Thurbert Baker

US Policy Scan 2021

Dentons’ US Public Policy practice is pleased to release its annual Policy Scan, an in-depth look at policy at the Federal level and in each of the 50 states. In this document we provide a first look at the key policy questions for the next year in the states, the House of Representatives, the Senate and the new Administration. Additionally, we examine the people who will be driving change.

US Policy Scan 2021 takes deep dives into the turbulent political and policy waters swirling around agriculture, cannabis, education, energy and the environment, financial services, foreign policy, health care, housing and community investment, immigration, infrastructure, smart cities and communities, national security, Native American communities, tax, technology, trade, and voting rights and government reform. All with an eye toward providing you with a clear, comprehensive and reader-friendly description of what US public policy will look like in 2021.

Other features include:

  • 2021 Congressional and State House Session Calendars
  • First 100 days of the Biden Administration
  • Biden cabinet nominees and senior White House staff appointees
  • New Committee Chairs and Rankers
  • Analysis of 2022 US Senate races
  • Key decided and pending cases before the Supreme Court of the United States.

And as in years past, we have also included a review of state legislative activity in 2020, an overview of legislation passed by the House Democrats in the 116th Congress that didn’t see movement in the Republican controlled Senate, and the policy drivers that will shape state legislative and executive branch activity in 2021.

We hope you find this report helpful and informative.

US Election Insight 2020

Biden Declared by News Networks To Be America’s Next President

Elections Insights 2020 Cover

While the states of Alaska, Georgia and North Carolina have not yet been called, and President Trump has not conceded the election’s outcome, former Vice President Joseph R. Biden, Jr., is expected to be the next President of the United States and Senator Kamala Harris the Vice President-elect, and the first woman and person of color to serve in that role.

After being declared the winner in Pennsylvania by many media organizations, President-elect Biden has won states with 290 Electoral College votes, more than the 270 votes required to be elected, while President Trump has won states with 213 Electoral College votes.
With over 13 million votes nationwide still to be counted, Biden holds a majority of the national popular vote, with a lead of about 4.1 million votes (about 2.8%) that is anticipated to expand as more votes from the West Coast, especially California, are counted. This is the seventh time in the last eight presidential elections that the Democratic candidate has won the popular vote.

President Trump and his supporters have initiated multiple lawsuits seeking to dispute and overturn these election results. However, unless these legal actions ultimately persuade the courts to disqualify sufficient ballots in states that have been called for Biden in a manner that would alter the Electoral College result, an outcome that appears highly unlikely, the presidential race is over.

Control of the Senate Will Be Determined by Two Georgia Runoff Elections on January 5, 2021

In the Senate, at this writing Republicans and Democrats each have secured 48 seats. Democrats have achieved a net gain of only one seat to date, with 4 races uncalled: two of which are expected to remain Republican (Alaska and North Carolina) and two seats in Georgia. With a Democratic White House, Democrats need to pick up two more seats in order to capture the Senate. Under Georgia law, US Senate candidates must receive 50% of the total votes cast or face a runoff election. As none of the candidates reached the 50% threshold, there will be two runoff Senate elections in Georgia on January 5, 2021. If Republicans win at least one of these two races, Senator Mitch McConnell will remain the Majority Leader, while Democrats will control the chamber if they win both runoffs.

Democrats will continue to have the majority in the House of Representatives, but with a narrowed margin, to the surprise of many Democrats who were expecting at least modest gains to their House majority. Thus far, Republicans have achieved a net pick-up of about five seats.

Click here to see our Election Results on One Page, our preview of the Biden Transition Team members and a look ahead to potential Biden Cabinet members.

US Election Insight 2020 – Results as of 4:30 p.m. ET

Since the release of this morning’s Results Report, there have been several developments which have materially increased the chances that former Vice President Biden will be America’s next President and that Republicans will continue to control the Senate. While President Trump continues to have paths to 270, former Vice President Biden continues to have several more pathways.

