The uncertainty caused by the midterm elections—be it from the change in political party in control to the potential for violence in the leadup to and aftermath of the election—places stress on both individuals and companies. Internal company policies that may be in vogue with the current party in power may fall out of favor in Washington by 2023. Business lawyers will need to wrestle with the pressures of Washington and the expectations of company employees. For example, we have seen dozens of companies offer to pay for the travel expenses of employees, their spouses, and their partners to receive reproductive healthcare access if they live in states that have tightly restricted such access in the wake of Dobbs v. Jackson Women’s Health Organization. These policies have largely been embraced by employees and will likely be considered a major selling point to companies looking to attract and retain talent. On the other hand, these polices may cause companies to face scrutiny if even one chamber of Congress switches hands. In addition, if the chambers switch hands, business lawyers will need to establish and/or reestablish relationships with the officials and staff in power.
Even in the highly polarized political atmosphere that we currently live in, there will be areas for potential bipartisan compromise. We have seen recent bipartisan success with the bipartisan infrastructure bill and the gun safety bill. Further, there are certain things that Congress must pass in order to keep the government functional, including governmental funding and the debt ceiling. We may see bipartisan compromise surrounding immigration policies; the CHIPS Act of 2022 to strengthen semiconductor manufacturing, design, and research and improve national security; and certain privacy reforms. With the growing pressure on the U.S. labor market, Congress is being pushed by companies to expand immigration access. Business lawyers need to be prepared to potentially see changes in those areas and weigh in with concerns appropriately.
Beyond legislative activity, there is a high chance that if one or both of the chambers change hands, we will see an increase in Congressional investigational activities. Currently, we are seeing specific industries facing increased scrutiny, including big tech, oil and gas, healthcare and prescription drug manufacturers, and firearm manufacturers. If the House of Representatives switches hands, we may see investigations into which companies received funding from the American Rescue Plan Act of 2021. We may see clean energy companies come under an investigative magnifying glass. Further, despite the Supreme Court’s decision in West Virginia v. Environmental Protection Agency, we may see administrative agencies increase enforcement action and regulatory activity.
Overall, the American political atmosphere is rapidly changing. By the time this program is presented, some of the information contained herein will have already changed. It is imperative that a business lawyer working in this area stay abreast of each development so that they are properly advising their clients. The goal of this program is to provide the business lawyer with background and tips for how to keep current in this evolving world.
