Federal Legislation – Government Avoids Shutdown as Lame Duck Winds to a Close

Of Counsel
Legislative Assistant
Steptoe & Johnson LLP

Congressional Update

Narrowly avoiding a government shutdown, on December 10 President Obama signed into law a continuing resolution (CR) that will fund the government at last year’s levels through April 28, 2017. The House of Representatives voted 326-96 to approve the measure, and the Senate passed it by a 63-36 vote. Separate legislation that funds military construction projects and veterans programs through September 30, 2017, has already been enacted, but funding for all other aspects of the federal government was set to expire absent passage of this CR.

The CR’s passage in the Senate appeared uncertain as a number of Democrats, led by Senator Joe Manchin (W. Va.), raised concerns late in the process that the bill lacked a long-term extension of benefits for coal miners. Ultimately, the opponents opted not to force a government shutdown over the matter. Senate Majority Leader Mitch McConnell (R-Ky.), who represents thousands of coal miners, insisted that the matter could be addressed in the coming months. “I had hoped we’d get a year [extension]. But we’ve got until the end of April to get at it again,” McConnell said.

In addition to maintaining federal spending at current levels, the CR appropriates additional funding for a number of urgent needs such as overseas war operations, natural disaster relief and water infrastructure repairs in Flint, Michigan.

The House and Senate have adjourned and will resume session when the 115th Congress convenes on January 3, 2017.

President-Elect Trump Continues to Assemble Cabinet

With Inauguration Day just weeks away, President-elect Donald Trump has been busy building his team of top advisors. The nomination that will most directly impact law enforcement is that of Senator Jeff Sessions (R-Ala.) to be the next Attorney General of the United States. As Attorney General, Sessions would have the ability to shape federal policies and oversee the enforcement of federal laws.

Considered one of the more conservative members of Congress, Sessions was the first sitting Senator to endorse Trump for President and began advising the candidate on a number of justice-related issues after announcing his support for the billionaire businessman. In terms of policy, the two are most closely aligned on the issues of illegal immigration and border security. Both Trump and Sessions favor increasing deportations and building a wall on the U.S.-Mexico border to stem the influx of illegal immigrants, which Sessions recently called a crisis “that further undermines the integrity of our immigration system.” Many immigration activists fear that Sessions would exercise his discretion to ramp up enforcement of immigration laws that may not have been as strictly enforced under the Obama Department of Justice (DOJ).

In addition to immigration, surveillance is another policy area where a Sessions-led DOJ may look to take action. Sessions has long supported allowing law enforcement broad access to electronic data pertinent to criminal investigations. For example, when Apple refused to assist the Federal Bureau of Investigations in decrypting the mobile device used by the San Bernardino terrorists, Sessions chastised the company for not understanding the seriousness of the matter. Additionally, when the Senate was planning to consider updating the Electronic Communications Privacy Act (ECPA) this summer, Senator Sessions offered amendments to the legislation that would have required providers to turn over to law enforcement an individual’s electronic communications content (including emails, browsing histories, IP addresses and other information) if a government official declared that it was an emergency. PORAC did not support the overall bill to update ECPA, which ultimately was not voted on by the Senate, but expressed its strong support for the changes proposed by Senator Sessions and believes they would represent an important starting point in remedying the flaws in the bill.

An Attorney General Sessions might also revive enforcement of federal marijuana laws. Under President Obama, the DOJ has largely taken a hands-off approach when it comes to enforcing the Controlled Substances Act’s (CSA) prohibition on marijuana in states that have approved the medical or recreational use of the drug. An outspoken critic of marijuana and staunch opponent to legalization efforts, Sessions could abandon the current approach in favor of stricter CSA enforcement regardless of the decisions made by individual states.

The Attorney General has the authority to investigate accusations of misconduct by law enforcement agencies across the country, a tool that has been used regularly by the Obama DOJ. Through the DOJ’s Civil Rights Division, the administration has investigated incidents in cities such as Baltimore, Maryland, and Ferguson, Missouri. It is unclear whether Sessions would continue to prioritize similar investigations into police misconduct.

As a potential member of the president’s cabinet, Sessions must undergo Senate confirmation, a process with which he is very familiar. Sessions went through the process when he was nominated by President Ronald Reagan to a federal judgeship in 1986, but his confirmation was ultimately denied after lawyers testified that he had used racially charged language during his time as the United States Attorney for the Southern District of Alabama. Sessions has refuted those claims but will likely have to answer for those accusations again as he seeks confirmation as Attorney General.

Feinstein to Assume Judiciary Committee Leadership Post

Senator Dianne Feinstein (D-Calif.) will serve as Ranking Member on the Senate Judiciary Committee in the 115th Congress, becoming the first woman in history to hold the post. Senator Pat Leahy (D-Vt.), who has been the top Democrat on the committee since 2001, vacated the position when he decided to replace retiring Appropriations Committee Ranking Member Barbara Mikulski (D-Md.).

