Post-Election Landscape - BGR Group
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About BGR Group With senior-level experience in the White House, Congress and the Executive Branch, coupled with uncommon strategic vision, policy expertise and close working relationships with decision-makers around the world, the BGR Government Af- fairs team is prepared to take on your greatest challenges. Our reputation for excellence is known in the nation’s capital and around the globe. A bipartisan lobbying firm, we specialize in creating, imple- menting and changing public policy. Whether you seek new legislation, need to modify regulation, or want to put a stop to adverse legislation, we have the skills to achieve results under the most difficult circumstances. Contents I.OVERVIEW 3 II.TRANSITION 5 III. BIDEN’S INNER CIRCLE and CABINET SHORT LIST 7 IV. FIRST 100 DAYS 13 V. HEALTH CARE and LIFE SCIENCES 15 VI. COMMERCE/INFRASTRUCTURE/CLIMATE 19 VII. FOREIGN POLICY/INTERNATIONAL RELATIONS 23 VIII. FINANCIAL SERVICES and REGULATION 27 IX. BUDGET, APPROPRIATIONS and TAX 31 X. STATE and LOCAL GOVERNMENT 37 ADDENDUM: POTENTIAL SENATE COMMITTEE LEADERS IN THE 117TH CONGRESS 39 2
Post-Election Landscape BGRDC.com I. Overview After projections that he won the hard-fought bat- tleground states of Pennsylvania and Nevada, for- mer Vice President Biden declared victory in the 2020 presidential election and has already begun the transition process. According to the Associated Press, Biden’s electoral college vote count currently stands at 290-214 over President Trump, although the final results have not yet been certified. President Donald Trump has not conceded, and his legal team is still fil- ing lawsuits and calling for recounts in a handful of states to ensure every legal vote is counted and certified. Any disputes at the state level must be resolved by the safe harbor deadline of December 8th. The electoral college will then meet on December 14th to officially cast their ballots. Federal law requires states to deliver certified electoral college results to the Senate by the 4th Wednesday in December, which this year is De- cember 23rd. On January 6th, the 117th Congress will meet in a Joint The election Session to announce the electoral college vote results. If a majority of the electors cast their votes for Joe Biden and Congress accepts those results, results reinforced Joe Biden will be declared the official winner of the 2020 election and sworn in as the 46th President of the United States on January 20, 2021, the fact that the Inauguration Day. nation’s electorate CURRENT BALANCE OF POWER is deeply divided. After losing 2 incumbents in the states of Arizona and Colorado and picking up a seat in the state of Alabama, Senate Republicans currently stand at 50 Senate seats and Democrats at 48 seats, with 2 seats in Georgia undecided pending runoffs scheduled for January 5, 2021. The House will remain in Democratic control but with a much slimmer margin. According to the Cook Political Report, as of November 15th the Democrats have secured 221 seats and the Republicans 207. There are 7 seats outstanding, most of which are leaning toward the Republican candidates. The election results reinforced the fact that the nation’s electorate is deeply divided. Even with a Democrat in the White House, a smaller Democratic Majority in the House and a very slim Majority in the Sen- 3
ate for either party, governing will be challenging. The Democrats are largely divided between party centrists and the more progressive wing and Republicans face internal policy disagreements of their own. Changes are likely to be more incremental than sweeping over the next two years. IMPACT OF GEORGIA RUNOFFS All eyes are on the state of Georgia, where the fate of the two January 5th runoff races will determine which party controls the Senate. With the outcome of the Georgia Senate races A Biden presidency still undetermined and the control of the coupled with a Senate unknown, we do not know whether Republican-controlled we will be looking at a divided Congress or Senate would have an a narrowly controlled Democratic Congress. If Democrats control enormous impact on both the House and the Senate, they will the Democratic Party’s be doing so with slim margins that will pres- agenda. ent huge challenges to Democratic lead- ers should they try to move sweeping pieces of legislation. Expect Senate Majority Leader Mitch McConnell (R- KY) to be almost singularly focused on exercising his current power and protecting his GOP majority in the next Congress, where the 2022 Senate map is challenging for Republicans. Similar to the 2020 elections, several battleground states swill be up for grabs including Georgia (Loeffler seat), Florida (Rubio), Alaska (Murkowski), Mis- souri (Blunt), North Carolina (open), Ohio (Portman), and Wiscon- sin (Johnson). Potential retirees include Senators Grassley, Moran, and Shelby. A Biden presidency coupled with a Republican-controlled Senate would have an enormous impact on the Democratic Party’s agenda. Cabinet and other Executive Branch nominations, judicial nominees, and legislation will face GOP headwinds and require bipartisanship to succeed. Efforts by Democrats to pass major legislation through reconciliation (including rolling back much of the Trump Adminis- tration’s signature tax bill), a public option, Medicare for All, address- ing climate change, changing the number of justices on the Supreme Court, granting D.C. and Puerto Rico statehood, and changing the filibuster rules would not be possible under this scenario. 4
Post-Election Landscape BGRDC.com II.Transition While President Trump has not con- ceded the presidential race, Joe Biden and Kamala Harris are moving forward with their transition plans, preparing for cabinet and policy announcements. The Biden team recently updated its website to highlight four policy areas their ad- ministration plans to prioritize: COV- ID-19, economic recovery, racial equity and climate change. The transition also The transition team has launched official social media ac- counts on Facebook, Twitter and Insta- continues to be built gram using the handle @Transition46. out, preparing for Over the course of the next 70 days, the transition pro- cess will continue moving ahead with overseeing the hir- cabinet and policy ing of more than 4,000 government appointees, prepar- ing policy plans and initiating their execution, as well as announcements. organizing logistical tasks such as setting up offices. This process is already underway but will proceed with some limitations until the General Services Administration officially “ascertains” the results of the election, a key step to release federal funding to support the transition effort and agency access. The transition team itself continues to be built out. On Monday, November 9th, Vice President Biden an- nounced his coronavirus task force, to be led by former U.S. Surgeon General Vivek Murthy and David Kessler, a former head of the Food and Drug Administration. On Tuesday, November 10th, the Biden-Harris Transition also released the Agency Review Teams, which are tasked with ensuring smooth transfers of power in each federal agency. We expect senior White House staff announce- ments to be made as early as this week and for cabinet nominees to be announced sooner than is typical, pos- sibly before the Thanksgiving holiday. 5
