Table of contents 2016 Outlook Senate overview House overview 2016 Congressional Calendar Budget and Appropriations Health Care Energy and Environmental Climate Financial Services and Banking Insurance Tax Trade Tribal Affairs Immigration Telecommunications and Cybersecurity Agriculture Higher Education Transportation Cross border Policy Scan Defense Homeland Security Patent Reform Election Day Outlook Competitive Races Primary Election Calendar Filing Deadlines Dentons’ public policy and regulation team 4 6 8 10 12 14 18 22 24 28 32 36 40 42 44 47 49 51 53 57 60 62 64 67 81 93 108 dentons.com 44 47 49 51 53 57 60 62 64 67 81 93 108 dentons.com 3 2016 Outlook 4 dentons.com US Policy Scan I 2016 dentons.com Every seat in the House of Representatives will be on the ballot, but Republicans are expected to easily hold control of the House. Just 34 of 100 of Senate seats will be contested, but 24 of those seats are now held by Republicans, with only 10 Democratic seats on the ballot. This offers the opportunity for Democrats to achieve gains and possibly take control of the Senate. Voter sentiment in the United States is anxious, and among some Americans, angry. Positive news on unemployment and other economic indicators, along with low gas prices, have not been sufficient to alter the anxiety and pessimism that have been generated by flat wages, limited job security, a sense of a middle class losing ground, National security and public safety issues are churned through American politics, which is at a moment of unusually high partisan rancor. President Obama and his Democratic allies will face continuing opposition to their agenda from Republicans on most issues, but there will likely be some areas of cooperation in the early days of Paul Ryan’s tenure as Speaker of the House. The President and Republicans in Congress will look beyond 2016 to some desire—the President trying to make the most of his executive powers while still in office, and Republicans setting the stage for progress on their agenda with a new president in 2017. During the policy debate, both sides will do what they can to aid the eventual presidential nominee of their party, and boost the prospects for their side in the Congressional elections. In the presidential primaries, former Secretary of State Hillary Clinton appears to be a prohibitive favorite to gain the Democratic nomination, with Senator Bernie Sanders of Vermont generating substantial enthusiasm, but insufficient numbers of supporters to win, and former Maryland Governor Martin O’Malley trailing far behind. On the Republican side, a much larger field has yielded a less predictable outcome. Businessman Donald Trump leads substantially in national polls and more narrowly in key early primary states, though many pundits believe a failure to dominate in the first three contests could finally spell the end of his candidacy. Despite his sustained national lead, pollsters caution that national surveys are often ephemeral snapshots and not necessarily demonstrative of the state of the race in the individual early states. It’s this reason that many pundits express doubt that Mr. Trump is capable of capturing his party’s nomination and more skeptical still he could prevail in a general election. However there are a handful of candidates, both conservative and more establishment-aligned, that are poised to challenge Mr. Trump for poll leader in the new year. These candidates—Senators Ted Cruz and Marco Rubio and Governors Jeb Bush, Chris Christie, and John Kasich—have assumed make-or-break strategies in Iowa and New Hampshire, believing that a heady performance will catalyze an anything-but-Trump caucus. The Congress will begin its legislative session with greater certainty about the fiscal and appropriations process As in any Election Year in the United States, 2016 policy debates and legislative outcomes will be steeped in politics. 2016 also marks President Obama’s final year in office, when he will seek to complete key policy objectives ranging from health care to climate change to the closure of the prison at Guantanamo, even as his influence is somewhat diminished by his “lame duck” status. Congress, in turn, has not set out an ambitious agenda. dentons.com 5 US Policy Scan I 2016 than has been typical in recent years. Following the ascension of new Speaker Paul Ryan, Congress passed an omnibus appropriations bill which funds the government through the coming year. Congressional leaders show signs (for now) of allowing the appropriations process to proceed in the traditional manner, and considering individual spending bills from each of the appropriations subcommittees. Defense spending will not be under sequestration in the coming year. The reality of this election year is the fact that there is limited time for Congress to legislate, and limited incentive for compromise. House and Senate both are expected to be in session for an unusually small number of days, with the abiding concerns of politics coloring every debate. • On Financial Services issues, Dodd-Frank is likely to continue largely intact, with other efforts at regulatory reform unlikely to advance. • The TPP trade agreement will remain a matter of contention, and while it will likely be approved, faces eroding support among Republicans. • The battle over implementation of the Affordable Care Act will grind on, with Republicans poised to pass a further repeal of the health care law, in a move sure to be greeted by a veto and a return to continued debate over the new law’s details and implementation. • Immigration Reform promises to remain stalled, while the emphasis in the political year shifts from the southern border to concerns over terrorism. • Recent progress and cooperation on energy issues such as lifting the ban on oil exports and extending favorable tax treatment for solar and wind projects suggests there is some compromise, even as the president’s regulatory agenda on greenhouse gas emissions and the pending agreement on climate change promise to remain areas of contention. • Perhaps no issue will defined by both substantive disagreement and political winds as will terrorism and homeland security, and the administration’s approach to securing our nation and protecting its citizens. This will be a raucous debate through the elections and beyond, and is certain to be shaped by world events. The new year of 2016 holds some promise in the wake of the omnibus funding agreement deal and some small areas of bipartisan cooperation that have yielded fruit. Nevertheless it is an election year, with control of the White House and Senate truly up for grabs. Those who hope for thoughtful debate and legislative accomplishments may be disappointed. They can look forward to the diversions of what remains a wild and unpredictable political year, fueled by colorful characters on the stump and angry voters marching to the polls, or sullenly staying home. We look forward to watching it all unfold and helping our clients to make the best of it. Senate overview The Senate is not expected to tackle any significant or controversial tax, budget or social issues prior to the November election. The Senate is only scheduled to be in session for 27 weeks before election day, which leaves little time to debate major legislation that the Republican majority hopes will become law. It is likely that Senate Majority Leader Mitch McConnell (R-KY) will return to regular order in the same way as his counterpart in the US House, speaker Paul Ryan (R-WI) has pledged to do. Sen. McConnell is expected to proceed with consideration of a Fiscal Year 2017 budget resolution as many as 12 individual annual appropriations bills to fund government agencies; and the National Defense Authorization Act (NDAA) of 2017, which is Congress’ annual military policy bill. Through hearings and consideration of the NDAA, the Senate is expected to debate the US response to ISIS and other terrorist organizations at home and abroad. Beyond consideration of these measures, the Senate will likely take up several days debating President Obama’s nominees to federal courts, cabinet agencies, independent agencies and State Department posts overseas. There are more than 50 of these pending on the Senate calendar and dozens more stalled in Senate committees. Their progress will slow as the Obama administration comes to a close. However, several pieces of legislation could receive strong bipartisan support in the Senate and could potentially pass the House and be signed by the president. These include: Sentencing and criminal justice reform: A bipartisan bill supported by the chairman and ranking member of the Senate Judiciary Committee would provide judges more sentencing flexibility for nonviolent crimes and alter guidelines for possession of certain drugs. Energy efficiency legislation: The chair and ranking member of the Senate Energy Committee produced a package of bills that would increase energy efficiency standards and ease regulations on the production of traditional and clean energy. These measures passed the committee 18-4. The question confronting the Senate is whether it can move beyond controversial issues like the Keystone pipeline, climate change and drilling in Alaska, and focus on smaller, bipartisan pieces of energy legislation that could be signed into law. Trans-Pacific Partnership (TPP): It is likely that this trade package, which would ease tariffs on economies that make up approximately 40 percent of the world’s GDP, will wind up being considered in the lame-duck session of Congress. Support and opposition to this measure do not fall neatly along party lines. US Policy Scan I 2016 6 dentons.com dentons.com 7 House overview Individual committees will be busy with their own priorities legislative initiatives, and oversight hearings. Whether the bills that do pass out of their respective bodies achieve House floor consideration will remain to be seen. Speaker Paul Ryan (R-WI) has not yet released an official announcement regarding detailed goals for 2016, although he has made speeches in his new role as speaker which reveal his long-term aspirations. In years past, the majority leader has put forth a statement unveiling the year’s expectations before the start of the new Congress. It is likely that Majority Leader Kevin McCarthy (R-CA) will do so following the Christmas holiday or early 2016. Some assumptions can be made based on previous remarks by the speaker and the majority leader about the direction of travel for 2016. One of the first actions in the House in January will be to vote on a budget reconciliation bill which will repeal the Affordable Care Act and halt the use of taxpayer dollars by health care providers whose services include abortion. This is in response to passage of the same bill in the Senate in December. The president is expected to veto the bill shortly before his State of the Union speech to a joint session of Congress on January 12. The Federal Aviation Administration’s funding expires in March 2016, so the House leadership plans to pass a long-term funding bill by the end of the year. Extensions beyond the March deadline can be expected until a broad bill is agreed upon. Speaker Ryan, as the former chairman of the House Ways and Means Committee and a highly experienced legislator on tax matters, has plans for comprehensive reform of the US Tax Code. He admitted in the last days of the 2015 session that it will likely take until well into 2017 for his comprehensive goals to be met, but that 2016 will be a preparation year, with work that will be done under Chairman Kevin Brady (R-TX) in the Ways and Means Committee. With respect to the tax code, Speaker Ryan is quoted as saying, “simplify, simplify, simplify.” He has ambitions of closing many of the currently existing loopholes and consolidating the seven existing tax rates to a handful of tax brackets. Current events throughout the year will inevitably create legislative reactions, and committee activity will provide vehicles for floor voting opportunities. Both parties will also seek opportunities for “message” votes, but as we have grown to expect, a presidential election year is usually not a time to expect passage of major substantive legislation in the House of Representatives. The upcoming year of a presidential election will see the volume of legislative activity drop precipitously. Fewer voting days are scheduled, allowing members to return to their districts to campaign for re-election, and the degree of legislative difficulty that Congress is willing to tackle declines steeply. As a result, the forecast for the agenda of the House of Representatives in 2016 is slim. 8 dentons.com US Policy Scan I 2016 dentons.com 9 10 dentons.com US Policy Scan I 2016 January February March April Su M Tu W Th F Sa Su M Tu W Th F Sa Su M Tu W Th F Sa May Su M Tu W Th F Sa Su M Tu W Th F Sa June July August September October November December Su 17 03 10 M 18 04 11 Tu 05 12 W 06 13 Th 07 14 F 01 08 15 Sa 02 23 30 09 16 19 20 21 22 25 26 27 28 29 Su M Tu W Th F Sa Su 20 27 06 13 M 21 07 14 Tu 08 02 03 04 15 W 09 16 Th 10 17 F 11 18 Sa 01 26 12 05 19 22 23 24 25 28 29 30 31 Su M Tu W Th F Sa Su 21 07 M 22 28 29 08 15 Tu 09 03 04 05 16 W 10 17 Th 11 18 F 01 12 19 Sa 02 27 13 06 20 23 24 25 26 Su M Tu W Th F Sa Su M Tu W Th F Sa House and Senate scheduled to be in session Senate scheduled to be in session House scheduled to be in session 01 03 04 05 06 07 08 02 10 11 12 13 14 15 09 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 29 23 24 25 26 27 28 30 31 20 27 06 13 21 07 14 08 02 03 04 15 09 16 10 17 11 18 01 26 12 05 19 22 23 24 25 28 29 30 20 27 06 13 21 07 14 08 01 02 03 04 15 09 10 16 17 11 18 26 12 05 19 22 29 30 23 25 28 01 02 03 04 05 06 07 08 09 10 11 12 13 14 15 16 17 18 19 20 21 22 28 29 23 24 25 26 27 30 31 01 03 04 05 06 07 08 02 29 30 10 11 12 13 14 15 09 16 17 18 19 20 21 22 23 24 25 26 27 28 16 02 09 17 03 10 04 11 05 12 06 13 07 14 01 22 29 08 15 18 19 20 21 25 26 27 28 20 27 06 13 21 07 14 08 02 03 04 15 09 16 10 17 11 18 01 26 12 05 19 22 23 24 25 28 29 30 29 01 03 04 05 06 07 08 02 10 11 12 13 14 15 09 16 17 18 19 20 21 22 23 24 25 26 27 28 30 31 14 24/31 24/31 23/30 24/31 2016 congressional calendar dentons.com 11 US Policy Scan I 2016 dentons.com US Policy Scan I 2016 Budget and Appropriations 12 dentons.com dentons.com 13 US Policy Scan I 2016 The omnibus provides appropriations through September 30, 2016, the end of the current fiscal year. Under current budget rules, most of the mandatory cuts to those entitlement programs which are subject to sequestration are achieved through targeted reductions instead of across-the-board cuts. The Bipartisan Budget Act of 2015 provides additional budgetary authority for FY 2017, which may ease some of the funding decisions appropriators must make for the next fiscal year. While many Congressional Republicans are skeptical that Senate Minority Leader Harry Reid (D-NV) will make good on his reported promise, House Speaker Paul Ryan (R-WI) says Leader Reid has told him that. Democrats will allow the Senate to begin debate on each of the 12 individual appropriations bills in 2017. Should this occur, a real possibility exists that the Congress could pass and send the president some of the individual subcommittee appropriations bills in 2017. Spending bills dealing with national security, such as the Defense and Homeland Security appropriations bills are likely to be considered before the current fiscal year ends on September 30, 2016. Even so, given the compressed 2017 congressional calendar, policy makers will still need to start early in the year to have any chance of completing more than a handful of spending bills that can be considered before Congress leaves to campaign ahead of the November elections. According to both House and Senate appropriators, regular order will again be the objective as each subcommittee seeks to assemble priorities for defense, homeland security, education, energy and transportation, among others. The president will release his fiscal year 2017 budget proposal following his State of the Union address on January 12. The president’s status as a lame duck in his final year of office will substantially reduce the influence the White House will have to advance spending priorities. Conservative members and