House of Representatives and added new members to the still Democratic-controlled Senate? Where will the Administration and the Republican party focus their efforts? 

Renewable Electricity Standard (RES)

It is a safe assumption that there will be no appetite for consideration of comprehensive climate legislation (i.e. cap-and-trade) in the next Congress. However, it is entirely possible that the White House and a bipartisan group in Congress will place a national Renewable Electricity Standard (RES) on the legislative agenda. Evidence of this can already be seen in recent pre-election statements from President Obama who, acknowledging the dim possibilities for major energy legislation, discussed passing a "series of more bite-sized pieces that have to do with renewable energy standards[.]" This statement dovetails with the recent bill proposed by Senator Jeff Bingaman, the Chairman of the Senate Energy and Natural Resources Committee, and 32 bipartisan cosponsors, which would require utilities nationwide to have 15% of their electricity generated from renewable energy sources by 2021. Ultimately, enactment of a national RES, even with these initial expressions of support, remains a long shot due to concerns over increased consumer costs and regional disparities in access to renewable power sources.    

Tax Policy

The next Congress is also likely to consider several major renewable energy taxes that expired at the end of 2009 or will expire at the end of 2010. The biodiesel tax credit expired at the end of 2009. In addition, the ethanol tax credit and ethanol import tariff expire at the end of 2010. The ethanol industry has developed a smaller blenders credit that changes to a refundable producer credit and an elimination of the ethanol import tariff in 2012. This proposal was recently presented to staff of the tax writing committees and it will get some consideration. Other items being considered include an increase in the manufacturers tax credit (section 48C) to expand or modify facilities that manufacture renewable products and an extension of the direct payment in lieu of the production tax credit for renewable energy projects established under the American Recovery and Reinvestment Act of 2009 (the "Recovery Act")

Funding for Renewable Energy Projects

Perhaps the most dominant theme to emerge from the mid-term elections was a backlash against government spending and the state of the national debt.  Republicans nationwide ran on promises to return to their traditional ideology of fiscal conservatism (i.e., reduced government spending and lower tax rates on individuals and businesses). Against this backdrop, how will the next Congress address government funding for renewable energy projects that rose to unprecedented levels with the passage of the Recovery Act? To some extent, they will not have to since a sizeable portion of federal assistance from the Recovery Act remains available under the U.S. Department of Energy's Loan Guarantee Program, the Advanced Research Projects Agency-Energy (ARPA-E) and other programs. 

As to funding levels in the next budgetary period, the answer is that, due to its bipartisan support, domestic spending on renewable energy is likely to fair better than most other areas of the federal budget. The White House and Democrats have an enormous incentive to cast themselves as the driving force behind a resurgent clean energy economy — a theme they have driven since 2008. For their part, Republicans have also favored funding renewable energy projects — so long as they are part of an "all of the above" approach to the nation's energy supply. Accordingly, while funding levels will certainly not approach those reached under the Recovery Act, the next Congress will continue to unite around federal support for renewable energy projects.  (top)


By Michael Pate

With the Republican takeover of the House of Representatives in January, Congressman Dave Camp (R-MI) is slated to become the Chairman of the House Ways and Means Committee. The Ways and Means Committee is currently composed of 26 Democrats and 15 Republicans. Two Republicans are not returning to the Committee, so if the ratios stay the same in the 112th Congress, then there will be 13 new Republicans on the Committee. Since Appropriation earmarks are currently in disfavor, you might see more Members interested in getting on the Ways and Means Committee than the Appropriations Committee. Because of term limits in the Senate, Senator Hatch (R-UT) will be the ranking member of the Senate Finance Committee. Senator Grassley will remain on the Finance Committee but will become the ranking member of the Senate Judiciary Committee.

What are the Pending Tax Bills? 
The Bush 2001 and 2003 tax cuts that expire 12/31/10; alternative minimum tax (AMT) – expired 12/31/09; business and individual tax extenders that expired 12/31/09 and those that expire 12/31/10; estate and gift tax – in 2011 goes to $1 million exemption and 55% tax rate if nothing is done; and a green energy jobs bill.

What Happens on Tax Extenders During the Lame Duck Session? 
Worst case: Nothing happens on any of the tax bills. Best case: All of the above are packaged in one bill and passed permanently. This would cost about $4 trillion. If the Democrats and Republicans can reach an agreement on taxes the probable outcome is a one- or two-year extension of the Bush 2001 and 2003 tax cuts, AMT, business and individual tax extenders that expired in 12/31/09 and estate and gift tax back to the 2009 levels of a $3.5 million exemption and a 45% tax rate. 

Dividends and Capital Gains Rates
The current rate for both dividends and capital gains is 15% which expire at the end of 2010. If allowed to expire, the tax rate on capital gains would rise to 20% and on dividends to a maximum tax rate of 39.6%. Any extension must be offset with additional revenue raisers (permanent extension would cost about $400 billion).

