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Predicting the priorities of a new Congress is always an uncertain business, but there is no mistaking a new mood of buoyant determination in the GOP-strengthened House and Senate. A handful of civil justice reform issues, an energy bill, and the reauthorization of certain sections of the USA Patriot Act are among the key pieces of legislation a re-energized Republican majority is almost certain to try to accomplish. And Congress will once again try to hash out its version of the recommendations of the 9/11 Commission, legislation that is now sitting in a House/Senate conference committee with significant differences between the two chambers. By any reckoning, Senate Republicans made serious gains. Seven new Republicans were elected to the Senate; one, former Rep. Tom Coburn, replaced retiring GOP Sen. Don Nickles in Oklahoma. But Republicans lost two seats to Democrats — in Colorado and Illinois — creating a net gain of four and swelling their ranks to 55. That’s still not the 60 needed to stop debate and force a vote, but it’s significantly closer to that magic number than before. “It’s a big difference,” says veteran GOP lobbyist Charles Black Jr. “Having four more Republican senators strengthens your hand.” Even so, the additional GOP members may only provide minimal help in some areas, especially when it comes to the various legal reform bills expected to be introduced. Several of the new members replace senators who were already in the legal reform camp, two of the newcomers are Democrats who traditionally oppose civil justice reform measures, and at least one, newly elected Republican Sen. Mel Martinez of Florida, is the former head of the Florida Academy of Trial Lawyers. The House, meanwhile, where minority rights are sometimes viewed as an oxymoron, remains even more firmly in the GOP’s grip and far more likely than the Senate to carry out a presidential agenda. A CHANCE FOR COMPROMISE? The significance of the Senate’s larger GOP majority, however, may hinge more on the legislative strategy of the new Senate Democratic leadership than on anything else. Senate Minority Leader Tom Daschle, the only Senate incumbent to lose on Nov. 2, was widely viewed by many Republicans as spending more time obstructing their agenda than trying to reach a legislative compromise. His defeat, they say, and his expected replacement next year by Nevada’s Harry Reid, the Democratic whip and a skilled floor tactician, may lead to a change in tactics. “Daschle was the poster child for obstructionism,” adds a former senior Republican Senate staffer who now lobbies. “The question is how Democrats will respond to the loss of the poster child.” That response could be what longtime Senate Parliamentarian Robert Dove calls “a real change of heart.” Dove, now a consultant at Patton Boggs, believes a change could be evident as early as next week when the lame duck Congress reconvenes. The decisiveness of the GOP victory in the 2004 election, Dove says, “settles a lot of issues, and settles them in a way that enormously increases the power of the majority leader and his agenda.” After the 2000 election, says Dove, many Democrats believed that it was only a matter of four short years before George W. Bush’s “illegitimate” presidency was overturned. “The obstructionism was a symptom of this,” he says. “Now it’s time to make your peace with the devil, and act the way the Senate usually acts — with both sides getting something.” And that means that especially knotty legislation — such as reaching an asbestos settlement that satisfies not only trial lawyers but also insurance companies, asbestos makers, and labor unions — may finally be achieved. At issue is the size of a trust fund, now totaling more than $100 billion, and the medical criteria used to determine who has a valid claim. Most Congress watchers believe that the lame duck session, which begins on Nov. 16, will do no more than the bare minimum: Members will pass the mandatory spending bills and then leave town, not returning until January. But when the 109th Congress does convene, there ought to be plenty of action with little delay. “My experience says that the administration has only a limited time before it becomes a lame duck itself,” says David McCurdy, a Democrat who represented Oklahoma’s 4th District for 14 years and now heads the Electronic Industries Alliance. “The longer it takes, the more independent these agendas become.” LEANING TOWARD LEGAL REFORM Bush himself has already outlined an agenda that puts “legal reform” at the top of his priority list, one whose “groundwork has been laid,” he noted during a Nov. 4 news conference. “Med mal, asbestos, class action, none of these are slam dunks, but this is the best opportunity we’ve [had] at the federal level in years,” says Kevin McMahon, the chairman of the American Tort Reform Association and vice president for government affairs at TRW Automotive Inc. Most likely to pass is so-called