Feinstein’s appointment comes just as the Judiciary Committee is preparing to play a significant role in a range of matters in the coming Congress. The most prominent and pressing issues under the committee’s jurisdiction are the Attorney General and yet-to-be-determined Supreme Court nominations. The committee will also be tasked with any immigration, surveillance and criminal justice reform legislation, among other topics. PORAC has already reached out to Senator Feinstein’s office to discuss a variety of law enforcement matters that will be on the agenda in the next Congress.

Many Democrats are hoping that Feinstein will act as a check on the Trump Administration — a role that the Senator seems eager to embrace. “When President-elect Trump is willing to support responsible policies and nominees, I’ll hear him out, but this committee has a vital role to protect the Constitution and scrutinize policies, senior officials and judges very carefully, and that’s what we intend to do,” Feinstein said.

Becerra Leaving U.S. House to Be California AG

Following the election of outgoing California Attorney General Kamala Harris (D) to the U.S. Senate, Governor Jerry Brown (D) tapped U.S. Representative Xavier Becerra (D) to be the state’s next Attorney General. Becerra, who has served his district since 1993 and is the highest-ranking Hispanic member of Congress, was set to become the top Democrat on the House Ways and Means Committee.

In accepting the nomination, Becerra said that he could not refuse the opportunity to serve his home state. “As former Deputy Attorney General, I relished the chance to be our state’s chief law enforcement officer to protect consumers, advance criminal justice reform and, of course, keep our families safe,” Becerra said.

Shortly after Governor Brown named Becerra as Harris’s replacement, former state Assembly Speaker John Perez announced that he would pursue the seat and quickly earned a number of endorsements — including from Harris and Los Angeles Mayor Antonio Villaraigosa. Within a matter of days, however, Perez removed himself from the race due to a newly diagnosed health condition. State Assemblyman Jimmy Gomez (D) has officially entered the race and earned the endorsements of several Congressional Hispanic Caucus members. Former Bernie Sanders campaign strategist Arturo Carmona (D) and former aide to L.A. City Councilman Jose Huizar Sara Hernandez have also entered the race.

Becerra’s nomination is subject to confirmation by the California State Assembly and Senate. The special election to replace Becerra will likely not be held until spring 2017 and may coincide with already scheduled citywide elections in either March or May.

The Post-Election Landscape

Of Counsel
Legislative Assistant
Steptoe & Johnson LLP

Presidential Race

In a stunning outcome that defied every major national poll and the predictions of countless political pundits, Donald Trump was elected the 45th president of the United States on November 8. Trump amassed a number of victories in key battleground states that ultimately pushed him past the pivotal threshold of 270 Electoral College votes necessary to win, ending the race with 290 to Hillary Clinton’s 228. Trump’s victory will go down as one of the most stunning upsets in American history.

The decisive win hinged on Trump’s success across competitive states that the Clinton campaign was confident it could win. One of the first significant states to fall in Trump’s favor was Ohio, which he won by nearly 10 points and which earned him 18 electoral votes. The Republican nominee also prevailed by roughly four points in North Carolina to earn its 15 electoral votes. In Florida, the race appeared tight all evening, with Trump finally taking all 29 electoral votes after beating Clinton by two points. One of Trump’s most surprising wins came in Pennsylvania, which the Democrats had won in each of the previous six presidential elections, where Trump beat Clinton by more than a percentage point to take home its 20 electoral votes.

While many surmised that Trump’s only route to victory would require him to win Ohio, North Carolina, Florida and Pennsylvania, he went even further by securing upsets in Wisconsin (10 electoral votes) and Michigan (16 electoral votes). Clinton had considered both states relatively safe, not even visiting Wisconsin after the national conventions. Trump did not even campaign in the two states until the election’s final days, but remarkably became the first Republican to win Wisconsin since 1984 and Michigan since 1988.

Although she won in the electoral vote-rich states of California (55), New York (29), Illinois (20) and Virginia (13), Clinton could not make up enough ground to win. As this article went to press, Clinton led the popular vote by more than 2.5 million, but that provides little consolation for a campaign that was aiming to send a woman to the White House for the first time.

In his acceptance speech, Trump congratulated Clinton and called for unity. “Now it is time for America to bind the wounds of division,” said Trump, whose campaign was marked by divisive rhetoric. “To all Republicans and Democrats and independents across this nation, I say it is time for us to come together as one united people.”

In her concession speech, Clinton said that the loss was “painful” but the country must accept the result and look to the future: “Donald Trump is going to be our president. We owe him an open mind and the chance to lead.”

President Obama, who actively campaigned against Trump, spoke from the Rose Garden about the impending transition of power. “It is no secret that the president-elect and I have some pretty significant differences. But, remember, eight years ago President Bush and I had some pretty significant differences,” Obama said. “We are now all rooting for his success in uniting and leading the country.”

Senate Races

In addition to reclaiming the White House, Republicans maintained their majority in the Senate as many of their candidates, similar to Trump, outperformed the numbers they achieved in recent polls. Heading into Election Day, both parties had identified nine pivotal races that were key to Republican Senate control. The GOP won six of those contests.

