Capitol View
VOLUME
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SEPTEMBER
2004
Now that the party conventions are over and the candidates are fully engaged in the final stages of their
campaigns, it might be worthwhile to consider the policy initiatives we might see in the second term of
President George W. Bush or in the first term of President John F. Kerry. Capitol View has asked our partners,
former Senator Birch Bayh (D-IN), and former Congressman and Under Secretary of Commerce for President
Bush, James Rogan (R-CA), for their thoughts on the priorities of a Bush or Kerry Administration.
"I, John F. Kerry, do solemnly swear…."
Of course, much of this is speculation and much of the Kerry Administration's actual domestic
legislative agenda would largely depend on which party controls the Senate and the House, and by how many
votes, when the 109th Congress convenes in January of 2005. However, in the arena of foreign affairs, where a
President has more authority to act without Congressional approval, I believe we would see some immediate
efforts to restore closer working relationships with our allies, particularly our traditional allies in "Old Europe."
The Kerry Administration would take steps to engage in more multilateral contacts with allies and multinational
organizations such as the U.N. and NATO, and abandon what they perceive as the overly unilateral approach to
foreign policy practiced by the Bush Administration. They believe this policy has significantly harmed our
ability to convince these allies to assist us in our efforts overseas.
The first arena in which President Kerry would hope to see some benefits for this new approach would
be Iraq. He would attempt to convince NATO to make the security of Iraq one of its primary missions and to
deploy significant NATO forces there to help secure the peace in that country. He would also attempt to
convince non NATO countries to increase their participation in, and contribution to, Iraqi reconstruction efforts.
Through these efforts the Kerry Administration would hope to place more of an international profile in securing
and reconstructing Iraq. Eventually, this would lead to the withdrawal of some American military personnel
from that country.
The initial months of a Kerry Administration would also see the acceleration of efforts to curtail nuclear
weapons programs in North Korea and Iran. These steps would complement other efforts to prevent terrorists
from obtaining nuclear materials or other components of weapons of mass destruction. The Kerry
Administration would also expect that their multinational approach to foreign policy would assist in our efforts
to combat world-wide terrorism and eradicate its funding sources.
As I noted previously, the Kerry domestic agenda is subject to some speculation since it will be directly
effected by the partisan make- up of the new Congress following the November elections. However, it is likely
that one of the primary goals of the Kerry Administration will be to roll back the Bush tax cuts for those
taxpayers making over $200,000 per year and use these savings to help fund ambitious programs in health care
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and education. The Kerry tax reform plan also includes a jobs tax credit to encourage hiring and the elimination
of tax breaks for companies that move jobs overseas.
The Kerry Administration's health care plan would create a special catastrophic payment pool under
which the high costs of certain health care treatments would be covered by a pool of private and governmental
funds. Those employers who wanted to participate in the catastrophic pool would earn tax credits but wo uld
also have to provide a certain level of health coverage to their workers and participate in disease management
and care coordination programs. The Kerry plan also includes incentives for controlling drug prices and steps
to make medical malpractice insurance more affordable.
A Kerry Administration education plan would fund the No Child Left Behind Act at its full
authorization level. This would add an average of about $10 billion per year in appropriations for the NCLB
Act. The Kerry Administration would also propose issuing approximately $25 billion in federal government
bonds to help states repair or construct modern schools. It would also support expansion of preschool and after
school programs.
President Kerry's environmental program would include proposals to revitalize the Superfund program
to clean up contaminated sites by reinstating the expired chemical and oil "polluter pays" taxes and to provide
additional funding for parks and recreation areas through the Urban Park and Recreation Recovery Program.
He would continue his opposition to drilling in the Arctic National Wildlife Refuge and take steps to protect and
restore land and resources in the National Forests, National Parks, and Wilderness areas.
The Kerry Administration's energy program would concentrate on promoting energy conservation such
as increasing fuel efficiency and promoting the use of alternate fuels. The program would seek to develop
additional natural gas sources and promote the construction of the infrastructure necessary to move and deliver
natural gas. It would make the electric grid more reliable by proposing that Congress enact legislation to
require enforceable reliability standards. President Kerry would also propose a combination of government
funds, tax incentives and loan guarantees to develop new technology to invest in and implement clean and
reliable energy from coal.
Obviously, a legislative agenda is far from actual legislative accomplishments. If John Kerry won the
Presidency on November 2 and the Democrats were able to win control of both Houses of Congress, the new
Kerry Administration would still face a Senate with only a likely majority of 51 or 52 votes. While this would
give Democrats control of the agenda, it would not ensure success in a Senate where the ever increasing use of
the filibuster requires 60 votes to pass practically any controversial bill.