  • In the presidential race, the Associated Press has declared Biden the winner in Wisconsin. With all but about 300 votes counted, Biden leads Trump by 20,510 votes. As the difference in vote totals is less than 1% of the votes cast, the Trump campaign will seek a recount but it cannot commence until late next week after a canvass of the votes has been completed.
  • In Nevada, the state elections commission announced this morning that no more results will be announced until noon Eastern time tomorrow. The votes that remain to be counted are expected to increase the Biden lead.
  • In Michigan, with 93% of the vote in and Vice President Biden now leading by about 37,000 votes, the Michigan Secretary of State said that she expected to have a very clear if not final picture of the election results by tonight. Several news organizations have called the state for Biden.
  • In Georgia, with 93% of the vote in and President Trump leading by about 78,000 votes, about 230,000 votes from counties expected to favor Biden remain to be counted. The Georgia Secretary of State expects the number of uncounted votes to be substantially reduced, if not exhausted, by the end of today.
  • In Pennsylvania, where President Trump leads by about 355,000 votes with 83% of the votes in, the remaining mail ballots come from Philadelphia and Allegheny County and are expected to favor Vice President Biden decisively. Pennsylvania election officials expect that most of the ballots outstanding will be counted by the end of this Friday.  

Democrats continue to have a net gain of one seat in the US Senate. With Senator Susan Collins’ re-election win in Maine, the window for Democrats to capture control of the Senate has narrowed considerably, even if Vice President Biden is elected President. As Alaska is expected to remain a Republican seat, even assuming that Senator Gary Peters pulls out a win in Michigan, Democrats would have to win both Georgia seats to gain control, a highly unlikely prospect. The balance of power has not materially changed in the House since this morning’s report.  

Finally, in a year where very little changed when it comes to state legislative control, New Hampshire gave Joe Biden and Democratic Senator Jeanne Shaheen large victories, then turned around and elected Republican Governor Chris Sununu to another term and flipped democratic majorities in the House and Senate to republican majorities going into 2021. The flip makes New Hampshire the only new “Trifecta” government (single party control of the governorship, House and Senate) of the cycle.

We will update this report tomorrow morning and sooner if exceptional circumstances require it.

Election Insight 2020 – RESULTS OF AS OF 7:30 A.M. ET

It remains uncertain which candidate will be the next President of the United States as President Trump and former Vice President Biden each have paths available to them to reach the 270 electoral votes required to serve as the next president.

Even if post-election litigation challenging the results were not to ensue, it could be several days before the final results are determined in the seven states that have not yet been called. (Alaska, Georgia, Michigan, Nevada, North Carolina, Pennsylvania and Wisconsin.) However, in a speech at 2:30 a.m. ET this morning, President Trump claimed victory and said that he would have his lawyers go to the Supreme Court seeking to prohibit the counting of ballots that have not yet been tabulated in the states that have not been called.

Having lost a seat in Alabama, the Democrats currently have achieved a net gain of one Senate seat, picking up GOP held seats in Arizona and Colorado. Six Senate races remain to be called – Alaska, Maine, Michigan, North Carolina and a January 5th runoff for at least one, and possibly two Georgia seats. Finally, it appears that when all the House races are finally called, House Republicans will pick up three or four seats despite the forecast of several pollsters that House Democrats would expand their majority by at least 5-10 seats or as many as 20-25 seats on a good night.

The election results clearly indicate that there were significant problems with both state level and some national polling by Democrats and that those who had predicted a “Blue Wave” election were sorely mistaken. It’s unclear whether these problems stemmed from the unwillingness of Trump voters to share their voting intentions with pollsters, whether the problems were with the polling methods used, or some combination of both. Whatever the reasons, many Democrats will be seeking an explanation and demanding an autopsy. We will update this report later today and periodically thereafter as additional races are called.

To catch up on previous election updates, visit our 2020 Presidential Election page here.

PRESIDENTIAL PREVIEW: The Battle for 1600 Pennsylvania Ave

With a weekend to go before election day, the Dentons Public Policy team looks at the political climate, the polling, the battlegrounds and how and when the nation could learn the winner in our presidential preview, “The Battle for 1600 Pennsylvania Ave Report.” We believe the outcome of the presidential election will depend, to a significant degree, on whether voters view the race as a choice between two alternatives, each with positive and negative factors, or as a referendum on the President’s leadership. Pre-pandemic, President Trump was prepared to run hard on his record. But the pandemic robbed him of his strongest argument for re-election—a booming economy—leaving him no choice but to focus on Joe Biden’s flaws. 