President-elect Biden is surrounded by a deep team of professionals who have worked with him over his many years in Washington. 6
Post-Election Landscape BGRDC.com III. Biden’s Inner Circle and Cabinet Short List President-elect Biden is surrounded by a deep team of pro- fessionals who have worked with him over his many years in Washington. As he builds out his administration, expect diversity to be a key factor in appointments. Also expect his team to have a sea of familiar faces as alumni from the Obama Administration and from his time on the Hill return to jobs at the White House and across the federal agencies. Some key members of the Biden inner circle: 1. Kate Bedingfield 8. Jen O’Malley Dillon Biden 2020 Deputy Campaign Manager Biden 2020 Campaign Manager and Communications Director 9. Bruce Reed 2. Valerie Biden Owens Former chief of staff to Vice President President-Elect Biden’s sister Biden 3. Tony Blinken 10. Steve Richetti Former Deputy Secretary of State and Chair of the Biden campaign; former Deputy National Security Advisor Chief of Staff to Vice President Biden and Deputy Chief of Staff to President 4. Mike Donilon Clinton Biden 2020 Chief Strategist 11. Representative Cedric Richmond 5. Anita Dunn (D-LA) Biden 2020 Senior Advisor; Managing Director at SKDKnickerbocker; 12. Symone Sanders former White House Communications Biden 2020 Senior Advisor; national Director press secretary for Bernie Sanders’ 2016 campaign 6. Senator Ted Kaufman Former U.S. Senator (D – DE) and 13. Jake Sullivan chief of staff to Senator Joe Biden Former National Security Advisor to the Vice President and State 7. Ron Klain Department Deputy Chief of Staff and EVP and General Counsel of Director of Policy Planning investment firm Revolution; former Chief of Staff to Vice President Biden and Vice President Gore and Ebola Response Coordinator 7
BIDEN CABINET SHORT LISTS STATE Sally Yates – former Deputy Attorney General and US Attorney for the Northern District of Georgia Tony Blinken – former Deputy Secretary of State and Deputy National Security Advisor INTERIOR Bill Burns – former Deputy Secretary of State Jamie Rappaport Clark – President of Defenders of Wild- Nicholas Burns – former Under Secretary of State for life; former Director of the US Fish and Wildlife Service Political Affairs, Ambassador to NATO Representative Raul Grijalva (D-AZ) Senator Chris Coons (D-DE) Senator Martin Heinrich (D-NM) TREASURY Governor Michelle Lujan Grisham (D-NM) Lael Brainard – member of the Federal Reserve; former Senator Tom Udall (D-NM) Under Secretary of Treasury Roger Ferguson – President and CEO of TIAA; former AGRICULTURE Vice Chair of the Federal Reserve Former U.S. Senator Joe Donnelly (D-IN) – Partner at Neel Kashkari – President of the Federal Reserve Bank Akin Gump of Minneapolis; former Assistant Secretary for Financial Former U.S. Senator Heidi Heitkamp (D-ND) – board Stability member of the McCain Institute Sarah Bloom Raskin – former Deputy Secretary of Treasury Representative Jim McGovern (D-MA) Senator Elizabeth Warren (D-MA) Karen Ross – Secretary of the California Department of Food and Agriculture; former Chief of Staff of the US DEFENSE Department of Agriculture Mayor Pete Buttigieg – former Mayor of South Bend, Representative Peter Welch (D-VT) Indiana and presidential candidate Lieutenant Governor David Zuckerman (D-VT) Senator Tammy Duckworth (D-IL) Michele Flournoy – former Deputy Secretary of Defense COMMERCE Jeh Johnson – former Secretary of Homeland Security, Mignon Clyburn – Lionsgate board member; former General Counsel of Department of Defense FCC Commissioner Senator Jack Reed (D-RI) Governor Terry McAuliffe (D-VA) Governor Gina Raimondo (D-RI) JUSTICE Meg Whitman – CEO of Quibi; former CEO of eBay Stacey Abrams – founder of Fair Fight Action; former and Hewlett Packard Georgia gubernatorial candidate; former minority leader Jeff Zients – President of Cranemere; former Director of of the Georgia House of Representatives the National Economic Council Xavier Becerra – Attorney General of California; for- mer Congressman LABOR Preet Bharara – former US Attorney for Southern Dis- Mayor Steve Benjamin – Mayor of Columbia, SC trict of New York Sarah Nelson – President of the Association of Flight Senator Doug Jones (D-AL) Attendants Tom Perez – current DNC; former Assistant Attorney Senator Bernie Sanders (I-VT) General for Civil Rights; former Secretary of Labor 8
Post-Election Landscape BGRDC.com Representative Andy Levin (D-MI) John Podesta – former White House Chief of Staff and Counselor Mayor Marty Walsh – Mayor of Boston Elizabeth Sherwood Randall – former Deputy Secre- tary of Energy HEALTH AND HUMAN SERVICES Dr. Mandy Cohen – Secretary of the North Carolina EDUCATION Department of Health; former Chief Operating Officer of the Centers for Medicare and Medicaid Services Senator Michael Bennett (D-CO) Governor Michelle Lujan Grisham (D-NM) Lily Eskelsen Garcia – former president of the National Education Association Dr. Vivek Murthy – former Surgeon General of the United States Randi Weingarten – President of the American Federa- tion of Teachers Andrea Palm – Secretary of the Wisconsin Department of Health Services; former Counselor and Chief of Staff to the Secretary of Health and Human Services VETERANS AFFAIRS Mayor Pete Buttigieg – former Mayor of South Bend, HOUSING AND URBAN DEVELOPMENT Indiana and presidential candidate Representative Karen Bass (D-CA) Dr. Carolyn Clancy – Deputy Under Secretary for Health for Discovery, Education and Affiliate Networks Mayor Keisha Lance Bottoms – Mayor of Atlanta at the VA Mayor Muriel Bowser – Mayor of Washington, DC Senator Tammy Duckworth (D-IL) Mayor Eric Garcetti – Mayor of Los Angeles Jason Kander – founder of Let America Vote; former Secretary of State of Missouri TRANSPORTATION Representative Earl Blumenauer (D-OR) HOMELAND SECURITY Mayor Keisha Lance Bottoms – Mayor of Atlanta Representative Val Demings (D-FL) Mayor Rahm Emanuel – former Mayor of Chicago, Governor Michelle Lujan Grisham (D-NM) White House Chief of Staff and US Congressman (D-IL) Alejandro Mayorkas –former Deputy Secretary of Mayor Eric Garcetti – Mayor of Los Angeles Homeland Security Sarah Nelson – President of the Association of Flight Lisa Monaco – former White House Homeland Security Attendants Advisor and Assistant Attorney General for National Janette Sadik-Khan – Chair of the National Association Security of City Transportation Officials; former Commissioner of Representative Cedric Richmond (D-LA) the New York City Department of Transportation ENVIRONMENTAL PROTECTION AGENCY ENERGY Governor Jay Inslee (D-WA) Carol Browner – former Director of the White House Katie McGinty – served as an Environmental Advisor to Office of Energy and Climate Change Policy and Admin- V.P. Gore and President Clinton istrator of the Environmental Protection Agency Governor Christie Todd Whitman (R-NJ) Governor Jennifer Granholm (D-MI) Heather Zichal – former Deputy Assistant to the Presi- Governor Jay Inslee (D-WA) dent for Energy and Climate Change 9