In North Carolina, Senator Richard Burr (R) was able to hold off challenger Deborah Ross (D). Burr received 51% of the vote to Ross’ 45%, earning a third term. In Florida, Senator Marco Rubio (R) was re-elected by a wide margin, defeating Congressman Patrick Murphy (D) 52% to 44%. While Republicans had long been favored to win in North Carolina and Florida, recent polls had shown the races tightening.

In Missouri, Senator Roy Blunt scored a convincing win (49% to 46%) over Jason Kander (D). Kander, Missouri’s Secretary of State, was polling well in the days before the election but was not able to overcome the down-ballot boost that Trump gave to Blunt.

Another race that did not unfold the way the polling predicted was in Pennsylvania, where Senator Pat Toomey (R) beat Katie McGinty (D) 49% to 47%. Many had anticipated that Democrats would win the seat on their way to reclaiming the Senate majority, but Trump’s impressive performance in Pennsylvania undoubtedly bolstered Toomey’s support.

Defying early predictions that the Republicans would lose Senate seats in Indiana and Wisconsin, voters prevented two Democratic former senators from returning to Congress. Congressman Todd Young (R) beat former Senator Evan Bayh (D) 52% to 42% in the race to replace retiring Indiana Senator Dan Coats (R). Meanwhile, Senator Ron Johnson (R) defeated former Senator Russ Feingold (D) in Wisconsin 50% to 47%. The Democratic challengers in both of these races had been favored early on, but those predictions, too, turned out to be inaccurate.

Democrats did win three key races. In Nevada, former state Attorney General Catherine Cortez Masto (D) beat Republican Congressman Joe Heck 47% to 45% to become the first Latina ever elected to the U.S. Senate. Cortez Masto will replace outgoing Minority Leader Harry Reid (D), who worked hard to ensure that his seat remained in Democratic hands. Democrats also picked up seats in Illinois, where Congresswoman Tammy Duckworth handily defeated Senator Mark Kirk (R), and in New Hampshire, where Governor Maggie Hassan (D) narrowly defeated incumbent Kelly Ayotte (R). Joining the newly elected Democratic women in the Senate is California Attorney General Kamala Harris (D), who will replace retiring California Senator Barbara Boxer after defeating fellow Democrat Loretta Sanchez. PORAC endorsed Senator-elect Harris early in her campaign.

While many had expected the Democrats to win a majority in the Senate, Republicans locked up the majority with at least 51 seats. Louisiana will hold a run-off election in December, and it is likely that Republicans will win that seat to push the majority to 52.

House Races

As recently as October, House Democrats were optimistic that they could put a serious dent in the Republicans’ 247-seat majority and potentially even win control. As race results rolled in on election night, however, it became resoundingly clear that the GOP majority was not in jeopardy. By midday on November 9, Republicans were projected to come away with 239 seats and Democrats were set to hold 193 (with three races remaining undecided). In total, Democrats picked up a net of seven seats — a modest gain considering that many believed Republicans would lose 10 to 20 seats.

Pulling support from Trump voters, the GOP had a strong showing across much of the country, the South in particular. Although Republicans have to be pleased with the overall results, House Speaker Paul Ryan (R-Wisc.) faces uncertainty from the conservative wing within his party. Ryan has said that he will seek the speakership, but his troubled history with the President-elect could complicate matters. Ryan refused to fully support Trump during the campaign, and many in Trump’s camp are concerned about Ryan continuing to serve as Speaker. But it now appears that Trump may be prepared to work with Ryan as Speaker, and that may dampen opposition from within the House Republican conference.

Lame-Duck Period and Looking

Had Hillary Clinton won, the lame-duck period would have likely been very active, with a Republican-controlled Congress moving to impose its legislative will before she took office. Now that the White House will be under Republican control, however, Congress may focus more narrowly on must-pass legislation and organizing for the new Congress.

The priority of the lame-duck period will be to pass a funding package that keeps the federal government operating beyond early December. In September, Congress passed a continuing resolution that funded federal programs until December 9 at last year’s levels. While congressional leaders had been debating whether to pursue a comprehensive spending bill encompassing all federal funding or work to enact a number of smaller appropriations bills, now there is a strong chance that they will simply pass another continuing resolution and try to craft a more comprehensive spending agreement in the new Congress.

An all-Republican Congress and White House should allow the GOP to set the agenda early and work to enact legislation undoing many policies that President Obama put in place over the last eight years, including those established by administrative fiat. Republicans are expected to target, at the outset, the Affordable Care Act (also known as Obamacare), which they have wanted to repeal for years. It remains to be seen, however, whether Republicans will be able to agree on how to address the health care law.

It is also expected that there will be action early next Congress to address what has been one of Trump’s most enduring promises: building a wall on the Mexican border. He is expected to offer a wall-implementation proposal with a more comprehensive infrastructure plan. Even if the concept of a border wall gains widespread support in Congress, debates over how to fund its construction are sure to create controversy. Trump has said many times that he will force Mexico to pay for the wall, while Mexico’s president has strongly denied that possibility.