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Oct 2014
28
October 28, 2014

From the Capitol - October 2014

 
 
The Michigan Legislature has adjourned so that lawmakers seeking re-election can campaign full time. Both the House and Senate are scheduled to return on Nov. 6 to elect leadership for the next session. That date will mark the beginning of the Legislature’s “lame duck” session, that period of time after the November election but prior to the new session in January. It often features a flurry of legislative activity, often lasting into the late hours of the evening or early morning hours. It is also a time when much political horse-trading takes place in order to enact lawmakers’ pet legislation.
 
It now appears the Legislature will have 12 to 14 session days in order to dispense with pending legislation considered by leadership as a priority. While members will meet for a few days in November, the real action will take place in the first three weeks of December. That is due to the observance of the traditional two week legislative break for firearm deer season (beginning Nov. 15) and the Thanksgiving Holiday.
 
Of course, the length of the lame duck session and the issues addressed may be dependent on the outcome of the November general election. Republicans currently control all three branches of government, but a Democratic upset win in the gubernatorial race, or one of the Chambers of the Legislature, could alter plans.
 
Below are the key issues which may be addressed during the lame duck session. In addition, with the election just days away, we predict the winners and reasons why we expect certain candidates to prevail:
 
 
 
Some legislators have said that the road funding issue will suck the air out of the remaining days of session. Over three years ago, Gov. Rick Snyder proposed a series of “revenue enhancements” to pay for roads, including a sharp increase in vehicle registration fees and a restructuring of the fuel tax. It has been estimated that fixing Michigan’s infrastructure and road problems will cost well over $1 billion. Yet, the Legislature, especially in an election year, is loath to raise fees or taxes.  Earlier this year, House Speaker Jase Bolger proposed a series of measures meant to address about $500 million of the problem. That package made it through the House on a close vote. When it got to the Senate, Majority Leader Randy Richardville indicated he would be more ambitious and seek Senate approval of a measure dedicating part of the sales tax for roads and restructuring the fuel tax from the retailer to the wholesaler, with adjustments for inflation. Just prior to the summer recess the issues were brought to a vote and they failed.
 
In response, the Michigan Chamber of Commerce said it would begin a petition drive to place the issue on the ballot, in an attempt to amend the State Constitution. The Chamber wants to dedicate part of the current 6-percent sales tax toward road improvement and construction. The problem with this proposal is that the School Aid Fund relies on a portion of the sales tax revenue to fund K-12 education. The Chamber proposal would leave a huge budget hole for the Legislature to fill. With that possibility looming, the Legislature may have greater incentive to act.
 
One thing that is certain, however, is that any road funding plan will include a mandate that all state and local contracts for road work contain contractor warranties regarding the life of the improvement.

 
 
House Speaker Bolger (R-Marshall) and Rep. Pete Lund (R-Shelby Twp.) have been strong supporters of revising Michigan’s 40-year-old no fault auto insurance law. Specifically, advocates say Michigan is the only state that requires unlimited personal injury protection (PIP) medical benefits. In addition, auto insurance companies are seeking a more formalized fee structure or schedule that would place a cap on the amount a provider could charge for a service.
 
Ironically, the legislation (HB 4612) pits auto insurers and business against health care providers and plaintiff’s attorneys. The measure, which was reported from the House Insurance Committee over a year ago, has failed to obtain the votes necessary for passage because Democrats oppose it and many Republicans have large hospital employers within their districts. The measure as introduced places a $1 million cap on PIP benefits. The last proposal raised the PIP cap to $10 million, but that still didn’t satisfy a majority of lawmakers. This legislation just might be part of some late session horse trading.

