Election Report - Polsinelli

21
Election Report 2020 November 16, 2020

Transcript of Election Report - Polsinelli

Election Report2020

November 16, 2020

polsinell i .com | 2

2020 ELECTION REPORT // POLSINELLIOVERVIEW OF ELECTION RESULTS

Table of ContentsOverview of Election Results

President 3

Exit Polling Voter Trends 4

Trump Campaign Legal Challenges 5

Senate 7

Looking Ahead to 2022 9

House 10

Governors 11

Lame Duck Outlook 12

Presidential Transition 13

Potential Cabinet Nominations 14

Areas to Watch in the 117th Congress

Economy 10

Healthcare 12

Infrastructure 13

Energy and Environment 13

Congressional Procedures 15

Conclusion 16

OverviewPolsinelli congratulates President-elect Joe Biden and Vice President-elect Kamala Harris on their election and takes particular note of the fact that Senator Harris is the first woman ever elected as Vice President. It was a hard-fought election with President Donald Trump and Vice President Mike Pence retaining strong support from almost half of the American electorate as both tickets received record numbers of votes. 

A common refrain from voters before an election is, “I can’t wait for it to be over.” This year, in the midst of the pandemic and non-stop political ads, the process may have seemed interminable and it is not completely over yet. Election Day voting has been completed, and the winners have been named by major news organizations, but the counting and legal challenges persist. In addition, two special elections will be held in Georgia with nationwide consequences as they will determine control of the U.S. Senate. In this circumstance, there are many uncertainties. This report examines current election outcomes and will be regularly updated to keep you abreast of important new developments.

In addition to the results, we will report on the agendas and policies of those who will guide our nation for the next four years, as it’s not only the policymakers who have important decisions to make. We hope this report will provide a framework to understand how Washington will impact you, your community, business, customers, organization,or members. We provide insights on a range of key issues that will occupy Washington with a new administration and Congress, and take a look at what the new policymaking environment means for your priorities.

If there are special topics or questions you would like us to address or with which you need our assistance, please contact us. We have a bipartisan Public Policy group in Washington and attorneys who are substantive policy experts in 22 cities devoted to helping you successfully engage Washington’s decision-makers.

With our appreciation for your support,

Former Congressman Former Congressman Alan Wheat (D-MO) John Shadegg (R-AZ)

polsinell i .com | 3

2020 ELECTION REPORT // POLSINELLIOVERVIEW OF ELECTION RESULTS

306

(Nov 16, 2020)

232

2020 GENERAL ELECTION ELECTORAL VOTES

White House

Democrats hoped that a broad repudiation of President Trump and his policies, including management of the coronavirus pandemic and the economy, would produce landslide victories. Public opinion polls seemed united in suggesting this possible outcome, but the 2020 Presidential race was much closer than polls predicted. While the expected “Blue Wave” failed to materialize on election night, President-elect Joe Biden will be inaugurated as our country’s next President in January. Turning the electorate from red to blue in several states that helped elect President Trump in 2016 propelled the former Vice President to victory.

In 2016, President Trump won the traditionally Democratic states of Wisconsin, Michigan, and Pennsylvania by a total of 77,000 votes. As counting and legal challenges continue in a number of states, President-elect Biden appears to have won all three states, as well as notching key wins in Minnesota, Nevada, and Nebraska’s 2nd Congressional District. In addition, President-elect Biden has flipped traditionally Republican Arizona and Georgia. President-elect Biden’s electoral vote count currently stands at 306 as a number of legal challenges continue. Although it carries no legal significance, President-elect Biden also won the popular vote by a greater margin than the 2.1% net of former Secretary of State Hillary Clinton four years ago.

At age 77, the former Vice President is the oldest President ever elected. America’s 46th President will take the oath of office on January 20 with a goal of bridging the stark divide in the American electorate. Senator Kamala Harris will become the first woman to take office as Vice President. However, assuming Democrats are unable to capture the Senate majority, they may have to scale back their most ambitious plans to fight climate change, expand the Affordable Care Act (ACA) and Medicare benefits, respond to the pandemic, roll back President Trump’s tax cuts, and institute Senate rules changes.

polsinell i .com | 4

2020 ELECTION REPORT // POLSINELLIOVERVIEW OF ELECTION RESULTS

Exit Polling Voter Trends

With record participation in this year’s election cycle, we wanted to highlight notable voter trends, as determined according to CNN exit polling data:

2020 2016Percentage Difference

IndependentsBiden/Harris: 54%

Trump/Pence: 40%

Clinton/Kaine: 42%

Trump/Pence: 46%

D: +12%

R: -6%

Black Voters Biden/Harris: 87%

Trump/Pence: 12%

Clinton/Kaine: 89%

Trump/Pence: 8%

D: -2%

R: +4%

Latino Voters Biden/Harris: 65%

Trump/Pence: 32%

Clinton/Kaine: 66%

Trump/Pence: 28%

D: -1%

R: +4%

Florida Latino VotersBiden/Harris: 52%

Trump/Pence: 47%

Clinton/Kaine: 62%

Trump/Pence: 35%

D:-10%

R: +12%

Seniors Biden/Harris: 47%

Trump/Pence: 52%

Clinton/Kaine: 45%

Trump/Pence: 52%

D: +2%

R: +/-0%

Seniors Michigan/Pennsylvania/ArizonaBiden/Harris:54%/51%/50%

Trump/Pence:46%/48%/50%

Clinton/Kaine: 47%/44%/42%

Trump/Pence: 51%/54%/55%

D:+7%/+7%/+8%

R: -5%/-6%/-5%

Voters Under 30Biden/Harris: 60%

Trump/Pence: 36%

Clinton/Kaine: 55%

Trump/Pence: 36%

D: +5%

R: +/-0%

Wisconsin Voters Under 30Biden/Harris: 58%

Trump/Pence: 36%

Clinton/Kaine: 47%

Trump/Pence: 44%

D: +11%

R: -8%

First Time VotersBiden/Harris: 64%

Trump/Pence: 32%

Clinton/Kaine: 57%

Trump/Pence: 38%

D: +7%

R: -6%

White MenBiden/Harris: 38%

Trump/Pence: 61%

Clinton/Kaine: 31%

Trump/Pence: 62%

D: +7%

R: -1%

College Educated White MenBiden/Harris: 48%

Trump/Pence: 51%

Clinton/Kaine: 39%

Trump/Pence: 53%

D: +9%

R: -2%

WomenBiden/Harris: 57%

Trump/Pence: 42%

Clinton/Kaine: 54%

Trump/Pence: 41%

D: +3%

R: +1%

White Evangelical/”Born-Again” Christians Biden/Harris: 24%

Trump/Pence: 76%

Clinton/Kaine: 16%

Trump/Pence: 80%

D: +8%

R: -4%

Indigenous Voters Arizona (High Country News)

Biden/Harris: 97% No comparable data available

N/A

Indigenous Voters Wisconsin (High Country News)

Biden/Harris: 82%No comparable data available

N/A

polsinell i .com | 5

2020 ELECTION REPORT // POLSINELLIOVERVIEW OF ELECTION RESULTS

Trump Campaign Legal Challenges

President Trump’s campaign has pursued, and continues to pursue and support, a variety of election-related legal actions. The following is a summary of these actions and their current status as of this writing. The President’s legal team has recently signaled plans to file additional suits in as many as 10 different states.