BIDEN CABINET SHORT LISTS OFFICE OF MANAGEMENT AND BUDGET CENTRAL INTELLIGENCE AGENCY Jared Bernstein – Senior fellow at the Center on Budget Tom Donilon – former National Security Advisor and Policy Priorities; former Chief Economist and Eco- Avril Haines – former White House Deputy National nomic Adviser to Vice President Biden Security Advisor and Deputy Director of the Central Heather Boushey – President of Washington Center for Intelligence Agency Equitable Growth; former Chief Economist for Clinton Susan Rice – former National Security Advisor and US Transition Team Ambassador to the United Nations Mayor Pete Buttigieg – former Mayor of South Bend, Jake Sullivan – former National Security Advisor to the Indiana and presidential candidate Vice President and State Department Deputy Chief of Heather Higginbottom – current head of JPMorgan Staff and Director of Policy Planning Chase Policy Center; served as Deputy Secretary of State for Management and Resources; former Deputy Direc- WHITE HOUSE CHIEF OF STAFF tor of OMB Ron Klain – EVP and General Counsel of investment firm Revolution; former Chief of Staff to Vice President US REPRESENTATIVE TO THE UNITED NATIONS Biden and Vice President Gore and Ebola Response Representative Karen Bass (D-CA) Coordinator Mayor Pete Buttigieg – former Mayor of South Bend, Susan Rice – former National Security Advisor and US Indiana and presidential candidate Ambassador to the United Nations Mayor Eric Garcetti – Mayor of Los Angeles Steve Richetti – Chair of the Biden campaign; former Chief of Staff to Vice President Biden and Deputy Chief Ben Harris – Executive Director of the Kellogg Public- of Staff to President Clinton Private Interface at Northwestern University and Chief Economist of Results for America; former Chief Econo- Representative Cedric Richmond (D-LA) mist and Economic Adviser to Vice President Biden Jake Sullivan – former National Security Advisor to the Wendy Sherman – Director of the Center for Public Vice President and State Department Deputy Chief of Leadership at Harvard’s Kennedy School; former Under Staff and Director of Policy Planning Secretary of State for Political Affairs NATIONAL SECURITY ADVISOR US TRADE REPRESENTATIVE Tony Blinken – former Deputy Secretary of State and Representative Jimmy Gomez (D-CA) Deputy National Security Advisor Robert Holleyman – former Deputy US Trade Repre- Avril Haines – former White House Deputy National sentative Security Advisor and Deputy Director of the Central Intelligence Agency Miriam Sapiro – former Deputy US Trade Representa- tive Robert Malley – served on the NSC; former Director for Democracy, Human Rights, and Humanitarian Af- Rhonda Schmidtlein – member of the US International fairs at the NSC Trade Commission Susan Rice – former National Security Advisor and US Katherine Tai – trade counsel for the House Ways and Ambassador to the United Nations Means Committee Jake Sullivan – former National Security Advisor to the Vice President and State Department Deputy Chief of Staff and Director of Policy Planning 10
Post-Election Landscape BGRDC.com NATIONAL ECONOMIC COUNCIL FEDERAL COMMUNICATIONS COMMISSION Lily Batchelder – former Deputy Director of the Na- Mignon Clyburn – Lionsgate board member; former tional Economic Council and Chief Tax Counsel for the FCC Commissioner Senate Finance Committee Anna Gomez – Partner at Wiley Rein; former Deputy Jared Bernstein – Senior fellow at the Center on Budget Assistant Secretary for Communications and Informa- and Policy Priorities; former Chief Economist and Eco- tion at the National Telecommunications and Informa- nomic Adviser to Vice President Biden tion Administration Sarah Bloom Raskin – former Deputy Secretary of Karen Kornbluh – Director of Digital Innovation and Treasury Democracy at German Marshall Fund; former Ambas- sador to the Organization for Economic Cooperation Heather Boushey –President of Washington Center for and Development and director of Legislative and Inter- Equitable Growth; former Chief Economist for Clinton governmental Affairs at the FCC Transition Team Jessica Rosenworcel – Commissioner of the FCC; for- Lael Brainard – member of the Federal Reserve Board mer Staff Director of the Senate Commerce Committee of Governors; former Under Secretary of Treasury for International Affairs Larry Strickling – former Assistant Secretary of the National Telecommunications and Information Admin- Don Graves – former Deputy Assistant to the President istration and Counselor to the Vice President; former executive director of the President’s Council on Jobs and Competi- Louisa Terrell – Deputy General Counsel and Head of tiveness Public Affairs at McKinsey & Company; former Execu- tive Director of the Biden Foundation Ben Harris – Executive Director of the Kellogg Public- Private Interface at Northwestern University and Chief Economist of Results for America; former Chief Econo- CONSUMER FINANCIAL PROTECTION BUREAU mist and Economic Adviser to Vice President Biden Michael Barr – Dean of the Ford School of Public Service at the University of Michigan; former Assistant CLIMATE CHANGE CZAR Secretary for Financial Institutions at Treasury Carol Browner – former Director of the White House Rohit Chopra – Federal Trade Commissioner; former Office of Energy and Climate Change Policy and Ad- Assistant Director of the CFPB and Special Adviser to ministrator of the Environmental Protection Agency Secretary of Education Governor Jay Inslee (D-WA) Amanda Fischer – Policy Director at the Washington Center for Equitable Growth; former chief of staff for Secretary John Kerry – former Secretary of State and Rep. Katie Porter (D-CA) Senator (D-MA) Senator Ted Kaufman – former U.S. Senator (D-DE) John Podesta – former White House Chief of Staff and and chief of staff to Senator Joe Biden Counselor Representative Katie Porter (D-CA) Tom Steyer – climate activist and former presidential candidate Bharat Ramamurti – Managing Director of Corporate Power program at the Roosevelt Institute; former Senior Heather Zichal – former Deputy Assistant to the Presi- Counsel for Banking and Economic Policy to Senator dent for Energy and Climate Change Elizabeth Warren Graham Steele – Director of Corporations and Society Initiative at Stanford Business School; former staff mem- ber at the Federal Reserve Bank of San Francisco and Minority Chief Counsel for Senate Banking Committee 11
President-elect Biden has laid out his plans to get the economy back up and running, ensuring that our communities are safely reopening, and that businesses get the boost they need from the federal government. 12 12