deficit hawks in and out of Congress decried the spending levels in the omnibus, while many Democrats claimed victory given the increase in spending for major priorities such as the National Institutes of Health (NIH) and the largely successful effort to maintain parity between defense and domestic discretionary spending increases. The unhappiness of many Republicans with the spending levels in the omnibus caused House and Senate Republican leaders to highlight the tax extenders package and non-budgetary items such as the end to the ban on oil exports—rather than the omnibus— as evidence of their success in completing their work for 2015. While war funding and overseas operations to fight ISIS received increased funding in the omnibus, defense hawks will seek to increase Pentagon funding substantially in FY 2017, going well above the current budget limits while offsetting any other new discretionary spending with other budget cuts. A number of congressional Republicans gave Speaker Ryan a pass and reluctantly supported the omnibus in 2015, viewing it simply as a necessary evil. These members are not likely to be as forgiving in 2016. The continuing concerns of many Republican members, and the harsh criticism from many Republican presidential candidates, about both spending levels and the absence of many long-sought Republican policy riders in the omnibus, could severely impact the ability of Speaker Ryan and Appropriations Committee Chairman Hal Rogers (R-KY) to persuade Republican members to support the FY 2017 appropriations bills. Congress has set its authorized spending levels for the remainder of the Obama administration through the Bipartisan Budget Act of 2015. With the omnibus package signed into law on December 18, appropriations have now been set for the remainder of fiscal year 2016, but appropriators will begin again in January to set spending levels for fiscal year 2017. US Policy Scan I 2016 14 dentons.com Health Care dentons.com 15 US Policy Scan I 2016 Medicare Legislation: With the SGR issue resolved, Congress will focus on Medicare reforms and improvements in 2016. The Senate Finance Committee will continue to identify options to improve Medicare for beneficiaries with multiple chronic diseases, The House Ways and Means Committee likely will take legislative action in 2016 on measures related to medical education funding and site-neutral payments for hospitals. Debate on entitlement reform will begin in 2016 in hopes of passing legislation in 2017. Affordable Care Act (ACA): In 2015 Congress used the “budget reconciliation” process to pass repeal of significant sections of the ACA. House Leader McCarthy has promised early House action in 2016 on the Senate-passed repeal. If ACA repeal reaches the president’s desk a veto is certain to follow. The GOP Congress will move forward with bills to address specific provisions of the ACA, including flexible spending accounts, health reimbursement accounts and the exchange subsidies. The Administration will need to address the failed and failing co-ops that were created under the ACA. Under budget-neutral funding restrictions in place, the Administration may seek to restructure or prioritize payments in order to ensure the remaining co-ops survive beyond 2016. Drug Pricing: The Obama Administration is likely to act on prescription drug prices in 2016, and Congress will likely engage on the issue as well. The Senate Special Committee on Aging investigation into pharmaceutical drug pricing will continue in 2016. In the House, the top Democrat on the Oversight and Government Reform committee has formed the Affordable Drug Pricing Task Force, to “combat the skyrocketing costs of pharmaceuticals.” The Committee’s chairman has indicated he plans to hold hearings on pharmaceutical pricing early on in 2016. Innovation/21st Century Cures: The 21st Century Cures bill to overhaul the Food and Drug Administration and increase National Institutes of Health funding passed the House in July 2015, while the Senate continues work toward a bill on innovation. The ongoing pharmaceutical drug pricing debate may become part of the discussion on these bills. Mental Health: In 2015 the House Energy and Commerce Committee began consideration of a broad mental health bill that passed the health subcommittee. Further House consideration of this bill is likely in 2016 despite the fact that a number The Republican-controlled Congress will continue to challenge the White House on health policy issues that help draw distinctions between the parties. Passage of a repeal of the Affordable Care Act (ACA) remains a primary GOP goal, though any such bill is certain to be vetoed. Congress will also focus on preparing for future legislation since much was accomplished in 2015 including finally replacing the flawed Sustainable Growth Rate (SGR) formula in Medicare with physician payment reforms, a two-year reauthorization of the Children’s Health Insurance Program (CHIP) and delay of two major revenue streams in the Affordable Care Act (ACA)—the medical device tax and the “Cadillac tax” on generous health insurance plans. 16 dentons.com US Policy Scan I 2016 of provisions that have become controversial, as the parties relate mental health to mass shootings and potential firearm regulation. In the Senate, a bipartisan bill to reauthorize suicide prevention and mental health awareness programs was passed in 2015 and may see House action in 2016, while the Senate looks toward a more comprehensive mental health bill in 2016. Industry Consolidation/ Competition: A series of high profile merger announcements have triggered Congressional scrutiny of consolidation in the healthcare industry. That will continue in 2016. End of the year pharmaceutical deals will draw scrutiny in the tax reform debate. Medicaid Reform: House Republicans have formed a task group to study changes to Medicaid as part of entitlement reform, perhaps as early as 2017. They are mindful that some states are increasingly reluctant to commit general revenue funding to their Medicaid programs and are seeking alternatives. Children’s Health Insurance Program (CHIP): CHIP is being reexamined in a post-ACA world, where the idea of keeping children out of private insurance pools faces significant opposition. Further scrutiny of this issue is likely in 2016. Medicaid Long Term Services and Support (LTSS): Due to the rising number of Americans who need nursing home care, LTSS costs are rising rapidly. A number of private groups have been developing proposals for new approaches to meet the LTSS needs of seniors that will be rolled out in 2016, with strategies to engage Congress in 2017. Section 1332 Waivers: The ACA created a potential safety valve for states to make adjustments to the federal system beginning in 2017 under Section 1332 State Innovation Waivers. The Department of Health and Human Services (HHS) and the Department of the Treasury have released draft guidance further defining the requirements for states to obtain a 1332 waiver. This debate may invite Congress to re-open the issue of Section 1332 in 2016. dentons.com 17 US Policy Scan I 2016 US Policy Scan I 2016 18 dentons.com Energy and Environment dentons.com 19 US Policy Scan I 2016 In return for lifting the crude oil export ban, the omnibus spending bill extends and will eventually phase out the Production Tax Credit for wind energy and the Investment Tax Credit for solar energy. The transportation bill, signed by President Obama into law in December, contains an electric reliability section, which will shield power plants from liability for violations of federal, state and environmental laws when they receive must-run orders from the Federal Energy Regulatory Commission (FERC); provide the Department of Energy (DOE) with the authority to issue emergency orders to address threats to the electric grid; require that the DOE establish a Strategic Transformer Reserve; and require that the DOE enhance communication and cooperation among government agencies and industry stakeholders for emergency preparedness. In early 2016, the Senate may consider S. 2012, the Energy Policy Modernization Act, a bipartisan, comprehensive energy bill by the Energy and Natural Resources Committee passed last July. The bill includes an energy efficiency title that would encourage greater energy efficiency in building codes, revise federal building energy efficiency performance standards and reauthorize a number of federal efficiency programs, among other provisions. The energy efficiency title would also repeal a provision from the Energy Independence and Security Act of 2007 mandating that all new or modified federal buildings phase out fossil fuel usage by 2030. In addition, S. 2012 contains infrastructure, supply and accountability titles, which include provisions to expedite the approval processes for liquefied natural gas (LNG) exports, hydropower projects and interstate natural gas pipelines. Senate consideration of S. 2012 could spur debate on a number of controversial amendments, such as those addressing the Obama administration’s environmental initiatives and cross-border energy permitting. If S. 2012 passes, it will have to be reconciled with H.R. 8, the North American Energy Security and Infrastructure Act, which the House chamber passed in early December. While similar in some respects to the Senate bill, H.R. 8 passed on a largely party-line vote after negotiations between Republicans and Democrats collapsed. The impasse was due in part to Democrats’ call for the bill to be modified to include measures addressing climate change, and Republican refusal to do so. During the debate on H.R. 8, the House also adopted an amendment that would establish deadlines for the federal government to issue national interest determinations for applications for cross-border electric transmission, natural gas pipeline and crude oil pipeline projects. Congress is also hoping to pass legislation to reform the Toxic Substances Control Act (TSCA). Successful TSCA reform would represent the first time that lawmakers have updated a federal environmental statute since 1996. Last year, the Senate and the House each passed separate TSCA reform bills with strong bipartisan support. While the House bill is narrower than its Senate counterpart, both bills would provide the Environmental Protection Agency (EPA) with enhanced authority to regulate existing chemicals in the marketplace. Senate and House negotiators are hoping to quickly reach an agreement on a In 2016, a key question for Congress and the Obama administration is whether they will be able to build upon the compromises reached at the end of 2015 on energy and environmental policy. The omnibus spending bill, passed by Congress and signed into law by President Obama in December, repealed the 40-year prohibition on crude oil exports, a top priority for the oil and gas industry and the congressional Republican leadership. 20 dentons.com US Policy Scan I 2016 compromise bill, but lawmakers must work through a number of contentious issues, including the extent to which the bill would preempt state chemical laws and regulations. Despite these challenges, lawmakers, industry stakeholders and environmentalists are confident that TSCA reform legislation will be signed into law in 2016. With Republicans holding majorities in both the Senate and the House, Congress is expected to continue aggressive oversight of the White House’s energy and environmental rulemaking agenda. Republicans will also likely again attempt to block some of the administration’s energy and environmental rules through the appropriations process. This effort is expected to fail due to opposition from President Obama and most congressional Democrats. Outside of Congress, courts will play a critical role in deciding the fate of a number of controversial environmental regulations. In 2016, courts are expected to rule on whether to lift stays on the Bureau of Land Management’s hydraulic fracturing rule and EPA’s Waters of the US rule, both strongly supported by environmentalists but strongly opposed by some states and energy industry stakeholders. In addition, courts could hear challenges by both industry and environmentalists to the EPA’s new Clean Air Act standard for ozone. Finally, there will be substantial attention focused on the administration’s Climate Action Plan, including the EPA’s Clean Power Plan. dentons.com 21 US Policy Scan I 2016 dentons.com 22 dentons.com US Policy Scan I 2016 Climate dentons.com dentons.com 23 US Policy Scan I 2016 The US has pledged to cut emissions by up to 28 percent below 2005 levels by 2025, largely through regulation of power plants and vehicle emissions. At the core of this commitment is the Environmental Protection Agency (EPA)’s regulation of existing power plants, better known as the Clean Power Plan. This rule has been met with strong opposition in Congress and the courts, and in 2016 we can expect to see those battles continue. In December, President Obama vetoed Congressional Review Act resolutions of disapproval that would have blocked implementation of EPA’s Clean Power Plan and its related rule covering new power plants. Congressional opponents of the EPA regulations also failed to include provisions in the omnibus spending bill that would have negated the regulations. While Republicans will likely try again to include those policy riders in the Interior Department-EPA appropriations bill for fiscal year 2017 or a possible omnibus appropriations bill, the president would almost certainly block their effort with a veto (if Senate Democrats do not defeat the bill with a filibuster). Even if congressional opponents are unable to kill the regulations outright, committee oversight of the EPA’s implementation of the rule—still in its very early stages— will be intense. In December, for example, Republicans on the House Energy and Commerce Committee wrote to EPA Administrator Gina McCarthy to complain that the agency had misused social media in its communications to promote the Clean Power Plan. Senator Jim Inhofe (R-OK), chairman of the Senate Environment and Public Works Committee, will also continue his vigorous criticism of the administration’s climate policies and his oversight of the EPA’s work on the power plant regulations. States must file initial implementation plans under the Clean Power Plan no later than September 6, 2016, but may seek an extension for filing a final plan until September 2018. Meanwhile, 27 states and other stakeholders have petitioned the US Court of Appeals for the District of Columbia Circuit to issue a stay to block implementation of the Clean Power Plan pending the resolution of their legal arguments that the EPA has exceeded its authority under the Clean Air Act in issuing the rule. That decision could be reached in early 2016, but the larger legal questions may ultimately be considered by the Supreme Court and take years to resolve. Also on the Obama administration’s climate change agenda in 2016 are regulations to control emissions of methane—a greenhouse gas more potent than carbon dioxide—from oil and gas wells. Those rules, proposed last August, are designed to build on voluntary standards. A final version is expected by August 2016. The Paris Agreement on climate change, concluded in December by 195 signatory nations, sets the stage for continued debate in the US over policies designed to meet the international commitment to reducing greenhouse gas emissions. The Agreement sets a goal of limiting the increase of global average temperatures below two degrees Celsius (3.6 degrees Fahrenheit) and anticipates continued monitoring and verification of countries’ efforts to meet their goals. The Agreement is not legally binding and thus does not require ratification as a treaty by the US Senate. US Policy Scan I 2016 Financial Services and Banking 24 dentons.com dentons.com 25 US Policy Scan I 2016 Last year, Republicans on the House Financial Services Committee passed numerous bills amending Dodd-Frank through the committee and through the House. Moreover, because most Republicans believe that Dodd-Frank has promoted, rather than ended, the existence of banks that are “too big to fail,” Financial Services Committee Chairman Jeb Hensarling (R-TX) also continues working with Judiciary Committee Chairman Bob