Marc Elias of Perkins Coie, addressing media outside the U.S. Supreme Court after arguing two redistricting cases on Dec. 5, 2016. Photo: Diego M. Radzinschi/ALM

Tuesday’s midterm elections began creating new legal business for Washington lawyers long before the votes were finalized nationwide.

Control of the House of Representatives changed hands to Democrats, Republicans expanded their majority in the U.S. Senate, and lawyers moved quickly to capitalize on the nation’s new divided government before exact tallies in either chamber are fully known.

Marc Elias, chair of Perkins Coie’s political law group, is representing incumbent Sen. Bill Nelson, D-Florida, as the Sunshine State’s only statewide-elected Democrat fights for a recount against Gov. Rick Scott, his Republican challenger. Elias, who has argued several gerrymandering cases before the U.S. Supreme Court and has become a go-to lawyer for Democrats in election showdowns and redistricting fights, shared news of his representation on Twitter.

However the Florida recount of 2018 ends, it does not look likely to determine the balance of power in any branch of the federal government, nor to strip Republicans’ control of the U.S. Senate.

Tim Hutchinson, former Arkansas senator and lobbyist at Greenberg Traurig, said Wednesday that the election results made his Grand Old Party even more closely aligned with President Donald Trump’s insurgent administration.

“America remains very, very divided,” Hutchinson said regarding his takeaways from Tuesday’s results during a webinar hosted by Greenberg Traurig. “The Kavanaugh vote, number two, was decisive in a lot of these Senate races; it changed the momentum. … And then my third point is that the president’s grip on the GOP is stronger than ever.”

Albert Wynn, a former Democratic congressman from Maryland and Greenberg Traurig senior director, said he thinks California congresswoman Nancy Pelosi’s grip on her own party will be tighter than people expect if she becomes the next Speaker of the House. Wynn said during Wednesday’s webinar that he anticipated Pelosi would win the House’s top spot and that she would govern her fellow Democrats with an “iron fist inside a velvet glove.”

Taken together, Greenberg Traurig’s government law and policy group seemed to think some legislative action could occur on infrastructure and trade issues, but new investigations would certainly be mounted from a Democrat-controlled House of Representatives.

Wilmer Cutler Pickering Hale and Dorr partner Reginald Brown, who heads his firm’s congressional investigations practice, said he did not think Democrats would necessarily be hyper-aggressive on the investigations front.

“I think the suggestion that this [new Congress] is going to change everything and that there will be investigations from dawn to dusk is not right,” Brown said. “There’ll be some changes, but they’ll be modest changes.”

Wilmer; Covington & Burling; Akin Gump Strauss Hauer & Feld; and Gibson, Dunn & Crutcher together stand to earn the lion’s share of work on congressional investigatory matters, in Brown’s view, but a new regulatory enforcement climate and differing Democratic priorities could yield new opportunities for legal business.

Brown said he thinks Democrats will focus on consumer-protection-related issues, the Environmental Protection Agency’s activity and climate change issues, and safety issues as they pertain to emerging technologies such as those incorporated into driverless cars and drones.

Democratic priorities could also have a collateral impact on litigation, but much is yet to be determined—including who will serve as the next attorney general. U.S. Attorney General Jeff Sessions’ letter of resignation, submitted to Trump on Wednesday following the election’s outcome, could prove to be the biggest factor shaping legal business in Washington in the months and years to come.

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