STATEBIDEN’S LEAD

GROUNDS RESULT

Pennsylvania69,454 votes

Suit to compel Philadelphia election officials to suspend counting of ballots until campaign observers were present

Dismissed

Suit to compel state election officials to allow closer observation of the vote counting process by Trump campaign officials

Ongoing. A state judge ruled in favor of the Trump Campaign, thus allowing campaign officials to observe ballot counting from a distance of six feet. The decision has been appealed to the Pennsylvania Supreme Court, outcome pending.

Suit to compel the Pennsylvania Secretary of State, and all 67 counties, to impose an earlier date for voters to show proof of identification

The Court agreed with the earlier deadline to show proof of identification and ruled that a small but unspecified number of ballots be thrown out for those not providing proof of identification by that deadline.

Suit to compel the Montgomery County (a suburban Philadelphia county) Board of Elections to stop counting mail-in ballots due to allegations of 600 ballots that had not been placed in secrecy envelopes

Petition denied

The Trump campaign is seeking to intervene in an existing case before the U.S. Supreme Court about whether mail-in ballots received after 8 PM on Election Day should count.

Ongoing. The number of affected ballots is currently 4,898, with the additional number of ballots arriving on Friday, November 6 still to be determined.

The Trump campaign is seeking to intervene in a case seeking to prevent the secretary of state’s decision to allow voters to cure defective mail-in ballots by casting provisional ballots

Request for injunction denied, but the Secretary of State has been ordered to segregate the ballots.

Suit seeking an emergency injunction to stop state officials from certifying election results due to lack of transparency, unequal “curing” of ballots, and concerns about mail-in ballots received after November 3rd

Ongoing

Suit to stop Bucks County from counting over 2,200 allegedly defective mail-in ballots

Ongoing

polsinell i .com | 6

2020 ELECTION REPORT // POLSINELLIOVERVIEW OF ELECTION RESULTS

STATEBIDEN’S LEAD

GROUNDS RESULT

Nevada34,547 votes

Suit to impose an injunction on automated signature-verification machines used in Clark County

A Federal judge ruled he lacked jurisdiction in state election administration and found insufficient evidence to grant the “extraordinary relief of an injunction.”

Suit to compel state election officials to allow closer public observation at a Clark County ballot-counting facility

Settlement reached

Michigan146,137 votes

Suit to suspend the counting of absentee ballots due to lack of permitted observation by campaign officials

Dismissed

Suit to prevent the certification of election results in Detroit due to lack of observation by campaign officials

Petition denied

Federal suit seeking to stop Michigan from certifying its final vote count.

Ongoing

Georgia14,151 votes

Suit to disqualify 53 ballots due to allegations that ballots arrived after 7 PM Election Day deadline

Dismissed

Arizona10,377 votes

Suit alleging ballots had been incorrectly rejected because they contained “bleeds,” splotches,” and “stray marks”

Voluntarily dismissed

Finally, with the Electoral College slated to meet on December 14 and cast votes for president on behalf of their states, we wanted to provide additional information on states’ ability to ensure electors cast votes in accordance with their popular vote result. Earlier this year, the U.S. Supreme Court weighed in on states’ ability to enforce “faithless elector” laws designed to prevent presidential electors from casting their Electoral College vote for anyone other than the candidate who won the popular vote in the relevant jurisdiction. An overview of the case may be found here, and a copy of Justice Elena Kagan’s opinion upholding these laws’ constitutionality, in which she was joined by seven Justices, may be found here. Note that the ninth Justice, Clarence Thomas, reached the same conclusion regarding the enforceability of “faithless elector” laws, but did so on different grounds.

polsinell i .com | 7

2020 ELECTION REPORT // POLSINELLIOVERVIEW OF ELECTION RESULTS

Senate/House/Governors

In addition to President-elect Biden’s knowledge of how to move the levers of government in the executive branch, he brings nearly 40 years of legislative experience to the job. The former Vice President often speaks with Senate Minority Leader Chuck Schumer (D-NY) and House Speaker Nancy Pelosi (D-CA). Their staffs are in regular contact and are laying the groundwork to advance the Democratic agenda.

U.S. Senate

The chances of Democrats taking control of the Senate were greatly diminished after several vulnerable Republican incumbents successfully won reelection. Control of the Senate will not be determined until January, as both Georgia Senate races are heading for a January 5 runoff election. The battle for the Senate was fierce for months because control of the chamber is a crucial factor in advancing the Democratic policy agenda.

U.S. Senate Election Results 2020(Nov 16, 2020)

48 2 50

UNDECIDED

polsinell i .com | 8

2020 ELECTION REPORT // POLSINELLIOVERVIEW OF ELECTION RESULTS

Democrats entered Tuesday with one of the most favorable Senate maps in years. Twelve Democratic-held seats were up for election, while Republicans were defending 23 seats. Democrats needed to flip a net of three Republican-held seats to claim a majority in the Senate, with Vice President Harris providing a tie-breaking vote. Despite the favorable landscape, Democratic challengers fell short in closely watched races in Maine, Iowa, Montana, North Carolina, and Alaska. Democratic challengers did successfully unseat incumbents in Arizona and Colorado but lost a seat in Alabama. Both of the Georgia Senate seats are headed to a January 5 runoff since no candidate reached 50%. In one race, Republican Senator Kelly Loeffler will face off against Raphael Warnock to fill the remainder of Senator Johnny Isakson’s term. In the second race, incumbent Republican Senator David Perdue will face Jon Ossoff.

