INSURANCE ALERT WHAT THE US MID-TERMS MEAN FOR THE INSURANCE SECTOR

Transcription

1 INSURANCE ALERT WHAT THE US MID-TERMS MEAN FOR THE INSURANCE SECTOR By William C. Marcoux and Steven R. Phillips Last week the Republican party surprised many observers by securing substantial gains in the 2014 mid-term elections at multiple levels of government. Republicans won control of the US Senate and increased their majority in the US House to the highest level since the Great Depression. Republicans also won at the state level and increased the number of Republican governors to 31 and the number of state houses they control to 69 of 99. As observers of US insurance regulation know, every two years, in connection with our federal and state elections cycles, there is a shakeup of the state insurance commissioners. This year will be no different. After the 2014 midterm elections, there will be some key insurance regulatory personnel changes. This is particularly important because these changes come at a time when state insurance commissioners are responding to a number of significant challenges. These include the continuing evolution of the Federal Insurance Office and the emergence of the Federal Reserve as an insurance regulator and a strong voice on insurance regulatory policy. At the same time, US regulators are faced with a number of issues on the international front including international capital standards and group supervisions issues within the International Association of Insurance Supervisors (IAIS) and equivalence issues with our largest insurance trading partner the European Union. Accordingly, at a time when continuity can be advantageous, there will be substantial changes at the state and federal levels that will profoundly affect the insurance and financial services industry. This alert looks at the impact of these elections results.

2 FEDERAL ELECTIONS With the balance of power split at the federal level between a Democratic White House and a Republican Congress, conditions are ripe for a challenging next two years in Washington, DC. Republicans have promised to demonstrate their ability to govern and President Barack Obama has vowed to take executive action where he deems necessary. Coupled with significant changes in leadership and makeup of the House Financial Services Committees and the Senate Banking Committee, the 114th Congress will be one to watch. Overview of the outcome of the federal elections In what was a decisive election for Republicans, the GOP will control both the House and Senate in the 114th Congress. Speaker John Boehner and Leader Mitch McConnell have vowed to move legislation through both chambers and restore regular order to the House and Senate. Writing in the Wall Street Journal, they resolved to restore an era in which committees in both the House and Senate conduct meaningful oversight of federal agencies and develop and debate legislation; and where members of the minority party in both chambers are given the opportunity to participate in the process of governing. Despite Republicans controlling both the House and Senate, they lack a filibuster- or veto-proof majority which will affect what legislation has the ability to both pass Congress and be signed into law. President Obama has been upfront about his intent to use his position of influence in the legislative process and his ability to take executive action. At a post-election news conference, Obama stated, Congress will pass some bills I cannot sign. I m pretty sure I ll take some actions that some in Congress will not like. Macro factors that shaped the elections There were several macro factors that shaped the elections: (1) President Obama s low approval rating; (2) the generic ballot that heavily favored Republicans; (3) Independents that broke for Republicans by double-digits; (4) an election map that also favored Republicans; and (5) historic mid-term election trends. President Obama suffered from a low approval rating (42 percent approval 53.2 percent disapproval) going into Election Day. i Republicans led the generic ballot by 12 points heading into November, by percent among likely voters; ii and Independents favored the GOP by 18 points. iii The Map Senate battles were fought on deep Red turf; shrunken House playing field via redistricting/realignment; and gubernatorial elections featured relatively strong/popular incumbents. Historically, the sixth year midterm elections of an incumbent presidency have seen the party in the White House lose seats in both the House and Senate. US Senate Prior to the 2014 mid-term elections, Democrats held a majority over Republicans, which meant Republicans needed a net swing of +6 seats for majority control out of 14 targeted races. After 36 Senate seats were voted on, Republicans emerged with at least 53 seats with one race in a run-off (Louisiana, see below). Some expect the Republicans could win the remaining seat, and, if so, they would have a majority. Louisiana Senator Mary Landrieu (D) (incumbent) vs. Bill Cassidy (R) (run-off election set for December 6, 2014).