Goodlatte (R-VA) on crafting a bankruptcy alternative for winding down big banks when they fail. Nonetheless, given the ability and willingness of Senate Democrats to filibuster these bills and the repeated professed willingness of President Obama to veto legislation making fundamental changes to the Dodd-Frank Act, and despite the vigorous and persistent efforts of congressional Republicans, the act has survived essentially unchanged. While some regulatory relief provisions were included in the long-term highway bill that became law on December 4, no major banking reforms were included as policy riders in the “must-pass” omnibus appropriations bill that the Congress passed on December 18. Efforts to include language reforming the CFPB, changing the SIFI designation process, reopening and extending the comment period for the Department of Labor’s proposed fiduciary rule and restoring a portion of the cut in the dividend that the Federal Reserve pays to banks for funds held on reserve all were unsuccessful. While congressional Republicans will resume their efforts to pass such regulatory relief legislation in 2016, given the political landscape, these efforts are likely to be geared more toward messaging and making a statement in advance of the November elections than toward enacting a law. Most congressional Republicans believe that the Federal Reserve has kept interest rates artificially low for far too long and that the FSOC has mistakenly designated insurance companies as SIFIs using bankcentric metrics rather than standards that take account of the differences between the business models of insurance companies and banks and the distinctive manner in which insurance companies are regulated by the states. Accordingly, congressional Republicans, particularly in the House, have subjected the Federal Reserve, the CFPB, the FSOC, OFR, the Federal Housing Finance Agency (FHFA), the Treasury Department and its Federal Insurance Office (FIO), to frequent In 2015, over the opposition of the White House and most Democrats, congressional Republicans repeatedly sought to pass legislation changing or repealing various provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. These included the manner in which the Consumer Financial Protection Bureau (CFPB) is governed and funded, legislation reforming the operations of the Financial Stability Oversight Council (FSOC) and the Office of Financial Research (OFR), and legislation changing both the manner in which financial institutions are designated as systemically important financial institutions (SIFIs) and the monetary threshold at which financial institutions can be designated as SIFIs and thus subjected to higher capital standards. 26 dentons.com US Policy Scan I 2016 hearings and pervasive oversight. The FSOC’s designation of both Prudential Insurance and MetLife as SIFIs, over the objections of the FSOC’s member with insurance expertise, has further heightened congressional Republicans’ concerns about these issues. Likewise, despite heavy criticism from some Republicans of the ongoing conservatorship of Fannie Mae and Freddie Mac and the “net worth sweep” agreements with the FHFA as conservator, the Banking and Financial Services Committees have not taken up any legislation on the subject of comprehensive government-sponsored entities (GSE) reform, nor are they likely to do so in 2016. In fact, one of the few financial services policy riders that made it into the omnibus appropriations bill is “Jumpstart the GSEs” language championed by Senators Bob Corker (R-TN) and Mark Warner (D-VA) that would prohibit for at least two years the sale of Treasury-owned senior preferred shares in Fannie and Freddie without congressional approval. The omnibus appropriations bill also expresses the sense of Congress that the Treasury secretary should not sell, transfer, relinquish, liquidate, divest or otherwise dispose of any outstanding shares of senior preferred stock acquired pursuant to the Senior Preferred Stock Purchase Agreement until GSE reform legislation as to the future of Fannie and Freddie is enacted. Since Senator Richard Shelby (RAL) served as Banking Committee Chair from 2003 to 2007, Chairman Shelby’s term expires at the end of this Congress unless he can obtain a waiver from his Republican colleagues. As a result, Chairman Shelby and his Republican Banking Committee members are expected to continue pursuing a relatively narrow, less ideological legislative agenda than their Republican House Financial Services Committee counterparts, with a particular focus on those few bills Chairman Shelby believes have a realistic chance of becoming law in the 114th Congress. Having thus far failed in his effort to negotiate with Banking Committee Ranking Member Sherrod Brown (D-OH), a financial regulatory relief bill that can overcome both the possibility of a filibuster in the Senate and a presidential veto if Congress passes it, Chairman Shelby will resume these negotiations in the hope that Ranking Member Brown and Senate Democrats can be persuaded not to filibuster the bill. While Chairman Shelby seeks to pursue a pragmatic course with respect to passing financial services legislation, in an apparent attempt to increase his negotiating leverage with the White House and congressional Democrats, Shelby has dug in his heels and made it very difficult for President Obama to get his nominees confirmed by the Senate. To that end, on December 9, Chairman Shelby objected to Ranking Member Brown’s effort to have the Senate vote on six pending nominations including a nominee to the board of the Export-Import Bank (Ex-Im) whose confirmation would provide Ex-Im with a quorum necessary to allow the bank to approve financing applications in excess of US$10 million, and the Treasury undersecretary for Terrorism and Financial Crimes. In the long-term highway bill that become law on December 4, the Ex-Im Bank was reauthorized for five years despite the strong objections of Chairman Hensarling and the opposition of Chairman Shelby. Given this history, it seems clear that Chairman Shelby is in no hurry to see the Ex-Im Bank achieve a quorum and become fully operational. The terrorist attacks in Paris and in San Bernardino, CA, have spawned significantly enhanced public concern about homeland security issues. Given these concerns, Chairman Hensarling and Chairman Shelby have each stated that the drafting and adoption of new legislation to block terrorist financing and terrorists’ use of the financial system will be a top priority of their respective committees. However, with the exception of terrorist financing legislation and perhaps a compromise on data security legislation, unless Congress and the White House can reach a deal on additional regulatory relief legislation early in 2016, (perhaps in exchange for the Senate’s confirmation of some additional Treasury Department nominees including both a nominee to give the Ex-Im Bank a quorum and Treasury’s undersecretary for Terrorism and Financial Crimes), it is unlikely that any major financial services bills will become law in 2016. With 60 votes still needed to break a filibuster, given the current composition of the Senate, it will remain difficult for the Senate to pass anything except noncontroversial financial services and banking legislation. US Policy Scan I 2016 dentons.com 27 US Policy Scan I 2016 Insurance 28 dentons.com dentons.com 29 US Policy Scan I 2016 The omnibus also contains the Policyholder Protection Act, legislation protecting insurance companies and their policyholders by making certain that money set aside under state law to pay insurance claims is not used by diversified financial institutions that have an insurance company component within their holding company structure for purposes unrelated to the protection of such insurance policyholders. Reflecting the Congress’ continuing support for state regulation of insurance, the Act prevents the Federal Deposit Insurance Corporation from transferring assets of a state regulated insurance company or subsidiary to an affiliated bank if state insurance commissioners believe such a transfer would be harmful to policyholders. Despite a full-court press by many in the insurance industry, Congress refused to use the omnibus appropriations bill as a vehicle to derail the Department of Labor’s proposed fiduciary rule, a rule that would fundamentally change the duties owed by brokers to their customers. In their initial spending bill proposal, Congressional Republicans had included a rider to prohibit implementation of the proposed rule by denying funds for its implementation. Congressional Democrats rejected that proposal out-of-hand and submitted their own spending bill with no such rider. In the omnibus negotiations, some Members proposed a compromise requiring the Department of Labor to republish the proposed rule and allowing for an additional 30-day comment period before publishing the final rule. However, given the president’s promise to veto any spending bill that included any provisions undercutting the fiduciary rule, this compromise language also was rejected. Accordingly, the final rule is expected to be sent to the Office of Management and Budget in January 2016 with a final rule issued later in the first quarter of 2016. Once issued, legal challenges are expected (from the US Chamber of Commerce and the Securities Industry and Financial Markets Association, among other groups) that could delay the final implementation of the rule and many of the rule’s opponents in Congress will continue to seek a legislative remedy. However, given the state of play, unless a court enjoins the rule’s implementation, it is likely to become effective in 2016. Having passed an extension of terrorism risk insurance in January 2015 along with a flood insurance reform bill in addition to the provisions described above, Congress is not likely to adopt much more federal legislation affecting insurance in 2016. That said, there are at least three subjects where Congress could choose to act. First, the Federal Reserve has yet to issue its proposed standard for the amount of capital that must be held by those few large insurers that are under its supervision, a standard that in light of the “Collins amendment” fix of December 2014 can now The omnibus appropriations bill that became law on December 18, 2015 includes several provisions of importance to the insurance industry. The omnibus contains a two-year implementation delay from 2018 to 2020 of the so-called “Cadillac Tax” on healthcare benefits, a provision that would impose a 40% excise tax on health plans considered overly generous to the extent that they exceed certain defined levels of cost. Having now secured a delay, Cadillac tax opponents will continue their legislative efforts to repeal this tax in 2016, not withstanding the current composition of the Congress and with President Obama still in office. 30 dentons.com US Policy Scan I 2016 be directed to the specific needs of insurers rather than be a bankcentric standard. At the same time, global insurance regulators, led by the Financial Stability Board and the International Association of Insurance Supervisors (IAIS), are developing their own standard to apply to globally systemically important insurers. It could be a challenge to harmonize the global standards with the forthcoming Fed standard, and should that prove to be the case, Congress could well attempt to intervene with a legislative response. Another area where legislation is clearly possible concerns establishing insurance requirements for drone operators. Given the rapid expansion in the operation of drones by both commercial businesses and hobbyists and the public safety concerns arising from this expansion, it is certainly possible that legislators at the federal level will seek to develop minimum insurance requirements for personal and/or commercial drone users. Given the large differences among the states in how, if at all, such insurance issues for drones are handled, any proposed federal legislation concerning insurance and drones is likely to include language that would preempt conflicting or inconsistent state insurance requirements. Finally, over the objections of state insurance regulators, a national standard on collateral requirements for foreign reinsurers could also be a subject for federal legislation, given the publically expressed interest of the Federal Insurance Office (FIO) in having the Treasury Department and the European Union establish a covered agreement that affords nationally uniform treatment of reinsurers. dentons.com 31 US Policy Scan I 2016 dentons.com US Policy Scan I 2016 Tax 32 dentons.com dentons.com 33 US Policy Scan I 2016 Congress will have less on its plate in 2016, thanks to the servings dished out at the end of 2015. In the socalled omnibus appropriations bill, Congress passed a wealth of tax provisions, with a net cost of US$628 billion over 10 years. This package included permanent extension of such popular tax provisions as the R&D tax credit, small business expensing and faster depreciation for leasehold improvements, which no longer will be subject to the uncertainty of an annual “extenders” package. Still, Congress is not completely free of cares about expiring tax provisions. Some of the provisions enacted in the omnibus were just temporary. Nearly 30 were extended only through the end of 2016, so there will be pressure to address these remaining extenders before the end of the year. In addition, new temporary provisions were included in the omnibus. These include several tax proposals related to the Affordable Care Act, such as the two-year moratorium on the medical device tax and the tax on “Cadillac” health care plans. Finally, some of the tax legislation enacted in 2015 was hurriedly adopted, particularly the new partnership audit rules adopted in the Bipartisan Budget Act. In the coming year there likely will be an effort to revisit and revise some tax legislation adopted in 2015. Tax reform, however, will remain the primary tax item on the 2016 agenda. There is fairly broad agreement, both in Congress and among US multinationals, that US international tax rules need to be reformed. Although some in Congress argue that specific, targeted rules need to be adopted (for instance, to address corporate inversions), most agree that more fundamental and comprehensive changes are necessary to deal with multiple problems caused by the current rules. Much groundwork has been laid, leading then Ways and Means Committee Chairman Ryan, Senator Charles Schumer (D-NY) and others to seek last year to craft an international tax reform package as a means of funding the highway bill. Although there may appear to be agreement on the broad contours of an “exemption” system, design issues remain to be resolved and details remain to be fleshed out. These include whether the transition to new international tax rules should raise revenue or be revenue-neutral, whether an “innovation box” should be included and whether the US should exempt only income that has been subject to a substantial rate of foreign tax (i.e., the Obama administration’s “minimum tax” proposal). Further, although international tax reform can be developed without making broader changes to corporate and individual tax rules, some aspects of international tax reform are inextricably linked to US corporate tax rates and taxation of capital. Passage of a tax reform package, even if limited to international tax reform, by one or both houses is a daunting task, especially in an election year. Nonetheless, the unusual combination of factors—President Obama’s last year in office, relatively new chairmen of the Ways and Means Committee Members of the House Ways and Means Committee and the Senate Finance Committee, along with Speaker Paul Ryan (RWI), continue to express a strong interest in tax reform. Similar intentions have been voiced in the past, but in 2016 Congress will not be distracted by the need to deal with expired tax provisions or an extension of the highway trust fund. With those hurdles cleared, 2016 represents the best opportunity in years for the Ways and Means Committee and the Finance Committee to develop tax reform proposals, especially international tax reform proposals, despite the political complications of a