DEMOCRAT REPUBLICAN

Alaska Gross 32.1 Sullivan 62.3 (98%) GOP Hold

Alabama Jones 39.6 Tuberville 60.4 (100%) GOP Pickup

Arkansas Cotton 66.7 Harrington Lib 33.3 (100%) GOP Hold

Arizona Kelly 52.1 McSally 47.9 (98%) Dem Pickup

Colorado Hickenlooper 53.5 Gardner 44.3 (100%) Dem Pickup

Delaware Coons 59.5 Witzke 37.9 (100%) Dem Hold

Georgia Ossoff 47.9 Perdue 49.9 (99%) Runoff

Georgia Special Warnock 32.7 Loeffler 26.1 Collins GOP 20.1 (99%) Runoff

Iowa Greenfield 45.2 Ernst 51.8 (100%) GOP Hold

Idaho Jordan 33.3 Risch 62.6 (100%) GOP Hold

Illinois Durbin 52.3 Curran 40.9 (99%) Dem Hold

Kansas Bollier 41.4 Marshall 53.6 (100%) GOP Hold

Kentucky McGrath 37.8 McConnell 58.2 (100%) GOP Hold

Louisiana Perkins 19.0 Cassidy 59.3 (100%) GOP Hold

Massachusetts Markey 66.5 O’Connor 33.5 (100%) Dem Hold

Maine Gideon 42.3 Collins 51.1 (99%) GOP Hold

Michigan Peters 49.9 James 48.2 (100%) Dem Hold

Minnesota Smith 48.8 Lewis 43.5 (100%) Dem Hold

Mississippi Espy 42.1 Hyde-Smith 56.1 (100%) GOP Hold

Montana Bullock 45.0 Daines 55.0 (100%) GOP Hold

North Carolina Cunningham 46.9 Tillis 48.7 (98%) GOP Hold

Nebraska Janicek 26.0 Sasse 67.7 (100%) GOP Hold

New Hampshire Shaheen 56.7 Messner 40.9 (100%) Dem Hold

New Jersey Booker 60.1 Mehta 38.3 (94%) Dem Hold

New Mexico Lujan 51.6 Ronchetti 45.7 (100%) Dem Hold

Oklahoma Broyles 32.8 Inhofe 62.9 (100%) GOP Hold

Oregon Merkley 57.7 Perkins 38.8 (98%) Dem Hold

Rhode Island Reed 66.3 Waters 33.7 (100%) Dem Hold

South Carolina Harrison 44.1 Graham 54.6 (100%) GOP Hold

South Dakota Ahlers 34.3 Rounds 65.7 (100%) GOP Hold

Tennessee Bradshaw 35.1 Hagerty 62.3 (100%) GOP Hold

Texas Hegar 43.7 Cornyn 53.6 (100%) GOP Hold

Virginia Warner 55.7 Gade 44.3 (100%) Dem Hold

West Virginia Swearengin 26.9 Capito 70.4 (100%) GOP Hold

Wyoming Ben-David 26.9 Lummis 73.1 (100%) GOP Hold

polsinell i .com | 9

2020 ELECTION REPORT // POLSINELLIOVERVIEW OF ELECTION RESULTS

Looking Ahead to the 2022 Senate LandscapeWhile eyes are firmly fixated on the January runoff elections in Georgia, both parties have also begun looking ahead to the Senate map in 2022. While Democrats’ best outcome in January is a result leading to control of the Senate with a 50/50 split due to Vice President Harris serving as the tie-breaking vote, the party will have an opportunity to gain seats in 2022. Meanwhile, Republicans will work to deny a Democratic Senate majority during the last two years of President-Elect Biden’s first term.

History suggests that the 2022 midterm election cycle could be challenging for Democrats. According to PolitiFact, the President’s Party has only gained seats in the House and Senate during the midterm elections twice since the Roosevelt era (1934 and 2002). Additionally, there was no net change in Senate control in the 1998 midterm elections during President Clinton’s second term. On the other hand, the 2022 landscape will favor Democrats, as Republicans are slated to defend twice as many competitive Senate seats. As such, 2022 will provide a fascinating next chapter to the history books.

The following map illustrates the states holding Senate races in the 2022 midterms and reflects which party currently controls each seat.

The majority of these races are not expected to be competitive, so we highlight some of the states expected to host battleground races for control of the Senate in 2022.

Examining seats currently held by Republicans, Senators Pat Toomey (R-PA) and Richard Burr (R-NC) have announced plans to retire, meaning the power of incumbency will be absent in those races. Additionally, should Senator Kelly Loeffler (R-GA) retain her seat in January, she will once again be on the ballot in 2022. Other states expected to be competitive include Iowa, Wisconsin, and Florida, where Senators Chuck Grassley (R-IA), Ron Johnson (R-WI), and Marco Rubio (R-FL) hold seats in increasingly competitive states.

As for Democrats, Senators Catherine Cortez Masto (D-NV), Maggie Hassan (D-NH), and newly elected Senator Mark Kelly (D-AZ) could face spirited competition from Republican challengers.

Of course, sitting U.S. Senators could be appointed to positions in the Biden Administration, some may face primary challenges, and other may choose to forgo re-election, so the exact 2022 landscape remains far from clear. What is clear is that preparations for the high-stakes 2022 midterm elections by the National Republican Senatorial Committee and Democratic Senatorial Campaign Committee are well underway.

polsinell i .com | 10

2020 ELECTION REPORT // POLSINELLIOVERVIEW OF ELECTION RESULTS

House of Representatives

Democrats will retain control of the House, but their majority is projected to narrow, with Republicans gaining a net of nine seats as of this writing. Among the Democrats defeated were several elected in the 2018 “Blue Wave” that swept the party into the House majority, as well as some more senior members like Agriculture Committee Chairman Collin Peterson, who has represented his Minnesota district since 1991.

Heading into election night, Democrats held 232 seats, while Republicans held 197. A Republican-turned-Libertarian held one seat, and five seats were vacant. A handful of front-line Democratic members — incumbents facing the toughest races — were defeated. Despite hopes of expanding the map with inroads “deep into Trump country,” as of this writing, Democrats have failed to pick off even a single House Republican running for reelection. Democrats did manage to pick up a pair of Republican-held open seats in North Carolina, where redistricting had made the districts lean Democratic, and a third in Georgia after the retirement of vulnerable GOP Representative Rob Woodall.

U.S. House Election Results 2020(Nov 16, 2020)

House Republicans picked up seats by female candidates and will have seventeen GOP women as part of the freshman class; Republicans had added just one woman in 2018.

On November 18 and 19, returning and newly elected House Democrats will meet in Washington to elect leaders for the 117th Congress, which begins in January.

221 (-8) 5 209 (+9)

UNCALLED

polsinell i .com | 11

2020 ELECTION REPORT // POLSINELLIOVERVIEW OF ELECTION RESULTS

Governors

There were 11 governorships up for grabs in 2020. Six were held by Republicans, three were held by Democrats, and two were open seats. The incumbents won in all nine races, including in North Carolina where ticket-splitting saw incumbent Democratic Governor Roy Cooper reelected with at least 51% of the vote. In the Montana open seat, Republican Congressman Greg Gianforte won the governor’s mansion. In Utah, Spencer Cox won handily.