3 The 2014 electoral map was Republican-leaning with seven Democrats up for re/election in states that went for Mitt Romney in 2012, while Republicans only had to defend one seat in a state that went for President Obama (Senator Susan Collins, Maine). There will be 12 new senators in the 114th Congress: Shelley Moore Capito (R-WV), Tom Cotton (R AR), Steve Daines (R-MT), Joni Ernst (R-IA), Cory Gardner (R-CO), James Lankford (R-OK), David A. Perdue (R GA), Gary Peters (D-MI), Mike Rounds (R SD), Ben Sasse (R-NE), Dan Sullivan (R AK) and Thom Tillis (R-NC). Pre-Election Post-Election* Democratic Caucus 53 Democrats + 2 Independents 44 Democrats + 2 Independents Republican Caucus 45 Republicans 53 Republicans *Note: Louisiana is scheduled for a December 6 runoff. The Alaska race was called in favor of Republican Dan Sullivan; however, the Democratic incumbent has not conceded as of November 12 US House of Representatives The 2014 mid-term elections resulted in the largest GOP majority in nearly a century. Not since Herbert Hoover was President in 1928 have Republicans controlled more than 246 seats. As of November 12, Republicans increased their majority by 12 seats, including six special election wins, and at least 38 new members will join the Republican caucus in January. The 2010 Republican wave midterm elections allowed the GOP to control the redistricting process in many states. As a result, Republicans will continue to enjoy favorable districts for the remainder of the decade. Democratic Caucus Republican Caucus Pre-Election 199 Democrats 233 Republicans Post-Election* 184 Democrats 244 Republicans Financial Services/Insurance Committees outlook for the 114th Congress House Financial Services Committee The current chairman of the House Financial Services Committee is Representative Jeb Hensarling (R-TX), and he is expected to return as chairman in However, Representative Frank Lucas (R-OK), who has just finished his term as chairman of the House Agriculture Committee, has said he will challenge Hensarling for the chairmanship. Representative Maxine Waters (D CA) is expected to return as the ranking Democrat on the committee. Three members of the committee are leaving the House for the Senate, Representatives Shelley Moore Capito (R-WV), Tom Cotton (R AR) and Gary Peters (D-MI), and could end up as members of the Senate Banking Committee next year. Senate Banking Committee The Senate Banking Committee faces a major turnover in Senator Tim Johnson (D-SD), the current chairman of the committee, is retiring, as are two other members of the committee, Senators Tom Coburn and Mike Johanns. Senator Kay Hagan will be not be returning to the Senate in 2015 after losing her race to Thom Tillis. *Note: Pre-election there were three vacancies in the House; as of November 12 there were seven uncalled races.

4 Senator Richard Shelby (R-AL) is expected to become chairman of the committee. Senator Shelby is a proponent of easing Dodd Frank regulations, but some claim that he is no friend of Wall Street. He opposed the Wall Street bailout and has supported measures to shrink the size of the largest banks. Senator Sherrod Brown (D-OH) is expected to become the ranking member of the committee, skipping over three senators who have other leadership positions: Senator Jack Reed (D RI), Armed Services; Senator Charles Schumer (D-NY), Senate leadership; and Senator Robert Menendez (D NJ), Foreign Relations. Senator Brown has been a tough critic of Wall Street and a leading proponent of action to end too big to fail policies and break up big banks. Legislative/regulatory outlook Both the House Financial Services Committee and the Senate Banking Committee can be expected to focus next year on measures to reduce the regulatory burden on business and the financial industry. Terrorism Risk Insurance Act (TRIA) Extension: One key issue that is likely to be addressed in the lame-duck session is the TRIA extension. If Representative Hensarling cannot find more support for his committee s five-year extension bill (that has substantive reforms), some will push for the House to take up a version of the Senate bill, which extends the current program with minor changes and was approved by a 93-4 vote. However, if an agreement cannot be reached, House leadership will support a short term extension of TRIA, giving the House an opportunity to put together a long-term extension with the new Republican majority in the Senate next year. Dodd-Frank: The two committees will consider proposals to: revise a number of Dodd-Frank provisions, including proposals to restrict the Consumer Financial Protection Bureau and the Financial Stability Oversight Council, ease regulations on community banks, and revise the regulations implementing the Volcker Rule. While any of these proposals could pass the House, many if not all of them could be blocked in the Senate if Democrats object. Some of the Dodd Frank reform legislation could secure bipartisan support, thus increasing its chances of passing. Capital Standards Bill: As the IAIS finalize basic capital standards that they expect all insurance regulatory systems to adopt, Congress is attempting to clarify the capital standards imposed on insurance companies supervised by the Fed pursuant to Dodd-Frank, which are bank centric. Members of the House and financial industry groups are urging the Senate to accept the House-passed bill, which added a number of amendments to the Senate bill. However, many expect the clean Senate version of the bill to be approved. Financial Regulator Oversight and Reform: Longer term, we expect efforts by the new Congress to curb FSOC s power to designate nonbank financial firms as systemically important. Additionally, we expect increased oversight over the actions and activities of all of the financial regulators, including the Federal Reserve and the Federal Insurance Office.