class action reform, which would move class actions from state courts to federal courts, where they often have a harder time being certified. “Putting them into federal court would allow a broader view from perhaps a more sophisticated judge looking at the issue of certification,” says Stanton Anderson, who heads the U.S. Chamber Institute for Legal Reform. The bill, which passed the House last year, died in the Senate in July after its supporters failed to overcome a filibuster on an amendment to the legislation. A clean bill, however, is believed to have more than 60 votes. If supporters want such legislation to pass during the lame duck period, Anderson and his team must persuade appropriators to attach the legislation to their spending bills, something they are often reluctant to do. Otherwise, they’ll have to wait for the new Congress. “If the decision is made to have riders, then we want to be at the top of the list,” he says. The urgency, adds Stanton, comes from not knowing for sure what will be on the legislative calendar next year. One thing that worries him: A drawn-out fight over the Supreme Court. “If there’s a Supreme Court nomination,” he says, “then that will suck up everybody’s time and energy.” Supreme Court watchers believe up to four vacancies may occur on the Court before Bush’s second term expires, including the seat of Chief Justice William Rehnquist. A key player in these vacancies, in other judicial nominations, and in any legal reform issues will be the new chairman of the Senate Judiciary Committee, Arlen Specter (R-Pa.), who has served on the committee since he was elected to the Senate in 1980. (See ” High Court Takes Center Stage After Election.”) Specter, who will be replacing Utah’s Orrin Hatch, played a major role in trying to broker a deal on asbestos litigation in the 108th Congress. His chairmanship could give that issue a serious boost toward passage next year. Historically, says Shook, Hardy & Bacon partner and longtime civil justice reform advocate Victor Schwartz, Specter has a mixed voting record on legal reform issues. “He’s very unpredictable,” says Schwartz. “I feel like I have a chance with him, but you rarely know until the last minute how he’s going to vote.” Medical malpractice reform, despite the gain in Republican seats and President Bush’s strong support, is still considered a tough, uphill fight. “The hurdle for medical liability has always been the cap of $250,000 on pain and suffering,” notes Mark Behrens, Schwartz’s colleague at Shook, Hardy. “Med mal is a more-complicated issue,” concedes Anderson. “We are 10 to 12 to 15 votes shy in the Senate. But given the changes in the Senate, modifying the cap size — [California Democrat Sen. Diane] Feinstein is looking at $500,000 — we could cobble something together. I’m much more optimistic now.” Even Martinez, the newly elected senator from Florida and a trial lawyer, said during his campaign that he would support a $500,000 cap. ENERGY BOOST While the current Congress came close to passing class action reform, it was also just as close to passing a comprehensive energy bill, one that would include tax breaks and air compliance waivers, a doubling of ethanol production, and, most controversially, retroactive liability protection for makers of the gasoline additive MTBE, which has contaminated water supplies in more than two dozen states. “They probably now have the 60 votes they needed last year,” says one energy lobbyist who worked the bill. “If the majority in the House and Senate play it right, they can get a bill. But if you add ANWAR and all the things business wants, that may push the total below 60,” he adds, referring to the 19-million-acre Arctic National Wildlife Refuge, where oil companies are keen to drill. The problem, notes Van Ness Feldman partner Robert Nordhaus, is that the world has changed significantly since the last energy bill was crafted early in the Bush administration. “That bill was responding to the California energy crisis, when oil prices were under $20 a barrel. Since then, oil is two and a half times the price. Natural gas, at least three times higher. And gasoline has almost doubled since 2001. Now, the issue is supply and price.” A reauthorization of key provisions of the Patriot Act may also be more likely to happen. The act, which expanded law enforcement powers in the wake of 9/11, has 16 provisions that are due to expire at the end of 2005. Among the sunsetting provisions are those allowing emergency disclosure of e-mails without a court order and access to business records. The Center for Democracy and Technology’s Lara Flint says Congress went too far in passing the legislation originally. “Now that we have some hindsight and perspective, there’s an opportunity to see if some provisions need fixing,” Flint says. “A lot of what the Patriot Act did was not add powers, but remove safeguards. We just want to provide additional checks and balances.”

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