GOVERNORS SNAPSHOT

STATE PARTY INCUMBENT CHALLENGER WINNER

Delaware D John Carney Jr. Julianne Murray John Carney Jr. – (D)

Indiana R Eric Holcomb Woodrow Myers Eric Holcomb – (R)

Missouri R Mike Parson Nicole Galloway Mike Parson – (R)

Montana Open Mike Cooney/Greg Gianforte Greg Gianforte – (R)

North Carolina D Roy Cooper Dan Forest Roy Cooper – (D)

North Dakota R Doug Burgum Shelley Lenz Doug Burgum – (R)

New Hampshire R Chris Sununu Dan Feltes Chris Sununu – (R)

Utah Open Spencer Cox/Chris Peterson Spencer Cox – (R)

Vermont R Phil Scott David Zuckerman Phil Scott – (R)

Washington D Jay Inslee Loren Culp Jay Inslee – (D)

West Virginia R Jim Justice Ben Salango Jim Justice – (R)

The gubernatorial races, as well as elections for down-ballot state legislative seats, were of particular importance because states will begin redrawing their U.S. congressional district maps next year, after completion of the 2020 census.

polsinell i .com | 12

LAME DUCK OUTLOOK 2020 ELECTION REPORT // POLSINELLI

Lame Duck Outlook

Before the 117th Congress convenes on January 3, 2021, lawmakers have returned for a lame duck session to address a number of outstanding issues that require attention before the end of the year.

COVID-19 StimulusCongressional leaders and White House officials will need to either continue negotiations on a COVID-19 relief package, or push negotiations into the new Congress in January. Although Senate Majority Leader Mitch McConnell (R-KY) was not participating in the discussions prior to the election, he now wants to pass a COVID-19 aid package before the end of the year. House and Senate Democrats have prioritized a stimulus package that includes roughly $2.2 trillion in emergency relief. Although President Trump and White House negotiators have been willing to discuss spending levels between $1.5 trillion and $2 trillion, Senate Republicans have been reluctant to vote for a legislative package that would substantially add to the deficit. Instead, Senate Republicans proposed limited scope relief packages, including a $500 billion package that was opposed by Democrats. Even with record increases in COVID-19 cases, it remains unclear if the election outcome will shift this dynamic that has resulted in nearly five months of stalled negotiations. Prior to the election, Speaker Pelosi sent a two-page letter to Secretary Steven Mnuchin listing primary areas of disagreement, including: state and local assistance, schools, child care, tax credits for working families, unemployment insurance extension, OSHA workplace protections, and liability for health care providers and employers.

Budget and Reauthorizations The federal government is operating under a fiscal 2021 continuing resolution (CR), which expires December 11. Congressional leaders would prefer to pass a fiscal 2021 omnibus spending package, but another short-term spending extension is possible if a bipartisan agreement is not reached before the current deadline.

Lawmakers will also look for opportunities to include additional policy riders to extend expiring health programs and tax provisions. One area gaining significant attention from lawmakers is the Medicare reimbursement cuts slated to impact a host of healthcare provider types in 2021 due to Centers for Medicare & Medicaid Services’ (CMS) proposed reimbursement increases for evaluation and management services and related budget neutrality requirements. Given

the groundswell of bipartisan support for preventing these reimbursement cuts, Congress may seek to address this issue in a year-end spending package.

Congress also needs to pass the annual National Defense Authorization Act (NDAA) for fiscal 2021. The House and Senate passed their respective bills this summer, and committee leaders are working to reconcile differences. Votes are also still possible on a water resources reauthorization bill. In July, the House passed a bill that would authorize almost $9 billion in water projects, and the Senate Environment and Public Works (EPW) Committee approved a package in May. It remains unclear if leaders will be able to reconcile differences before the end of the year.

Leadership and Presidential Transition House Democrats will hold leadership elections November 18 and 19. House Democrats will also begin holding committee chair elections on November 30, which will help solidify the House majority’s 2021 agenda. House Republicans are expected to hold their leadership elections on November 17. Senate Republicans held leadership elections on November 10, with Sens. Mitch McConnell (R-KY) and Chuck Schumer (D-NY) re-elected as the leaders of their respective parties.

During the lame duck period, President-elect Biden’s transition team will continue developing the incoming administration’s policy agenda and building out a strategy with Congressional leaders that will require bipartisan compromise. Senior transition officials also will be developing federal agency management plans and vetting potential political appointees. The transition team will also begin coordination with Senate leaders to ensure cabinet nominees can proceed through the nomination process in the weeks and months following the inauguration.

Additionally, there also will be a significant focus on any “midnight rulemaking” undertaken by the Trump Administration. There are a number of healthcare and environmental regulations under review by the White House Office of Management and Budget (OMB) that could be published before the inauguration. The Biden transition team will review prior Trump policy executive orders and presidential memoranda for repeal or revision.

polsinell i .com | 13

LAME DUCK OUTLOOK 2020 ELECTION REPORT // POLSINELLI

Presidential Transition Moves Forward Despite DelaysOn Monday, November 9, President-elect Joe Biden’s transition team called for the General Services Administration (GSA) to officially designate Biden as the winner of the election so his team can begin the transition process. The 1963 Presidential Transition Act gives the GSA authority to provide the transition team with funding and access to government offices to promote the seamless transfer of power.

The current Trump-appointed GSA administrator has not yet designated a President-elect, which has slowed the transition process. While federal law does not dictate how the GSA must make a determination, the Biden transition team is reportedly evaluating legal options to push the agency to a decision. Given that President Trump’s campaign has filed a number of legal challenges to the election results, the GSA could delay its decision until the December 14 meeting of the Electoral College. Note that in the 2000 Presidential election, the GSA delayed a determination until after the Supreme Court’s December 12 ruling in Bush v Gore.

Although the formal transition is currently delayed, the Biden transition team is moving forward with an informal transition by naming former Vice Presidential Chief of Staff Ron Klain as White House Chief of Staff, launching a transition website, and establishing agency review teams that are beginning outreach to government officials and Congressional offices. These review teams provide a preview of what officials will likely staff key agencies across the federal government.

On Monday, November 9, President-elect Biden also announced a COVID-19 task force that will help shape the Biden Administration’s response and management plans for the pandemic. The task force is co-chaired by Marcella Nunez-Smith, a Yale physician and researcher; Vivek Murthy, a former U.S. surgeon general; and David Kessler, a former FDA commissioner. The twelve-member panel is expected to focus on executing the Biden campaign’s three leading COVID-19 response plans, which includes:

1. Listening to Science; 2. Ensuring public health decisions are informed by public health professionals; and 3. Restoring trust, transparency, common purpose, and accountability to government.

The task force is already moving quickly to brief Congressional Democrats on the incoming administration’s pandemic response plans, including strategizing plans for vaccine distribution.

