Congressional Update:
Numbers, Nuances and Where
Congress Stands
Julia Martin, Esq.
[email protected]
Brustein & Manasevit, PLLC
Fall Forum 2014
Agenda

The new Congress by the numbers

What has the 113th Congress accomplished?

Predictions for lame duck session

Outlook for the 114th Congress
Brustein & Manasevit, PLLC
2
The New Congress by the
Numbers
Brustein & Manasevit, PLLC
3
1
Senate: 113th Congress
Democrats
Republicans
Independents
Brustein & Manasevit, PLLC
4
Senate: 114th Congress
Democrats
Republicans
Independents
TBD
Brustein & Manasevit, PLLC
5

President’s party historically takes a hit in midterm elections
Loss/Gain for President’s Party
The Midterm Curse
15
10
10
5
5
3
2
0
0
1
-1
-5
-6
-10
-8
-6
-8
-15
-6
-4
-6
-5
-1
-3
-8
-9
2
0
-6 -6
-9
-8
-13
Senate
Brustein & Manasevit, PLLC
6
2
Why such a big shift in the Senate?

Large number of Democrats retiring:

Sen. Tom Harkin (D-IA)

Sen. Jay Rockefeller (D-WV)

Sen. Tim Johnson (D-SD)

Sen. John Walsh (D-MT)
… who live in increasingly Republican States (though Iowa
went for Pres. Obama in 2012)

And some surprising losses:

Sen. Kay Hagan (D-NC) to Thom Tillis

Sen. Mark Pryor (D-AR) to Tom Cotton

Sen. Mark Udall (D-CO) to Cory Gardner
…for largely the same reason
7
Why does it matter?

If Republicans control both chambers, stronger
negotiating position against President Obama on:

Repeal/replacement of health care law

Immigration

Federal funding generally

Education



Moving away from sequestration?
Including: gainful employment/for-profit colleges, student
loans/aid, ESEA, charters, etc.
Senate already a highly contentious body where
some procedures require 60+ votes
Brustein & Manasevit, PLLC
8
Why does it matter?

“Imagine planning a party and inviting 20
friends. Nine of them want pepperoni
pizza and 11 want cheese. So you all
decide to cancel the whole party. That’s
how the United States Senate works.”
Brustein & Manasevit, PLLC
9
3
House: 113th Congress
Democrats
Republicans
Vacant
Brustein & Manasevit, PLLC
10
House: 114th Congress
Democrats
Republicans
TBD
Brustein & Manasevit, PLLC
11
The Midterm Curse
Loss/Gain for President’s Party
20
9
10
-4
-10
-20
4
0
0
-10
-5
-12
-18
-19
8
-8
-10
-15
-26
-30
-28
-40
-50
-60
-49
-45
-48
-47
-48
-59
-59
-54
-63
-70
-80
-75
Brustein & Manasevit, PLLC
-71
House of Representatives
12
4
Why does it matter?

Continued partisanship between and
within parties (especially between
Republicans)

Straight majority still most important in
House (but some efforts require 2/3)
Brustein & Manasevit, PLLC
13
New Congress already at odds
with popular opinion?

Voted in overwhelmingly conservative House and
Senate

Many governorships changed hands to Republicans

BUT

Voters in CO, TN, and ND rejected fetal “personhood”
amendments

OR and DC legalized recreational marijuana
possession/use

AK, AR, IL, NE, and SD increased minimum wage

Voters in WA passed gun background check bill
Brustein & Manasevit, PLLC
14
New Congress already at odds
with popular opinion?
Brustein & Manasevit, PLLC
15
5
New Congress already at odds
with popular opinion?

Why the disparity?

Many self-identified Democrats voted for
Republicans

President’s unpopularity a liability for many
Democrats

Sign that Republicans going back toward
mainstream?


Former Presidential candidate Mitt Romney calls it
a victory for “big tent” Republicans
What will it mean for this Congress?

Lack of conservative mandate?

Some more mainstream/moderate legislation

But also some confusion about what voters
want/find important
16
What has the 113th
Congress Accomplished?
Brustein & Manasevit, PLLC
17
Artifacts Discovered Buried In Washington D.C. Suggest Humans
Once Passed Laws There • Sep 18, 2014
“[E]vidence points to an extraordinary
yet apparently common ritual in which
early leaders who held opposing
viewpoints engaged in a standardized
routine of communicating, offering
mutual concessions, and then moving
together on an idea called an
“agreement” that occupied some sort
of middle ground between their two
initial visions … researchers said that
the complete lack of any relics from
more recent years confirmed that the
practice seems to have died out
suddenly
without
any explanation.”
Brustein & and
Manasevit,
PLLC
Archaeologists say the mysterious
lawmaking civilization thrived in this
region for generations before dying off
suddenly.
6
What has Congress Done
Lately?

Before recessing for midterm elections, 113th Congress had
passed


163 bills

Least of any Congress (112th: 283; 111th: 383)

18 are bills to rename Post Offices or federal courthouses
Includes:

A limited number of appropriations bills

A very limited number of non-controversial pieces of
education reauthorization legislation

WIA

CCDBG
Brustein & Manasevit, PLLC
19
Predictions for Lame
Duck Session
20
Still on the to-do list

Full-year appropriations for FY 2015

Homeland Security issues?

Current CR expires December 11th

Syria/ISIS

Ebola outbreak

Immigration?