Whether the American people are buying this line of attack remains to be seen, but recent polls suggest it is not working.

On Wednesday morning, November 4, our Public Policy team will be issuing a detailed report on the election results that are then available. We will be updating this report later in the day, and on succeeding days as necessary, to provide not only the presidential results but a comprehensive picture of what the next US House and Senate will look like. 

Whatever the outcome of the elections, once it becomes clear who will be taking the oath of office on January 20, 2021, and who will control the Congress, we also will be releasing additional reports that profile many of the people who are expected to play key roles in the next administration and that explore the central elements of, and prospects for, the legislative agenda of the winning presidential candidate.   

US HOUSE AND SENATE ELECTIONS PREVIEW – The Battle For Control Of Congress

Dentons’ Public Policy team has developed a US House and Senate Elections Preview to provide the latest developments as we approach the November elections.

A VIEW FROM THE STATES: Dentons 50 State Network review of the political landscape

Dentons’ Public Policy group has provided a synopsis of the political landscape for each state prepared by members of our Dentons 50 network — experts from all 50 state capitols with a pulse on federal, state and local races in their respective states. We also highlight the states with governors races, attorneys general races and the 22 state chambers considered “battle grounds” with their current majorities.

Labor Day 2020 Election Primer: A Look Ahead to November

As the saying goes, “Eight weeks before an election is a lifetime in politics.” If you have any doubts about the truth of this adage, we suggest speaking with “Presidents” Michael Dukakis or Hillary Clinton! Simply put, there are few, if any, slam dunks in politics. Elections continue to have the capacity to surprise and confound. When the Democratic primary process began with over 25 candidates, who would ever have thought that we would end up with an election between two of the oldest candidates ever to run for the office?

Current polling indicates that, if the election were held today, Vice President Biden is near or above the 270 electoral votes he needs to win election. These same polls say the Senate would flip, ever so narrowly, to Democratic control and the House Democratic majority would be relatively unchanged.

However Labor Day is certainly not Election Day (see Dukakis and Hillary mentions above). And now is, historically, when the race officially begins.

This Election Primer, the first in Dentons’ Election Series, sets the stage for the race to November. From the “top of the ticket” to the down-ballot congressional and state house contests across the country, we track the races that could change majorities in November. More detailed reports will be released as we get closer to election day. We hope this 10,000-foot view helps get you up to speed.

Download the Labor Day 2020 Election Primer

State Attorneys General and Unfair or Deceptive Acts or Practices (UDAP): What to expect in the wake of COVID-19

Almost every state has its own deceptive and unfair trade practices law (UDAP), enforced by that state’s attorney general (AG). No fraud need be involved. The enforcement is civil, not criminal, but the statutory civil fines can be steep. The Federal Trade Commission (FTC) has ceded much of the enforcement to the states. In the wake of COVD-19, in addition to price-gouging, there will likely be many new enforcement actions against corporations who are alleged to have participated in unfair, deceptive or misleading acts that draw the attention of AGs. 

In some instances, these enforcement actions will involve multistate investigations in which sizeable numbers of attorneys general join together to investigate and possibly litigate. Some examples of areas that may face scrutiny include the following:

Health Care: Off-Label Drug Use

Off-label prescriptions, or the use of pharmaceutical drugs for an unapproved indication or in an unapproved dosage, dosage form or age group, is generally legal and frequently used by healthcare providers.

While in general there is nothing illegal in the off-label use of prescription drugs by doctors, marketing of pharmaceuticals or use of a drug for purposes outside of regulatory approvals is prohibited in most cases, and pharmaceutical companies have frequently been the subject of state AG investigations for doing so. As the race to find treatments for COVID-19 continues to accelerate, it is likely that representatives of some pharmaceutical companies will face scrutiny for promoting off-label use with hospitals and doctors.

