Capitol View
VOLUME
2,
NUMBER
10
NOVEMBER
2004
Election
On Tuesday, November 2, the Republican Party solidified its dominance of the Federal Government by
reelecting President Bush by a comfortable popular vote margin of 51% to 48%, and extending its voting
majorities in both the Senate and the House. These are victories of historic proportions. President Bush is the
first President to be reelected and also gain seats in the Senate and House since Franklin Roosevelt in 1936. In
doing so, he received more popular votes than any Presidential candidate in history. The Republicans have now
been in control of the House for a decade and have assured their continued control for at least the next two
years. The last time the Republicans controlled the House for a 12 year span concluded in January of 1933.
Total voter turnout, including provisional and absentee ballots, was nearly 120 million voters. This represents
the highest percentage of voter turnout in over three decades.
Democrats needed to pick up 12 seats to gain control of the House but they probably lost a net of 4 seats from
their current number. Democrats lost 4 House seats in the Texas delegation alone, including the dean of the
Texas delegation, Representative Marty Frost (D-TX). The only major upset on the Republican side of the aisle
was the defeat of the longest serving Republican in the House – Representative Philip Crane (R-IL). While
some individual elections are still undecided, Republicans will occupy at least 231 seats, more than enough to
control the House agenda and its 24 Committees. Democrats will hold at least 200 seats.
The Leadership of both parties in the House will be returning in the next Congress. Dennis Hastert (R-IL), Tom
DeLay (R-TX), Nancy Pelosi (D-CA) and Steny Hoyer (D-MD) all were easily re-elected.
In the Senate, Republicans extended their majority from the present 51 to 55 Senators. There will be 44
Democratic Senators and one Independent. While this is still short of the 60 votes needed for a filibuster-proof
Senate, it places Republicans in firm control of the agenda in the 109th Congress. Among the more prominent
Democratic casualties was the Minority Leader, Senator Tom Daschle (D-SD). After a quarter century in
Congress, Daschle was defeated by Representative John Thune (R-SD) in an enormous voter turnout, estimated
to exceed 80% of South Dakota's eligible voters. Senator Harry Reid (D-NV) is expected to run to succeed
Daschle as Minority Leader. Richard Durbin (D-IL) and Byron Dorgan (D-ND) are expected to compete for the
Democratic Whip's position.
Democrats were able to replace retiring Republican Senator Peter Fitzgerald of Illinois with Barack Obama who
defeated Alan Keyes with 70% of the vote. Obama will be only the fifth African American ever elected to the
Senate.
Republicans captured formerly Democratic open seats in Georgia, North Carolina, South Carolina and
Louisiana. David Vitter became the first Louisiana Republican to win a seat in the Senate since Reconstruction.
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What was once the solid South in terms of the Democratic Party's dominance in that region's Senate delegations
has now been finally transformed to a South that is solidly Republican.
While Republicans will, of course, maintain control of all Senate Committees, several current Chairmen will be
replaced because of Republican Caucus term limit rules. Senator Arlen Specter (R-PA) will replace Orin Hatch
(R-UT) as Chairman of the Judiciary Committee; Thad Cochran (R-MS) will take over the Appropriations
Committee from Ted Stevens (R-AL), who will, in turn, assume the chairmanship of the Commerce Committee
from John McCain (R-AZ). Senator McCain will probably become the Chairman of the Committee on Indian
Affairs. Either Pat Roberts (R-KS) or more likely Saxby Chambliss (R-GA) will take over Thad Cochran's
Chair at the Agriculture Committee.
The outcome of the elections will likely result in the continuation of the intense partisan divide which has
plagued the Senate for the most recent sessions of Congress. This is particularly the case when as many as three
Supreme Court nominations may be made in President Bush's second term. The confirmation process could be
extremely bitter.
President Bush has indicated he intends to submit proposals to the new Congress to reform Social Security, the
tax code and the health care system. He will also urge modification of the tort system, particularly medical
malpractice reform, a comprehensive energy reform bill and extension of the No Child Left Behind concepts to
secondary schools.
