The 2012 election leaves Washington with little change. Barack Obama retains the Presidency, while the Democrats actually improve their Senate majority, and the Republicans retain a somewhat smaller House majority. This posting is intended to provide an overview of election results, identify known and anticipated changes in Congressional committee makeup and leadership with particular focus on the food, drug, and agriculture industries, and highlight some remaining legislative and regulatory issues that may see further action before the close of the 112th Congress.
Additionally, it appears that California’s Proposition 37, to require the labeling of most food made with genetically engineered ingredients, and prohibited marketing such food as “natural,” has lost.
With Florida having been declared for Barack Obama, he wins reelection with 332 electoral votes to 206 for Mitt Romney. President Obama also wins the popular vote, 51.4% to 48.6%, with 62,615,406 to 59,142,004 votes.
Congressman Paul Ryan will continue to be a key player in that he retains his seat in the House of Representatives, and is expected to be given a waiver that would allow him to retain his chairmanship of the House Budget Committee.
President Obama, in his comments following his reelection, spoke about the need to begin working immediately with Congressional leaders on both sides of the aisle to avoid the fiscal cliff waiting at year’s end. He said that he would meet with Governor Romney in coming days to help find ways to work together. The President also indicated that tax reform and immigration reform will be two goals in his coming term.
While Secretary of State Hillary Clinton and Treasury Secretary Timothy Geithner have announced their intention to leave President Obama’s cabinet, it is believed that Secretary of Agriculture Tom Vilsack will remain. We will report on any new cabinet, subcabinet, and other Administration appointments as appropriate in the coming weeks.
Congressional Election Results
Comparing the 112th and 113th Congresses
The following two tables compare ratios in the 112th and 113th Congresses, based on preliminary results:
Note: This table reflects party ratios prior to election day. On election day, one Republican and three Democrats won special elections. One vacancy (California 18th) remains.
Note: Congressman Jesse Jackson Jr. (D-IL) announced his resignation from Congress on November 21. A special election will be held on April 9, with the primary scheduled for February 26.
Freshmen in the 113th Congress
The following table compares the ratio of freshmen in the 113th Congress:
Note: This list is subject to change given that there are still some House elections outstanding. The House numbers also include 3 Republicans and 6 Democrats who are returning to Congress.
2014 Senate Races
Even though the 2012 election has just concluded, it is important to consider who is up for reelection in 2014 since the results of the 2012 election may strongly influence how members vote in the coming months. There are 33 Senators – 20 Democrats and 13 Republicans - up for reelection in 2014. Some have already announced their intention to seek re-election.
Committee Structure in the 113th Congress
Committee selections are expected to occur in December, and could extend into January. Subcommittee selection will most likely be made in January. Given that a number of vacancies will occur on all committees, particularly exclusive committees like Appropriations, Energy and Commerce, and Ways and Means, some members will give up their current committees to take advantage of these new opportunities. The information in this section identifies committee leadership changes, along with known vacancies on committees of greatest interest to the food, drug, and agriculture industries.
There are term limits in place for Committee and Subcommittee Chairs and Ranking Minority Members, along with retirements that will impact these leadership positions. In particular, there are significant changes coming with new chairmen of both the House and Senate Agriculture Appropriations Subcommittees, and with virtually all subcommittees of the House Agriculture Committee. As some chair and ranking positions are assumed, they may in turn result in further changes beyond those we are currently able to identify.
Pending Legislative Issues
Sequestration, Taxes and the Debt Limit – The so-called fiscal cliff is the most significant matter in the remaining days of the 112th Congress. Unless a budget deal is reached, sequestration – across-the-board cuts of approximately 8.2% - will be ordered on January 2, 2013. The Bush tax cuts expire on December 31, and the extension of these tax cuts has been a priority for Republican leadership. And the Treasury Department said last week that it expects the U.S. debt limit will be reached by the end of 2012, but that it can take some administrative action to push the actual date of potential default to early 2013.
Recent news reports suggest that there may be ways to delay the impact of sequestration for several weeks to allow more time for developing an alternative to sequestration. Additionally, the Secretary of the Treasury could also delay publishing revised tax withholding tables to provide more time for an alternative to sequestration as part of a broad budget deal. President Obama had suggested during the campaign that sequestration will not occur. House Speaker John Boehner has also said that he believes Congress and the White House will find a way to extend the deadlines on sequestration, the Bush tax cuts, and the debt ceiling into 2013. There have been meetings between White House and Congressional leadership staff in recent weeks, so there could be significant developments in coming weeks. However, the stalemate results of this election leave the view that a final agreement will be difficult to achieve.