Post-Election Landscape BGRDC.com IV. First 100 Days With any incoming administration, there is keen interest in focusing the first 100 days on key priority issues. Given the current trajectory of COVID-19 in the US and the most optimistic timelines for vaccines, a Biden-Harris Administration’s first 100 days are likely to be largely oc- cupied by COVID response and reopening/rebuilding the US economy. On Monday, November 9th, President-elect Biden with our allies to deal with significant global issues. announced his COVID Task Force. The team, led The most notable of these being rescinding Presi- by former Surgeon General Vivek Murthy and dent Trump’s decision to retreat from the World former FDA Commissioner David Kessler, will Health Organization, rejoining the Paris climate be working through the transition to ensure that accords, and identifying ways to reenter the Iran a Biden-Harris Administration is prepared to help nuclear deal negotiat- communities navigate the pandemic and plan for ed during the Obama the distribution of treatments and vaccines, among Administration. The first 100 days other priorities. President-elect Biden has laid out his plans to get the President-elect Biden has also committed are likely to be economy back up and running, ensuring that our a series of actions on communities are safely reopening, and that busi- immigration, includ- largely occupied by nesses get the boost they need from the federal gov- ing reinstating the ernment. Biden’s Build Back Better plans, presented Deferred Action for COVID response throughout the campaign, focus on mobilizing Childhood Arrivals American manufacturing and innovation, as well as (DACA) program, and reopening/ building a modern infrastructure for clean energy. halting deportations, Expect two other issues to be key factors in all of creating a task force rebuilding the US to reunite the more Biden’s initial policy proposals: climate change and racial equity. On climate change, the Biden Ad- than 500 children economy. who were separated ministration seeks to make significant investments from their families in green infrastructure, transit, power, the auto in- at the border, and re- dustry and other sectors, with the dual benefit of scinding the “Muslim ban”. boosting our domestic economy while putting the US on track to meet aggressive climate targets. In Expect President-elect Biden to seek opportuni- his first 100 days, President-elect Biden will also ties to use executive orders to make immediate seek ways to address the racial inequities in this changes, especially as he is not likely to find suc- country, including police reform, criminal justice cess getting legislation through Congress unless reform, and policies that will minimize the deep the Democrats are successful in both Senate runoff racial economic gaps in the US. races in Georgia. On foreign policy, expect a return to a more tradi- tional diplomatic engagement, relying on partici- pation in multilateral organizations and working 13
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Post-Election Landscape BGRDC.com V. Health Care and Life Sciences OVERVIEW KEY COMMITTEE The last time the country faced a Senate of a different LEADERSHIP party than the newly elected President was in 2001. AT-A-GLANCE While the House will likely move quickly to introduce new versions of HR 1 – HR 10 from the 116th Congress, House Energy we do not expect substantial legislative action on these and Commerce efforts to occur in the Senate, unless they are tied to eco- nomic stimulus and COVID-19 packages. Health care Chairman policies that have a nexus to these priorities will be in Rep. Frank Pallone (D- NJ) play (and there are many of these), and members will Ranking Member certainly begin to introduce legislation right away. How- Rep. Cathy McMorris Rogers ever, the creation of large vehicles will still be the name (R-WA)/Rep. Michael Burgess of the game in the 117th Congress. (R-TX)/Rep. Bob Latta (R-OH) Regarding Committee leadership, should the Repub- are all running for the top seat licans retain Senate control, it is widely expected that Senator Mike Crapo (R-ID) will be the new Chairman of House Ways and Means the Finance Committee. He will certainly take a differ- Chairman ent tact on issues like drug pricing than Senator Grass- Rep. Richard Neal (D-MA) ley did. Further, he will likely steer the Committee in a different direction when it comes to Medicare payment Ranking Member policy and Affordable Care Act (ACA) changes. Rep. Kevin Brady (R-TX) The HELP Committee will also see a new chairman as Senate HELP Senator Lamar Alexander (R-TN) will be retiring at the end of the year. Senator Richard Burr (R-NC) is the most Chairman senior Republican on the committee and would have (likely) Sen. Richard Burr (R- first choice on taking the gavel, but it is unclear how that NC) will play out. Senator Rand Paul (R-KY) and Senator Ranking Member Susan Collins (R-ME) are the two most likely candi- Sen. Patty Murray (D-WA) dates should Senator Burr decide not to lead HELP. If anything is clear it’s that the HELP Committee will have Senate Finance wildly different health care agendas under a Burr, Paul, or Collins chairmanship. Under a Biden Administra- Chairman tion, many senior Democratic committee staff in both Sen. Mike Crapo (R-ID) the House and Senate will likely move over to the ad- Ranking Member ministration – opening the door for new staff steering Sen. Ron Wyden (D-OR) legislation and known quantities guiding the health care ships in the Executive branch. 15
Nominations will likely be a slow process. We expect Senate Health Care Coverage confirmations for senior administration and cabinet posi- The pandemic’s impact on employment and the health of tions will take more than 6 months. Look for an early push to many in the population would give a Biden Administration install appointees at the Department of Health and Human an easy hook with the public to bring the Democratic Party’s Services given the President-elect’s focus on the COVID-19 long-standing priority of expanding health coverage into the pandemic. At the beginning of the 115th Congress, with a limelight. However, with a Republican Senate there is not newly elected President Trump and Republicans controlling a clear path forward for major legislation. Without the op- both chambers and only needing a simple majority to con- portunity for legislative changes, expect a Biden Administra- firm in the Senate, HHS Secretary Price was confirmed in tion to use executive actions and rulemaking powers to roll February, CMS Administrator Verma in March, and FDA back restrictive policies in the Medicaid program, reinstate Commissioner Gottlieb in May. With the confirmation pro- anti-discrimination protections for the LGBTQ community, cess for these Biden nominees managed by Senate commit- restrict short-term insurance plans and other coverage op- tees run by Republicans, we expect much more contentious tions that do not meet the ACA’s typical coverage standards hearings and vetting processes. It is unclear whether a Biden (so called “junk plans” by Democrats), and use demonstra- Administration would be able to secure the necessary votes tion authority to expand coverage. In particular, keep an eye to confirm more progressive cabinet nominees. Specific to on how a Biden Administration would use State Innovation health, recall that in 2009 