Birch Bayh is a Partner in Venable's Legislative Practice Group. Mr. Bayh can be reached at 202-344-4705.
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"I, George W. Bush, do solemnly swear…."
I am pleased to join my colleague and dear friend, Senator Birch Bayh, in sharing a few thoughts on the
policy direction one might expect after the outcome of the upcoming presidential race is known. My job is
easier than Senator Bayh’s: as he notes correctly, he must speculate on how a Kerry presidency might look. In
anticipating what a second term for President Bush means, I enjoy the benefit of his almost four years in office
as a predictor for his future behavior.
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As Senator Bayh also notes, my analyses is dependent on which party controls either or both houses of
Congress. For purpose of this review, I assume that following Election Day the GOP will control the House of
Representatives by at least a 12-seat majority; the Senate will remain in GOP hands by its current slender
margin, with perhaps a one or two seat gain. This assumption is more than just wishful thinking: as of this
writing, this appears to be the consensus among many political commentators.
On the international front, I expect President Bush to stay the course respecting the war against
international terrorism. Last week the president made plain his commitment in this regard. In his speech to the
Republican National Convention, President Bush took pride in his administration’s record: he said that four
years ago Afghanistan was the home base of al-Qaida, Pakistan was a transit point for terrorist groups, Saudi
Arabia was fertile ground for terrorist fundraising, Libya was secretly pursuing nuclear weapons, Iraq was a
gathering threat, and al-Qaida was largely unchallenged as it planned attacks. Today, the government of
Afghanistan is fighting terror and its 50 million people are free, Pakistan is capturing terrorist leaders, Saudi
Arabia is making raids and arrests, Libya is dismantling its weapons programs, the army of a free Iraq is
fighting for freedom, and more than three-quarters of al-Qaida's key members and associates have been detained
or killed.
I expect President Bush will do three key things in this ongoing struggle:
First, he will continue fighting the war on terrorism from the offense. He will continue to lead a
worldwide coalition he has brought together to fight terrorists abroad so (hopefully) we will face a lowered
threat at home.
Second, he will work with a new National Intelligence Director to improve the quality and quantity of
our intelligence and our ability to disrupt and prevent terrorist attacks.
Third, President Bush is committed to restructuring American forces overseas to use existing forces
more effectively and to support servicemen, servicewomen, and their families more efficiently. He has pledged
a massive shift of forces from Europe, where our security interests no longer are threatened as they were during
the Cold War, and seeks to focus our military in areas where our interests are threatened.
On the domestic front, President Bush has announced an ambitious second term agenda. From taxes to
the economy, from homeland security to national defense, from improving education to ensuring better health
care for seniors, he has pledged to work with Congress to bring greater accountability, better service, and more
choice for our citizens.
President Bush says he will continue encouraging investment and expansion of our economy through job
creation. To accomplish this, he will push to make his tax relief package permanent while at the same time
trying to restrain federal spending and eliminate unwarranted government regulation. President Bush will also
continue to press for reforms to the federal tax code and seek a simplified method for the American people.
In the area of health care coverage, President Bush will assist the uninsured (half of which are small
business employees) by permitting small firms to join together to gain access to big firm insurance discounts.
Also, by offering tax credits, the Administration will encourage small businesses to establish health savings
accounts and then provide direct assistance for low-income citizens to purchase them. The President also
intends to establish a community health center in every one of America’s poor counties and renew his effort to
enroll millions of our impoverished children in government health insurance programs.
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Another key area for President Bush will be education. He has pledged his Administration will provide
$250 million annually to extend state assessment of student reading and math skills to help them better compete
on the international level.
Finally, President Bush will continue defending America at home by ensuring our nation’s homeland
security.
Without question, these are perilous times for whoever serves as our president over the next four years.
Our country and our elected leaders will have many difficult choices to face, but the most important choice will
be made on November 2nd, and it will be made by those whom our Founders identified in the preamble to our
Constitution:
We the people.
James E. Rogan is a Partner in Venable's Legislative Practice Group. Mr. Rogan can be reached at 202-3444926.
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Congress Returns
The traditional August Congressional Recess is a time of little or no activity in Congress, particularly in
a presidential election year with the Democratic and Republican Party conventions. However, the release of the
Final Report of the National Commission on Terrorist Attacks Upon the United States on July 22, which
included some 41 recommendations to overhaul the national intelligence apparatus, set off a flurry of
Congressional hearings on this issue over the August recess. Members of the 9/11 Commission appeared at 16
separate hearings in August before Senate or House Committees on Armed Services, Governmental Affairs,
Select Intelligence, Homeland Security, Financial Services, International Relations and Veterans Affairs.