presidential election year. 34 dentons.com US Policy Scan I 2016 and Finance Committee and a House speaker who knows the intricacies of tax law—creates an opportunity that suggests that 2016 might be different from a typical presidential election year when it comes to tax legislation. With the House and the Senate both under Republican control, the Obama administration’s actions regarding taxes may come under greater scrutiny in the Ways and Means Committee, the Finance Committee and other committees. The Organization for Economic Cooperation and Development (OECD)’s Base Erosion and Profit Shifting (BEPS) project has moved into the implementation stage, and as countries (and the European Commission, in its “State Aid” cases) continue to target US companies, questions will be raised about the Obama administration’s role and responses to these measures. For example, Finance Committee Chairman Orrin Hatch (R-UT) and then Ways and Means Committee Chairman Ryan sent letters to Treasury Secretary Jack Lew on June 9, 2015, and August 27, 2015, expressing concerns about implementation of the BEPS project and the requirement for “country-by-country” reporting, respectively. When the IRS released on December 21, 2015, proposed regulations to adopt the OECD’s country-by-country reporting framework, House Ways and Means Committee Chairman Kevin Brady (R-TX) issued a statement that he and Tax Policy Subcommittee Chairman Charles Boustany (R-LA) would carefully review the regulation. Beyond BEPS implementation, the Obama Administration has issued regulations that have generated controversy. These include proposed regulations dealing with transfer of intangible property. Those proposed regulations would reverse a wellestablished regulatory rule that was based on explicit legislative history, a reversal that the IRS justifies based on what it believes to be the real legislative intent. As the flow of tax legislation slows, increased scrutiny of the Obama administration’s regulations and administrative actions is likely, especially if there is concern that the administration is seeking to rush regulations out the door before leaving office. dentons.com 35 US Policy Scan I 2016 dentons.com US Policy Scan I 2016 36 dentons.com Trade dentons.com 37 US Policy Scan I 2016 The White House released the text of the deal in November, jumpstarting their advocacy campaign to Congress and other stakeholders to support the final agreement. However, the accord has received a tepid response from some of the White House’s key congressional allies, delaying the expected timeline for any official congressional action. After the President officially signs the TPP agreement, the International Trade Commission (ITC) will conduct a comprehensive economic analysis of the agreement, a necessary precursor of any official congressional action. The ITC report is not expected until the summer of 2016, pushing congressional action until after the 2016 election season. The final text contained far more limited intellectual property protections for biologics than provided for in current US law. In response to those provisions, Chairman Hatch and other key congressional leaders have questioned whether the final deal adheres to the provisions included in the Trade Promotion Authority law passed by Congress in 2015. This leaves TPP at the top of the trade agenda for the White House in 2016, while key congressional opponents move to slow down the process, and perhaps to reconsider the entire final deal. This issue will still play a role in the 2016 elections, and those political forces may affect the final outcome in congress. At the end of 2015, the House passed a bill that would reauthorize the Customs and Border Protection (“CBP”) service for the first time in over ten years. The sponsors of the House-passed bill stated that the legislation caused CBP to make a priority of their original traderelated mission of blocking illegal trade and ensure that legal trade is able to move smoothly. Chairman Brady stated that “this bill replaces inefficiency with innovation and eliminates outdated systems.” The Senate did not move the bill before it adjourned for the year, leaving further consideration to 2016. Senate proponents indicate that Senate action on the bill will likely occur in January. World Trade Organization: In December 2015, World Trade Organization ministers met in Nairobi, Kenya for the WTO’s Tenth Ministerial Conference. The Conference ended with an agreement, termed the Nairobi Package, on a series of six trade initiatives on agriculture, cotton and policy related commitments to benefit ‘least-developed countries’. The most noteworthy outcome of this Conference was the failure of the trade ministers to reaffirm the Doha Round for the first time since its start in 2001. This is seen as a positive outcome for the US and the European Union, as the US before the conference had advocated that the WTO instead to focus on smaller, more narrowly tailored trade agreements. Trade experts have suggested that this outcome from Nairobi has now thrown open the door for narrowly-targeted plurilateral trade agreements among likeminded countries. US Trade Representative Froman stated “while opinions remain divided among the WTO membership, it is clear that the road to a new era for the WTO began in Nairobi.” On the global stage, after five years of intensive negotiations the administration completed work on the Trans-Pacific Partnership agreement in Atlanta in October 2015. In the Ministers’ statement announcing the 12-nation deal they stated that the agreement will ‘support jobs, drive sustainable growth, foster inclusive development, and promote innovation across the Asia-Pacific region.’ 38 dentons.com US Policy Scan I 2016 Transatlantic Trade and Investment Partnership (TTIP): At the end of 2015, US and European Union top trade officials released a joint statement after a December meeting in Brussels that indicate their willingness to speed up negotiations in order to try to reach an “ambitious and comprehensive agreement” before the end of the Obama Administration. Sanctions and Iran: Congress seems poised for another Iran sanctions debate in early 2016 as the Senate is considering extending the Iran Sanctions Act, a set of expiring sanctions against Iran. Legislation authored by Sen. Cardin, the top Democrat on the Senate Foreign Relations committee, and Sen. Mark Kirk (R-IL) would extend the current sanctions for 10 years. It is expected that the White House would not support any extension of these sanctions on grounds that it would undermine the current deal with Iran. However, supporters of extending the sanctions argue that doing so would ensure there is a framework in place to hold Iran accountable if they don’t comply, especially with the recent Iranian missile tests fresh in lawmakers’ minds. dentons.com 39 US Policy Scan I 2016 dentons.com US Policy Scan I 2016 40 dentons.com Tribal Affairs dentons.com 41 US Policy Scan I 2016 The Obama administration will enter its final year without a key leader on Indian issues. In December 2015, Assistant Secretary for Indian Affairs Kevin Washburn (Chickasaw Nation), tendered his resignation. Mr. Washburn had served in this capacity since September 2012, making his tenure the longest in nearly 20 years. Principal Deputy Assistant Secretary Larry Roberts (Oneida Nation of Wisconsin) will serve as the highest-ranking Indian Affairs official for the remainder of the Obama administration. He is expected to carry out the administration’s remaining priorities, including implementing the updated federal acknowledgment process, advancing the transformation of the Bureau of Indian Education, finalizing rightof-way regulations, restoring tribal homelands and further updating regulations implementing the Indian Child Welfare Act. Four tribal bills were enacted in 2015, none of which applies generally to all Indian tribes. They are as follows: the Albuquerque Indian School Land Transfer Act (sponsored by Senator Tom Udall, D-NM); the New Mexico Navajo Water Settlement Technical Corrections Act (sponsored by Sen. Udall); the revocation of the charter of incorporation of the Miami Tribe of Oklahoma at the request of that tribe (sponsored by Representative Markwayne Mullin, R-OK); and the Billy Frank Jr. Tell Your Story Act (sponsored by Representative Denny Heck, D-WA). In addition, 17 tribal bills passed one chamber of Congress but failed to become law. These include S.209, the Indian Tribal Energy Development and Self-Determination Act Amendments (sponsored by Senator John Barrasso, R-WY); H.R.511, the Tribal Labor Sovereignty Act (sponsored by Representative Todd Rokita, R-IN); H.R.538, the Native American Energy Act (sponsored by Representative Don Young, R-AK); S.286, the Department of the Interior Tribal SelfGovernance Act (sponsored by Sen. Barrasso); and H.R.360, the Native American Housing Assistance and Self-Determination Act (NAHASDA) Reauthorization Act (sponsored by Representative Steve Pearce, R-NM). This year, lawmakers are likely to enact additional noncontroversial, tribe-specific bills. The committees with primary jurisdiction over tribal matters—the House Committee on Natural Resources and the Senate Committee on Indian Affairs—have reported several such bills that are ready for consideration by the full House or Senate. Further, Congress will likely continue working to find a path for on tribal bills of general applicability, including the NAHASDA Reauthorization Act, the Tribal Labor Sovereignty Act, tribal energy legislation and legislation to resolve the Supreme Court’s decision in Carcieri v. Salazar. During the First Session of the 114th Congress, several broad measures containing significant tribal provisions were enacted, including the Fixing America’s Surface Transportation (FAST) Act, which contains increases in funding for the Tribal Transportation Program; the Every Student Succeeds Act, which increases tribal consultation in federal education policy and provides funding for tribal language instruction; and the Consolidated Appropriations Act of 2016, which contains increases in funding for the Bureau of Indian Affairs, the Bureau of Indian Education and the Indian Health Service. US Policy Scan I 2016 Immigration 42 dentons.com dentons.com 43 US Policy Scan I 2016 In the wake of the terrorist attacks in Paris and in San Bernardino, CA, policy makers have been reviewing current policies on visa applications and the apparent security failures by homeland security that allowed for one of the San Bernardino terrorists to be supplied with a special visa. The omnibus appropriations bill passed by Congress and signed into law by President Obama in December, contained several immigration provisions, including language that would restrict or exclude certain types of visas for nationals of Syria, Iraq, Iran and Sudan. As some individual states continue to mandate an e-verify system for businesses, others seek only to maintain a voluntary system or no requirement at all. There is concern that this creates a patchwork of regulations across the country. Congress may look to streamline the program through federal legislation that would preempt state law; Representative Lamar Smith (R-TX) has introduced legislation (H.R. 1477) to set up a federal system and provide for varying classes of employees and requiring regular recertification. While this bill has been approved by the House Judiciary Committee, additional action is needed in 2016. In addition. Legislation is also being drafted to mandate additional rules on the Department of Homeland Security to require in-person meetings with visa applicants, an effort to address vetting failures identified after the San Bernardino attack. While conservative groups and some Republican members called for restrictions on the Refugee Resettlement program, particularly as it related to Syrian refugees, Democrats were successful in keeping such measures out of the omnibus bill. Members of congress are expected to press for restrictions or a freezing of visas from certain countries until additional security policies are in place. Prior to the Paris attacks and the Syrian migration, Republican members in the House and Senate pressed for restrictions on funds to so called “sanctuary” cities; efforts to include such restrictions in the omnibus were unsuccessful but members may again try to place restrictions in upcoming spending measures for fiscal year 2017. Senator Jeff Sessions (R-AL), Chairman of the Immigration Subcommittee for the Senate Judiciary Committee, was vocal in his opposition to the immigration provisions of the omnibus and has called on Congress to pass legislation that would restrict the president’s authority to increase the number of refugees to the US, would reduce the number of H-2B visas and would cut funds to “sanctuary cities.” It is likely that Sen. Sessions will lead efforts on such legislation and try to impact the spending authorities for fiscal year 2017. As Congress convenes for the Second Session of the 114th Congress, immigration reform may be the issue most directly influenced by the continuing presidential election. With heated rhetoric driving the debate across the political spectrum, compromise positions may prove difficult to hold as outside forces and internal disagreements continue to raise barriers to reform. US Policy Scan I 2016 Telecommunications and Cybersecurity 44 dentons.com dentons.com 45 US Policy Scan I 2016 The telecommunications industry challenge to the Federal Communications Commission (FCC)’s Open Internet Order, or the “net neutrality” order, adopted on February 26, 2015, represents the third time in less than a decade that the FCC’s attempts to adopt net neutrality rules have been challenged in court. The most recent order identified three specific restrictions meant to eliminate practices that harm the open Internet: no blocking, no throttling and no paid prioritization. While the DC Circuit last struck down the FCC’s attempt to adopt net neutrality rules because broadband was then classified as an information service and not as a telecommunications service, the FCC has now for the first time reclassified broadband Internet access service as a telecommunications service time under Title II of the Communications Act. The FCC based its authority on a hybrid of section 706 of the Telecommunications Act and Title II, calling it a “Title II tailored for the 21st century.” During oral arguments this past December, some industry observers noted that Judge David Tatel, who wrote the order overturning the FCC’s last attempt to regulate the Internet, seemed more open to some of the agency’s arguments. And, while some have predicted that the FCC may prevail on the Title II front, having had the benefit of the same court’s prior decision as a roadmap, only one point seems certain: The court challenges, and the regulatory uncertainty, appear to be far from over. Whatever the court decides, it is likely that the losers will take the net neutrality debate to the Supreme Court. Furthermore, if the FCC does prevail, the Republicans controlling Congress will likely continue their legislative efforts to overturn the net neutrality order, but to no avail. As a result, the upcoming presidential elections will continue to have a strong bearing on the future of the net neutrality debate. Spectrum While the FCC recently delayed the deadlines for the broadcasters and potential forward auction participants to apply to participate in the FCC’s planned 600 MHz voluntary incentive auction from late 2015 to early 2016, the FCC still plans to begin the incentive auction on March 29, 2016. That date, however, will be the start of a long and complicated process, involving first the “reverse” auction, where the broadcasters sell their spectrum rights over numerous rounds, and then ultimately the “forward” auction, which will sell the spectrum given up by the broadcasters in the reverse auction to mobile broadband licensees. Privacy and Data Security In 2015, there seemed to be early momentum behind the bipartisan data security bill - H.R. 1770, the “Data Security and Breach Notification Act of 2015,” but the bill’s progress was again stalled by controversial issues relating to health information and state preemption. In 2016, in the absence of any federal data breach legislation, various federal agencies, such as the Federal Trade Commission and the FCC, will continue to jockey over privacy and data security turf by flexing their regulatory enforcement muscles. Such case-by-case enforcement, and inevitable data breach headlines in the news, will continue to drive data breach discussions in Congress. Cybersecurity Despite strong objections from many civil liberty and privacy advocates, the President signed cybersecurity information sharing legislation As we enter 2016, all eyes will be on the US Court of Appeals for the District of Columbia Circuit, which will release its decision in the case of United States Telecom Association v. Federal Communications Commission early in the year. as part of the FY16 Omnibus Appropriations bill. For the past decade representatives of private industry, including the U.S. Chamber of Commerce, and many security experts have stated that passage of comprehensive information sharing legislation would be one of the most important components for protecting our Nation’s critical infrastructure. After several failed attempts over the past two Congresses to enact such language, they finally got their wish. Included in the FY16 Omnibus Appropriations bill was negotiated legislation that included the provisions of the Senate passed Cybersecurity Act of 2015 as well as two Housepassed companion bills that had been approved by the House Committee on Intelligence and the House Committee on Homeland Security. This new legislation will provide liability protections for companies that voluntarily share threat information with the Federal government. The new law also provides antitrust protections to companies that share cyber threat information with each other. Despite the inclusion of provisions intended to protect individuals’ personal information, this legislation was widely opposed by privacy advocates. 