Republicans successfully chal- waivers (or “1332 waivers”), which allow states to get creative lenged both former Senator Tom Daschle’s bid to lead HHS, in restructuring coverage rules. as well as the nomination of Dr. Don Berwick to serve as the first CMS Administrator even in a Democratic controlled While some of these early actions may be intuitive, a Biden Senate, although the 60-vote threshold was still intact. Administration will also be faced with some difficult residu- al decisions from the current administration. Rules mandat- ing transparency for providers and drug makers, site neutral POLICY AGENDA payments, and 340B enforcement issues have earned the ire COVID-19 of vocal stakeholders in the health policy arena, who will Health care policy out of the gate will be all COVID-19 all likely push a Biden Administration to consider overturning the time. We do not know what the COVID-19 situation them. Add in any policies the Trump Administration rushes will look like come January, or if we are headed for more to finalize in the remaining months, and a Biden Adminis- local stay-at-home orders. Putting that unknown aside, ex- tration will have some tough decisions to make right off the pect a Biden Administration to release and implement a bat. national testing strategy and national vaccine distribution and prioritization plan, and encourage states to adopt mask Drug Pricing mandates. They will likely keep the things that have been Drug pricing will continue to be an issue for a Biden Ad- working, like Operation Warp Speed, but rebrand them and ministration. Democrats care about overall health system offer more transparency into the internal leadership and costs and not just patient out-of-pocket expenses, which processes being employed. We expect the role of CDC as a presents more risk to manufacturers. The party platform leader and communicator on pandemic response to be el- would give the Medicare program authority to negotiate evated, and don’t be surprised to see many of CDCs current with drug manufacturers on the prices of most prescription recommendations rebranded as the new administration’s drugs and allow private insurers to use these prices as a ref- own. We expect a continued focus on supporting American erence. House Democrats have already passed H.R. 3, which manufacturing of critical medications, either through leg- includes Medicare negotiation and the so-called Interna- islative proposals or through a re-branded executive order. tional Price Index (IPI) that would peg the price of certain Finally, look for Biden to identify administrative actions to drugs in the U.S. to the price paid in other countries. While stabilize Medicaid programs across the country, in addition the platform does not mention IPI, expect the negotiation to pushing Congress to provide additional federal support conversation to be linked to such a limit. Expect H.R. 3 to be for states. reintroduced and move through the House again, in some form. However, a Republican Senate will not have an appe- tite for this type of reform. 16
Post-Election Landscape BGRDC.com Let us also not forget about the bipartisan drug pricing efforts that were being discussed during the pre-pandemic part of the 116th Congress. This includes changes like a Medicare Part D redesign to lower out of pocket expenses in Part D and limiting price increases on marketed products. User Fees Expect the HELP and Energy and Commerce Committees to begin preparing for the User Fee reauthorizations for prescrip- tion drugs, generics, biosimilars and medical devices in 2022. The negotiations between industry and FDA are beginning to kick off this year and should conclude in 2021. In a situation where the Trump Administration begins the negotiations and a Biden Administration needs to own the final product, expect there to be some internal consternation between FDA career staff and new political appointees at the agency, HHS, and the White House. We do not expect the contours of the FDA-in- dustry agreements to drastically change as these are, for the most part, weedy non-partisan products. Democrats will at- tempt to use this legislative vehicle to advance more progres- sive regulatory policies like greater post-marketing obligations for drugs and devices, data sharing, clinical trial diversity, etc. Legislation reforming how cosmetics and diagnostic tests are regulated could potentially hitch a ride on this user fee package as well as both have been the subject of bipartisan efforts over the years. HEALTH AND LIFE SCIENCES TEAM Remy L. Brim, Ph.D., Co-Head, Health and Life Sciences Practice Brent Del Monte, Co-Head, Health and Life Sciences Practice Dan Farmer,Vice President, Health and Life Sciences Practice Matt Hoffmann,Vice-President; Co-Lead, Access & Reimbursement Work- ing Group, Health and Life Sciences Practice Andy Lewin,Vice President, Financial Services Practice Jennifer Larkin Lukawski, Principal, Commerce Practice Jonathan Mantz, Principal, Co-Head, Commerce Loren L. Monroe, Practice Head, Principal, State Advocacy and Govern- ment Marketing Ruth Osinski, Director of Health Policy and Research, Health and Life Sci- ences Practice John Stone, Principal, Co-Lead, FDA and Public Health Working Group, Health and Life Sciences Practice Sam Teague, Policy Analyst, Policy and Regulatory Analysis Robb Walton, Principal; Co-Lead, Access & Reimbursement Working Group, Health and Life Sciences Practice Bob Wood, President and CEO 17
Great expectations will likely need to be scaled back to accommodate divided government. 18
Post-Election Landscape BGRDC.com VI. Commerce, Infrastructure, Energy-Climate As we turn the page from campaigning to governing, the number one ques- tion that is being asked is, “what does this mean?” While the likely elec- tion of a President Biden is significant in terms of policy direction from the Executive Branch, there were not major swings in Congress. With more narrow majorities in both chambers, moving legislation in this divided gov- ernment will require bipartisan cooperation and coalition building. Great expectations will likely need to be scaled back to accommodate divided government. Below, we have examined issues relating to transportation, telecommunications, technology, energy, and environment. While we will know more once the election results are finalized and cabinet nominations are made, below is a preview of what to expect. POLICY AGENDA KEY COMMITTEE LEADERSHIP TRANSPORTATION AT-A-GLANCE & INFRASTRUCTURE President-elect Biden campaigned heav- Senate Commerce ily on making his Build Back Better sus- D - Maria Cantwell (WA) tainable infrastructure plan a top tier leg- R - Roger Wicker (MS) islative initiative. This plan encompasses significant investments in traditional in- House Energy & Commerce frastructure areas like roads, bridges, tun- D - Frank Pallone (NJ) nels, airports, waterways and ports. It also R - Michael Burgess (TX), Bob Latta (OH) or Cathy broadens the historical definition of in- McMorris Rodgers (WA) frastructure. Biden’s plan will make major investments in the aviation, auto, and rail Senate Environment & Public Works industries that were badly impacted by D - Tom Carper (DE) the COVID-19 pandemic. The Build Back R - John Barrasso (WY) or Shelley Moore Capito (WV) Better plan will invest heavily in broad- band and 5G to ensure the most under- House Transportation & Infrastructure served communities have the access they D - Peter DeFazio (OR) need. Biden will also make significant R - Sam Graves (MO) investments in energy production with 19
