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Arnold & Porter Unveils Post-Election Industry Analysis

November 9, 2020

Legislative, Policy and Regulatory Experts Weigh in on Priorities in a Biden Administration With a Potentially Divided Congress

+++ Analyses and webinars available now +++

Washington DC, November 9, 2020— Today, Arnold & Porter unveiled a comprehensive analysis of major policy issues and economic sectors and how they will fare in the first two years of the Biden Administration and the incoming 117th Congress. The report was prepared by a team of dozens of Arnold & Porter professionals—attorneys and policy specialists—spanning a range of practices and industry groups.

"Finding the healthcare pathways to let the American economy reopen in full, and repairing the economic destruction resulting from the pandemic, are the two issues most likely to define the Biden Presidency," noted Kevin O'Neill, a partner and chair of the Legislative practice group. "Identifying meaningful compromise on these issues, when partisan perspectives in the House and Senate are currently polar opposites, will be the biggest hurdle to success for the Biden Administration."

The analysis covers nine major policy areas. A topline excerpt from the policy areas are below. The firm is also hosting a public webinar, "Navigating the Post-Election Landscape," on Tuesday, November 10, 1:00- 4:30 p.m. ET, during which our legislative and regulatory professionals will discuss the post-election landscape.

Life Sciences & Healthcare

"COVID-19 response efforts will dominate the agenda as members of Congress continue to work through the political logjam of a divided Congress. We expect a more centralized approach with stronger reliance on public health experts and guidance, and enhanced transparency on data. The Biden Administration and Senate Republicans may reach accommodation on limited changes to drug pricing and transparency laws, as well as surprise medical billing. A wildcard for the healthcare agenda will be the Supreme Court's decision in California v. Texas, which could invalidate the Affordable Care Act in whole or part. The congressional response, however, will be complicated given the narrow Senate Republican majority.

We also expect significant changes in FDA policy and enforcement. And, congressional retirements bring new leadership to major health committees, creating opportunities to shape agendas and drive new policy."

Financial Services

"There is little prospect for significant financial services legislation, but the new Administration will not need it. Very little of the change in federal financial regulation over past four years was by legislative action and what was done by statue was relatively modest. Most of the 2010 Dodd-Frank Act reforms remain in place. By administrative actions including rulemakings and rule amendments, enforcement actions (particularly in consumer protection), and changes to leadership of SEC, CFTC, OCC, FDIC, CFPB and FSOC to emphasize different policy issues, the Biden Administration can achieve its substantive goals.  Expect change in course on rulemakings on DOL fiduciary rule, true lender/valid when made rule, student lending, Fair Lending/CRA, and D&I issues. Notably, the financial services industry has remained resilient through the current COVID/economic crisis, and does not need major overhaul. Strong possibility of bi-partisan action on an updated version of CARES Act to address the economic impacts of the lingering health and financial crisis. Expect Rs to use courts to attempt to challenge everything the new Administration does, but four years of judicial precedents from the courts allowing the Trump Administration free reign on administrative actions will be hard to reverse on any principled basis as applied to a Biden Administration."

Education & Workforce

"The priorities of the Democratic-controlled House in the 116th Congress provide a blueprint for the policies and priorities likely to gain traction with a new Biden Administration, yet the pandemic and a split Congress may slow movement on long-awaited legislation, such as the Higher Education Act reauthorization, or force Congress to take a piecemeal approach."

Energy & Environment

"While the divided Congress may stymie major legislative changes impacting the power sector, we expect success as to efforts to spur increasing levels of investment in solar and wind power improvements, energy storage, and grid modernization."

Foreign Affairs

"Biden's victory will mean a return to a more multilateral US foreign policy, including rejoining the World Health Organization and the Paris Climate Accords and potentially the Iran deal, or a revised form of it. Continued Republican control of the Senate will make it harder for a Biden Administration to secure confirmation for controversial nominees and result in opposition to some Administration initiatives, such as a new Iran deal."

Tax

"With the Senate remaining under Republican control, it will be difficult for President-elect Biden to push through his tax policy initiatives, including increasing taxes on wealthy individuals and corporation or the green energy tax incentives. Necessity makes strange bedfellows, and President-elect Biden and the Democrats may be able to join forces with moderate Republicans to push through a new stimulus package, perhaps coupled with modest tax increases to offset the cost of some of that additional spending."

Technology

"President-elect Biden and Republican congressional leaders will find themselves on the opposite side of several key technology policy issues, including net neutrality, online privacy, autonomous vehicle regulation, and civil rights protections in connection with artificial intelligence and facial recognition. The executive branch likely can act alone to address some of these issues, such as reinstatement of the Obama-era net neutrality rules. But in other areas, such as potential amendments to Section 230 of the Communications Act, enactment of legislation will require incoming administration officials to successfully navigate political obstacles that will be challenging to avoid."

Trade

"Don't expect flashy Biden trade initiatives coming out of the gate, but watch how national security, technology innovation, and domestic politics combine to create a mixed picture of trade protection and trade opening."

About Arnold & Porter

With nearly 1,000 lawyers practicing in 14 offices around the globe, Arnold & Porter serves clients across 40 distinct practice areas. The firm offers 100 years of renowned regulatory expertise, sophisticated litigation and transactional practices, and leading multidisciplinary offerings in the life sciences and financial services industries.

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