5 STATE ELECTIONS The Republican victories in Congressional races were mirrored in the 36 state governor elections, where Republican candidates won the majority of gubernatorial elections. Gubernatorial races Most commissioners are appointed by governors, so the outcome of these elections could change the make-up of the National Association of Insurance Commissioners (NAIC). For the most part, though, most commissioners jobs should be unaffected by the elections, with the notable exceptions of those states where the governor switched parties, such as: Arkansas: The Republican candidate, Asa Hutchinson, defeated the Democratic candidate, which may impact Commissioner Jay Bradford who was appointed by the outgoing Democratic Governor. Commissioner Bradford serves on the NAIC Market Regulation and Consumer Affairs (D) Committee. Illinois: The Republican candidate, Bruce Rauner, defeated the incumbent Democrat, which may impact Director Andrew Boron. Director Boron serves on the NAIC Property and Casualty Insurance (C) Committee as well as a number of task forces. Maryland: The Republican candidate, Larry Hogan, defeated the Democratic candidate, which may impact Commissioner Therese M. Goldsmith, who was appointed by the outgoing Democratic Governor. Commissioner Goldsmith s term is set to end on May 31, She is the current vice chair of the NAIC Market Regulation and Consumer Affairs (D) Committee and the chair of the Market Regulation Accreditation (D) Working Group. Massachusetts: The Republican candidate, Charlie Baker, defeated the Democratic candidate, which may impact Commissioner Joseph Murphy, who was appointed by the outgoing Democratic governor. Commissioner Murphy serves on the NAIC International Insurance Relations (G) Committee and the Property and Casualty Insurance (C) Committee as well as a number of Executive Committee groups. Vermont: Although the incumbent Democratic candidate led the Republican challenger when all votes were counted, a Vermont governor is not elected unless s/he receives 50 percent of the vote. Unlike other states with this rule, in Vermont the legislature votes on the governor. The incumbent Democrat is expected to win because the election will be decided by the Democrat-controlled legislature. This is important because Commissioner Susan Donegan, who has become increasingly influential on NAIC corporate governance and related IAIS matters, will not be replaced as a result of the election. Ironically, the two races that may have the most impact on the membership of the NAIC were won by Democrats in the following states: Pennsylvania: Tom Wolf defeated incumbent Republican Tom Corbett, raising questions about Commissioner Michael Consedine s future. Commissioner Consedine currently serves as the Vice President of the NAIC (which means he is in line to be NAIC president), is the chairman of the NAIC International Insurance Relations (G) Committee, serves on the Federal Advisory Committee on Insurance, which advises the Federal Insurance Office, and has been extremely active on the international insurance regulatory stage. Commissioner Consedine acts as the NAIC s representative to US EU Insurance Dialogue Steering Committee and is an active participant

