Two of Sonnenschein Nath & Rosenthal's Washington, D.C. partners who counsel business on legal and regulatory issues, one a veteran of two Republican administrations, the other a former national chair of the Democratic Party, shared their thoughts on the impact of Election 2008 on issues of particular concern to in-house attorneys. Excerpts from the two interviews follow:
I have not heard McCain make a pronouncement on EFCA [the Employee Free Choice Act, which would make it easier for unions to organize and compel mandatory arbitration if they fail to reach an agreement with management]. But do I think McCain would veto that? I suspect he would. Do I think he would be able to sustain a veto? That again would depend on the makeup of the House and the Senate. Because it is not a veto that would be supported by just Republicans--I think you would have a mix of Republicans and Democrats supporting him on the veto. It depends on what part of the country they are from.
On the Democratic side, there may be some effort to roll back on the reforms, but frankly that needs to take place in the states and not on the federal level. Which of course makes it more difficult on business because then they have a 50-state regulatory scheme. But sometimes they want that. So I haven't seen anything and I don't have any expectation of that being a big issue because it's kind of a Republican issue, but not necessarily a McCain issue.
Having said that, there are all these independent issues that obviously general counsels have to deal with. Those fall into two categories--what will affect my business individually, and what will affect business writ large. You have very different conversations about different issues. If you ask American business leaders, all will list health care in top two or three, same with climate change, but the intensity is focused on those who are producers or users of quantities of energy.
So you always have these conversations about breadth versus depth of intensity when I talk to CEOs and general counsel. The bigger the company, the more they are concerned about the broader issues and there are fewer they are intense about. They want to know, how will the Democrats improve the economy? What are we going to do about health care? They tend to get focused for understandable reasons on the big trends that either are headwind or tailwind rather than on individual issues before the Senate.
The two presidential candidates are closer than we have seen in a long time. They are significantly closer than you would assume a Democratic and Republican candidate would be. And that's why the battle is focused on the House, even more than the Senate. On this issue, even Republicans in the Senate are more progressive than Republicans in the House. The most conservative Republicans in the House, those who have led the anti-immigration reform charge, are often some of the most embattled right now in an unusual election year.
There is a concern that there has been too much partisanship within the appointment of federal judges. But in particular we have just gone through a two-and-a-half-year-long investigation of whether there was partisanship in the appointment of U.S. attorneys.