 
 
A number of proposals have been discussed for changing the way in which electoral votes are assigned to presidential candidates. One proposal which has gained some traction with the Republican majority is to assign the electoral votes based upon the popular vote in a given congressional district, rather than the current statewide winner-take-all system, which is employed in nearly every other state. The remaining two electoral votes would be cast for the person who won the popular vote statewide. Republicans argue such a system would be fairer than the winner-take-all system. Democrats argue the proposal is anything but fair. For instance, in 2012 President Barack Obama defeated former Massachusetts Gov. Mitt Romney by approximately 450,000 in Michigan. Yet, under the plan proposed by several Republicans, Romney would have won most of Michigan’s electoral votes, by a 9-7 margin. Senate Majority Leader Richardville has indicated he has no interest in pursuing the matter. However, Democrats point to the right-to-work legislation which was enacted in the lame duck session two years ago after Republican leadership had disavowed any interest in the issue. Republicans control both Houses of the Legislature and the Governor’s office, at least until Jan. 1, 2015. The outcome of the November election may dictate whether this proposal becomes law.

 
 
The Senate Majority Leader has taken up McLaren Health System’s cause to build a new hospital in the affluent Oakland County suburb of Clarkston. The plan is for McLaren to relocate a significant number of beds from its urban Pontiac facility to Clarkston. The matter was considered and rejected by the Certificate of Need (CON) Commission. Later, McLaren appealed the CON Commission decision in Oakland Circuit Court. The Court upheld the Commission rejection. Consequently, McLaren wants to amend the CON law to allow for the project. While there does not yet appear to be enough support for passage, this card may be played in order to obtain passage of other legislation.
 
 
 
The House and Senate have been wrangling since April over legislation that would be acceptable to both Chambers. In essence, both versions want to require a state school reform/redesign (SSRR) district officer to place the highest priority on addressing unsatisfactory results in schools with students in grades K-8. In addition, if a school restart was necessary, the legislation would require the SSRR officer to enter into a contract with an educational management corporation to manage the school. Finally, an SSRR would be considered a “school district” with authority to borrow money, issue notes and pledge state aid payments for repayment.

 
 
Two bills that revise procedures for environmental cleanup of hazardous substances are poised for enactment during lame duck session. SB 791 amends Part 215 (Refined Petroleum Fund) of the Natural Resources and Environmental Protection Act (NREPA) to alter the state’s program for funding corrective actions concerning releases from refined petroleum underground storage tank system. SB 891 amends Part 201 of NREPA to revise provisions regarding cleanup of contamination caused by a hazardous substance. One of the key provisions of the bill allows a facility owner or operator seeking exemption from liability to request and receive from the Department of Environmental Quality a determination that failure to comply with time frames mandated in Part 201 for conducting an assessment was inconsequential. The bills passed the Senate this spring and have been referred to the House Committee on Natural Resources.

 
 
Earlier this year, the Legislature passed a package of bills which in essence prohibited the sale of e-cigarettes to minors. The governor did not like the legislation, threatening his veto because the bills did not go far enough. As a matter of fact, the legislation was never formally presented to the Governor and even though passed, remains with the Senate. The Governor would like e-cigarettes treated the same as cigarettes, their use being banned in places of public gathering and accommodation and being subject to the same tax as tobacco. The compromise would appear to be having e-cigarettes taxed like tobacco, but still allowing for their use in public places.

 
 
To answer the claimed shortage of primary care physicians, APRNs seek to treat patients independent of a physician’s supervision, which would be unprecedented in the state. SB 2 would allow nurse practitioners, nurse midwives and clinical nurses to practice many facets of medicine, including conducting testing in order to reach a diagnosis. Specifically, the bill allows a nurse practitioner to engage in the practices of pathology and radiology, not exactly primary care areas of practice. Advocates say the need for patient access is palpable and APRNs practicing within their training and education can fulfill this need. Opponents say APRNs are not qualified to practice medicine. Moreover, Michigan universities have recently opened three new medical schools that will be graduating more physicians. Quality of care, they argue, should never be sacrificed for access.
 
The Senate passed the bill on a 20-18 vote. It is now with the House Health Policy Committee where the committee chair is firmly opposed. However, anything can happen in a “lame duck” session.