Hotels and Leisure

Norwegian Cruise Lines is already being investigated under UDAP based on alleged communications from company employees to customers who prepaid for cruises, to the effect that the Norwegian Cruise Line ships had been sanitized, and so there was nothing to fear from COVID-19 in taking the planned cruise. The company allegedly had ample notice that its “sanitation” was insufficient to prevent the spread of the virus.

Advertising

Companies that host advertisements designed to sell products on their internet sites and take a fractional share of the sales revenue or profits garnered from the ads can be held responsible for misleading statements in the ads or misleading information about the charges to customers. This is true even in instances in which the seller/advertiser is located overseas and out of reach of a US enforcement action. Increased online sales suggest that these kinds of investigations are likely to increase. For example, with a huge surplus of used cars now on the market for the foreseeable future, AG investigations of false, misleading or deceptive advertising in online advertisements for used cars likely will increase, as well as investigations of misleading auto financing proposals – areas of traditional active UDAP enforcement.

Dentons’ State Attorney General practice is a full-service, nationwide practice to advise and assist clients when dealing with state AGs and their staff. If you have questions or an interest in more information on any of the items above and would like to discuss, please contact State AG practice co-chairs Thurbert Baker and Bill McCollum.

Related Information

Please also view Dentons’ recently published alert: “U.S. Food and Drug Administration, Federal Trade Commission Step-Up Enforcement of Product Misbranding and Efficacy Claims Related to COVID-19” for more insight on FDA and FTC actions related to COVID-19.

State AGs Tackle COVID-19 Related Issues: Some Companies Likely to Face Investigation

With the escalation of the COVID-19 pandemic and the steps taken by the federal and state governments to stem its community spread, state attorneys general (AGs) are confronting new issues that have emerged as a result of the public health emergency.

Deceptive Advertising: AGs are using state Unfair and Deceptive Acts and Practices (UDAP) statutes to investigate advertising by companies, or hosted on company websites, that may be false, deceptive or misleading to consumers about products (i.e. masks, hand sanitizer, etc.), treatments or risks associated with COVID-19. One AG recently filed a lawsuit against a televangelist for misrepresenting a product sold through his show as a cure for the novel coronavirus. Another opened an investigation of allegations a cruise line instructed staff to use scripts which may have misled customers as to COVID-19 risks. Investigations may be confined to a single state AG office or they could become part of a much wider multi-state AG investigation.

Outreach to the Lending Industry: AGs are beginning to advocate for financial relief for their consumers who are unable to pay bills due to the COVID-19 crisis. The Arizona Attorney General recently sent letters to more than 1,000 financial institutions that do business in his state, urging them to halt foreclosures, evictions, and repossessions for at least 90 days for customers who can demonstrate economic hardship due to this unforeseen crisis. The Colorado AG recently urged student loan servicers, creditors, and debt collectors to refrain from mandatory debt collection efforts from those who are unable to pay because of their financial circumstances. The AG indicated that his office would explore relevant legal avenues to protect borrowers going forward.

Price Gouging: AGs across the country have stepped up public awareness campaigns and civil enforcement efforts to crack down on reported instances of price gouging by unscrupulous sellers of items that consumers and health care workers need to protect themselves from the spread of COVID-19. Many AGs have established special hotlines to receive complaints of suspected price gouging and the AGs are issuing cease and desist letters to those sellers suspected of taking advantage of the public health crisis. 

The Dentons State Attorney General practice is a full-service, nationwide practice to advise and assist clients when dealing with state AGs and their staff. The practice features bipartisan leadership from four former state AGs along with former deputy AGs, assistant AGs, chiefs of staff from some of the most active offices in the nation and top notch litigators experienced in defending lawsuits brought by state AGs. Receipt of an AG letter of inquiry or civil investigative demand (a subpoena AGs may issue without going to court) does not mean a lawsuit is coming, but it does mean an investigation has been opened and should not be taken lightly. If you receive an AG inquiry or investigative demand, or think the nature of your business might make it at risk of AG scrutiny, or have an interest in more information on any of the COVID-19 matters above and would like to discuss with the Dentons State AG team, contact Bill McCollumThurbert Baker or Dan Gibb.