The Farm Bill– Enactment of the Farm Bill before the end of the year is considered to be unlikely, particularly because of the need to settle the fiscal cliff issues outlined above. It is more likely that there will be a one year extension of existing farm programs and that the full bill will be pushed into 2013.
The House and Senate Agriculture Committees have made spending reduction recommendations that would replace sequestration. Last October 23, 2011, the leadership of the House and Senate Agriculture Committees sent a letter to the Joint Select Committee on Deficit Reduction – the so-called Supercommittee - saying: “We are currently finalizing the policies that would achieve $23 billion in deficit reduction and will provide a complete legislative package by November 1, 2011. Deficit savings at this level is more than any sequestration process would achieve and should absolve the programs in our jurisdiction from any further reductions.” (Underlining added). Those recommendations have been carried forward into the Senate-passed and House-reported Farm Bills. Senate Agriculture Committee Chairwoman Debbie Stabenow continues to say that she wants to finish the Farm Bill this year, in part to avoid sequestration. However, provisions would have to be included to recognize these savings to exempt USDA programs from sequestration. But even if the Farm Bill is enacted, the projected $543 million reduction in the WIC program will go into effect unless other legislation is adopted to protect WIC from sequestration. While there are Congressional advocates interested in protecting WIC, its fate is far from clear at this time.
Should Senator Cochran (R-MS) succeed in his potential effort to take the Ranking Member position on the full Committee in lieu of Senator Roberts (R-KS), it is likely that what had been agreed to between Chairwoman Stabenow and Ranking Member Roberts in the development of the Senate Farm Bill would have to be renegotiated in the 113th Congress. Senator Cochran would be expected to push for changes in the bill that are desired by southern agricultural interests.
Appropriations – The entire Federal Government is operating under a “Continuing Resolution” through March 27, 2013, since no appropriations bill for FY 2013 has been completed. Programs are funded, with limited exceptions, at FY 2012 levels. While leadership of the House and Senate Appropriations Committees has said that they would like to complete an omnibus appropriations bill this year rather than leave it to the 113th Congress, final action is also dependent upon completion of action related to the fiscal cliff.
It also should be noted that the President traditionally submits his budget proposal for the next fiscal year to the Congress in early February. Should the final FY 2013 appropriations bill not be completed by that date, FY 2014 comparisons are more likely to be made with FY 2013 requests as opposed to FY 2013 amounts enacted.
Pending Regulatory Issues
There are two significant categories of proposed rules that have been delayed with the suggestion that further action may be dependent upon the outcome of the election:
Food Safety Rules – The Food and Drug Administration submitted four proposed rules required by the Food Safety Modernization Act (FSMA) to the Office of Management and Budget (OMB) for approval between November 22 and December 9, 2011. These rules deal with Hazard Analysis and Risk-Based Preventive Controls; the Foreign Supplier Verification Program; Current Good Manufacturing Practice and Hazard Analysis and Risk-Benefit Preventive Controls for Food for Animals; and Produce Safety. On August 30, 2012, the Center for Food Safety filed a lawsuit to compel FDA to enact these and other related FSMA regulations by a court-imposed deadline, and to prevent OMB from delaying FDA’s compliance with that deadline.
Competitive Food Rule – Section 208 of the Healthy Hunger-Free Kids Act of 2010 (HHFKA) requires the Secretary of Agriculture to establish, with limited exceptions, science-based nutrition standards for foods sold in schools other than foods provided under the Child Nutrition Act and the Richard B. Russell National School Lunch Act. While HHFKA required that these proposed regulations be promulgated “not later than 1 year after the date of enactment," which was December 13, 2010, the proposed rule had not even been submitted to OMB for review until March 8, 2012. The proposed rule remains under review at OMB. Given that HHFKA also provides that the interim or final regulation “shall take effect at the beginning of the school year that is not earlier than 1 year and not later than 2 years following the date on which the regulations are finalized,” the earliest this rule could go into effect would be for the 2014-2015 school year, even if promptly published and acted upon.