HEA reauthorization?

Student loans?
 Focus continues to be on last-minute, must-pass
legislation
Brustein & Manasevit, PLLC
21
7
How does election change
this?

Not much!

Republicans have more incentive to wait until January
to craft substantive policy/spending legislation

Likely to have a short session in November/December

All optional legislation will be delayed until new
Congress
Brustein & Manasevit, PLLC
22
Appropriations – FY 2015

Sen. McConnell has pledged no more government
shutdowns

As of November 5th, House and Senate appropriators
working on full-year “wrap-up” Omnibus
appropriations bill for remainder of FY 2015

CR expires December 11th

Want to get Omnibus done by end of December

Generally looking to find common ground between
House and Senate based on agreed-to budget caps


Means more or less continuation of current funding, no
significant cuts

If CR cut continued over full year, would be 0.28% cut
total
But possible objection from Republican lawmakers, 23
especially in light of electoral victory
What happens to legislation
at the end of a Congress?

Bills “die”

Must be reintroduced the next session

Process starts from beginning (e.g., must go to Committee
even if it has been passed through one chamber)

But “legacy”/footprint of early versions leaves its mark
24
8
Outlook for the 114th
Congress
Brustein & Manasevit, PLLC
25
“Oh brave new world…”
Brustein & Manasevit, PLLC
26
…the 114th Congress convenes on January 4th, 2015
First Things First

House of Representatives must adopt rules for new session

Senate does not need to adopt new rules, but must consider
changes to rules

Leadership positions must be confirmed


House: Speaker/Majority Leader/Minority Leader,
Majority/Minority Whips and deputies

Senate: Majority Leader/Minority Leader, Majority/Minority
Whips and deputies
Committee chairs and members must be selected
Brustein & Manasevit, PLLC
27
9
Outlook for 114th Congress


Will have significant proportion of new
members

11 in Senate (11%)

58 in House (13%)
Significant majorities in House and Senate
mean Republicans have more ability to push
legislation through Congress

BUT subject to:

Objections from Democrats

Objections from “rank-and-file” Republicans

Presidential veto
Brustein & Manasevit, PLLC
28
Appropriations – FY 2016

More likely that new
Republican majority will flex
its muscles here

No agreement on spending caps
means starting from scratch

Republicans have expressed
desire to eliminate Defense
sequestration

Pass budget resolutions in House
and Senate through
“reconciliation” – only need
majority, not 60 votes in Senate
Brustein & Manasevit, PLLC
29
Other Leadership Priorities

Sen. Mitch McConnell (R-KY)  likely
Senate Majority Leader

Approve the Keystone XL Pipeline

Changes to health care law:

Repealing the medical device tax

Changing “full-time” definition to
40-hour work week

Repealing individual mandate

Changes to Estate Tax

Modify Senate rules


Possibly eliminate “nuclear option”

Allow more Senators to bring legislation to
floor
Work with President on bipartisan
legislation
30
10
Other Leadership Priorities

Rep. John Boehner (R-OH)  incumbent (and likely
future) Speaker of the House

Simplify tax code

Reduce spending by revising entitlement programs and
other drivers of debt

Legal reforms, including medical malpractice

Regulatory Reforms


Making major rules contingent on Congressional
approval, reducing agency expenses
Education reforms

Expanding charter school access

Reducing college costs

Reforming K-12 education by: (mostly part of H.R. 10)

Revamping teacher evaluations

Giving States/districts more control over use of federal
funds

Increasing school choice options
31
New Chair in Senate Committee

Senate Committee on Health, Education, Labor,
and Pensions

Current Chairman Tom Harkin (D-IA) retiring at the
end of the year

Chair finalized in January when new Senate
convenes

Most likely Lamar Alexander (R-TN)


Former U.S. Secretary of Education, Governor, college
president

Focus on HEA reauthorization, FAFSA simplification,
reducing higher ed regulations

ESEA reauthorization a “top priority”
New Ranking Member likely Patty Murray (D-WA)

Focus on early education
32
New Makeup of House
Committee


Rep. John Kline (R-MN) remains Chairman

Focus on ESEA reauthorization, charter schools

Wants to reauthorize HEA
Current Ranking Member George Miller
(D-CA) will retire at the end of the year

Likely replacement is Rep. Bobby Scott (D-VA)

Focus on school discipline, boosting minority
achievement
Brustein & Manasevit, PLLC
33
11
114th Congress in a Nutshell

Continued partisanship, especially in Senate

Clashes with President on immigration, health care

Focus on funding issues

Likely candidates for education action:

HEA reauthorization

Charter schools

Maybe ESEA (?????)
Brustein & Manasevit, PLLC
34
Disclaimer

This presentation is intended solely to provide
general information and does not constitute legal
advice or a legal service. This presentation does not
create a client-lawyer relationship with Brustein &
Manasevit, PLLC and, therefore, carries none of the
protections under the D.C. Rules of Professional
Conduct. Attendance at this presentation, a later
review of any printed or electronic materials, or any
follow-up questions or communications arising out of
this presentation with any attorney at Brustein &
Manasevit, PLLC does not create an attorney-client
relationship with Brustein & Manasevit, PLLC. You
should not take any action based upon any
information in this presentation without first
consulting legal counsel familiar with your particular
circumstances.
Brustein & Manasevit, PLLC
35
12