COVID-19 Task Force

David Kessler, co-chair, former FDA commissioner

Marcella Nunez-Smith, co-chair, Yale associate dean for health equity research 

Vivek Murthy, co-chair, former surgeon general 

Luciana Borio, former assistant FDA commissioner 

Rick Bright, former BARDA director 

Zeke Emanuel, former Obama administration health policy adviser

Atul Gawande, Brigham and Women’s hospital professor of surgery 

Celine Gounder, NYU Grossman School of Medicine assistant professor

Dr. Julie Morita, former Chicago public health commissioner 

Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota

Loyce Pace, executive director of the Global Health Council

Dr. Robert Rodriguez, UCSF emergency medicine professor 

Eric Goosby, former Ryan White Care Act director

polsinell i .com | 14

LAME DUCK OUTLOOK 2020 ELECTION REPORT // POLSINELLI

DEPARTMENT

Agriculture Former Sen. Heidi Heitkamp

Agriculture Rep. Marcia Fudge

Agriculture Rep. Cheri Bustos

Attorney General Former AG Sally Yates

Attorney General Sen. Doug Jones

Attorney General Former HUD Secy Julian Castro

Attorney General Sen. Amy Klobuchar

Attorney General; Homeland Security

CA AG Xavier Becerra

Attorney General; Labor DNC chair Tom Perez

Climate Chief Former Secy of State John Kerry

Climate Chief Philanthropist Tom Steyer

Climate Chief; EPA Wash. Gov. Jay Inslee

Commerce Business executive Meg Whitman

Commerce Former VA Gov. Terry McAuliffe

DefenseFormer Under Secretary of Defense for Policy Michèle Flournoy

Defense Former Homeland Security Secy Jeh Johnson

Defense Sen. Jack Reed

Defense; VA Sen. Tammy Duckworth

EducationAmerican Federation of Teachers President Randi Weingarten

EducationFormer National Education Assn President Lily Eskelsen Garcia

EducationLearning Policy Institute President and CEO Linda Darling-Hammond

Energy Former Energy Secy Ernest Moniz

EnergyFormer Deputy Secy of Energy Elizabeth Sherwood-Randall

EnergyFormer Acting Under Secretary of Energy Arun Majumdar

EPAChair of the California Air Resources Board Mary Nichols

EPAFormer regional administrator EPA’s Southeast region Heather McTeer Toney

HHS Rep. Pramila Jayapal

HHS NM Gov. Michelle Lujan Grisham

HHSFormer Obama Economic Advisor Jeffrey Zients

HHS Former Surgeon General Dr. Vivek Murthy

HHS NC Secy of Health Dr. Mandy Cohen

HHSEzekiel Emanuel, Senior Health Advisor under President Obama

HHS Jack Markell, Former Delaware Governor

HHS Rebekah Gee, Louisiana Health Director

HHSChristen Linke Young , HHS & CMS official under President Obama

HHS Kavita Patel, President Obama Health Advisor

HHSAndy Slavitt, Acting CMS Administrator under President Obama

HHSAndrea Palm, Senior Advisor at HHS/White House under President Obama

HHS; HUD Rep. Karen Bass

Homeland SecurityFormer Deputy Homeland Security Secretary Alejandro Mayorkas

DEPARTMENT

HUD Atlanta Mayor Keisha Lance Bottoms

HUD Tampa Mayor Jane Castor

HUD Former Jacksonville Mayor Alvin Brown

HUD Former HUD deputy secretary Maurice Jones

HUDPresident and CEO of the National Low Income Housing Coalition Diane Yentel

Interior Sen. Tom Udall

Interior Sen. Martin Heinrich

Interior Rep. Deb Haaland

Labor Sen. Bernie Sanders

Labor Former EEOC chair Jenny Yang

LaborSecretary of the California Labor and Workforce Development Agency Julie Su

Labor Rep. Andy Levin

Labor Former Asst. Secy of Labor Bill Spriggs

LaborPresident of the Association of Flight Attendants Sara Nelson

LaborFormer Obama Acting Labor Secretary Seth Harris

National Economic CouncilFormer Biden Chief Economist and Economic Adviser Jared Bernstein

StateFormer U.N. ambassador and Obama National Security Advisor Susan Rice

State Sen. Chris Coons

State Sen. Chris Murphy

State Ambassador William Burns

State; National Security Advisor

Former deputy secretary of State and Deputy National Security Advisor Tony Blinken

Transportation Los Angeles Mayor Eric Garcetti

Transportation Rep. Earl Blumenauer

Transportation Former Chicago Mayor Rahm Emanuel

Treasury Sen. Elizabeth Warren

TreasuryFormer Deputy Secretary of the Treasury Sarah Bloom Raskin

TreasuryFormer Federal Reserve vice chairman and Gov. Roger Ferguson

Treasury; Commerce Businesswoman Mellody Hobson

Treasury; Federal Reserve Atlanta Fed President Raphael Bostic

Treasury; Federal ReserveFed Governor and former under secretary of the Treasury Lael Brainard

UN Ambassador Ambassador Wendy Sherman

U.S. Trade RepresentativeFormer White House special advisor on Western Hemisphere affairs Nelson Cunningham

U.S. Trade Representative Rep. Jimmy Gomez

VAVeterans Community Project President Jason Kander

HHS; VA; UN AmbassadorPete Buttigieg, Former Mayor of South Bend, Indiana

TBD Rep. Cedric Richmond

TBD Former CFTC Chairman Gary Gensler

TBD Bank executive Don Graves

TBDBiden Transition Chief and former Sen. Ted Kaufman

Potential Cabinet Nominations and Senior AppointmentsAs former Vice President Biden pivots from candidate to President-elect, he begins the task of assembling his administration. The President-elect is expected to begin announcing cabinet positions around Thanksgiving. Below are some of the names that have been reported or rumored to be under consideration for top positions in the Biden Administration.

polsinell i .com | 15

2020 ELECTION REPORT // POLSINELLIAREAS TO WATCH

Areas to Watch in the 117th Congress

1. Economy

COVID-19 Stimulus Package

If Congressional leaders and White House officials are unable to reach a bipartisan agreement on a stimulus package in the lame duck session, passing a comprehensive COVID-19 relief package likely will be an immediate priority in the 117th Congress. House Democrats have proposed multiple stimulus bills ranging up to $3.4 trillion, with priorities including funding for state and local governments, housing assistance, extended unemployment benefits, strengthening the Payroll Protection Program to support small business, employee retention tax credit enhancement, support for essential workers, funding for coronavirus testing and contact tracing, financial assistance for healthcare providers, direct payments to individuals, as well as funding to support re-opening of schools. Democrats will continue pushing for these policy proposals as an economic stimulus bill is shaped. Meanwhile, Republicans will enjoy new-found leverage in negotiations given the outcomes of Tuesday’s congressional elections; and we expect conservative members will continue objecting to the size and scope of a COVID-19 relief package.