 
 
There was for a time this year some momentum to amend the Elliott-Larsen Civil Rights Act in order to make sexual identity a protected classification. In fact, when the U.S. Supreme Court refused to hear cases involving the issue of same sex marriage, amending the law seemed even more appropriate. However, most of the Republican majority is not strong for an amendment unless it is accompanied by strict safeguards for religious freedom and rights. In addition, the religious right and Tea Party elements of the party could make life difficult for those lawmakers planning on running again in 2016. Still, the matter is out there for possible dealing.

 
 
 
In Michigan, as is the case with other states, off year or non-Presidential year voter turnout is considerably lower. In recent years, unless there was considerable voter dissatisfaction with the head of the statewide ticket, lower voter turnout generally favored the incumbent. Based upon recent history, a lower voter turnout in 2014 would tend to favor the Republican ticket as the GOP controls all statewide elective offices. Moreover, in non-President election years, the party that does not control the White House usually makes gains in both federal and state elective offices. Another statewide elective office, that of U.S. Senator, has no incumbent with the retirement of Democrat Carl Levin, who was first elected to the post in 1978.
 
Reviewing this recent history, the odds of the Democratic Party capturing the state House and the offices of Secretary of State and Attorney General would appear slim. Given this scenario, the Democratic Party must significantly increase turnout, appeal to independent voters and exploit the opponent’s negatives.
  • INCREASE VOTER TURNOUT:  In the 2012 Presidential election, President Barack Obama defeated former Massachusetts Gov. Mitt Romney in Michigan by 450,000 popular votes. Clearly, the Democrats have to capture most of those voters in order to be competitive, not only for statewide offices but for Michigan House and Senate races as well. Generally, these are hardcore Democrats who were inspired to turn out for the President’s re-election. The Democrats must turn out their base of support, and whether that can be accomplished is a real question. Wayne County and the City of Detroit, the key to any Democrat’s aspirations, are governed by a lame duck County Executive and a newly elected Mayor picking up the pieces of governing as Detroit emerges from bankruptcy. In short, there is a lack of a serious political apparatus to get out the vote in the ground fertile for Democrats.
  • APPEAL TO INDEPENDENTS: In Michigan, elections are generally won with the help of 10 to 15 percent of voters who call themselves independents—those voting for the person as opposed to philosophy or party affiliation. Independent voters look to how they in particular, and the state in general, are doing compared to the last election. Candidate and eventual President Ronald Reagan’s famous line, “Are you better off today than you were 4 years ago,” in the 1980 debate with President Jimmy Carter is remembered to this day. Reagan’s performance and his campaign swung millions of voters to trust him and vote for him. Michigan has had a difficult economic time in the last four years under the Snyder Administration. However, last week’s unemployment figures, revealing Michigan at its lowest jobless rate since 2008, may keep independents with the Republican Party. Moreover, a recent survey indicates that a majority of likely voters believe the state is headed in the right economic direction.
  • EXPLOIT YOUR OPPONENT’S NEGATIVES: Democrats have had some success with specific groups, such as retirees, due to the imposition of the Michigan income tax on certain pensions, middle to lower income homeowners due to the repeal of the Homestead Property Tax Credit and other tax credits, a belief by some that education funding has been cut and a significant shift in the tax burden from business to individuals.  Democrats have also had some success in exploiting recent bad press the Administration has received involving appointees. All of this has had a cumulative effect and is keeping the race for Governor close.
Republicans, on the other hand, have to convince voters that things are much better than when Gov. Snyder assumed office in January 2010. In addition, the GOP can point to promptly enacted balanced budgets and, for the most part, successfully tackling significant problems such as Detroit’s bankruptcy and setting public pensions on proper footing.

 
 
According to a survey conducted on Oct. 19, incumbent Republican Gov. Rick Snyder held a 2 percentage point lead (48 percent to 46 percent) over his Democratic challenger, former Congressman Mark Schauer. The Mitchell Communications survey of just over 900 likely general election voters had an error rate of plus or minus 3.2 percent. The race has remained consistently close, although the Governor has consistently led. The Mitchell survey also showed that only 3 percent of the voters are undecided. The fact that the race remains close does not bode well for the incumbent. Still, as of now, there is no indication that Democrats will be able to amass a strong voter turnout. A day after the Mitchell survey was released, an EPIC/MRA survey placed the Governor’s lead at 8 percentage points. Most polls have consistently given the Governor the advantage by anywhere from 2-to-8 percentage points. At this stage, the edge still goes to the Governor being re-elected.