46 dentons.com US Policy Scan I 2016 dentons.com 47 US Policy Scan I 2016 47 dentons.com Agriculture 48 dentons.com US Policy Scan I 2016 Waters of the United States Rule: While a number of members of congress have continued to oppose the Environmental Protection Agency (EPA)’s Waters of the US Rule, Republicans were unsuccessful in including language in the omnibus appropriations bill that would have stopped implementation of the provision by the EPA. There has been bipartisan opposition to the measure, but also critical support from Democratic leaders in the House and Senate who have made sure that “must-pass” legislation has not included language that would limit the Obama administration’s ability to implement the rule. Key agriculture constituencies including the American Farm Bureau Federation, the American Cattleman’s Beef Association and the Agriculture Retailers Association, among others, will be pressing for action by the Congress to halt the rule, but it remains uncertain that Republicans in Congress can be successful in that effort. Child nutrition programs: The Healthy, Hunger-Free Kids Act of 2010 expired last fall, and Congress has been unable to come to an agreement on changes to the law that are needed in order to gain support for reauthorization. Congressional leaders in the House and Senate have stated that they will move aggressively in early 2016 to address federal efforts like the Women, Infants and Children grant program and other school meal programs, but questions on local flexibility and program efficiency could impede an agreement. Senate Agriculture Committee leaders including Chairman Pat Roberts (R-KS) and Ranking Member Debbie Stabenow (D-MN) have been working with House Education and Labor Committee Chairman John Kline (R-MN) and Agriculture Committee Chairman Mike Conaway (R-TX) to develop bipartisan legislation. Food labeling/GMO considerations: Debate has continued over the last several years on efforts to develop labeling requirements for foods with genetically modified components. Stakeholders, including representatives of consumer safety and environmental groups and of the food marketing industries, have battled before Congress on ways to address the issue of labeling, while some states look to move individually on labeling requirements. Some in Congress sought to include language in the recently passed omnibus bill that would ban labeling by individual states, but the measure was not included in the final bill, ensuring continued debate. Agriculture policy debates will continue to focus on childhood nutrition, environmental regulations and food safety considerations as members return for the Second Session of the 114th Congress. While some major issues were addressed in the omnibus spending measure passed by Congress and signed into law by President Obama, several priority measures for both parties remain to be debated. dentons.com 49 US Policy Scan I 2016 Higher Education dentons.com 50 dentons.com US Policy Scan I 2016 A number of familiar issues are likely to be addressed, including reforms to the federal financial aid system, regulation of for-profit colleges and universities and various recent controversial regulations promulgated by the Department of Education. In light of high-profile incidents and heightened public scrutiny, the response of universities in dealing with campus sexual assault will also feature prominently in the debate. Student financial aid 2015 saw increased scrutiny of for-profit colleges and universities from lawmakers. Some Democratic Senators have supported legislation to limit the amount of federal aid dollars collected by for-profit institutions by tightening the 90/10 rule for Title IV funds. Other proposals would increase university accountability for student outcomes through various “skin in the game” risk-sharing models for disbursing financial aid. While Republicans and Democrats differ on some of the details of risk-sharing, there appears to be a bipartisan consensus to address student over-borrowing in the reauthorization bill. Other proposals to simplify the Free Application for Federal Student Aid (FAFSA) also have bipartisan support, and will likely be included in any rewrite of HEA in 2016. Higher education regulations New rulemakings from the Education Department continued to draw opposition from the higher education community in 2015, with the administration moving forward with the Gainful Employment Rule and other proposed rules despite pushback from the higher education community and legal challenges. Senator Lamar Alexander (R-TN), Chair of the Senate Health, Education, Labor and Pensions Committee (HELP), organized a bipartisan Task Force on Government Regulation of Higher Education to review unnecessary or overly complicated Department of Education rules regarding higher education. In 2015, the task force recommended a series of policy changes to cut red tape within the department, including clarifying or removing problematic or out of scope regulations, improving the rulemaking process and requiring that the department maintain an updated compliance calendar, among others. The Gainful Employment Rule continues to draw significant negative attention from lawmakers, and was nearly blocked by a policy rider to the omnibus appropriations bill. Overall, the effort to remove or simplify higher education regulations is likely to play a key role in the HEA reauthorization discussion in 2016. Campus sexual assault Senate lawmakers are now taking a closer look at the way college campuses handle sexual assault cases with support from a White House task force. Senators have proposed giving the Education Department new options for sanctioning schools that do not comply with Title IX, increasing campus resources and support services for students and mandating minimum training standards for campus public safety and disciplinary adjudicators. There is bipartisan support for including some reforms on the topic in the broader HEA reauthorization. Thorny issues remain to be resolved, however, including mandatory reporting requirements and the rights of accused students— subjects that have come up in legislation sponsored by House Republicans. Lawmakers begin 2016 with a focus on reauthorization of the expired Higher Education Act (HEA), with a full slate of policy proposals jostling for a place in the final bill. Encouraged by recent bipartisan victories in overhauling federal secondary and elementary education programs, House and Senate lawmakers hope to retain that momentum in negotiations in 2016 on the Higher Education Act. dentons.com 51 US Policy Scan I 2016 51 Transportation dentons.com 52 dentons.com US Policy Scan I 2016 Surface Transportation On December 4, 2015, President Obama signed the Fixing America’s Transportation Infrastructure Act (FAST Act), to provide $305B for Federal highway, transit and rail programs through September 30, 2020. In order to fund this bill Congress declined once again to increase the gas tax or dedicate any new funding stream but continued to rely upon general fund transfers and non-transportation offsets. While the FAST Act continued many of the programs initiated under MAP-21, the Act also created several new Federal transportation programs as well as made some significant changes to existing programs, including: • The creation of a new National Highway Freight Program that provides formula funding to States for projects that contribute to the efficient movement of freight. This program provides $1.15B in FY16 and rises to $1.5B in FY20. • Establishing a new competitive discretionary grant program for Nationally Significant Freight and Highway projects to be distributed by the U.S. Department of Transportation. Funding for this program starts at $800M in FY16 and increase to $1B in FY20. • Lowering the minimum cost for project eligibility for the Transportation Infrastructure Finance and Innovation Act (TIFIA) program from $50M to $10M for certain projects. • Providing $199M to support the deployment of Positive Train Control (PTC) technology to meet the new compliance deadline of December 31, 2018. • The elimination of many duplicative environmental reviews necessary for compliance with the National Environmental Protection Act (NEPA). Federal Aviation Administration (FAA) Reauthorization With the looming March 31st deadline for the expiration of FAA funding, Congress is expected to act quickly to reauthorize funding for this agency. While it will be difficult to enact a bill into law before the current authorization expires, Senate Commerce Committee Chairman John Thune (R-SD) and House Transportation and Infrastructure Committee Chairman Bill Shuster (R-PA) both have publicly stated their commitment to finishing a bill before another extension becomes necessary. The House is expected to release a bill in January with the Senate to follow shortly after. Chairman Shuster has said he wants this reauthorization to be “transformational” and the bill is expected to include provisions to reform the Air Traffic Control system by shifting governance of the ATC from the FAA to a Federally chartered non-profit organization funded by user fees. Other issues that will likely arise include the regulation of small unmanned aerial systems (UAS), commonly referred to as drones, streamlining of the FAA aircraft certification process and expediting the modernization of the nation’s air traffic control system, NextGen. With the passage of a 5-year surface transportation reauthorization bill, the FAST Act, Congress will turn its attention to a long term bill to fund the Federal Aviation Administration (FAA). Cross-border policy scan dentons.com 53 In 2016, US policymakers will continue to face the challenges of balancing counter-terrorism and counter-narcotics risks at the borders with the desire to expedite the lawful flow of goods, services, and people through ports of entry. Congress may consider the Northern Border Security Review Act, bipartisan legislation that would require that the Department of Homeland Security (DHS) to conduct a threat analysis of current and potential threats at the US-Canadian border. As part of this analysis, DHS would examine whether risks could be mitigated by: improvements at and between ports of entry along the Northern border; addressing gaps in law, policy, and governmental cooperation on counter-terrorism and counter-narcotics efforts; and adding additional preclearance and pre-inspection operations at ports of entry. Last October, the House passed the Northern Border Security Review Act on a voice vote. The Senate Homeland Security and Governmental Affairs Committee passed companion legislation, introduced by Senator Heidi Heitkamp (D-ND), last October. Congress may also pass the Trade Enforcement Act, legislation that would formally establish the US Customs and Border Protection agency (CBP) in statute and set forth provisions to facilitate trade and improve trade enforcement. Specifically, the Trade Enforcement Act would direct DHS to report to Congress on CBP’s business transformation initiative and a port-of-entry infrastructure needs assessment. In addition, the legislation authorizes CBP to operate preclearance locations in foreign countries, provided that an aviation security preclearance agreement is in effect. The legislation would also codify and expand the role of the Commercial Customs Advisory Committee, which consists of 20 members from the trade community and provides recommendations to CBP on modernizing and streamlining cargo processing. Last fall, congressional negotiators reached a conference agreement on the Trade Enforcement Act, and the House passed the bill in December. In a tight fiscal climate, there is also increased desire among policymakers to pursue publicprivate partnerships to facilitate the flow of goods and people through ports of entry. In the FY 2016 Omnibus Appropriations Act, Congress authorized CBP to pursue 10 public-private partnership pilot programs, an increase of five over current law, for services at ports of entry. In addition, around 20 ports of entry have entered into reimbursable service agreements with CBP that fund additional officer hours at ports of entry. In 2016, the House Homeland Security Committee and Senate Homeland Security and Governmental Affairs Committee could hold oversight hearings on CBP’s public-private partnership program. In 2016, Congress may advance legislation to implement the TransPacific Partnership (TPP), though passage is unlikely to occur until a lame-duck session after the elections. TPP is a proposed free trade agreement between the US and 11 Asian and Pacific Rim countries, including Canada and Mexico. In the North American context, TPP offers the opportunity to modernize and update the trade relationship among the US, Canada and Mexico. In particular, TPP would prohibit countries from blocking crossborder data flows over the Internet, an issue that was not addressed by the North American Free Trade Agreement (NAFTA). With respect to government procurement, the proposed agreement would exempt TPP companies from Buy American provisions, an important priority for Canadian companies given the integrated supply chains between the US and Canada. In addition, the 54 dentons.com US Policy Scan I 2016 US, Canada, and Mexico pledged in TPP to harmonize the tendering procedures and procurement thresholds in NAFTA. While TPP offers an opportunity for trade liberalization, other issues could serve as trade irritants at the border in 2016. For instance, the House Transportation and Infrastructure Committee and the Senate Environment and Public Works Committee are expected to consider a reauthorization of the Water Resources Reform and Development Act, which could revive is a proposal to apply the Harbor Maintenance Tax (HMT) to all cargo entering the US, irrespective of whether the cargo enters at a US port or at the US-Canadian or US-Mexican border. US West Coast ports have charged that they face a competitive disadvantage because the HMT, which funds operations and maintenance at US ports, does not apply to cargo entering at the US-Canadian border. In addition, Canada and the US will continue negotiations on an extension of the Softwood Lumber Agreement, but failure to reach a deal between the two countries could lead to renewed litigation over whether Canadian lumber is unfairly subsidized. dentons.com 55 US Policy Scan I 2016 56 