Taxes

If Republicans maintain control of the U.S. Senate, President-elect Biden and congressional Democrats will not be able to overturn many of the provisions of the 2017 Republican tax bill, Tax Cut and Jobs Act (TCJA), notably the tax rates for corporations and individuals in the highest tax bracket, and the cap on the state and local tax (SALT) deduction. The TCJA lowered the top federal individual income tax rate from 39.6% to 37%. Biden’s plan calls for returning the tax rate back to 39.6% for individuals making more than $400,000 to fund government initiatives. The TCJA also lowered the corporate tax rate to 21% from 35%. While President-elect Biden is not looking to return the corporate tax rate back to 35%, his plan calls for increasing the corporate tax rate to 28%. Senate Minority Leader Schumer will continue to push to remove the $10,000 cap on SALT deductions.

The former Vice President’s plan would also increase the capital gains and estate levies for individuals who earned more than $1 million annually before death. Under President-elect Biden’s proposal, unrealized capital gains would be taxed at 43.4% at death — a rate that includes taxing those gains at the new higher ordinary income tax rates. The plan also includes a 3.8% net investment income tax. Estate taxes are expected to be in the mix as well. President-elect Biden has promised to raise the estate tax rate to 45% (currently 40%) and lower the exemption for estates to be taxed to $3.5 million (currently at about $11.5 million for individuals).

Trade & Tariffs

We expect the Biden Administration to cooperate with U.S. allies to counter unfair trade practices from countries like China as opposed to the Trump Administration’s “America First” approach. Both parties supported the integration of low-wage developing countries into the global economy for decades before President Trump took office. President Trump shifted away from Republican free-trade orthodoxy toward nationalist protectionism to garner working-class votes in industrial swing states. Today, the average U.S. tariff on Chinese products is at its highest level in at least 40 years. The U.S. has abandoned the Obama Administration’s signature pact, the Trans-Pacific Partnership and rewritten the North American Free Trade Agreement. Navigating this landscape will be a challenge. President-elect Biden has said he will insist on “strong rules of origin” in any new trade deal, which would require more manufacturing in the U.S. while complicating corporate planning. He has vowed to crack down on provisions of the tax code that encourage outsourcing.

Tariffs (Section 301 and Section 232)

The Trump Administration used tariffs under Section 301 and 232 to pressure other countries to eliminate their trade barriers. For example, as part of its efforts to pressure China to change unfair practices, the United States imposed up to 25% in Section 301 tariffs on certain U.S. imports from China under four separate actions, which led to hundreds of requests for exclusions from U.S. manufacturers. We

polsinell i .com | 16

2020 ELECTION REPORT // POLSINELLIAREAS TO WATCH

also saw bipartisan legislation to limit the president and the United States Trade Representative’s (USTR) ability to modify duty rates for steel and aluminum and impose Section 232 duties for national security reasons. We expect a Biden Administration to work alongside U.S. allies to pressure China and some U.S. allies to adopt more market friendly trade practices.

Buy American Provisions

The Biden campaign promoted a “Buy American” plan, along with a $400 billion Procurement Investment to increase demand for American products and services. This plan would involve tightening domestic content rules, cracking down on Buy American waivers and false advertising, creating a “claw-back provision,” reversing tax policies that support outsourcing — which Biden has said is a Day One priority, and updating trade rules to align with this policy.

Free Trade Agreements (FTA)

We expect the Biden Administration to pursue strong environmental and labor protection provisions in any new free trade agreements, as seen in the negotiations of the United States-Mexico-Canada Agreement (USMCA). There are two notable free trade agreements that may come up in the next year: United Kingdom and Trans-Pacific Partnership (TPP).

Budget

A significant change could be coming in the 117th Congress that will impact government spending. House Democrats have been discussing the potential return of earmarks, also known as “Congressionally directed funding.” Congressional Republicans banned the use of earmarks in 2011, but a growing list of lawmakers had been advocating for their return. House Democratic leaders testified at a House Rules Committee hearing in September telling the panel that earmarks should be restored in the next Congress with enhanced safeguards. House Rules Committee Ranking Member Tom Cole (R-OK) has also been an advocate for restoring earmarks.

Democrats also will want to redirect federal government spending to programs and projects they have traditionally supported. The President is required to submit his budget by the first Monday of February, but newly inaugurated Presidents usually submit their initial budgets later (almost certainly by March). This initial budget proposal will provide the first in-depth glimpse of the new administration’s spending priorities. The Federal government closed fiscal year 2020 with a deficit in excess of $3 trillion. The outlook for fiscal year 2021 is not much better. Finally, the Federal Reserve Board has advocated for greater stimulus to prop up the economy during the COVID-19 pandemic.

Education

Several sessions of Congress have failed to reauthorize the Higher Education Act. Of particular concern is student assistance — grants and especially student loans. There will also be pressure concerning elementary and secondary education support. There will also be pressure to support preschool education programs.

Defense

Both Houses have passed their versions of the National Defense Authorization Act (NDAA), but they have not been able to resolve their differences. If the Democrats take both Houses of Congress, the struggle will be between more progressive Democrats who want to reduce defense spending and devote more resources to domestic programs and more moderate Democrats who support higher Defense spending levels. Military health is the fastest rising spending program in the Department of Defense (DoD). Other policy/spending issues are the number of Navy ships (300-500), new infantry fighting vehicle, new bomber, more aircraft carriers, more submarines (attack and missile), and the F-35 Lightning Joint Strike Fighter. The Trump Administration stood up the Space Command, which will require more spending if Democrats decide to retain it. The other area is defense cyber warfare.

polsinell i .com | 17

2020 ELECTION REPORT // POLSINELLIAREAS TO WATCH

2. Healthcare

Healthcare was a primary issue in the 2020 election. While Congressional Democrats are expected to work with the Biden Administration to propose a series of healthcare proposals, including adding a public option for the Affordable Care Act (ACA),Congressional Republicans are likely to oppose significant reforms. Congress is likely to work on supplemental COVID-19 relief, ACA reforms and expansion, drug pricing and surprise billing reforms, investments in public health infrastructure and workforce programs, telehealth expansions, and reforms to strengthen medical supply chains.

Affordable Care Act and Healthcare Costs

The ACA’s future is uncertain as the law’s constitutionality will once again be considered by the U.S. Supreme Court in California v. Texas. Oral arguments are scheduled for Tuesday, November 10. Plaintiffs argue that the entire law is unconstitutional because the individual mandate provisions are not severable from the rest of the ACA. A federal district court has already ruled that the entire law is unconstitutional, and an appellate court upheld that decision, although the appeals court also asked that the district court again review the severability issue. The U.S. Supreme Court is expected to issue a final ruling in spring 2021, which could have a significant impact on the next Congress’ healthcare agenda. It’s important to note that if the Supreme Court overturns the ACA, preexisting conditions and coverage of adult children until the age of 26 would be eliminated, along with bringing back the Medicare donut hole for Medicare beneficiaries.

