Capitol View

VOLUME 2, NUMBER 10 NOVEMBER 2004

Election

On Tuesday, November 2, the Republican Party solidified its dominance of the Federal Government by reelecting President Bush by a comfortable popular vote margin of 51% to 48%, and extending its voting majorities in both the Senate and the House. These are victories of historic proportions. President Bush is the first President to be reelected and also gain seats in the Senate and House since Franklin Roosevelt in 1936. In doing so, he received more popular votes than any Presidential candidate in history. The Republicans have now been in control of the House for a decade and have assured their continued control for at least the next two years. The last time the Republicans controlled the House for a 12 year span concluded in January of 1933.

Total voter turnout, including provisional and absentee ballots, was nearly 120 million voters. This represents the highest percentage of voter turnout in over three decades.

Democrats needed to pick up 12 seats to gain control of the House but they probably lost a net of 4 seats from their current number. Democrats lost 4 House seats in the Texas delegation alone, including the dean of the Texas delegation, Representative Marty Frost (D-TX). The only major upset on the Republican side of the aisle was the defeat of the longest serving Republican in the House – Representative Philip Crane (R-IL). While some individual elections are still undecided, Republicans will occupy at least 231 seats, more than enough to control the House agenda and its 24 Committees. Democrats will hold at least 200 seats.

The Leadership of both parties in the House will be returning in the next Congress. Dennis Hastert (R-IL), Tom DeLay (R-TX), Nancy Pelosi (D-CA) and Steny Hoyer (D-MD) all were easily re-elected.

In the Senate, Republicans extended their majority from the present 51 to 55 Senators. There will be 44 Democratic Senators and one Independent. While this is still short of the 60 votes needed for a filibuster-proof Senate, it places Republicans in firm control of the agenda in the 109th Congress. Among the more prominent Democratic casualties was the Minority Leader, Senator Tom Daschle (D-SD). After a quarter century in Congress, Daschle was defeated by Representative John Thune (R-SD) in an enormous voter turnout, estimated to exceed 80% of South Dakota's eligible voters. Senator Harry Reid (D-NV) is expected to run to succeed Daschle as Minority Leader. Richard Durbin (D-IL) and Byron Dorgan (D-ND) are expected to compete for the Democratic Whip's position.

Democrats were able to replace retiring Republican Senator Peter Fitzgerald of Illinois with Barack Obama who defeated Alan Keyes with 70% of the vote. Obama will be only the fifth African American ever elected to the Senate.

Republicans captured formerly Democratic open seats in Georgia, North Carolina, South Carolina and Louisiana. David Vitter became the first Louisiana Republican to win a seat in the Senate since Reconstruction.

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What was once the solid South in terms of the Democratic Party's dominance in that region's Senate delegations has now been finally transformed to a South that is solidly Republican.

While Republicans will, of course, maintain control of all Senate Committees, several current Chairmen will be replaced because of Republican Caucus term limit rules. Senator Arlen Specter (R-PA) will replace Orin Hatch (R-UT) as Chairman of the Judiciary Committee; Thad Cochran (R-MS) will take over the Appropriations Committee from Ted Stevens (R-AL), who will, in turn, assume the chairmanship of the Commerce Committee from John McCain (R-AZ). Senator McCain will probably become the Chairman of the Committee on Indian Affairs. Either Pat Roberts (R-KS) or more likely Saxby Chambliss (R-GA) will take over Thad Cochran's Chair at the Agriculture Committee.

The outcome of the elections will likely result in the continuation of the intense partisan divide which has plagued the Senate for the most recent sessions of Congress. This is particularly the case when as many as three Supreme Court nominations may be made in President Bush's second term. The confirmation process could be extremely bitter.

President Bush has indicated he intends to submit proposals to the new Congress to reform Social Security, the tax code and the health care system. He will also urge modification of the tort system, particularly medical malpractice reform, a comprehensive energy reform bill and extension of the No Child Left Behind concepts to secondary schools.

The First Session of the 109th Congress convenes in January of 2005. ______

Lame Duck

The Congress returns the week of November 15 for a post election lame duck session. This is the 14th lame duck session since the adoption of the 20th Amendment to the Constitution in 1933 which moved the date for convening a session of Congress from the "first Monday in December" to the "third day in January." It was the intention of that section of the 20th Amendment to largely eliminate lame duck sessions. Obviously, it has not been entirely successful in achieving this goal. In fact, lame duck sessions have been held in each of the last three Congresses.

This year the lame duck session will be devoted to enacting the nine remaining appropriations bills most likely by combining them into an omnibus appropriation vehicle, raising the debt ceiling and possibly passing the conference report on legislation to reorganize the nation's intelligence services.

While the full list of accomplishments for the 108th Congress will not be known for sure until adjournment sine die, it is highly likely that many of the major pieces of legislation considered at some point during the Congress will not see final enactment. These include bills to institute comprehensive reform of the nation's energy sector (S.2095), reauthorize the surface transportation program (H.R.3550), extend welfare reform (H.R.4), establish a streamlined administrative procedure for handling asbestos litigation (S.2290), class action reform (S.1751), limitation on medical malpractice awards (S.11), and a Constitutional Amendment to ban same sex marriages (S.J.Res.40).

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Many of these measures passed in the House only to fail to be considered by the Senate. This contributes to a certain level of frustration and resentment among some Members of the House towards the ways of the Senate. It is a well established Congressional tradition.

During its first session in the Spring of 1789, the Senate spent weeks considering various matters of protocol. Always cognizant of its role as the "upper body," the Senate settled on a plan for exchanging messages with the House. The plan called for the Senate Secretary to deliver legislation and other messages to the House but required legislation being sent by the House to the Senate to be brought over by two sitting Members of the House. Other non-legislative messages could be delivered to the Senate by one sitting Member. When presented to the House, the Senate proposal was greeted with laughter and hoots of derision. The House dispatched its Clerk to deliver its response to the Senate.

Kevin Faley is the Editor of Capitol View and a partner in Venable's Legislative Practice Group. Mr. Faley can be reached at 202-344-4706. ______

Birch Bayh Leads Delegation

Our partner, Birch Bayh, headed the American delegation to a conference co-hosted by the Italian Patent and Trademark Office (UIBM) together with the U.S. Embassy in Rome, from October 4-5 in Venice. The conference was entitled "Technology Transfer: The U.S. Experience, Italy's Case and the Future." Birch was one of the three keynote speakers opening the conference.

He also moderated a panel on the U.S. Technology Transfer System with Ann Hammersla, Director, Office of Intellectual Property Counsel, MIT and President of the Association of University Technology Managers (AUTM), John Raubitschek, Patent Counsel at the Department of Commerce, and Bonnie Harbinger, Deputy Director of the Office of Technology Transfer at the National Institute of Health. While in Venice, Birch also met with the Honorable Antonio Marzano, Minister of Productive Activities in Italy.

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Dan Lungren Wins Election

On Tuesday, November 2, Dan Lungren, a partner in Venable’s Legislative Practice Group, won his election to a seat in the House for the 109th Congress. Dan will be representing the Third Congressional District of California. ______

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Capitol View is published by the Legislative Practice Group of the law firm Venable LLP, 575 7th Street, N.W. Washington, DC 20004-1601. Internet address: http://www.venable.com. It is not intended to provide legal advice or opinion. Such advice may only be given when related to specific fact situations.

Editor: Kevin O. Faley Associate Editor: Kyle Miller

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Questions and comments concerning materials in the newsletter should be directed to Kevin Faley at [email protected].

Please direct address changes to Kyle Miller at [email protected].

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