Federal Legislation – The Midterms

Darryl Nirenberg
Partner
Josh Oppenheimer
Associate
Lesley Brock
Legislative Assistant
Steptoe & Johnson LLP

On November 6, 383 Congress members and 35 senators fought to win their respective reelection bids. To secure a majority in the House, a party must win 218 of 435 seats. In the Senate, because the vice president can break a tie vote, the party of the president has to win only 50 of 100 seats, while the other party must win 51 seats to obtain a majority. In the House, Democrats successfully upended Republican control, reaching 225 seats, with nine key races still undecided at the time this issue went to print. In the Senate, Republicans maintained their majority, increasing the number of seats they hold by “flipping” two former Democratic senators’ seats (Senators Claire McCaskill (Missouri) and Joe Donnelly (Indiana).

While the Democrats did pick up Republican Senate seats held by Senator Dean Heller in Nevada and retiring Senator Jeff Flake in Arizona, Republicans flipped two Democratic Senate seats. As of this printing, two Senate races remain undecided. Incumbent Senator Bill Nelson (D-Florida) trails current Florida Governor Rick Scott in a race that’s too close to call, while the two candidates vying for a Mississippi special election seat were both unsuccessful in securing the mandatory 50% needed to avoid a runoff election; they will face each other again on November 27.

Despite the number of races yet to be called, the split in party control will result in a divided government until the next elections in 2020. Despite this, law enforcement issues will likely continue to receive significant attention. Below we have analyzed the outcomes of the midterms in California and, more broadly, how the change in House leadership and restructuring in the Senate will impact law enforcement issues.

Results of the California Elections

During the midterm elections, the 51 members of Congress from California as well as the state’s senior senator, Dianne Feinstein (D), battled challengers to continue representing California constituencies on Capitol Hill. Of the 51 members who ran for reelection, 47 incumbents and Senator Feinstein won their races. As of November 16, one race in California was still too close to call — the race to replace retiring Representative Ed Royce (R-39). Democratic candidate Gil Cisneros has a slight lead over Republican candidate Young Kim.

Although she had not conceded at the time of this publication, Representative Mimi Walters (R-45) was projected to lose to Democratic opponent, Katie Porter. Representative-Elect Porter has not advocated strongly in favor of or against most law enforcement issues. She has identified herself as a progressive Democrat in favor of “common-sense gun reform,” including mandatory background checks and a ban on assault weapons. Representative Steve Knight (R-25) conceded to his Democratic opponent, Katie Hill. Democrats also picked up an additional California seat, the seat in the 49th Congressional District currently belonging to Darrell Issa (R), who announced that he is retiring at the end of the year.

Because a large majority of Californians voted via mail-in ballot, the final state and federal races could take weeks to determine.

Steve Knight and Katie Hill: Of the 27 races that PORAC endorsed, 25 members won, with Representative Steve Knight being the sole member endorsed to lose his race. Since Knight has been in Congress, PORAC has been closely engaged with him on law enforcement issues. This past year, PORAC collaborated with Knight to craft a bill to strengthen school safety, the “School Training, Equipment, and Protection Act of 2018” (H.R. 5307), and advocated for the bill while on Capitol Hill during the Association’s May fly-in. We anticipate that Representative-Elect Katie Hill, however, will be friendly on law enforcement issues. Hill, the daughter of a police officer, ran on a platform of safety and security, stating that Congress should “prioritize the needs of our peace officers so that they can protect our communities,” emphasizing a tough but smart immigration policy. Because Hill is a first-time politician, we cannot confirm how she will vote on law enforcement issues, but we will be monitoring her decisions throughout the 116th Congress.

Speaker of the House: Current House Minority Leader Nancy Pelosi (D-12) will run for Speaker of the House, the most powerful position in the House of Representatives. Although newly elected progressives and some incumbent members of Congress have voiced strong opposition against Pelosi, she is expected to run uncontested. Elections for Speaker of the House will take place after the Thanksgiving holiday. PORAC will continue to engage with Pelosi on law enforcement matters during visits to Washington, D.C., in 2019.

The Impact of a Democratic House Majority on Law Enforcement

The change in party leadership will result in a “priority shift” for the many committees and for the chamber as a whole. Probable incoming House Judiciary Committee Chairman Jerrold Nadler (D-New York) has already stated that he will increase oversight of the Trump administration, particularly with the president’s recent decision to replace Department of Justice (DOJ) Attorney General Jeff Sessions with Sessions’ chief of staff, now-Acting Attorney General Matthew Whitaker. Apart from government oversight, Democrats will presumably try to address gun control reform — forcing Republicans to vote on the issue. Because Democrats tend to favor government spending, it is likely that there will be increased funding for grant programs, including DOJ grants on which law enforcement relies. PORAC will work with the new members of Congress as well as incumbent members to ensure that grant funding for law enforcement is maintained and expanded.

Although there are partisan issues on the agenda, Democrats are also likely to take up a more bipartisan matter: criminal justice reform. A criminal justice reform bill that passed the House in May was considered by Democrats and some Republicans to be too narrow in its reform agenda; namely the bill addressed only prison reform and did not address sentencing reform. It is possible that House Democrats will work with Senate Republicans and Democrats to pass a broader piece of legislation that also includes sentencing reform. Congress has been working with the White House to introduce a bill that includes sentencing reform to be taken up this Congress. Senate Majority Leader Mitch McConnell has stated that he will bring the bill to the floor if he is assured he has 60 votes from senators, meeting the minimum number to guarantee passage. Given the short time left in this year’s legislative calendar for Congress to complete its list of desired tasks, however, the framework of the current bill or a similar version will most likely be broadened and reintroduced next year under Democratic leadership in the House.

Before the 115th session ends, Congress is working to pass appropriations bills required to fund the government (to avoid a government shutdown) and sign reauthorization legislation into law. One of the reauthorization bills, the Violence Against Women Act (VAWA) provides essential funding to law enforcement to combat violent crimes against women. PORAC has actively advocated for VAWA’s reauthorization and, in September, VAWA was provided a short extension, but VAWA currently expires on December 7. In the event that the reauthorization is pushed until the next congressional session, Democrats are likely to demand more funding for VAWA and ensure that the Act is reauthorized for several years.

We are also optimistic about new opportunities for pension reform in the upcoming Congress. The likely incoming House Ways and Means Committee Chairman — the Committee that has primary authority over pension reform — Representative Richie Neal (D-Massachusetts) has championed retirement savings and pension reform issues in the current Congress. 

The 2019 Senate Judiciary Committee

While the Senate remains in Republican hands, there will likely be shifts in the Senate Judiciary Committees’ Republican leadership. By the Thanksgiving holiday, current Committee chairman, Chuck Grassley (R-Iowa), is expected to announce whether he will seek to hold the gavel for the Senate Finance Committee, abdicating his current chairmanship. In the event that Senator Grassley chooses to lead the Senate Finance Committee, under seniority rules, Senator Lindsey Graham (R-South Carolina) is likely to become Senate Judiciary Committee chairman. At the time of this publication, Senator Grassley had not made a decision on which chairmanship to yield.

Under a Chairman Graham, the Senate Judiciary Committee will likely undergo some immediate changes. For example, Senator Graham has publicly announced that he will dispose of the current “blue-slip” process, which allows senators from the minority party to provide a favorable or unfavorable opinion on federal circuit court nominees in their state. Senator Graham also stated that the Committee would be “full throttle” when it comes to confirming judges.

Despite all, however, Senator Feinstein is expected to remain ranking member. PORAC looks forward to continuing its work with the Senate.