dentons.com Defense dentons.com dentons.com 57 The budget deal reached by Congress in October 2015 provides the Pentagon and defense industry with budget stability and clarity for 2016 (US$607 billion) and 2017 (US$610 billion), including a reprieve from sequestration for the next two years. This certainty regarding defense funding level, coupled with growing concerns among Americans about the collective threat posed by the Islamic State and other state and non-state actors, is expected to result in more seamless consideration and passage of the National Defense Authorization Act by lawmakers on Capitol Hill. In the wake of the attacks in Paris and San Bernardino, politically charged debates over US military engagements and measures to ensure the safety of the American citizenry will take place on Capitol Hill in the coming election year. The House and Senate Armed Services Committees, led by Chairman Mac Thornberry (R-TX) and Chairman John McCain (R-AZ), respectively, will continue to exercise oversight and policymaking authority over a host of vital political-military matters, including: • The president’s proposed drawdown of American forces in Afghanistan; • The US military’s train-and-advise role in Iraq; • A campaign against the Islamic State led by the US and a coalition of partner nations; • US military intervention in the Syrian Civil War; • Iranian compliance with the nuclear deal brokered in 2015; • US military strategy toward North Korea; • Threats of terror and cyber attacks against American targets at home and abroad by state and non-state actors. Proposed reform of the Department of Defense (DOD)’s command structure, much of which was established under the Goldwater-Nichols Act of 1986, will be perhaps the most substantial policy undertaking by the House and Senate Armed Services Committees in 2016. Sen. McCain and Rep. Thornberry have expressed concerns that DOD’s existing geographic combatant commands and other components of the military’s organizational and leadership structure, while appropriate during the Cold War, are no longer suited to the global nature of current national security challenges and emerging threats. Multiple hearings on Capitol Hill will likely be devoted to this topic during the coming year. With the US engaged in a highly competitive global technological arms race, defense policymakers will also devote time and attention to the implementation of defense acquisition reform and execution of related innovation initiatives within DOD. Established as DOD’s “point of presence” in Silicon Valley in July 2015, the Defense Innovation Unit Experimental (DIUx) was created to foster increased collaboration between DOD and the commercial technology sector. DOD’s modest funding of DIUx through 2019 envisions the unit’s role as that of an “embassy,” not an investor. Many defense industry stakeholders within both the public and private sectors fear that DIUx will not succeed without 58 dentons.com US Policy Scan I 2016 increased funding that DIUx can itself invest in emerging and dualuse commercial technologies. This concern will likely be addressed in the National Defense Authorization Act. During his year-end news conference in 2015, President Obama reiterated his longstanding commitment to close the US military prison at Guantanamo Bay, Cuba. Although the President’s supporters maintain that closure of the prison via executive action is a viable (and legal) option, the President has not publicly stated whether he believes he has unilateral authority to close the prison. Opponents, including Republicans and some Democratic lawmakers on Capitol Hill, argue that the President cannot close the prison without legislative approval. After multiple delays, the White House is expected to send Congress a detailed plan to close the prison and transfer a significant number of the remaining 107 detainees to a facility or facilities on US soil, which is expected to be met with strong opposition from Republicans. This sets the stage for a major defense policy battle between Congressional Republicans and the President during the final year of his presidency. dentons.com 59 US Policy Scan I 2016 Homeland Security 60 dentons.com As 2016 will be a busy year of elections, perhaps no issue will dominate political debate more than homeland security. With recent terror and cyber attacks at home and abroad, Americans are on edge and looking to Congress for action. The US$1.1 trillion omnibus bill passed in the final legislative days of 2015 contained many homeland security provisions, including language pertaining to the Syrian refugee crisis. Democrats and Republicans battled over the President’s proposal to allow 10,000 Syrian refugees to enter the United States. Republicans argued that allowing those refugees to enter would pose a grave threat to US national security. Democrats defended the president’s proposal as a proper and ordinary response to a humanitarian crisis. Ultimately, Republicans lost the policy fight as the omnibus included an additional US$1 billion in funding for Syrian refugees. Conservatives did however manage to keep language in the bill placing limits on the visa waiver program. The legislation requires travelers in the visa waiver program who have visited Syria or Iraq since 2011 to obtain a traditional visa before coming to the United States. In a major victory for data sharing advocates over data privacy supporters, the Cybersecurity Information Sharing Act (CISA) was included as part of the omnibus bill, among other cybersecurity measures. CISA creates an information-sharing system under which the US government and private sector interests are encouraged to share data about known or potential cyber threats. Building on the momentum created by this victory, security hawks will push for backdoor or “exceptional” government access to encrypted data - including increased monitoring and surveillance of social media - to identify, track, and preempt potential terror threats. As a result, a fierce policy debate pitting national security hawks against civil libertarians and Silicon Valley thought leaders will take place in 2016. In 2015, President Obama negotiated a controversial nuclear deal with Iran, which he deemed to be one of the most significant accomplishments of his presidency. Shortly after that deal was finalized, Iran launched two precision-guided ballistic missiles in violation of a U.N. ban. In response to these violations, a bipartisan group comprised of more than half of the Senate is calling on President Obama to take immediate action, rather than wait for the U.N. Security Council to determine punishment. In early December, President Obama gave an Oval Office address during which he called for Congress to pass an Authorization for Use of Military Force (AUMF) against the Islamic State. That request has largely fallen on deaf ears as Senate Majority Leader Mitch McConnell (R-KY) has stated that an AUMF is a non-starter in the Senate. After 18 months of behind-the-scenes deliberations there is no consensus between the parties on the range and scope of the authorization. Speaker Paul Ryan (RWI) has not mentioned any plans to debate an AUMF as part of his 2016 legislative agenda, and a petition for an AUMF authorization from a small bipartisan group of 35 members of Congress has yet to garner a response from anyone in leadership. National security concerns are likely to continue to absorb much of the political bandwidth in 2016. President Obama may find his policies attacked by both sides of the aisle as the election season heats up and politicians position themselves to win over anxious American voters. dentons.com 61 US Policy Scan I 2016 Patent Reform 62 dentons.com Given the industry outrage over alleged “patent trolls” filing vague federal complaints against patent holders, particularly in the high-tech and pharmaceutical sectors, many thought that 2015 would be the year patent reform legislation would be enacted. In June, both the House and Senate Judiciary committees favorably reported their respective versions of a patent reform bill (H.R. 9 and S. 1137). Nevertheless, as we enter 2016, patent reform legislation in both the House and the Senate has languished. In July 2015, H.R. 9, the Innovation Act, a bill sponsored by House Judiciary Chairman Bob Goodlatte (R-VA) to address the issue of alleged patent trolls and of what he considers to be abusive patent litigation was pulled from the House floor schedule. The bill faced intense opposition from the biotech and pharmaceutical industries, which sought to exempt their patents from the inter partes review (IPR) process. (Generic pharmaceutical manufacturers and other high-tech companies strenuously oppose these proposed IPR changes.) Similarly, S. 1137, the Protecting American Talent and Entrepreneurship (PATENT) Act, introduced by Senate Judiciary Committee Chairman Charles Grassley (R-IA), never even made the schedule for Senate floor consideration. The House bill would require very specific pleading of patent infringement and more frequent awards of attorneys’ fees to plaintiffs when a defendant wins. These are tort reform issues of great concern to plaintiffs’ trial lawyers generally and to certain consumer groups. In contrast, the Senate bill is not as aggressive as the House bill. It does not include a “loser pays” attorneys’ fee provision. It is also less prescriptive with respect to its pleading requirements, granting courts more discretion to determine the level of specificity required of plaintiffs in patent cases. If these bills eventually were to pass the House and Senate respectively, reconciling the differing approaches in a conference report that could pass both bodies would be challenging, but not insurmountable. Chairman Goodlatte continues to assert that action on patent reform legislation is possible in 2016. It is not clear that Chairman Grassley or the Senate Republican Leadership shares this optimism or the same sense of urgency about pursuing patent reform legislation in 2016. While patent reform will continue to be the subject of hearings and congressional attention, given the compressed congressional calendar and other legislation that will have a higher priority, it currently seems unlikely that congress will act on major patent reform legislation in 2016, at least not prior to the socalled “lame duck” session after the November elections. A Supreme Court decision from 2014 that lowered the standard for what constitutes an “exceptional case” justifying a fee award is spurring more courts to award attorneys’ fees to prevailing defendants in patent cases. Moreover, a December 1, 2015, change to the Federal Rules of Civil Procedure eliminating Form 18 to Rule 8 also heightened the pleading requirements in patent litigation, requiring somewhat greater specificity than before. These changes have substantially reduced the perceived near-term urgency of congressional action on patent reform legislation. dentons.com 63 US Policy Scan I 2016 Election Day Outlook 64 dentons.com In the race for the Republican nomination, conventional wisdom has been turned on its head by the staying power of real estate developer and reality show star Donald Trump, and by the seeming inability of more mainstream-aligned candidates to shift the leader board. Many expected the novelty of Trump’s fiery rhetoric and the accompanying lack of policy specificity would eventually precipitate a slide as voting in the early states approached, and that this new vacuum would be filled by former Florida Governor Jeb Bush. In spite of this belief about the nature of Mr. Trump’s candidacy— the assumption that he would be the agent of his own demise— the frontrunner’s near-ceaseless controversies have not softened his numbers but in fact only widened his lead in national polls. But the presidential nominating contest is not a national one, and surveys of this sort are not representative of the landscape nuances within the early states. Governor Bush has struggled to connect in this dynamic, even as he remains better financed than many of his rivals whose polling ascendancy ended as quickly as it began. Former Hewlett-Packard CEO Carly Fiorina, boosted by a string of strong debate performances, and Dr. Ben Carson, whose years of book writing and speaking tours have undergirded a cultural affection among religious conservatives, recently vaulted into the top tier in Iowa. But while their surges in the polls brought expanded financial support from new donors, it also visited on their campaigns more rigorous press scrutiny, under which the pair have jointly wilted. More recently, Florida Senator Marco Rubio and fellow first-time legislator Sen. Ted Cruz of Texas have begun broadening their bases of support, setting up a new proxy battle between conservative hardliners and moderate establishment-types. The current state of the GOP race illustrates that national polls, while good fodder for cable news ratings, are not demonstrative of the primary process. The fundamentals of elections remain: ground game and money matter. And while individual early states matter for narrativebuilding, no one state among the trio will settle the race. The early states of Iowa, New Hampshire and South Carolina have presided over seven competitive presidential nomination bouts since 1976—and in that time, only once did the winner of the Iowa Caucuses, George W. Bush in 2000, win the party’s nomination. Here, Sen. Cruz has found new life by appealing to the state’s dominant evangelical community, who were likewise critical to the victories of former Arkansas Governor Mike Huckabee and former Pennsylvania Senator Rick Santorum in 2008 and 2012, respectively. To the east, in New Hampshire, a fierce intra-contest establishment bout is forming among Sen. Rubio and Governors Bush, Chris Christie of New Jersey and John Kasich of Ohio, with its results to weigh heavily on South Carolina. Bush and other candidates have an opportunity to defy their current standing in national polls by winning or outperforming expectations in the early states. The Democratic primary race has been relatively tame when compared to the GOP. Former Senator, Secretary of State and First Lady Hillary Clinton has the organization, financial backing and campaign experience to win the nomination. The same was said of her in 2008, before she was overtaken by a young Senator Barack Obama. We do not expected a similar result in 2016. Senator Bernie Sanders may speak to the hearts of the progressives in the Democratic Party, much like Howard Dean did in 2004. However, we believe the zeal of his supporters will not be enough to bring him the nomination. Sen. Sanders of Vermont may pull dentons.com 65 US Policy Scan I 2016 Senate Reince Priebus, the National GOP Chairman, said it best a few days before Christmas when he conceded to reporters that it will be “tough” for Republicans to maintain the GOP’s current three seat majority in the US Senate. For the first time in two cycles Republicans are on the defensive. The GOP must defend 24 seats including more than 6 in toss up or Democratic– leaning states. Democrats are defending 10 of their own seats, with the majority of those seats in Democratically leaning states. It is well understood that the demographic make up of the national electorate favors Democrats in a presidential year, and helps to drive Democratic turnout. Given the number of seats the Republicans have to protect, Republicans face an uphill climb to protect Senator Mitch McConnell’s position as majority leader. House Republicans maintain a 30 seat majority in the House. While a minority party capturing that number of seats is not unheard of, (Democrats gained nearly that many in the 2006 wave election), it is rare. The number of truly competitive House races at this time does not provide Democrats a clear path to the majority, even if they have a good Election Day. The Republican majority in the House may be diminished, but there remain a limited number of races where the member seems to be out of step with the majority of the voters for Democrats to capture the Speaker’s gavel. Recent redistricting is often cited as the key to the Republican majority in the House, but redistricting and related court decisions have produced our three most vulnerable incumbent members of Congress, two