an emphasis on renewables and cleaner energy alternatives. be done to respond to the economic damage caused by the Biden asserts that these investments will deliver carbon free pandemic and spending on infrastructure is the right prior- electricity generation by 2035 and net zero emissions for the ity. Others, however, believe now is the time for government entire economy by 2050. Biden is clearly proposing a very to be fiscally restrained. This group of at least 15 Republican ambitious plan. There are expectations that he will make in- Senators could grow as some weigh their 2024 Presidential frastructure a policy priority in his first 100 days. aspirations. Most importantly, it is unlikely Leader McCon- nell will agree to a big infrastructure deal since he resisted The price tag for the Biden Build Back Better plan will raise a bold infrastructure package even when Republicans had red flags for some in Congress. Cost projections are up- unified control of government. As opposed to the House- wards of $2 trillion in federal investment. It is unclear how passed infrastructure package, a more realistic path forward this large package gets funded in a divided government. could be a surface transportation reauthorization as passed Rolling back the Trump tax cuts seem highly unlikely if by the Senate Environment and Public Works Committee. Republicans control the Senate. Although deficit spending This five-year, $287 billion authorization bill would be dra- could be a possibility, several trillion dollars have already matically smaller than the $1.5 trillion package passed by been spent in support of COVID-19 relief. The appetite for the House in July. trillions more in federal spending may be difficult, if not im- possible, to digest. TELECOMMUNICATIONS & TECHNOLOGY Congressional Democrats will likely share a Biden Adminis- tration’s priority to move quickly with an infrastructure bill One of the most pressing issues facing the telecommunica- in the 117th Congress. Speaker Pelosi will be motivated and tions space will be the Federal Communications Commis- direct her committee chairs to get to work. Energy & Com- sion. FCC Chairman Ajit Pai is expected to step down under merce Chair Frank Pallone, Transportation & Infrastructure a Biden Administration. While current FCC Commissioner Chair Peter DeFazio, and Ways & Means Chair Richie Neal Jessica Rosenworsel and former Acting FCC Chair Mignon will be asked to shepherd their portions of the bill through Clyburn have been mentioned as possible replacements to their committees of jurisdiction and to the floor as early as Pai, there is discussion the Biden Transition Team would the first hundred days of the new Congress. The blueprints look outside the agency to nominate its next Chairman, a for this bill will be both HR 2, Moving Forward Act, and HR highly coveted position. With the Trump White House de- 4447, The Clean Economy Jobs and Innovation Act, which cision to rescind the renomination of Commissioner Mike was passed in the 116th Congress. However, there are real O’Rielly, the FCC could start 2021 with a 2-1 Democrat ma- differences that exist between Biden’s Build Back Better plan jority. This provides the FCC the ability to quickly take steps that was endorsed by the Biden-Sanders Climate Task Force, re-establishing utility-style regulation over wired and wire- and the progressive supporters of the Green New Deal re- less broadband networks, known as Net Neutrality, which garding policy scope. While the Biden plan opposes a ban was in the Biden campaign platform and is a key priority for on fracking and phasing out nuclear energy, supporters of Democratic lawmakers. To prevent a Democratic majority the Green New Deal support these measures. Even as the on the FCC, Senate Republicans would need to move swiftly number of House Democrats was reduced in size following to confirm a replacement for Commissioner O’Rielly. Right the election, the size of the Progressive Caucus increased. It now, the path to reporting out President Trump’s replace- will be interesting to watch internal negotiations between ment for Commissioner O’Rielly, Mr. Nathan Simington, House Leadership, Progressives, and a Biden Administra- faces serious obstacles. tion on this final product. Another issue related to regulation of broadband would be The big elephant in the room is Senate Majority Leader Mc- an attempt by a Biden Administration to prevent internet Connell, should he remain in control of the Senate agenda. service providers from terminating their customers service Without the looming shadow of Donald Trump, many Re- due to the inability to pay. Known as the “Keep Americans publicans will struggle to support additional government Connected” pledge, this idea was put forward voluntarily by spending without some type of user fee pay-for such as an the wired and wireless broadband providers to help custom- increase in the gas tax. As we have learned during the stimu- ers through the COVID-19 crisis. A Biden Administration lus discussions, the Republican Senate Conference is very would partner with Speaker Pelosi to identify ways to codify divided on government spending. Some feel more needs to this idea over Republican objections. 20
Post-Election Landscape BGRDC.com Setting aside these specific policy differ- thing his campaign immediately walked COMMERCE ences, we do not expect drastic changes back. This became a key issue down the TEAM from the current work by the relevant stretch. Committees in Congress. The Senate While Biden has adopted more of the Commerce Committee has been one of Jonathan Mantz, Principal, Co- environmental goals pushed by Sen. the most productive Committees in the Head, Commerce Bernie Sanders and others in the par- Senate. Much of this work could contin- ty’s progressive wing, he will struggle ue under a Biden Administration. Per- Erskine Wells, Commerce Practice to implement a substantive energy re- sistent focus on broadband deployment, Co-Head, Defense Practice Co- form agenda with Congress. House Head replacing Chinese telecom equipment, Democrats will move quickly on climate and developing industries of the future change legislation in the next Congress. Joseph Lai,Vice President, will maintain bipartisan support. These efforts, however, would be met Commerce Practice In fact, President-elect Biden could lean with sustained Senate GOP opposition. on his Senate experience to partner with Pete Landrum,Vice President, This leads to a likely focus from a Biden Defense and Aerospace Practice key Republican Committee leaders fo- Administration on regulatory actions. cused on legislating. Senate Commerce As described in the Democratic