 
 
Since 1978, Carl Levin has been on the ballot as a candidate for U.S. Senate. The six term lawmaker chose not to seek a seventh term. Since early this year, the nominees of both parties were known since no one else wanted to devote the time or resources to what was thought to be, and what has become, a very expensive campaign. The Democratic candidate is Congressman Gary Peters, from West Bloomfield. The Republican candidate is former Michigan Secretary of State Terri Lynn Land, from Grand Rapids. Peters has waged an effective media and issue campaign that has thus far resonated with voters. Land, on the other hand, has so far not made her case with Michigan voters. The same Mitchell poll which gave Governor Snyder a two percentage point lead over Mark Schauer said Peters was ahead by 13 points, pointing toward a landslide win on Nov. 4.  Look for Peters to be Michigan’s next U.S. Senator.

 
 
Incumbent Republican Secretary of State Ruth Johnson should win re-election against her Democratic opponent, Godfrey Dillard, a Detroit attorney. Unlike Johnson, Dillard is not well known and has very few resources.

 
 
Incumbent Republican Attorney General Bill Schuette should win a second term. The Attorney General has made some enemies with his stands on medical marijuana and same-sex marriage, but being a candidate for statewide office on a number of occasions, he does enjoy much more name recognition than his Democratic opponent, Michigan State University Law School Professor Mark Totten. Polling has indicated that Totten runs close to Schuette. However, on Election Day, Schuette should win re-election based upon his name recognition, strong organization and vastly superior resources.

 
 
Of Michigan’s 14 congressional districts, only three can really be considered competitive in their partisan makeup and all three are held by Republicans either seeking reelection or retiring.
 
In the 1st Congressional District, incumbent Republican Dan Benishek from Crystal Falls is seeking his 3rd term. Benishek is one of the more conservative members of Congress and rode the Republican tidal wave of 2010 to victory. The district includes all of the Upper Peninsula and the northern part of the Lower Peninsula. Facing him is Democrat Jerry Cannon, a retired Brigadier General and former Sheriff of Kalkaska County. The district has a 53 percent Republican base and has a habit of returning its incumbent congressmen. Cannon has waged an effective campaign, but Benishek has more resources. If this was a Presidential election year, Cannon could perhaps pull this one out, but this is an off year election and the turnout will be smaller. Cannon will give it a competitive showing, but Benishek should prevail.
 
The 7th District is a seven county area that runs along Michigan’s border with Indiana and Ohio in the south and goes as far north as the Eaton-Ionia county line. Republican incumbent Tim Walberg first won election in 2010, ousting then Congressman and current gubernatorial candidate Mark Schauer in the Republican landslide of 2010. His Democratic opponent is a former state representative from Chelsea, Pam Byrnes. Byrnes has run a very credible campaign, but Walberg has been helped by Super PAC money. In fact, it would now appear that the Democratic Congressional Campaign Committee may be turning its sights elsewhere to fund candidate campaigns. Walberg should win reelection in this 53 percent Republican district.
 
The 8th Congressional District takes in northern Oakland County, goes through Livingston County and reaches to the Ingham-Eaton County line. Current Congressman Mike Rogers, a Republican, is not running for re-election. Former Michigan Senate Majority Leader Mike Bishop, of Rochester, emerged from the Republican primary while Ingham County Treasurer Eric Schertzing is the Democratic nominee. In an off year election, in a district like the 8th—which is 54 percent Republican—a Republican should win and Bishop probably will.
 
Michigan’s Congressional Delegation currently consists of 9 Republicans, 5 Democrats and 2 U.S. Senators that are Democrats. In 2015, the partisan composition of the delegation will in all likelihood remain the same.

