Well, thank the lord we don't have to go through that again for another few years.
As we all sift through election results this morning, tip your hat to the Democrats, who won big last night, and spare some sympathy to Republicans, who must feel like they were hit by a truck. And let's spend a bit of time pondering what this will all mean for compliance executives in the next year, stuck on that perch between corporate behavior and public policy.
The Senate. This chamber saw all the real action last night. The Democrats picked up two seats—if you include the two independents, who typically caucus with the party; and we assume Sen. John Tester wins re-election in Montana, which he seems poised to do—to give them 55 votes come January. That's not enough to end a Republican filibuster and railroad legislation into law, no, but more telling is who these 55 senators are.
Elizabeth Warren, the liberal firebrand from Massachusetts? She won. She is bound to be named to the Senate Banking or Finance committees, so anyone talking about legislation to curb the reach of the Consumer Financial Protection Bureau should forget about that. She will not allow that to happen, and will be a potent, articulate foe of any effort to undercut the CFPB's budgetary independence or check its regulatory reach.
Tester will probably be another important player in any effort to tinker with the Dodd-Frank Act next spring; he currently chairs the Senate Banking Committee's sub-committee on economic policy. As of this morning, Tester seems likely to win a second term, although that's not confirmed—his is the last Senate race in the nation still uncalled.
Likewise, the chairmen of the Banking Committee's other sub-committees on securities regulation, international trade, and financial institutions are all still in place. And everyone is still in place over at the Senate Judiciary Committee, too, which means no new faces in any debate to change the scope of the Foreign Corrupt Practices Act.
All that said, remember that Senate Republicans lost very little last night. They saw one seat in Maine go from GOP to independent, and one seat in Indiana go from Republican to Democrat. But the Republican senators who will have the most power to reform corporation law next year—Sen. Minority Leader Mitch McConnell, Sen. Chuck Grassley on the Judiciary Committee, and Sen. Bob Corker on the Banking Committee—are all still hanging around.
Dude, are you high? Colorado and Washington both legalized the use of marijuana last night; Massachusetts, which de-criminalized possession of a joint in 2008, also legalized it for medical purposes.
How does smoking dope have anything to do with compliance? Employee background checks and personnel reviews, which just became much more delicate operations. For example, I know one legal officer of a social services organization in California, where a drug counselor on staff announced that he now uses medical marijuana. Can she fire him? Nobody knows. Or how about firing people for flunking a drug test, when a positive result for marijuana is no longer a crime in at least two states? Rest assured, your HR director is going to be confronted with questions like this.
In truth, I suspect most of these questions will get settled in favor of corporations, and that even assumes these state legalization laws will survive legal challenges in court—but then, that's the problem. These questions will end up in court, and somebody is going to pay outside counsel to argue them. That somebody will probably be you or your boss in the general counsel's office. You may need a toke or two yourself before all this is over.
While we're on the subject of HR headaches: Maine, Maryland and Washington all legalized gay marriage, and Minnesota defeated a proposal to prohibit it. The tax and legal issues surrounding gay couples—where their unions are recognized at the state level, but not at the federal—have already been well-documented, so we won't rehash them here. But more businesses now will have employees in that situation, at least until the Supreme Court strikes down anti-marriage laws nationwide sometime in the next few years—which, sooner or later, it will do.
Speaking of the Supreme Court…
Farewell, 5-4? Two liberal justices, Ruth Bader Ginsburg and Stephen Breyer, are in their 70s and will likely retire while their successors can be nominated by a Democratic president. One liberal appointee replacing another, however, is not much news—the possible retirements of conservative justices Antontin Scalia or Anthony Kennedy, both 74, or Clarence Thomas, 68, will be the show-stoppers. It's entirely possible that all three men will stay on the bench into 2017 in hopes of a Republican president then, but perhaps not. Time will tell.
And don't forget all those appellate court slots across the country, either. They are where legal precedent really gets set in this country, and they will be Democratic appointees for another four years.
The Obama Administration, Part II. Oh yeah, we re-elected Barack Obama, too. That should surprise nobody who has been paying attention. Mitt Romney was a terrible candidate, and the Republicans should have learned by now that the sort of person who survives their cockamamie primary season is not the sort the rest of the country will support. I say should have learned, but somehow I suspect the “Rick Santorum 2016” signs are already being printed. (I also suspect Romney picked Paul Ryan as his running mate knowing, in some far corner of his mind, that if he lost Ryan would need to be the counterweight to the Santorum camp in coming years.)
Anyway, the news here will not be what Obama does in the next four years—which won't be radically different than what we've seen in the last two—but whom he appoints to help him do it. We'll have a new chairman of the Securities and Exchange Commission; a new treasury secretary; probably a new attorney general and new deputies in charge of FCPA and fraud enforcement; and perhaps a new chairman of the Federal Reserve in 2014. Many others will go through the revolving door between now and next spring, too.
I'll leave other pundits to guess who will serve in the second Obama Administration. The real question is whether weakened Republicans in the Senate will try cooperation with Democrats and the president this time, or repeat their strategy of blocking every proposal at every turn, no matter what. I honestly don't know—because if they blew it last night, with so many opportunities to put forth a better vision of the country, you have to wonder whether they fundamentally just don't get it.