Debt Limit Extension
The current national debt limit is $14.3 trillion and will need to be extended by mid-year 2011 (current national debt is $13.6 trillion). Congressman Eric Cantor (R-VA), the likely new House Majority Leader, said last Friday that the GOP will demand spending concessions before agreeing to pass another Debt Limit Extension. The GOP also wants a “clean” vote on any debt limit increase, free of any additional measures. Any extensions of the tax bills will add to the debt limit unless they are offset with other tax increases.

Deficit Reduction
The President's National Commission on Fiscal Responsibility and Reform is scheduled to release its recommendations on how to reduce the deficit on December 1, 2010. The Commission is composed of 6 Democrats, 6 Republicans, 4 representatives from business interests, labor unions and think-tanks and the 2 co-chairs:  former Republican Senator Alan Simpson of Wyoming and Erskine Bowles, White House chief of staff during the Clinton Administration. Fourteen of the 18 members must agree on the recommendations (meaning at least 5 Republicans most sign off on the report). Speaker Pelosi and Majority Leader Reid have said they will find time for floor consideration of the recommendations during the lame duck.  (top)

Trade Policy and International Commerce

By Gene GodleyPaul Nathanson and Josh Zive

With the exception of the House of Representatives' passage of a bill targeting China for undervaluing its currency in September 2010, the past two years have seen a great deal of talk but little action on trade policy issues. Free trade agreements remain stalled and, while introduced, proposed legislation to place more restrictions on trade did not progress beyond Committee votes.

While it is not possible to predict specific legislative outcomes on trade policy, the new Congress brings both risks and opportunities in the areas of international trade and commerce:

  • A Republican-controlled House of Representatives usually indicates a larger "free trade" agenda. However, in this election, many Republican candidates were not the traditional "pro-business free traders" but rather populists who tend to be more protectionist. There is a strong vein of discontent amongst voters as a result of current economic challenges, and this type of economic frustration can often manifest itself in protectionist policies and increased scrutiny of companies involved in international commerce.
  • On the other hand, there is a view both in the White House and by some leaders in Congress that U.S. participation in the global economy is essential to maintain U.S. standing in the world and to help the country's economic recovery. Also, U.S. trade policy officials are concerned that other countries and the European Union are signing trade agreements which could put U.S. companies at a disadvantage without similar agreements.

With these factors in mind, look for the following issues to be considered by the Congress in 2011:

  • After more than three years, look for the Obama Administration to push for passage of a Korea Free Trade Agreement (FTA) in 2011. Attempts are being made by the Administration to negotiate some labor and auto-related parts of the agreement and the President hopes to push for passage in the next Congress.
  • Long-stalled FTAs with Panama and Colombia could also pass, but likely only if the Korea FTA is approved.
  • Congress will likely continue its focus on alleged unfair trade practices by China. There is intense lobbying currently underway by supporters of the Currency Reform for Fair Trade Act, a bill that could lead to tariffs against China for currency manipulation. The bill passed the House in September 2010 and supporters want the Senate to consider the bill during the lame duck session of Congress. While Senate leaders are reluctant to move forward with the legislation, particularly with ongoing multilateral negotiations, supporters are confident that there is enough bipartisan support for the Senate to pass a bill during the lame duck.
  • Congress will likely target Chinese companies, imports, and investment in the U.S. through legislation and investigation and agencies such as the Committee on Foreign Investment in the United States (CFIUS). In the past, Congressional activism on these issues has triggered trade disputes, chilled foreign investment, and induced retaliatory tariffs from China, and companies with a stake in U.S.-China relations and trade have reasons to be very concerned in the aftermath of the midterm elections.
  • An example of Congress targeting Chinese and other foreign companies is the Foreign Manufacturers Legal Accountability Act, a bill that would require foreign manufacturers of consumer products to maintain an agent in the United States as a way to ensure these companies fall under the US tort system for liability law suits. The bill was introduced in both the House and Senate in 2010 and will likely be reintroduced in 2011.
  • One issue where bipartisan agreement is likely to occur is enforcement of anti-bribery and international sanctions laws. While Congress has recently expanded the scope of sanctions against Iran, it would not be surprising to see this issue revisited during the next Congress to further toughen sanctions, as this is one of the only tools available to Congress to make policy related to Iran.
  • Furthermore, as the Obama Administration ramps up their reelection efforts, companies involved in international commerce should not be at all surprised to find themselves subject to more frequent and probing enforcement inquiries related to the Foreign Corrupt Practices Act (FCPA) and economic sanctions laws.
  • Finally, Congress needs to act during the lame duck session on renewal of the Generalized System of Preferences (GSP) program and the Andean Trade Preference Act (ATPA), both of which expire at the end of 2010. In recent years, renewals of the GSP program and other trade preferences programs have become more controversial in Congress.

In summary, after two years of much debate but little trade-related legislation, both pro-trade and anti-trade forces see an opportunity to push their respective agendas in the new Congress.  (top)