6 in the International Association of Insurance Supervisors (IAIS). Should he depart, most believe this would be a significant loss to the strength of the US regulatory team dealing with international issues and to the NAIC leadership generally. Connecticut: Incumbent Democrat Dan Malloy won re-election in a race in which his Republican opponent had been favored up until the last few days before election day. The significance of this result is that Commissioner Thomas Leonardi, who enjoys tremendous support from Governor Malloy, could remain commissioner, assuming he does not decide to pursue other option (as has been rumored by some sources). Commissioner Leonardi s regulatory agency has jurisdiction over one of the largest insurance industries in the US Commissioner Leonardi also serves as one of only two US insurance commissioners on the Executive Committee of the IAIS, sits on the IAIS Financial Stability Committee and also served on the Technical Committee, having the distinction of being the only US regulator to sit on all three IAIS committees at the same time. He is active on more than 15 supervisory colleges for large internationally active insurance and reinsurance groups in the US and Europe. Accordingly, it will be important to see what Commissioner Leonardi does. Insurance Commissioner elections Commissioners were up for election in a small number of states, with the following results: California: Dave Jones was re-elected. Georgia: Ralph Hudgens was re-elected. Kansas: Republican Ken Selzer was elected to be the next insurance commissioner, defeating the Democrat for the job that Republican Sandy Praeger is vacating. Commissioner Praeger has been the long-time chair of the NAIC Accident and Health Insurance and Managed Care (B) Committee and led the NAIC s efforts to implement the Affordable Care Act. The loss of her expertise on health insurance regulatory matters will be difficult for the NAIC to replace. Oklahoma: John Doak was re-elected. Of course the changes on the state level do not end with the 2014 elections. The NAIC will meet this week. They will have their own elections for NAIC leadership. Early in the new year, the NAIC will make committee and other important assignments. CONCLUSION The 2014 elections conclude a year of significant changes and challenges to the US insurance and financial services industry. Numerous substantive regulatory developments have taken place over the last year internationally and domestically. Now, the changes in Congress and state capitals, with the resulting impact on NAIC leadership, mean the political underpinning of the US insurance regulatory system is in flux as well. This will have repercussions in a number of critical areas, such as TRIA, Dodd-Frank and the efforts to develop international capital standards. These political changes will affect regulators, too, as the growing federal insurance bureaucracy at agencies such the Fed, FSOC and FIO are expected to face increased Congressional oversight and may have their original mandates significantly altered. All of this will continue to play out in a stabilizing yet still uncertain and fragile economic climate. We will continue to monitor all of the moving parts that impact the industry.

7 ABOUT US DLA Piper is a global law firm with 4,200 lawyers in the Americas, Asia Pacific, Europe and the Middle East, positioning us to help companies with their legal needs around the world. Find out more at LEARN MORE Find out more about the meaning of the mid-term outcomes for your business by contacting: William C. Marcoux T bill.marcoux@dlapiper.com Steven R. Phillips T steven.phillips@dlapiper.com Peter S. Rice T peter.rice@dlapiper.com Bruce Thompson T bruce.thompson@dlapiper.com Carla Small T carla.small@dlapiper.com Sarah Donovan T sarah.donovan@dlapiper.com

8 Copyright 2014 DLA Piper LLP (US) All Rights Reserved This bulletin is intended as a general overview and discussion of the subjects dealt with. It is not intended, and should not be used, as a substitute for taking legal advice in any specific situation. DLA Piper will accept no responsibility for any actions taken or not taken on the basis of this publication. Pursuant to applicable Rules of Professional Conduct, it may constitute advertising. Circular 230 Notice: In compliance with US Treasury Regulations, please be advised that any tax advice given herein (or in any attachment) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax penalties or (ii) promoting, marketing or recommending to another person any transaction or matter addressed herein. i RealClearPolitics, October 23-November 5, 2014 ii AP-GfK, October 16-20, 2014 iii CBS, October 23-27, 2014