of whom are Republicans. Seven retirements also are among our 20 most competitive seats with more of the GOP looking to greener pastures. With the palpable public distrust of Congress it is worth noting that 2016 congressional filing has closed in 6 states AL, AR, IL, NC, OH, and TX. In these states, twenty-six percent of races lack one major party on the ballot, so that in each of those districts, a major party candidate will be effectively unopposed. Governors Races Twelve states will elect Governors this November. The closest races are expected in Missouri where Democratic Governor Jay Nixon cannot run again because of term limits and New Hampshire where incumbent Democratic Governor Maggie Hassan has elected to run for the US Senate against Republican Kelly Ayotte instead of running for re-election. Incumbent Republican Governors Mike Pence (IN), Pat McCrory (NC), Gary Herbert (UT) and Democratic Governors Steve Bullock (MT), Kate Brown (OR) and Jay Inslee (WA) are all running and are favored for re-election (Because of Governor John Kitzhaber’s resignation, Oregon will have a special election in 2016 in which Governor Brown will seek a full term.) Democratic Governor Jack Markell (DE) and Republican Earl Ray Tomblin are also term-limited and thus not running for re-election, while Republican Jack Dalrymple (ND) and Democratic Governor Peter Shumlin (VT) are retiring. off a victory in neighboring New Hampshire and make a strong showing in some other states, but he lacks the breadth of national appeal that Clinton commands among Democrats, and he faces organizational and demographic challenges in some key Democratic primaries. Former Maryland Governor Martin O’Malley has failed to gain traction since entering the race. 66 dentons.com US Policy Scan I 2016 dentons.com 67 US Policy Scan I 2016 Competitive House Races 183 Safe and continuing Democrats 221 Current breakdown: 188 Democrats 247 Republicans 50% Safe and continuing Republicans WA. MT ND MN WI IL KY TN AL GA FL IA AR LA MO IN WV NC VA MI OH PA NJ CT MA NH ME RI NY MD DE SC VT MS UT OR CA NV ID AZ NM CO WY SD NE KS OK TX AK HI 68 dentons.com US Policy Scan I 2016 Toss-up District Incumbent 2012 president vote Arizona 1 Ann Kirkpatrick (D) Romney 50% Florida 18 Patrick Murphy (D) Romney 52% Florida 26 Carlos Curbelo (R) Obama 53% Illinois 10 Robert J. Dold (R) Obama 58% Iowa 3 David Young (R) Obama 51% Maine 2 Bruce Poliquin (R) Obama 53% Minnesota 2 John Kline (R) Obama 49% Nebraska 2 Brad Ashford (D) Romney 53% Nevada 3 Joe Heck (R) Obama 50% New Hampshire 1 Frank C. Guinta (R) Obama 50% New York 19 Chris Gibson (R) Obama 52% New York 24 John Katko (R) Obama 57% Texas 23 Will Hurd (R) Romney 51% Open seat Projected party turnover dentons.com 69 US Policy Scan I 2016 Tilts Democratic District Incumbent 2012 president vote Iowa 1 Rod Blum (R) Obama 56% Nevada 4 Cresent Hardy (R) Obama 54% Tilts Democratic District Incumbent 2012 president vote Michigan 7 Tim Walberg (R) Romney 51% New York 1 Lee Zeldin (R) Obama 50% Pennsylvania 8 Michael G. Fitzpatrick (R) Romney 49% Favored Democratic District Incumbent 2012 president vote California 7 Ami Bera (D) Obama 51% Minnesota 8 Rick Nolan (D) Obama 52% Leans Democratic District Incumbent 2012 president vote Florida 13 David Jolly (R) Obama 50% 70 dentons.com US Policy Scan I 2016 Open seat Projected party turnover Tilts Republican District Incumbent 2012 president vote Arizona 2 Martha McSally (R) Romney 50% California 25 Steve Knight (R) Romney 50% Colorado 6 Mike Coffman (R) Obama 52% Michigan 1 Dan Benishek (R) Romney 54% Virginia 10 Barbara Comstock (R) Romney 50% Favored Republican District Incumbent 2012 president vote California 21 David Valadao (R) Obama 55% Florida 2 Gwen Graham (D) Romney 52% Florida 7 John L. Mica (R) Romney 51% New Jersey 5 Scott Garrett (R) Romney 51% Pennsylvania 6 Ryan A. Costello (R) Romney 51% dentons.com 71 US Policy Scan I 2016 Competitive Senate Races 44 Safe and continuing Democrats 44 Current breakdown: 44 Democrats 54 Republicans 50% Safe and continuing Republicans WA. MT ND MN WI IL KY TN AL GA FL IA AR LA MO IN WV NC VA MI OH PA NJ CT MA NH ME RI NY MD DE SC VT MS UT OR CA NV ID AZ NM CO WY SD NE KS OK TX AK HI 72 dentons.com US Policy Scan I 2016 Open seat Projected party turnover Toss-up State Incumbent 2012 president vote Florida Marco Rubio (R) Obama 50% Nevada Harry Reid (D) Obama 53% Wisconsin Ron Johnson (R) Obama 53% Tilts Democratic State Incumbent 2012 president vote Illinois Mark S. Kirk (R) Obama 58% Leans Democratic State Incumbent 2012 president vote Colorado Michael Bennet (D) Obama 51% dentons.com 73 US Policy Scan I 2016 Safe Democratic State Incumbent 2012 president vote California Barbara Boxer (D) Obama 60% Connecticut Richard Blumenthal (D) Obama 58% Hawaii Brian Schatz (D) Obama 71% Maryland Barbara A. Mikulski (D) Obama 62% New York Charles E. Schumer (D) Obama 63% Oregon Ron Wyden (D) Obama 55% Vermont Patrick J. Leahy (D) Obama 67% Washington Patty Murray (D) Obama 56% Tilts Republican State Incumbent 2012 president vote New Hampshire Kelly Ayotte (R) Obama 52% Pennsylvania Patrick J. Toomey (R) Obama 52% 74 dentons.com US Policy Scan I 2016 Favored Republican State Incumbent 2012 president vote Arizona John McCain (R) Romney 54% Indiana Dan Coats (R) Romney 54% Louisiana David Vitter (R) Romney 58% Missouri Roy Blunt (R) Romney 54% Leans Republican State Incumbent 2012 president vote North Carolina Richard M. Burr (R) Romney 51% Ohio Rob Portman (R) Obama 51% Open seat Projected party turnover dentons.com 75 US Policy Scan I 2016 Safe Republican State Incumbent 2012 president vote Alabama Richard C. Shelby (R) Romney 61% Alaska Lisa Murkowski (R) Romney 55% Arkansas John Boozman (R) Romney 61% Georgia Johnny Isakson (R) Romney 53% Idaho Michael D. Crapo (R) Romney 65% Iowa Charles E. Grassley (R) Obama 52% Kansas Jerry Moran (R) Romney 60% Kentucky Rand Paul (R) Romney 60% North Dakota John Hoeven (R) Romney 58% Oklahoma James Lankford (R) Romney 67% South Carolina Tim Scott (R) Romney 55% South Dakota John Thune (R) Romney 58% Utah Mike Lee (R) Romney 73% 76 dentons.com US Policy Scan I 2016 Competitive Governor Races 14 Safe and continuing Democrats 28 Current breakdown: 18 Democrats 31 Republicans 50% Safe and continuing Republicans WA. MT ND MN WI IL KY TN AL GA FL IA AR LA MO IN WV NC VA MI OH PA NJ CT MA NH ME RI NY MD DE SC VT MS UT OR CA NV ID AZ NM CO WY SD NE KS OK TX AK HI dentons.com 77 US Policy Scan I 2016 Toss-up State Incumbent 2012 president vote Missouri Jay Nixon (D) Romney 54% West Virginia Earl Ray Tomblin Romney 62% Tilts Democratic State Incumbent 2012 president vote New Hampshire Maggie Hassan (D) Obama 52% Leans Democratic State Incumbent 2012 president vote Montana Steve Bullock (D) Romney 55% Favored Democratic State Incumbent 2012 president vote Open seat Projected party turnover 78 dentons.com US Policy Scan I 2016 Safe Democratic State Incumbent 2012 president vote Delaware Jack Markell (D) Obama 59% Oregon Kate Brown (D) Obama 55% Vermont Peter Shumlin (D) Obama 67% Washington Jay Inslee (D) Obama 56% Tilts Republican State Incumbent 2012 president vote North Carolina Pat McCrory (R) Romney 51% Leans Republican State Incumbent 2012 president vote ndiana Mike Pence (R) Romney 54% Favored Republican State Incumbent 2012 president vote Open seat Projected party turnover dentons.com 79 US Policy Scan I 2016 Safe Republican State Incumbent 2012 president vote Mississippi Phil Bryant (R) Romney 55% North Dakota Jack Dalrymple (R) Romney 58% Utah Gary R. Herbert (R) Romney 73% 80 dentons.com US Policy Scan I 2016 dentons.com dentons.com 81 US Policy Scan I 2016 Primary Election Calendar January February 14 17 January Thursday January Republican debate Location: North Charleston, S.C. Sponsor: Fox Business Network Sunday Democratic debate Location: North Charleston, S.C. Sponsors: NBC, Congressional Black Caucus Institute 28 January Thursday Republican debate Location: Des Moines, Iowa Sponsor: Fox News 1 6 February February February February Monday Iowa caucuses Saturday Republican debate Location: Manchester, N.H. Sponsor: ABC News 9 11 Tuesday New Hampshire primary Thursday Democratic debate Location: Wisconson Sponsor: PBS 82 dentons.com US Policy Scan I 2016 Saturday Republican debate Location: Greenville, S.C. Sponsors: CBS News 13 20 20 23 26 27 February February February February February February Saturday Nevada Democratic caucuses Republicans caucus on Feb. 23. Saturday South Carolina Republican primary Democrats vote on Feb. 27. Tuesday Nevada Republican caucuses Democrats caucus on Feb. 20. Saturday South Carolina Democratic primary Republicans vote on Feb. 20. Friday Republican debate Location: Houston Sponsor: NBC, Telemundo, National Review dentons.com 83 US Policy Scan I 2016 Tuesday American Samoa Democratic caucuses Republicans vote on March 22. Tuesday Georgia primary Tuesday Minnesota caucuses Tuesday Tennessee primary Tuesday Massachusetts primary Tuesday Oklahoma primary Tuesday Texas primary Tuesday Vermont primary March March 1 Tuesday Alabama primary Tuesday Arkansas primary Tuesday Alaska Republican caucuses Democrats caucus on March 26. Tuesday Colorado Democratic caucuses 84 dentons.com US Policy Scan I 2016 Tuesday Virginia primary Tuesday Wyoming Republican caucuses Democrats caucus on April 9. Saturday Kansas caucuses Sunday Puerto Rico Republican primary Democrats caucus on June 5. Saturday Maine Republican caucuses Democrats caucus on March 6. Saturday Kentucky Republican caucuses Democratic primary is May 17. Sunday Maine Democratic caucuses Republicans caucus on March 5. Saturday Louisiana primary Saturday Nebraska Democratic caucuses Republicans vote on May 10. 5 6 March March dentons.com 85 US Policy Scan I 2016 Tuesday Michigan primary Tuesday Northern Mariana Islands Democratic caucuses Republicans caucus on March 15. March March March 8 12 Tuesday Hawaii Republican caucuses Democrats caucus on March 26. Saturday District of Columbia Republican convention Democrats vote on June 14. Tuesday Mississippi primary Tuesday Idaho Republican primary Democrats caucus on March 22. Saturday Guam Republican convention Democrats caucus on May 7. March March 9 10 Wednesday Democratic debate Location: Miami Sponsors: Univision, Washington Post Thursday Republican debate Location: Florida Sponsors: CNN, Salem Radio 86 dentons.com US Policy Scan I 2016 Tuesday Illinois primary Tuesday Northern Mariana Islands Republican caucuses Democrats caucus on March 12. March March 15 19 Tuesday North Carolina primary Saturday U.S. Virgin Islands Republican caucuses Democrats caucus on June 4. Tuesday Missouri primary Tuesday Ohio primary Tuesday Florida primary March 22 Tuesday American Samoa Republican convention Democrats caucus on March 1. Tuesday Arizona primary dentons.com 87 US Policy Scan I 2016 Tuesday Idaho Democratic caucuses Saturday Washington state Democratic caucuses March March 22 26 Saturday Alaska Democratic caucuses Republicans caucus on March 1. Tuesday Utah caucuses Saturday Hawaii Democratic caucuses March * March date to be announced Republican debate Location: TBD Sponsor: Fox News 88 dentons.com US Policy Scan I 2016 April 9 26 Saturday Colorado Republican convention Location: Des Moines, Iowa Sponsor: Fox News Tuesday Connecticut primary Saturday Wyoming Democratic caucuses Republicans caucus on March 1. Tuesday Delaware primary April 1 19 5 April April April Friday April North Dakota Republican caucuses Democrats caucus on June 7. Tuesday New York primary Democrats caucus on June 7. Tuesday Wisconsin primary dentons.com 89 US Policy Scan I 2016 April 26 10 Tuesday Maryland primary Tuesday Nebraska Republican primary Tuesday Rhode Island primary Tuesday Pennsylvania primary Tuesday West Virginia primary May 3 7 May May Tuesday May Indiana primary Tuesday Guam Democratic caucuses Republicans vote on March 12. 90 dentons.com US Policy Scan I 2016 June May 7 17 24 4 5 Tuesday California primary Tuesday Oregon primary Tuesday Montana primary Tuesday Kentucky Democratic primary Republicans caucus on March 5. June May June June Tuesday Washington state Republican primary Democrats caucus on March 26. Saturday U.S. Virgin Islands Democratic caucuses Republicans caucus on March 19. Sunday Puerto Rico Democratic caucuses Republicans vote on March 6. dentons.com 91 US Policy Scan I 2016 June June 7 Tuesday New Jersey primary Tuesday North Dakota Democratic caucuses Republicans caucus on April 1. Tuesday New Mexico primary Tuesday South Dakota primary 14 18 25 Tuesday District of Columbia Democratic primary Republicans vote on March 12. July July July 18-21, 2016 July Republican National Convention Cleveland July 25-28, 2016 Democratic National Convention Cleveland 92 dentons.com US Policy Scan I 2016 September October October October November 8 26 4 19 9 Monday Presidential debate Location: Wright State University in Dayton, Ohio Tuesday Vice presidential debate Location: Longwood University in Farmville, Va. Wednesday Presidential debate Location: University of Nevada, Las Vegas Sunday Presidential debate Location: Washington University in St. Louis Tuesday Election Day September November October dentons.com 93 US Policy Scan I 2016 Filing deadlines State Election Date Voter Registration Absentee Ballot Request Absentee Ballot Return Alabama Alabama Presidential and State Primary Election March 1, 2016 Postmarked by February 16, 2016 February 25, 2016 Hand delivered or postmarked by February 29, 2016 Alabama State Primary Runoff April 12, 2016 Alabama General Election November 8, 2016 October 24, 2016 November 3, 2016 November 7, 2016 Alaska Alaska State Primary Election August 16, 2016 July 17, 2016 August 6, 2016 August 16, 2016 Alaska General Election November 8, 2016 October 9, 2016 October 29, 2016 November 8, 2016 American Samoa American Samoa General Election November 8, 2016 Arizona Arizona Presidential Preference Election March 22, 2016 February 22, 2016 To be announced March 22, 2016 Arizona State Primary Election August 30, 2016 August 1, 2016 To be announced August 30, 2016 Arizona General Election November 8, 2016 October 10, 2016 To be announced November 8, 2016 Arkansas Arkansas Presidential Preference and State Primary Election March 1, 2016 February 1, 2016 February 23, 2016 if by post, fax or email; February 29, 2016 if in-person March 1, 2016 Arkansas State Primary Election March 22, 2016 February 22, 2016 To be announced To be announced Arkansas General Election November 8, 2016 October 10, 2016 November 1, 2016 if by post, fax or email; November 7, 2016 if in-person November 8, 2016 California California Presidential Primary Election June 7, 2016 May 23, 2016 May 31, 2016 Postmarked by June 7, 2016, Received by June 10, 2016 California General Election November 8, 2016 October 24, 2016 November 1, 2016 Postmarked by November 8, 2016; Received by November 11, 2016 94 dentons.com US Policy Scan I 2016 State Election Date Voter Registration Absentee Ballot Request Absentee Ballot Return Colorado Colorado Party Precinct Caucus Day March 1, 2016 February 2, 2016 Colorado Primary Election June 28, 2016 June 6, 2016 (Election Day Registration is available) June 21, 2016 June 28, 2016 Colorado General Election November 8, 2016 October 31, 2016 (Election Day Registration is available) November 1, 2016 November 8, 2016 Connecticut Connecticut State Primary Election April 26, 2016 April 21, 2016 (Election Day Registration is available) April 5, 2016 April 26, 2016 Connecticut General Election November 8, 2016 November 1, 2016 (Election Day Registration is available) October 8, 2016 November 8, 2016 Delaware Delaware Presidential Primary Election April 26, 2016 April 2, 2016 April 5, 2016 April 26, 2016 Delaware State Primary Election September 13, 2016 August 20, 2016 September 12, 2016 September 13, 2016 Delaware General Election November 8, 2016 October 15, 2016 November 7, 2016 November 8, 2016 District of Columbia District of Columbia Presidential Primary and District Primary June 14, 2016 May 23, 2016 June 7, 2016 June 14, 2016 District of Columbia General Election November 8, 2016 October 17, 2016 November 1, 2016 November 8, 2016 Florida Florida Presidential Preference Primary March 15, 2016 February 16, 2016 March 9, 2016 March 15,2016 Florida State Primary Election