The First Session of the 109th Congress convenes in January of 2005.
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Lame Duck
The Congress returns the week of November 15 for a post election lame duck session. This is the 14th lame
duck session since the adoption of the 20th Amendment to the Constitution in 1933 which moved the date for
convening a session of Congress from the "first Monday in December" to the "third day in January." It was the
intention of that section of the 20th Amendment to largely eliminate lame duck sessions. Obviously, it has not
been entirely successful in achieving this goal. In fact, lame duck sessions have been held in each of the last
three Congresses.
This year the lame duck session will be devoted to enacting the nine remaining appropriations bills most likely
by combining them into an omnibus appropriation vehicle, raising the debt ceiling and possibly passing the
conference report on legislation to reorganize the nation's intelligence services.
While the full list of accomplishments for the 108th Congress will not be known for sure until adjournment sine
die, it is highly likely that many of the major pieces of legislation considered at some point during the Congress
will not see final enactment. These include bills to institute comprehensive reform of the nation's energy sector
(S.2095), reauthorize the surface transportation program (H.R.3550), extend welfare reform (H.R.4), establish a
streamlined administrative procedure for handling asbestos litigation (S.2290), class action reform (S.1751),
limitation on medical malpractice awards (S.11), and a Constitutional Amendment to ban same sex marriages
(S.J.Res.40).
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Many of these measures passed in the House only to fail to be considered by the Senate. This contributes to a
certain level of frustration and resentment among some Members of the House towards the ways of the Senate.
It is a well established Congressional tradition.
During its first session in the Spring of 1789, the Senate spent weeks considering vario us matters of protocol.
Always cognizant of its role as the "upper body," the Senate settled on a plan for exchanging messages with the
House. The plan called for the Senate Secretary to deliver legislation and other messages to the House but
required legislation being sent by the House to the Senate to be brought over by two sitting Members of the
House. Other non- legislative messages could be delivered to the Senate by one sitting Member. When
presented to the House, the Senate proposal was greeted with laughter and hoots of derision. The House
dispatched its Clerk to deliver its response to the Senate.
Kevin Faley is the Editor of Capitol View and a partner in Venable's Legislative Practice Group. Mr. Faley
can be reached at 202-344-4706.
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Birch Bayh Leads Delegation
Our partner, Birch Bayh, headed the American delegation to a conference co-hosted by the Italian Patent and
Trademark Office (UIBM) together with the U.S. Embassy in Rome, from October 4-5 in Venice. The
conference was entitled "Technology Transfer: The U.S. Experience, Italy's Case and the Future." Birch was
one of the three keynote speakers opening the conference.
He also moderated a panel on the U.S. Technology Transfer System with Ann Hammersla, Director, Office of
Intellectual Property Counsel, MIT and President of the Association of University Technology Managers
(AUTM), John Raubitschek, Patent Counsel at the Department of Commerce, and Bonnie Harbinger, Deputy
Director of the Office of Technology Transfer at the National Institute of Health. While in Venice, Birch also
met with the Honorable Antonio Marzano, Minister of Productive Activities in Italy.
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Dan Lungren Wins Election
On Tuesday, November 2, Dan Lungren, a partner in Venable’s Legislative Practice Group, won his election to
a seat in the House for the 109th Congress. Dan will be representing the Third Congressional District of
California.
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Capitol View is published by the Legislative Practice Group of the law firm Venable LLP, 575 7th Street, N.W.
Washington, DC 20004-1601. Internet address: http://www.venable.com. It is not intended to provide legal
advice or opinion. Such advice may only be given when related to specific fact situations.
Editor: Kevin O. Faley
Associate Editor: Kyle Miller
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Questions and comments concerning materials in the newsletter should be directed to Kevin Faley at
[email protected].
Please direct address changes to Kyle Miller at [email protected].
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