Congressional Democrats and President-elect Biden have a shared goal of protecting and expanding the ACA. With Senate Republicans unlikely to accept significant changes to the ACA, the Biden Administration may need to work through the regulatory process to overturn many of President Trump’s changes to the law. Senate Republicans may be willing to negotiate health reforms with President-elect Biden if the Supreme Court strikes down the entire law.

The cost of prescription drugs is expected to be at the heart of any healthcare debates. While most lawmakers on both sides of the aisle have raised concerns about drug prices, policy disagreements have slowed progress towards a bipartisan agreement. The House Ways and Means

Committee, House Energy and Commerce Committee, Senate Finance Committee, and Senate Health, Education, Labor, and Pensions Committee are expected to continue working to develop proposals that will lower drug costs. The Biden Administration is also expected to pursue regulatory changes that will help address the cost of drugs. Since drug price reform was a top priority for the Trump Administration, it’s possible that some of those regulatory proposals could be updated or changed to meet the Biden Administration’s policy agenda.

Additionally, it’s expected that President-elect Biden will work with Congress to address surprise medical billing. Biden has called for banning healthcare providers from charging patients out-of-network rates which can result in surprise medical bills for patients. While addressing surprise medical billing has been a bipartisan Congressional priority, disagreements over how to set provider payment rates and resolve billing disputes has slowed progress toward an agreement. This debate will continue into 2021 as Congress looks for consensus.

COVID-19

The COVID-19 pandemic has also exposed and highlighted many underlying issues with the U.S. healthcare system, including medical supply chain shortages, healthcare access issues, and significant increases in patients suffering from mental health issues and substance use disorder. In addition to providing additional investments to address COVID-19, President-elect Biden is expected to work with Congress to implement a national testing and vaccine distribution plan, address personal protective equipment (PPE) and supply disruptions, and issue reopening guidance consistent with public health official recommendations. President-elect Biden’s health plan will also include prioritizing investments in the public health infrastructure and health workforce to provide additional resources that will allow for an expansion of health services in underserved communities.

The pandemic has also resulted in a significant increase in the use of telehealth, which has been aided by both permanent and temporary telehealth waivers granted by Congress and the Department of Health and Human Services (HHS). Since many of the temporary telehealth waivers will expire when the public health emergency ends,

polsinell i .com | 18

2020 ELECTION REPORT // POLSINELLIAREAS TO WATCH

President-elect Biden will need to work with Congress and stakeholders to identify and select which of these telehealth flexibilities to make permanent. Telehealth is broadly supported and could be an area for bipartisan compromise in the 117th Congress, with a number of proposals already being introduced in both the House and Senate.

COVID-19 has also impacted the medical supply chain. President-elect Biden is expected to work on strengthening the U.S. supply chain by starting a 100-day supply chain review to determine key vulnerabilities and gaps. President-elect Biden has proposed using the Defense Production Act and Biomedical Advanced Research and Development Authority (BARDA) to ensure critical products are manufactured in America. He has also proposed changing tax and trade policy to incentivize onshore manufacturing that allows for rebuilding critical stockpiles, while reducing dependence on international competitors.

3. Infrastructure

We expect previously introduced House legislation will serve as the starting point for discussions surrounding transportation investment. President-elect Biden’s infrastructure plan and H.R. 2, the Moving Forward Act, call for increased investments in the public transportation sector. House Transportation and Infrastructure Committee Chairman Peter DeFazio (D-OR) has said a bill like H.R. 2 could move early in the new Congress. Democrats recognize that the transportation sector is a leading contributor of carbon emissions. We can expect the Environmental Protection Agency (EPA) under a Biden Administration to reverse course on several rules established during the Trump Administration, such as the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule. President-elect Biden’s plan includes a provision that would develop new fuel economy standards that would be more ambitious than those set during the Obama Administration

and would invest in electric vehicle (EV) charging stations along U.S. highways. House and Senate Democrats have introduced several bills this Congress aimed at expanding the EV tax credit as well as expanding EV charging infrastructure. We anticipate Republican control of the Senate will make wholesale changes on fuel economy standards more difficult.

Broadband

Improving access to broadband will be an early priority given the rise in telehealth and remote schooling. Any recovery/stimulus in the 117th Congress will address the “digital divide.” President-elect Biden’s agenda includes $20 billion for rural broadband investment. He also shares security concerns over Chinese tech firms like Huawei and supports growth and investment in 5G development and deployment.

4. Energy and Environment

President-elect Biden has put forth the most ambitious climate plan of any presidential candidate in history — promising, among other things, to get the country to 100% clean electricity generation by 2035 and to invest $400 billion in clean energy innovation and technology over ten years. More specifically, President-elect Biden aims to push

as much as $1.7 trillion over that same ten-year period into a plan to boost renewable power and speed introduction of electric vehicles, through tax credits, boosted R&D into technologies including large-scale battery power storage, carbon capture, and modernizing infrastructure — including the nation’s electricity grid and a nationwide network of public charging stations for EVs.

polsinell i .com | 19

2020 ELECTION REPORT // POLSINELLIAREAS TO WATCH

A Biden Administration will likely take aim at the Trump Administration’s rollbacks of many major environmental protections as well. Due to the complex and detailed rulemaking process — along with structural changes implemented by the Trump Administration—undoing even just some of Trump’s environmental rollbacks could still take years. The top of Biden’s Administrative actions include reinstating methane emissions limits from oil and gas exploration and increasing corporate average fuel economy (CAFE) standards for automobiles. President-elect Biden has also proposed banning new oil and gas permitting on public lands and waters, and permanently protecting the Arctic National Wildlife Refuge (ANWR). Additionally, President-elect Biden backs “aggressive” new efficiency standards on buildings and home appliances, as well as requiring public companies to disclose climate risks and aiming to conserve 30% of federal lands and waters by 2030.

Globally, President-elect Biden has promised to rejoin the Paris Agreement. That would only require the U.S. to notify the United Nations, with reentry active 30 days later. The U.S. also would need to submit a specific pledge to reduce emissions, known as a Nationally Determined Contribution. A Biden Administration could also use trade agreements to combat climate change. The move would add financial teeth to international pacts to reduce carbon emissions, which until now have relied on voluntary participation by the countries signing them. President-elect Biden’s trade agenda calls for a global ban on fossil-fuel subsidies, tariffs on imports that produce a lot of carbon, and trade deals that include commitments to reduce emissions.

E&E Legislation

Beyond regulations and executive orders, Congress will be needed to enact any significant environmental policy. President-elect Biden has laid out several objectives he would need Congress to help enact, including:

� Accelerating development of carbon capture technology;

� Incentivizing development of cleaner air travel technology;

� Reducing carbon emissions by 50% by 2035 for new buildings;

� Directing HUD to make low-income housing more efficient;

� Restoring the full electric vehicle tax credit;

� Ending federal subsidies for fossil fuel companies; and

� Investing in coal communities as they transition to clean energy.