plat- Andy Lewin,Vice President, Chairman Roger Wicker (R-MS) could form, a Biden Administration would Financial Services Practice be a likely partner as would Armed Ser- “take immediate action to reverse the vices Chairman Jim Inhofe (R-OK). Trump Administration’s dangerous and Jennifer Larkin Lukawski, Principal, Commerce Practice Finally, reforming Section 230 of the destructive rollbacks of critical climate Communications Decency Act, which and environmental protections.” Nota- Justin Rzepka,Vice President, provides liability protection for inter- ble for what is left out, the platform also Commerce Practice net companies, will remain a top prior- states, “Recognizing the urgent need to ity for Republicans and Democrats. The decarbonize the power sector, our tech- Jerry Strickland,Vice President, momentum created by the Senate Com- nology-neutral approach is inclusive of Texas Director, State Advocacy merce hearing on October 28th with the all zero-carbon technologies, including and Government Marketing CEOs of Facebook, Google, and Twit- hydroelectric power, geothermal, exist- ter will grow into legislative efforts to ing and advanced nuclear, and carbon Bill Viney, Principal, State Advocacy reform Section 230. This will also be a capture and storage.” and Government Marketing priority for a Democratic House and a These efforts would generate significant Biden Administration, albeit for differ- Nicole Werking, Government scrutiny and oversight from Senate Re- ent reasons. Affairs Coordinator, Commerce publicans starting with Cabinet nomi- Practice nations. While some nominations like a ENERGY Secretary of Transportation or Defense could move quickly and with bipartisan President-elect Biden walked an envi- support, Biden nominees for EPA, Inte- ronmental tightrope throughout the rior and Energy would be heavily scruti- campaign, attempting to excite voters nized and considered methodically un- with a new climate plan without spark- der a GOP majority. ing fears among blue collar voters that he will seek to end fracking, which has been responsible for a boom in the do- mestic energy industry and workforce growth. Biden has said he would not allow new oil and gas development on federal land or waters. But in one debate he misstated his own position, saying he would allow "no new fracking" — some- 21
It would be a mistake to presume Biden foreign policy will simply revert to Obama foreign policy. 22
Post-Election Landscape BGRDC.com VII. Foreign Policy, International Relations While we can certainly look to Obama Administration foreign policy as an indication of what to expect in the Biden Administration, it would be a mis- take to presume Biden foreign policy will simply revert to Obama foreign policy. Much has happened over the last four years, especially with respect to China, Russia, the world-wide economic downturn, and of course, the COV- ID-19 pandemic. In some cases, a Biden foreign policy may look surprisingly like Trump foreign policy. But, as they say, the devil is in the details. Traditional Democratic hot button issues will return to the fore- KEY COMMITTEE front, including climate change, human rights, global health, and LEADERSHIP multilateralism. Expect some of the more typical changes with a party shift in the White House, including undoing Mexico City AT-A-GLANCE Policy (the block of U.S. funding for NGOs that provide abor- tion counseling or referrals) and restoring Cabinet level to the Senate Foreign Relations U.S. Ambassador to the United Nations. President-elect Biden D - Bob Menendez (NJ) can also be expected to seek a rebalance in the tools of state- R - Jim Risch (ID) craft, placing more emphasis on diplomacy and economic tools over the default military tools. As such, his support for the im- House Foreign Affairs plementing agencies – to include resources and personnel – will D - Gregory Meeks (NY), reflect that shift. Brad Sherman (CA) or Joaquin Castro (TX) Needless to say, Republican leadership in the Senate and a tighter R - Michael McCaul (TX) margin in the House will present challenges for President-elect Biden and his administration. Under President Trump, the Senate was more divided on foreign policy matters than any other time in recent memory. Republicans and Democrats on the Foreign Relations Committee broke comity several times and could not agree on nominations, legislation, and the general agenda of the committee. A notable exception to this was a bipartisan rejection of the Trump Administration’s attempts to cut funding for the State Department and foreign assistance programs. Under a President Biden, this situation could reverse. The Presi- dent-elect once chaired the committee and maintains strong rela- tionships with senators in both parties who sit on the committee. Committee member Senator Chris Coons (D-DE) may be under 23
consideration for Secretary of State. Chairman Jim Risch fight will spill over into domestic politics with various con- (R-ID), who is very conservative but not a partisan warrior, stituencies. could seek to work quietly with the administration behind Republicans generally will focus their congressional policy the scenes, much as he did during the Trump Administra- initiatives on great power competition with China. Look tion. for Senators Risch, McConnell, Tom Cotton (AR), Lind- Ranking Member Bob Menendez (NJ) will work closely sey Graham (SC), Marco Rubio (FL), Ted Cruz (TX), and with the Biden administration on a variety of foreign policy a multitude of House Republicans (perhaps led by those on issues, but may chart his own course in certain areas, espe- the Armed Services Committee) to hold the administra- cially as it relates to Iran and Cuba. tion’s feet to the fire if President-elect Biden looks to accom- modate Beijing in any way, even on a trade deal that they Of course, with 51 or 52 votes, Republicans will be able to might have found acceptable if crafted by President Trump. block any Biden appointments to Senate-confirmed po- Possible emerging Republican voices on national security sitions, of which there are a multitude in foreign policy. in the House of Representatives are Liz Cheney (WY) and President-elect Biden may have to re-consider potential ap- Mike Gallagher (WI), both of whom may be thinking about pointees, including Susan Rice, a qualified and experienced their paths to the White House. operative, but a controversial figure with Republicans, to any position requiring Senate confirmation. Look for her to be a candidate for White House Chief of Staff, Counselor, COMMITTEE LEADERSHIP or to return to the National Security Advisor post, none of which require Senate confirmation. Other controversial fig- Three Democrats are vying for the spot of Chairman of the ures are unlikely to be nominated. House Foreign Affairs Committee (HFAC): Gregory Meeks (NY), Brad Sherman (CA), and Joaquin Castro (TX). Al- On specific policy issues, Republicans will become much though Sherman is the most senior member of the commit- more hawkish on Russia and China, no longer con- tee, followed by Meeks, it appears that Meeks has the in- strained by Trumpian rhetoric