On September 7, Senators John McCain (R-AZ) and Joseph Lieberman (D-CN) introduced S.2774
which would implement the Commission's major recommendations, including the creation of a National
Intelligence Director with budget authority over the government's intelligence efforts. Senator Susan Collins
(R-ME), who chairs the Senate Government Affairs Committee with primary jurisdiction over agency reform,
plans to introduce similar legislation the week of September 20th . Senate Majority Leader Bill Frist (R-TN) and
Minority Leader Tom Daschle (D-SD) also announced the creation of a 22 member Senate Working Group to
reform and streamline Congressional oversight of the Executive Branch intelligence agencies. The House
Leadership has also announced plans for the introduction of intelligence overhaul legislation in that chamber.
Many members in both the Senate and House have expressed support for consideration of and passage
of the bulk of the Commission's recommendations before the scheduled Congressional adjournment on October
8. However, the history of efforts to enact major reforms of the nation's intelligence apparatus gives some
indication of the difficulty in reaching this goal. The Congressional Research Service has found that, since the
enactment of the National Security Act in 1947, there have been at least 19 proposals for major intelligence
overhauls made by Congressional or Executive Branch Committees or Commissions. None of these major
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proposals, and very few of even their minor details, has been implemented. It may be that the events of 9/11/01
will provide some incentives for a more productive result for this Commission's efforts.
In addition to intelligence reform the likely Congressional agenda before the scheduled October 8
adjournment date is a full one. Within a few days of returning on September 7, Congress approved a $2 billion
supplemental appropriations bill to assist the victims of Hurricanes Charley and Frances. The House also voted
to prohibit the Labor Department from enforcing new regulations which revise the eligibility rules on overtime
pay. A similar proposal will probably be considered as part of the Senate version of the Labor, Health and
Human Services and Education Appropriations bill.
While enactment of major tort reform legislation has not been accomplished in this session, on
September 16, the House voted on a series of less ambitious tort reform bills. These include legislation that
would increase sanctions under the Federal Rules for lawyers who file meritless civil lawsuits (H.R. 4571), a
bill to provide liability protection for not-for-profit volunteer pilots on public benefit missions such as organ
donor flights (H.R.1084), legislation to limit the liability of professional fire companies for the equipment they
donate to volunteer fire departments (H.R.1787) and a bill to protect non-profit groups such as the Little League
from liability based on the rules they enact to govern their organizations (H.R.3369). While H.R.4571 passed
by a vote of 229-174 and H.R. 1084 and H.R. 1787 passed under suspension of the rules, the Little League
legislation failed to secure the two-thirds vote needed under this provision.
Negotiations between Majority Leader Frist (R-TN) and Minority Leader Daschle (D-SD) continues on
legislation to reform and simplify the settlement of asbestos related claims (S.2290). While the two leaders are
very close to an agreement on the size of the fund to pay asbestos claims, the AFL-CIO, which is one of the
major stakeholders in this legislation, continues to argue that the fund is not adequate. It is possible that if an
agreement is reached both the Senate and House would consider and vote on this legislation.
The Senate Republican Leadership plans to hold debate and a confirmation vote on the nomination of
Porter J. Goss to head the Central Intelligence Agency. With only one of 13 appropriation bills signed into law
a month before the start of FY2005, both chambers will have to deal with a variety of unfinished appropriation
bills, as well as possible conference reports on the middle class tax cut bill (H.R. 1308), a corporate tax bill
(H.R. 4520), and the transportation reauthorization bill (H.R.3550). In addition, the House has tentative plans
for a vote on a Constitutional Amendment to ban same sex marriages and the Senate intends to vote on an
Amendment to the Constitution to bar desecration of the American flag. Some Senators intend to push for floor
time to consider the comprehensive energy bill (S. 2095) which has been stalled for months for lack of the 60
votes needed to invoke cloture.
To the dismay of some Senators, Majority Leader Frist has already indicated discussions will be
undertaken concerning the possibility of a lame duck session. As of now, the House Leadership seems less
certain of the need for a lame duck session. However; if it’s determined that one is necessary, it would probably
be convened the week of November 15th .
Kevin O. Faley is a Partner in Venable's Legislative Practice Group. Mr. Faley can be reached at 202-3444706.
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Venable in the News
The Venable LLP west coast office is now open for business. In September our partner, former Congressman
James E. Rogan, officially opened Venable's new California branch located in the Orange County area on the
16th floor of 3 Park Plaza, Irvine, CA 92614. Jim plans to develop his practice in California while also
maintaining a significant presence in Washington, D.C.
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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
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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