House Democrats have already proposed significant climate-related legislation in the 116th Congress, which will serve as a starting point for Congressional action in the next Congress.

� The House Energy and Commerce Committee offered a lengthy draft climate bill that would establish a federal clean energy standard, form a national climate bank and boost funding authorizations for a variety of programs.

� The House Natural Resources Committee has advanced legislation that would temporarily halt new fossil fuel leases on public lands and reach net-zero carbon emissions from public lands and waters by 2040.

� The House Select Committee on Climate Change released a report focusing on a clean energy standard to decarbonize the power sector by 2040, along with a zero-emissions vehicle standard to ensure all light-duty cars and trucks sold are zero-carbon vehicles by 2035.

House Democrats are already talking about how to put together a green COVID-19 recovery bill once President-elect Biden is sworn in. Earlier this year, the House passed a massive $1.5 trillion infrastructure bill (H.R. 2) that includes big investments in clean energy and drinking water. The centerpiece of that package was the Investing in a New Vision for the Environment and Surface Transportation (INVEST) in America Act, a $494 billion surface transportation bill that the House Transportation and Infrastructure Committee approved over the summer. Chairman DeFazio has stated that H.R. 2 will serve as the centerpiece for a green infrastructure package in 2021.

polsinell i .com | 20

2020 ELECTION REPORT // POLSINELLIAREAS TO WATCH

5. Congressional Procedures and Administrative Mechanisms

In the event Democrats are able to gain the Senate majority, they can use a number of procedures to advance their agenda with simple majority votes to avoid significant compromises with Republicans. Senate rules currently require a 60-vote threshold to invoke cloture to terminate filibusters and advance legislation. Extended debate (filibuster) is a long-standing rule in the Senate that gives a determined minority the ability to slow and/or stop legislation. There are several mechanisms that Congressional Democrats could use in the next Congress to expedite their policy agenda. Although these procedural options would be available to help expedite legislation in a Democratic Senate, a narrow majority would make it more difficult for leaders to implement successfully. The projected 2020 election results make it clear that bipartisanship will still be necessary to advance legislative priorities the 117th Congress.

Congressional Review Act

The Congressional Review Act (CRA) gives Congress the ability to review and repeal new federal regulations using an expedited legislative process. After a regulation is finalized, the CRA gives Congress 60 legislative days to pass a joint resolution of disapproval which must be signed by the President. Since Congress was out of session for an extended period of time in 2020, it’s anticipated that the next Congress will be able to review regulations finalized as far back as June 2020. Senate debate on these resolutions is limited to ten hours, meaning they are not subject to a filibuster. Passage in the Senate is by a simple majority. Once a joint resolution is passed by both chambers, it must be signed by the President. If a rule is repealed, the CRA prohibits the agencies from reissuing a substantially similar rule, unless legislation is passed by Congress.

Overall, the CRA has been used to overturn a total of 17 rules. In 2017, Congressional Republicans and President Trump overturned 16 rules that were issued in the final months of the Obama Administration. Prior to 2017, only one rule was overturned in the 107th Congress (2001-2002).

Budget Reconciliation & Senate Filibuster

A Democratic majority House and Senate could use the budget reconciliation process to advance their top legislative

priorities. Under the rules of budget reconciliation, the Senate is able to avoid the filibuster’s 60-vote threshold and pass legislation with a simple majority. Since the 1980s, Congress has successfully used the reconciliation process to pass 21 bills that were signed into law. Since 1990, all major tax legislation was enacted through the reconciliation process. This included the Bush tax cuts in 2001, the 2009 Obama stimulus program, and the Trump tax bill in 2017. The Affordable Care Act consists of two laws. The second law was a reconciliation bill. While budget reconciliation has been used by both parties to pass legislation, the process has limitations. Budget Act point of orders in the Senate require 60-vote waivers.

The most aggressive change that a Democratic majority Senate could consider to expedite the legislative process would be the eliminating the Senate filibuster that currently requires 60 votes to end debate on motions to proceed and final passage of legislation. Senate Democrats could choose to eliminate this 60-vote requirement by implementing a procedural mechanism known as the “nuclear option” that would allow the Senate to take up and pass legislation with a simple majority vote. This procedural mechanism was first used in 2013 by Senate Majority Leader Harry Reid (D-NV) to confirm a number of President Obama’s executive and judicial nominees who were being blocked by Senate Republicans. Once Republicans won back the majority and White House in 2016, Majority Leader Mitch McConnell again used the “nuclear option” to confirm all of President Trump’s executive and judicial nominees, including three U.S. Supreme Court justices.

The “nuclear option” has not yet been used to advance legislation in the Senate, but a growing number of Democrats have advocated for, or are willing to consider, using this procedural option to advance their policy agenda free of Republican objections under a Biden Administration. To date, only Senator Joe Manchin (D-WV) has expressed opposition to terminating the filibuster using the “nuclear option.” Senate Minority Leader Schumer has said that “nothing is off the table,” however, with the size of a possible Democratic majority undetermined, it is unclear, if leaders would have enough support to successfully execute this consequential rules change.

polsinelli.com | Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements. Copyright © 2020 Polsinelli PC. Polsinelli LLP in California.

Public Policy TeamAlan D. WheatSenior Policy Advisor Practice [email protected]

Rodney D. [email protected]

Susan Henderson MooreShareholder [email protected]

Cybil G. [email protected]

Steven K. [email protected]

Mark W. WellerShareholder [email protected]

James F. [email protected]

John ShadeggShareholder Vice-Practice [email protected]

Sylvia KornegayPolicy [email protected]

Harry Sporidis Senior Policy [email protected]

Julie E. Shroyer, Senior Policy [email protected]

Cara AlexanderLegislative [email protected]

Timothy PerrinPolicy [email protected]

Meredith CheckLegislative [email protected]

Robert J. DaleyLegislative [email protected]

Michael T. [email protected]

Tracy HammondSenior Policy [email protected]

Julius W. Hobson, Jr.Senior Policy [email protected]

James H. [email protected]

Brent JordanLegislative [email protected]

Michael M. [email protected]

Conclusion In the 117th Congress, policymakers will push major proposals in the areas of healthcare, economic stimulus, energy and environmental reform, infrastructure, amongst others. Importantly, we also expect social justice, voting rights, and policing reforms to play a major role as key policy proposals are shaped and debated. With Democrats securing control of the White House and House of Representatives and Republicans well-positioned to maintain control of the Senate, securing bipartisan support for priority issues will be key to their advancement. Polsinelli looks forward to helping you navigate this new policymaking landscape and ensure your seat at the table.