or potential trade deals side track to becoming Chairman, as he is well-respected with Beijing. Russia-sanctions legislation such as the De- and will have the full backing of the Congressional Black fending Elections from Threats by Establishing Redlines Caucus. His focus on the committee has been Europe and Act (DETER Act) and the Defending American Securi- Latin America, but it is expected that he will become greatly ty Against Kremlin Aggression Act (DASKA Act), with involved on global issues, including a focus on trade and massive sanctions-related provisions, will become more human rights. popular with Majority Leader Mitch McConnell (R-KY) and his conference. Those close to Meeks, who is a moderate, assert that he will focus on all corners of the globe and seek to repair relations On foreign affairs budget issues, Republicans will be sub- with alliances, including NATO. In particular, he believes stantially less inclined to help a Biden Administration morale at the State Department is at an all-time low, and he justify big numbers. Under Trump, they felt his budget is expected to focus on retooling the department to lift up requests were poorly thought-out and antithetical to U.S. career Foreign Service Officers. Meeks is a strong supporter interests. They will view Biden requests, which might call of Israel and a two-state solution, and he wants to keep sup- for increased spending in controversial social policy ar- port for Israel bipartisan. He welcomed the Abraham Ac- eas and climate change, as bloated, ineffective, and waste- cords and will work to get other countries to normalize rela- ful. tions. Biden’s approach to Iran will produce controversy and a His other priorities include educating Americans about for- policy and political battle. Even in the Senate, Joe Biden eign policy and the importance of foreign aid; re-entering sought rapprochement with Tehran. Republicans will em- the Iran deal without sunset provisions; building legislative brace Trump’s maximum pressure policy and move to block coalitions between Democrats and Republicans; and follow- any attempt to relieve sanctions or come to a new nuclear ing President Biden’s lead on foreign policy. Meeks is open- deal that they view as inadequate. Their options will be lim- minded with great people skills, he commands respect from ited as the Executive Branch maintains great flexibility on his colleagues, and he prefers constructive, behind-the- sanctions and total control of diplomatic negotiations. This scenes work rather than public posturing. 24
Post-Election Landscape BGRDC.com POLICY AGENDA ing some of the most controversial immigration orders put Climate change in place by President Trump, including the travel bans, asy- lum policies, and refugee caps. He has committed to seek to Climate change and its broader implications are likely to be reconnect the families separated at the border. He has also a key focus of much of President-elect Biden’s domestic and said he would make the Deferred Action for Childhood Ar- foreign policy. Biden has declared that climate change is the rivals program (DACA) permanent on day one and that he “greatest threat to our security.” He would rejoin the Paris wants to make both permanent and temporary work visas Climate Accords and work with allies to push for greater more accessible. All of these actions would play into a more progress to address climate change. Much of his Build Back proactive and collaborative approach to relationships in Better agenda during the campaign was focused on har- Latin America. nessing clean energy projects to help rebuild the American economy. Expect that theme to translate into his foreign policy agenda as well, although a Senate Republican major- Foreign Economic Policies ity may limit his ability to devote significant budgetary re- Throughout the campaign, President-elect Biden used the sources to this priority. line “economic security is national security.” Look for a do- mestic economic angle through much of Biden’s foreign eco- Human Rights nomic policies like trade. President-elect Biden has placed a great deal of emphasis on a more stringent application of Human rights issues are certain to be elevated in a Biden the Buy American provision. There will certainly be con- Administration. We expect a Biden Administration to be tinued trade tensions with China and apprehension about more forward leaning and with Biden speaking out himself returning to a traditional free trade policy. A question hangs on human rights issues and placing more emphasis on the on the fate of the U.S.-Kenya trade agreement, in particular issue privately and publicly in foreign policy, particularly with concern about the impact on the rest of the region. with traditional partner countries like Turkey and Saudi Arabia, but also more broadly in multilateral fora and as part of a “values-based” foreign policy agenda. Expect Pres- Iran ident-elect Biden, rather than Congress, to take the next set On Iran, President-elect Biden is likely to work to rejoin the of actions against the Chinese for their treatment of the Ui- JCPOA agreement and work with allies to strengthen it, if Iran ghurs and continue to put pressure on China with respect agrees to return to compliance. He will also seek to lengthen to Hong Kong. and strengthen the terms of the agreement moving forward and seeking more bipartisan consultation on how to balance Multilateral Organizations threats for Iran both in terms of the nuclear program and in terms of its support for terrorism. We can expect a reversal of Expect a rapid return to participating in multilateral orga- the Trump Administration position on Iran. nizations and leveraging our relationships with allies. Pres- ident-elect Biden is expected to work with and lead multi- lateral institutions to shape a global outlook: this includes Middle East NATO on issues of Russian aggression; a combination of In the Middle East more broadly, President-elect Biden the European Union and United Nations to address malign has praised the Abraham Accords but also has concerns actors such as Iran, North Korea, and Venezuela; and multi- that it does not contribute to a resumption of direct ne- lateral trade agreements to rein in China in the Asia-Pacific. gotiations on peace between Israel and the Palestinians. He has publicly stated his intent to rejoin the World Health He will likely continue to push for movement towards this Organization on day one to help ensure the international broader peace while also promoting new alliances that community counters the COVID-19 pandemic together and build stability and prosperity across the Middle East. His to strengthen institutions like the Human Rights Council. foreign policy will look to “right size” the military foot- print in the region while reinvigorating diplomatic en- Immigration gagement in the region and having frank and productive exchanges with those partners who have gotten what has President-elect Biden has committed to immediately revers- been perceived as a “blank check” from the Trump team. 25
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