August 30, 2016 August 1, 2016 August 24, 2016 August 30, 2016 Florida General Election November 8, 2016 October 11, 2016 November 2, 2016 November 8, 2016 Florida General Election November 8, 2016 October 11, 2016 November 2, 2016 November 8, 2016 dentons.com 95 US Policy Scan I 2016 State Election Date Voter Registration Absentee Ballot Request Absentee Ballot Return Georgia Georgia Presidential Preference Primary Election March 1, 2016 February 1, 2016 To be announced March 1, 2016 Georgia State Primary Election May 24, 2016 April 26, 2016 To be announced To be announced Georgia General Election November 8, 2016 October 11, 2016 To be announced To be announced Guam Guam Territory Primary August 27, 2016 Guam General Election November 8, 2016 To be announced To be announced To be announced Hawaii Hawaii Primary Election August 13, 2016 July 14, 2016 August 6, 2016 August 13, 2016 Hawaii General Election November 8, 2016 October 10, 2016 November 1, 2016 October 25, 2016 - November 5, 2016 Idaho Idaho Presidential Primary Election March 8, 2016 February 12, 2016; Election Day Registration is available March 2, 2016 March 8, 2016 Idaho State Primary Election May 17, 2016 April 22, 2016; Election Day Registration is available May 11, 2016 May 17, 2016 Idaho General Election November 8, 2016 October 14, 2016 November 2, 2016 November 8, 2016 Illinois Illinois Presidential and State Primary Election March 15, 2016 March 8, 2016 March 10, 2016 March 15, 2016 Illinois General Election November 8, 2016 October 11, 2016 November 3, 2016, November 7, 2016 if requesting in person November 8, 2016 Indiana Indiana Presidential and State Primary Election May 3, 2016 April 4, 2016 To be announced To be announced Indiana General Election November 8, 2016 October 10, 2016 To be announced To be announced 96 dentons.com US Policy Scan I 2016 State Election Date Voter Registration Absentee Ballot Request Absentee Ballot Return Iowa Iowa Primary Election June 7, 2016 May 27, 2016 June 3, 2016 June 7, 2016 Iowa General Election November 8, 2016 October 10, 2016 November 4, 2016 November 8, 2016 Kansas Kansas Caucus March 5, 2016 Kansas General Election November 8, 2016 October 28, 2016 To be announced To be announced Kentucky Kentucky Primary Election May 17, 2016 April 18, 2016 May 10, 2016 May 17, 2016 Kentucky General Election November 8, 2016 October 11, 2016 November 4, 2016 November 8, 2016 Louisiana Louisiana Primary Election March 5, 2016 February 3, 2016 March 1, 2016 March 4, 2016 Louisiana General Election November 8, 2016 October 18, 2016 November 3, 2016 November 8, 2016 Maine Maine General Election November 8, 2016 October 18, 2016 November 3, 2016 November 8, 2016 Maryland Maryland Primary Election April 26, 2016 April 5, 2016 April 19, 2016 for ballot by mail, April 22, 2016 for electronic ballot April 26, 2016 Maryland General Election November 8, 2016 October 18, 2016 November 1, 2016 for ballot by mail, November 4, 2016 for electronic ballot November 8, 2016 Massachusetts Massachusetts Primary Election March 5, 2016 February 3, 2016 March 1, 2016 March 4, 2016 Massachusetts General Election November 8, 2016 October 18, 2016 November 3, 2016 November 8, 2016 dentons.com 97 US Policy Scan I 2016 State Election Date Voter Registration Absentee Ballot Request Absentee Ballot Return Michigan Michigan Presidential Preference Primary Election March 8, 2016 February 9, 2016 March 5, 2016 by 2 pm March 8, 2016 Michigan General Election November 8, 2016 October 11, 2016 November 5, 2016 by 2 pm November 8, 2016 Minnesota Minnesota Primary Election August 9, 2016 July 19, 2016 (Election Day Registration is available) No deadline August 9, 2016 Minnesota General Election November 5, 2016 October 18, 2016 (Election Day Registration is available) No deadline November 8, 2016 Mississippi Mississippi Primary Election March 8, 2016 February 6, 2016 To be announced March 8, 2016 Mississippi General Election November 8, 2016 October 8, 2016 To be announced November 8, 2016 Missouri Missouri Primary Election March 15, 2016 February 17, 2016 March 9, 2016 by 5 pm March 15, 2016 Missouri General Election November 8, 2016 October 12, 2016 November 2, 2016 by 5 pm November 8, 2016 Montana Montana Primary Election June 7, 2016 May 9, 2016 June 6, 2016 by 12 pm June 7, 2016 Montana General Election November 8, 2016 October 11, 2016 November 7, 2016 by 12 pm November 8, 2016 Nebraska Nebraska Primary Election May 10, 2016 April 22, 2016 May 4, 2016 by 4 pm May 10, 2016 Nebraska General Election November 8, 2016 October 21, 2016 November 2, 2016 by 4 pm November 8, 2016 Nevada Nevada Primary Election June 14, 2016 May 14, 2016; May 24, 2016 if online or inperson June 7, 2016 June 14, 2016 Nevada General Election November 8, 2016 October 8, 2016; October 18, 2016 if online or inperson November 1, 2016 November 8, 2016 98 dentons.com US Policy Scan I 2016 State Election Date Voter Registration Absentee Ballot Request Absentee Ballot Return New Hampshire New Hampshire Primary Election February 9, 2016 January 31, 2016 To be announced February 9, 2016 if by mail New Hampshire General Election November 8, 2016 October 29, 2016 To be announced November 8, 2016 if by mail New Jersey New Jersey Primary Election June 7, 2016 May 17, 2016 To be announced To be announced New Jersey General Election November 8, 2016 October 18, 2016 To be announced To be announced New Mexico New Mexico Primary Election June 7, 2016 May 10, 2016 June 3, 2016 June 7, 2016 New Mexico General Election November 8, 2016 October 11, 2016 November 4, 2016 November 8, 2016 New York New York Presidential Primary Election April 19, 2016 March 25, 2016 April 12, 2016 Postmarked by April 18, 2016, Received by April 26, 2016 New York General Election November 8, 2016 To be announced To be announced To be announced North Carolina North Carolina Presidential Primary Election March 1, 2016 February 4, 2016 February 23, 2016 March 1, 2016 North Carolina Statewide Primary May 3, 2016 April 8, 2016 April 26, 2016 May 3, 2016 North Carolina General Election November 8, 2016 October 14, 2016 November 1, 2016 November 8, 2016 Massachusetts General Election November 8, 2016 October 18, 2016 November 3, 2016 November 8, 2016 North Dakota North Dakota Primary Election June 14, 2016 No voter registration required To be announced June 13, 2016 North Dakota General Election November 8, 2016 No voter registration required To be announced November 7, 2016 dentons.com 99 US Policy Scan I 2016 State Election Date Voter Registration Absentee Ballot Request Absentee Ballot Return Ohio Ohio Primary Election March 15, 2016 February 16, 2016 March 12, 2016 Postmarked March 14, 2016, Received by March 25, 2016, In-Person by March 15, 2016 Ohio General Election November 8, 2016 October 11, 2016 November 5, 2016 Postmarked November 7, 2016, Received by November 18, 2016, In-Person November 8, 2016 Oklahoma Oklahoma Presidential Preference Primary Election March 1, 2016 February 5, 2016 February 24, 2016 March 1, 2016 Oklahoma General Election November 8, 2016 October 14, 2016 November 2, 2016 November 8, 2016 Oregon Oregon Primary Election May 17, 2016 April 26, 2016 May 11, 2016 May 17, 2016 Oregon General Election November 8, 2016 October 18, 2016 November 3, 2016 November 8, 2016 Pennsylvania Pennsylvania Primary Election April 26, 2016 March 28, 2016 April 19, 2016 April 22, 2016 Pennsylvania General Election November 8, 2016 October 10, 2016 November 1, 2016 November 8, 2016 Puerto Rico Puerto Rico State Primary Election June 5, 2016 April 18, 2016 To be announced To be announced Puerto Rico General Election November 8, 2016 September 19, 2016 To be announced To be announced Rhode Island Rhode Island Presidential Preference Primary Election April 26, 2016 March 28, 2016 April 5, 2016 April 26, 2016 Rhode Island Primary Election September 13, 2016 August 15, 2016 August 23, 2016 September 13, 2016 Rhode Island General Election November 8, 2016 October 10, 2016 October 18, 2016 November 8, 2016 100 dentons.com US Policy Scan I 2016 State Election Date Voter Registration Absentee Ballot Request Absentee Ballot Return South Carolina South Carolina Republican Presidential Preference Primary February 20, 2016 January 20, 2016 February 16, 2016 February 20, 2016 South Carolina Democratic Presidential Preference Primary February 27, 2016 January 27, 2016 February 23, 2016 February 27, 2016 South Carolina State Primary Election June 14, 2016 May 14, 2016 June 10, 2016 June 14, 2016 South Carolina General Election November 8, 2016 October 8, 2016 November 4, 2016 November 8, 2016 South Dakota South Dakota Primary Election June 7, 2016 May 23, 2016 June 6, 2016 June 7, 2016 South Dakota General Election November 8, 2016 October 24, 2016 November 7, 2016 November 8, 2016 Tennessee Tennessee Primary Election March 1, 2016 February 1, 2016 February 23, 2016 March 1, 2016 Tennessee General Election November 8, 2016 October 11, 2016 November 1, 2016 November 8, 2016 Texas Texas Primary Election March 1, 2016 February 8, 2016 Received by February 19, 2016 March 1, 2016 Texas General Election November 8, 2016 October 10, 2016 October 28, 2016 November 8, 2016 Utah Utah Primary Election March 22, 2016 Postmarked by February 22, 2016; Online or Inperson March 15, 2016 March 17, 2016 March 22, 2016 Utah General Election November 8, 2016 To be announced To be announced To be announced Vermont Vermont Presidential Preference Primary Election March 1, 2016 February 24, 2016 February 29, 2016 March 1, 2016 Vermont General Election November 8, 2016 November 2, 2016 November 7, 2016 November 8, 2016 dentons.com 101 US Policy Scan I 2016 State Election Date Voter Registration Absentee Ballot Request Absentee Ballot Return Virginia Virginia Presidential Primary Election March 1, 2016 February 8, 2016 February 23, 2016 if by post, fax or email; February 27, 2016 if in-person March 1, 2016 Virginia General Election November 8, 2016 To be announced To be announced To be announced Virgin Islands Virgin Islands Primary Election August 6, 2016 To be announced To be announced To be announced Virgin Islands General Election November 8, 2016 To be announced To be announced To be announced Washington Washington Presidential Primary Election May 24, 2016 April 25, 2016 if by mail or online, May 16, 2016 if in-person Not Applicable: Washington has all mail elections. Ballots are mailed 18 days before the election. Not applicable: Washington has all mail elections. Ballots are due on Election Day. Washington General Election November 8, 2016 October 10, 2016 if by mail or online, October 31, 2016 if in-person Not Applicable: Washington has all mail elections. Ballots are mailed 18 days before the election. Not applicable: Washington has all mail elections. Ballots are due on Election Day. West Virginia West Virginia Primary Election May 10, 2016 April 19, 2016 May 4, 2016 Postmarked by May 10, 2016, Recieved by May 16, 2016; Hand delivered by May 9, 2016 West Virginia General Election November 8, 2016 October 18, 2016 November 2, 2016 Postmarked by November 8, 2016, Recieved by November 18, 2016; Hand delivered by November 7, 2016 102 dentons.com US Policy Scan I 2016 State Election Date Voter Registration Absentee Ballot Request Absentee Ballot Return Wisconsin Wisconsin Presidential Preference Vote April 5, 2016 March 16, 2016 if by mail, April 1, 2016 if in-person (Election Day Registration is available) March 31, 2016 Postmarked by April 5, 2016, Received by April 8, 2015 Wisconsin General Election November 8, 2016 October 19, 2016 if by mail, November 4, 2016 if in-person (Election Day Registration is available) November 3, 2016 Postmarked by November 8, 2016, Received by November 11, 2016 Wyoming Wyoming Primary Election August 16, 2016 August 1, 2016 (Election Day Registration is available) To be announced August 16, 2016 Wyoming General Election November 8, 2016 October 24, 2016 To be announced November 8, 2016 dentons.com 103 US Policy Scan I 2016 State Convene Adjourn Alabama Feb 2 early April Alaska Jan 19 April 17 Arizona Jan 11 early April Arkansas Apr 13 May 12 California Jan 4 Aug 31 Colorado Jan 13 May 11 Connecticut Feb 3 May 4 Delaware Jan 12 June 30 Florida Jan 12 March 11 Georgia Jan 11 late March Hawaii Jan 20 early May Idaho Jan 11 early April Illinois *** * Indiana ** Mar 14 Iowa Jan 11 April 19 Kansas Jan 11 mid May Kentucky Jan 5 April 12 2016 State Legislature Calendar 104 dentons.com US Policy Scan I 2016 State Convene Adjourn Louisiana Mar 14 June 6 Maine Jan 6 April 20 Maryland Jan 13 April 11 Massachusetts Jan 6 * Michigan Jan 13 * Minnesota Mar 8 May 23 Mississippi Jan 5 May 8 Missouri Jan 6 May 30 Montana Nebraska Jan 6 mid-April Nevada New Hampshire Jan 6 July 1 New Jersey Jan 12 * New Mexico Jan 19 Feb 18 New York Jan 6 * North Carolina April 25 mid July North Dakota dentons.com 105 US Policy Scan I 2016 State Convene Adjourn Ohio Jan 5 * Oklahoma Feb 1 May 27 Oregon Feb 1 March 6 Pennsylvania Jan 5 * Rhode Island Jan 5 late June South Carolina Jan 12 June 2 South Dakota Jan 12 March 29 Tennessee Jan 12 mid April Texas Utah Jan 25 Mar 10 Vermont Jan 5 mid May Virginia Jan 13 March 12 Washington Jan 11 March 10 West Virginia Jan 13 March 12 Wisconsin Jan 12 * Wyoming Feb 8 early March American Samoa Jan 11 106 dentons.com US Policy Scan I 2016 State Convene Adjourn Dst. of Columbia Jan 2 * Guam Jan 11 * No. Mariana Is. Jan 11 Puerto Rico Jan 11 May 11 Virgin Islands Jan 11 * Key: * = Legislature meets throughout the year. ** = Senate will convene January 5, 2016. The House convening date is TBD. *** = Date is TBD. Constitutional date is the second Wednesday of every January. dentons.com 107 US Policy Scan I 2016 Need these dates in outlook? Download the entire 2016 US Policy Scan congressional and key dates directly into your Microsoft Outlook calendar. Visit www.dentons.com/en/policyscancalendar 108 dentons.com US Policy Scan I 2016 Dentons’ Public Policy and Regulation Team Practice Leadership Gordon Giffin Michael Zolandz Eric Tanenblatt Federal Advocacy Team Virginia Beckett Todd Bertoson Megan Delany Cindy Gillespie Gary Goldberg Ben Dunham Kathryn Anderson Christopher Fetzer dentons.com 109 US Policy Scan I 2016 Scotty (Maryscott) Greenwood Jenifer Healy Sander Lurie Joseph Mantilla Margeaux Plaisted Alex McGee John Russell IV Dennis Smith Thomas Walls Valerie Nelson Josh Pitre Andrew Shaw Timothy Haake C. Randall Nuckolls 110 dentons.com US Policy Scan I 2016 Public Policy Team Joseph Andrew Newt Gingrich Ron Kaufman Howard Dean William Owens Bill McCollum Robin Adams Mark Weller Jim Williams Thurbert Baker Jeff Modisett Terry Goddard dentons.com 111 US Policy Scan I 2016 Samuel Daughety Yohai Baisburd Todd Daubert Randy Bregman Giovanna Cinelli Nicholas Allard John Duffy Alan Fedman Eugene Degnan Randy Evans Rodney Ellis Timothy Ashby John Fox Seth Harris 112 dentons.com US Policy Scan I 2016 Kelly Lugar Dennis Lee Mark Lunn Eduardo Martinez Frederick McClure Jeff Krilla Thomas Laryea Anthony Jannotta Keith Mason Juan Carlos Iturregui William Hilleary Thomas Howell Joseph Mantilla Benjamin Keane dentons.com 113 US Policy Scan I 2016 Mike McNamara Gilberto Ocañas Kenneth Nunnenkamp Javier Ortiz V. Heather Sibbison Suzanne (Susi) Schaeffer Carter Simpson George Skibine Colin Robertson Robert Odawi Porter Elliott Portnoy Stefan Passantino Amy Odom James Richardson 114 dentons.com US Policy Scan I 2016 Georgia Jeremy Berry Mark Burkhalter George (Buddy) Darden State and Local Government Affairs Team Dan Baskerville Alan Wolff Malcolm Weems Anthony Williams David Tafuri Jon Sohn Richard Stanton Christopher (Kit) Smith US Policy Scan I 2015 dentons.com 115 US Policy Scan I 2016 115 dentons.com Lemuel Ward Sharon Gay Steven Labovitz Benjamin Vinson Jeff Hamling Kathleen O’Connor New York Thomas Dwyer Thomas Ochs Benjamin Kern Craig Johnson Mike Klein 116 dentons.com US Policy Scan I 2016 dentons.com US Policy Scan I 2015 Stanley Landfair Darry Sragow Missouri Rodney Boyd Brian Grace Dave Pollak Amy Solomon California George Broder Marc Burgat William Plunkett, Jr Tim Plunkett US Policy Scan I 2015 dentons.com 117 US Policy Scan I 2016 117 dentons.com Mark Johnson Kevin Riggs Kelvin Simmons Colorado David Fine David Skaggs Amy Stephens © 2016 Dentons. 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