 
 
Three seats are up for election on the Michigan Supreme Court. Two of those seats are held by Republican incumbents, Justices Brian Zahra and David Viviano, who was appointed by Gov. Snyder in 2013. The other Republican nominee is Kent County Circuit Court Judge James Robert Redford. The other seat is open due to the retirement of Democratic Justice Michael Cavanagh. The Democratic nominees are Court of Appeals Judge William Murphy, from Kent County, Wayne County Circuit Court Judge Deborah Thomas and personal injury attorney Richard Bernstein. Zahra, Redford, Murphy and Bernstein face off for two seats on the bench for a term of 8 years, while Viviano and Thomas vie for the two year term, which will fulfill the term of Viviano’s predecessor.
 
Zahra and Viviano have a distinct advantage because in Michigan an incumbent judge gets the benefit of that designation. Therefore, Zahra and Viviano will have the designation “Justice of the Supreme Court” on the ballot.
 
Recent polling indicated that years of advertising as the state’s preeminent personal injury firm has paid off so far for the Bernsteins. The poll has Richard Bernstein leading the pack with 32 percent, Justice Zahra with 23 percent, Judge Redford with 11 percent and Judge Murphy with 7 percent for the eight year term. For the two year term, Justice Viviano leads with 35 percent over Judge Thomas with 9 percent.
 
When all is said and done, it appears the partisan composition of the Court will remain the same as it has been for several years: five Republicans and two Democrats.

 
Going into the 2014 election, the composition of the 110 member Michigan House of Representatives is 59 Republicans, 50 Democrats and 1 Independent. In the Republican landslide of 2010, the GOP flipped 20 seats away from the Democrats, gaining the majority. In 2011, Republicans redrew district lines as the majority party does every 10 years. The redistricting strengthened the Republican base in most districts, making it even more difficult for the Democrats to capture a majority of House seats. Even with Republican districts strengthened, in the Democrats in 2012 flipped six seats, but still fell five seats from the majority. The Democrats’ gains in 2012 can be attributed in large measure to President Obama’s large, 450,000 vote win in Michigan and the landslide re-election victory for U.S. Sen. Debbie Stabenow.
 
This year, the Democrats don’t have the luxury of a popular incumbent at the top of their ballot. In contrast to 2012, the top of the ticket is headed by incumbent Gov. Rick Snyder, who currently holds a slim lead in the polls. With the exception of the race for U.S. Senate, the voters will find other statewide offices on the ballot prior to voting for members of the Legislature. These statewide offices are held by Republicans who have much greater name identification than their Democratic opponents. In addition, in 2012 some Democrats were elected in marginal or swing districts, or even districts that traditionally send a Republican to Lansing. Therefore, the prospects of the Democrats obtaining the majority in the House are slim. With the election just days away, it appears that the Republicans will keep the majority in the state House, with between 58 and 61 seats.
The GOP has held the senate majority for over 30 years. The 2010 election gave the Republican their largest senate majority in recent history. When all was said and done, the GOP had a 26-12 advantage, which meant the Democrats could not even prevent a bill they opposed from taking immediate effect upon passage. Like their House counterparts, the Republicans in the Senate drew new maps giving most of their districts a more favorable Republican base.
 
Only 8 of the 38 members of the Senate are term limited, four Democrats and four Republicans. Republican Senator Bruce Caswell has chosen not to run for re-election. That means 21 incumbent Republicans will be seeking re-election, and if all are reelected, that is more than what is needed to once again attain a majority. At this stage, the only real possibilities for the Democrats to make gains are in the open districts and in possibly one suburban Detroit district, where a conservative was elected in 2010. Still, that district is 53 percent Republican and it would appear at this stage that the incumbent Republican will be re-elected. The open seats with the best possibility of going to the Democrats are: the 20th District in Kalamazoo County, which is 53 percent Democratic; the 32nd District in Saginaw County and rural Genesee County, which is 54 percent Democratic; and the 17th District in Monroe and Lenawee Counties, which has a  50-50 partisan split. At this point, it appears the Democrats’ best hope of making any gains lie with the newly configured 20th senatorial district in Kalamazoo County. Look for the Republicans to have a strong majority once again with 24 to 25 of the 38 Senate seats.

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